UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
____________________
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT: OCTOBER 2, 1997
COMMISSION FILE NUMBER: 1-8782
GLEASON CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 16-1224655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1000 University Avenue, Rochester, New York 14692
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (716) 473-1000
____________________
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Item 5. Other Events.
Pfauter Acquisition. On July 31, 1997 the Company completed its
acquisition of The Hermann Pfauter Group ("Pfauter"), including, among other
operations, Hermann Pfauter GmbH & Co., a worldwide leader in cylindrical gear
production equipment based in Ludwigsburg, Germany, and Pfauter-Maag Cutting
Tools ("Pfauter-Maag"), a leading cutting tool manufacturer based in Rockford,
Illinois. Pfauter was founded in 1900 and has major operations in Germany,
Italy and the United States.
The Pfauter acquisition positions the Company to be a worldwide
leader in gear production equipment and related technology by combining
Pfauter's extensive line of cylindrical gear production machinery with the
Company's leading position in bevel gear equipment. Pfauter-Maag substantially
increases the Company's sales of higher-margin cylindrical gear cutting tools
and related services. In addition, the Pfauter acquisition expands the
Company's customer base to include a broad range of nonautomotive customers,
from small-gear machine users such as power tool and precision instrument
manufacturers to producers of large gears utilized in off-highway equipment and
heavy industrial applications.
The acquisition was completed for a total consideration of $91
million, including $35 million in cash and the assumption of $56 million in
bank debt. The acquisition was funded through the credit facility described
below. Management estimates that the acquisition will result in costs totaling
$9 million related to the rationalization of the Pfauter businesses which will
be accounted for as part of the purchase price. Management believes that the
Company will be able to achieve annual cost savings of a similar magnitude
after the initial two years following the acquisition. In 1996, Pfauter
generated sales of approximately $178 million and earnings before special
charges, interest, taxes, depreciation and amortization (EBITDA) of
approximately $17 million.
Credit Facility. Effective July 31, 1997 the Company entered into a
new $170 million revolving and term loan credit facility providing for multi-
currency borrowings and stand-by letters of credit and bank guarantees. The
revolving credit portion of the facility is $110 million and matures on July 1,
2002. The term loan portion is $60 million and requires repayment in equal
quarterly installments beginning on October 1, 1999. Up to $40 million of the
revolving credit facility is available for the issuance of letters of credit or
bank guarantees. The credit facility is unsecured (except for pledges of 65%
of the stock of certain designated foreign subsidiaries of the Company), and
there are no prepayment penalties.
The interest rate on the credit facility is LIBOR plus 35 basis
points through March 31, 1998. Thereafter, the rate is based on a spread above
LIBOR as determined by certain financial ratios. Facility fees are calculated
on the entire facility, regardless of usage, and are 15 basis points through
March 31, 1998 and adjust on the same basis as interest rates for periods which
follow.
The credit facility provides average borrowing costs which are
approximately 25 basis points lower than the Company's former revolving credit
facility and approximately 100 basis points lower than Pfauter's average
borrowing costs on its former secured credit facilities.
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Item 7. Financial Statements, Pro Forma Financial Statements and Exhibits.
The following Exhibits are filed as part of this report:
Exhibit
Number Description of Exhibit
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3(a) Restated Certificate of Incorporation of the Company.
3(b) By-laws of the Company, as amended.
4(a) Gleason Corporation Preferred Stock Purchase Rights Agreement, as
amended.
21 List of Subsidiaries.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned thereunto duly authorized.
GLEASON CORPORATION
Registrant
DATE: October 2, 1997 By:/s/ John J. Perrotti
John J. Perrotti
Vice President-Finance
(Chief Financial Officer)
RESTATED
CERTIFICATE OF INCORPORATION
OF
GLEASON CORPORATION
(incorporated March 15, 1984)
The Certificate of incorporation of Gleason Corporation, as
heretofore amended, is hereby restated and integrated, without further
amendment and without discrepancy between the provisions of the Certificate
of Incorporation as heretofore amended and the provisions of this restated
certificate, pursuant to adoption by the Board of Directors of the
Corporation in accordance with Section 245 of the General Corporation Law
of the State of Delaware, as follows:
FIRST: The name of the Corporation is Corporation.
SECOND: The address of the registered office of the Corporation
in the State of Delaware is The Corporation Trust Center, 1209 Orange
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Street, in the City of Wilmington, County of New Castle. The name and
address of its registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: The total number of shares of all classes of stock
which the Corporation shall have authority to issue is Nine Million Two
Hundred Fifty Thousand (9,250,000) shares of which Eight Million Seven
Hundred Fifty Thousand (8,750,000) shares shall be Common Stock with a par
value of One Dollar ($1.00) per share and Five Hundred Thousand (500,000)
shares shall be Preferred Stock with a par value of One Dollar ($1.00) per
share. A statement of the designations of the authorized classes of stock
or of any series thereof, and the powers, preferences and relative,
participation, optional or other special rights and qualifications,
limitations or restrictions thereof, or of the authority of the Board of
Directors to fix by resolution or resolutions
such designations and other terms, is as follows:
A. Preferred Stock
The shares of Preferred Stock may be issued from time to time in
one or more series. The Board of Directors is vested with authority to fix
by resolution or resolutions the designation of each series of Preferred
Stock and the powers, preferences and relative, participating, optional or
other special rights and qualifications, limitations or restrictions
thereof, including without limiting the generality of the
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foregoing, such provisions as may be desired concerning dividend rights and
rate, if any; conversion rights and rate, if any; voting rights, if any;
redemption rights (including sinking fund provisions) and redemption price
or prices, if any; liquidation preferences, if any; and such other subjects
or matters as may be fixed by resolution or resolutions of the Board of
Directors under the General Corporation Law of Delaware; and to fix the
number of shares constituting any such series, and to increase or decrease
the number of shares of any such series (but not below the number of shares
thereof then outstanding). In case the number of shares of any such series
shall be so decreased, the shares constituting such decrease shall resume
the status which they had prior to the adoption of the resolution or
resolutions originally fixing the number of shares of such series.
B. Common Stock
Subject to all of the preferences and rights of the Preferred
Stock or any series thereof that may be fixed by a resolution or
resolutions of the Board of Directors, (i) dividends may be paid on the
Common Stock of the Corporation as and when declared by the Board of
Directors, out of funds of the Corporation legally available for the
payment of such dividends, and (ii) upon dissolution or liquidation of the
Corporation, after payment of the debts of the Corporation the holders of
Common Stock shall be entitled to receive, pro rata, the remaining assets
of the Corporation. Each share of Common Stock of the Corporation shall be
entitled to one vote on all matters on which such stock is entitled tb
vote.
FIFTH: In furtherance and not in limitation of the power
conferred by statute, the Board of Directors is expressly authorized to
make, alter or repeal from time to time the By-laws of the Corporation in
any manner not inconsistent with the laws of the State of Delaware or the
Certificate of Incorporation of the Corporation.
SIXTH: No action may be taken by the stockholders without a
meeting.
SEVENTH:
1. Notwithstanding and in addition to any other
vote or votes that may be required by law or this Certificate of
Incorporation, except as otherwise provided in paragraph 2 of this
Article Seventh, any Business Combination shall require the affirmative
vote of at least (a) the holders of eighty-five percent (85%) of the
outstanding shares of Common Stock of the Corporation and (b) the holders
of two-thirds (2/3rds) of all outstanding shares of Common Stock not
Beneficially Owned by any Interested Stockholder.
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2. The provisions of paragraph I of this Article Seventh shall
not be applicable to a Business Combination if all of the conditions
specified in either the following subparagraph (a) or (b) are met:
(a) The Business Combination shall have been approved by a
majority of the Disinterested Directors; or
(b) All of the following conditions shall have been met:
(i) The aggregate amount of the cash and the Fair
Market Value as of the date of the consummation of the
Business Combination of consideration other than cash to be
received per share by all holders of Common Stock in such
Business Combination shall be at least equal to the highest
amount determined under subparagraphs (A), (B) and (C)
below:
(A) The highest price per share (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder to
acquire any share of Common Stock Beneficially Owned by
it which was acquired by it (1) within the two-year
period immediately prior to the Announcement Date or
(2) in the transaction in which it became a Major
Stockholder, whichever is higher, plus in either case
an amount equal to interest compounded quarterly from
the Determination Date through the date of consummation
of the Business Combination at the prime rate of
interest as announced from time to time by The Chase
Manhattan Bank, N.A., less in either case the aggregate
amount per share of Common Stock of any dividends paid
in cash and the Fair Market Value of any dividends paid
other than in cash from the Determination Date through
the date of consummation of the Business Combination in
an amount up to but not exceeding the amount of such
assumed interest per share of Common Stock;
(B) The Fair Market Value per share of Common
Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
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(C) The price per share equal to the Fair Market
Value per share of Common Stock determined pursuant to
subparagraph (b)(i)(B) above, multiplied by the ratio
of (1) the highest price per share (including any
brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by the Interested Stockholder for
any shares of Common Stock acquired by it within the
two-year period immediately prior to the Announcement
Date to (2) the Fair Market Value per share of common
Stock on the first day in such two-year period on which
the Interested Stockholder acquired any shares of
Common Stock.
(ii) The consideration to be received by holders of
Common Stock shall be in cash or in the same form as the
Interested Stockholder previously paid for shares of Common
Stock. If the Interested Stockholder paid for shares of
Common Stock with varying forms of consideration, the form
of consideration shall be either cash or the form used to
acquire more than fifty percent (50%) of the shares of
Common Stock previously acquired by it.
(iii) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934 and the
rules and regulations thereunder (or any subsequent
provisions replacing such Act, rules or regulations) shall
be mailed by first class mail to all stockholders of the
Corporation at least 30 days prior to the consummation of
such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to
such Act, rules or regulations, or subsequent provisions).
(iv) After the Determination Date, such Interested
Stockholder shall not have received the benefit, directly or
indirectly (except proportionately as a stockholder), of any
loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages
provided by the Corporation, whether in anticipation of or
in connection with such Business Combination or otherwise.
(v) After the Determination Date, except as approved by
a majority of the Disinterested
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Directors, (A) there shall have been no failure to declare
and pay at the regular date therefor any dividends on any
class or series of stock at not less than the highest rate
paid thereon since the date which was one (1) year prior to
the Determination Date; and (B) such Interested Stockholder
shall not have become the Beneficial Owner of any additional
shares of Voting Stock except as part of the transaction
which results in such Interested Stockholder becoming a
Major Stockholder.
(vi) Appropriate adjustment shall be made under the
provisions of this subparagraph (b) to give effect to any
stock dividends, splits, combinations, recapitalizations,
reclassifications or other such reorganizations of the
Common Stock of the Corporation during an applicable period
of time, but a distribution of shares of the Corporation's
Class A Preferred Stock, however effected, shall not be
deemed such an event.
3. For the purposes of this Article Seventh:
(a) "Affiliate" means with respect to a Person: (i) any
Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such Person, or (ii) any corporation or
organization (other than the Corporation or a Subsidiary) of
which such Person is an officer or partner or is, directly or
indirectly, the Beneficial owner of 10 percent or more of any
class of equity securities, or (iii) any trust or other estate in
which such Person has a substantial beneficial interest (but the
interest of an employee of the Corporation or a Subsidiary in a
trust under a retirement plan of the Corporation or a Subsidiary
shall not be deemed such an interest) or as to which such Person
serves as trustee or in a similar fiduciary capacity, or (iv) the
spouse of such Person, or (v) any Person with whom such Person is
acting or has agreed to act for the purpose of acquiring, holding
or voting any Voting Stock of the Corporation (but service by
Persons as co-fiduciaries of a trust or other estate will not of
itself make such Persons Affiliates).
(b) "Announcement Date" means the date of the first public
announcement of the proposal of the Business Combination.
(c) A Person shall be deemed to "Beneficially Own" or be
"Beneficial Owner" of all shares of Voting
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Stock as to which such Person, directly or indirectly, through
any ownership, contract, arrangement, understanding,
relationship, or otherwise: (i) has or shares voting power, which
includes the power to vote, or to direct the voting of, such
shares; or (ii) has or shares investment power, which includes
the power to dispose, or to direct the disposition of, such
shares; or (iii) creates or uses a trust, proxy, power of
attorney,, pooling arrangement or any other contract,
arrangement, or device with the purpose or effect of causing such
Person not to be Beneficial Owner thereof as part of a plan or
scheme to evade the requirements of this Article; or (iv) has the
right to become Beneficial Owner thereof and acquired or intends
to use such right for the purpose of effecting a Business
Combination or influencing (other than solely as an investor) or
changing control of the Corporation.
(d) "Business Combination" means any of the following:
(i) any merger or consolidation of the Corporation or
any Subsidiary with a Major Stockholder or with any other
corporation (whether or not itself a Major Stockholder)
which is, or after such merger or consolidation would be an
Affiliate of a Major Stockholder; or
(ii) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition (in one transaction or a
series of transactions) to or with a Major Stockholder or
any Affiliate of a Major Stockholder of assets of the
Corporation (including securities of any Subsidiary) or any
Subsidiary, having a Fair Market Value equal to more than
$1,000,000; or
(iii) the issuance or transfer by the Corporation or
any Subsidiary (in one transaction or a series of
transactions) of any equity securities or securities
convertible into equity securities of the corporation to a
Major Stockholder or any Affiliate of a Major Stockholder in
exchange for cash, securities or other property or
consideration (or a combination thereof); or
(iv) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation proposed by or
on behalf of a major Stockholder; or
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(v) any reclassification of securities (including any
reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the
Corporation with any of its Subsidiaries or any other
transaction (whether or not with or into otherwise involving
an Interested Stockholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the
outstanding shares of any class of equity securities or
securities convertible into equity securities of the
Corporation or any Subsidiary which is Beneficially Owned by
a Major Stockholder.
(e) "Determination Date" means the date on which the
Interested Stockholder became a Major Stockholder.
(f) "Disinterested Director" means: any member of the
original Board of Directors of the Corporation (the "Board") on
the date this Article was adopted so long as he serves
continuously as such and is not an Interested Stockholder, and
any director who is not an Interested Stockholder and who is
nominated by a majority of the then Disinterested Directors
unless at the time of such nomination or within 90 days after
such director's election a majority of the directors who were
Disinterested Directors at the time of such nomination record at
a meeting or in a writing filed with the Secretary of the
Corporation that they do not deem such director to be a
Disinterested Director; provided that there are not less than
three (3) Disinterested Directors or, if so demanded by a
majority of Disinterested Directors, not less than that number
(but in no event less than three (3)) of Disinterested Directors
which most nearly bears the same ratio to the total number of
directors of the Corporation as the number of outstanding shares
of Common Stock of the Corporation not Beneficially Owned by an
Interested Stockholder bears to the total number of outstanding
shares of Common Stock of the Corporation.
(g) "Fair Market Value" means: (i) in the case of Common
Stock of the Corporation, the highest closing sale price, and in
the case of any other stock, the average closing sale price,
during the 30-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New
York Stock Exchange-Listed Stocks, or, if such stock is not
quoted on the Composite Tape, on the New York Stock Exchange, or,
if such stock is not listed on such Exchange, on the principal
United States securities exchange
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registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest, or average, as the case may be, closing
bid quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National
Association of Securities Dealers, Inc., Automated Quotations
System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a
share of such stock as determined in good faith by a majority of
Disinterested Directors; and (ii) in the case of property other
than cash or stock, the fair market value of such property on the
date in question as determined in good faith by a majority of
Disinterested Directors.
(h) "Interested Stockholder" means a, and each, Major
Stockholder whose involvement in or connection with a transaction
described in paragraph 3(d) causes it to be a Business
Combination, and shall include any Affiliate of such Major
Stockholder.
(i) "Major Stockholder" means any Person (other than the
Corporation or any Subsidiary) which, together with its
Affiliates, is the Beneficial Owner, directly or indirectly, of
ten percent (10%) or more of the outstanding shares of Common
Stock or of the combined voting power of the outstanding shares
of all Voting Stock of the Corporation. For the purposes of
determining whether a Person is a Major Stockholder, the number
of shares of Voting Stock deemed to be outstanding shall include
shares of which such Person is deemed to be Beneficial Owner
through application of paragraph 3(c) but shall not include any
other shares of Voting Stock which may be issuable pursuant to
any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.
(j) "Person" means any individual, partnership, corporation
or other entity.
(k) "Subsidiary" means any corporation of which a majority
of any class of equity security is owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes of
the definition of Major Stockholder, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of
equity security is owned, directly or indirectly, by the
Corporation.
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(l) "Voting Stock" means any class of stock then entitled to
vote in the election of directors of the Corporation or with
respect to the approval of a Business Combination.
4. A majority of Disinterested Directors shall have the power
and duty to determine, on the basis of information known to them after
reasonable inquiry, all facts necessary to determine compliance with this
Article Seventh, including, without limitation, (a) whether a person is a
Major Stockholder or an Interested Stockholder (b) the number of shares of
Voting Stock Beneficially owned by any Person, (c) whether a Person is an
Affiliate of another, (d) whether the applicable conditions set forth in
paragraph 2(b) have been met with respect to any Business Combinations and
(e) whether the assets or securities which are the subject of any
transaction are such as to render such transaction a Business Combination;
and a majority of Disinterested Directors, other than a director as to whom
there may be a bona fide question as to whether he is a Disinterested
Director, shall have such power and duty to determine whether such director
is or is not a Disinterested Director; and the good faith determination of
the Disinterested Directors on such matters shall be conclusive and binding
for all purposes of this Article Seventh.
5. Notwithstanding any lesser vote that might be required by
law or any other provision of this Certificate of Incorporation, the
affirmative vote of (a) eighty-five percent (85%) of the outstanding Common
Stock,, and (b) two-thirds (2/3rds) of the outstanding Common Stock not
Beneficially Owned by any Major Stockholder shall be required to amend,
repeal, or adopt any provision inconsistent with this Article Seventh;
provided, however, that only such affirmative vote as is otherwise required
by law or any other provision of this Certificate of Incorporation shall be
required to amend, repeal or adopt any inconsistent provision if it has
been approved by a majority of the Board including a majority of directors
who would be Disinterested Directors if all Major Stockholders were
Interested Stockholders.
EIGHTH: Notwithstanding and in addition to any other vote or
votes that might be required by law, the affirmative vote of two-thirds of
the outstanding Common Stock of the Corporation entitled to vote thereon
shall be required to authorize a merger or consolidation of the Corporation
with any other corporation, or the sale, lease or exchange of all or
substantially all of the property and assets of the Corporation, if a vote
of the stockholders of the Corporation is required by the laws of Delaware
to authorize the transaction.
NINTH: The Corporation reserves the right at any time and from
time to time to amend, alter or repeal any
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provision contained in this Certificate of Incorporation in the manner now
or as hereafter prescribed by law or this Certificate of Incorporation, and
all rights, preferences and privileges conferred upon stockholders,
directors and officers by and pursuant to this Certificate of Incorporation
in its present form or as hereafter amended are subject to the rights
reserved in this Article.
TENTH: No director of the Corporation shall be held personally
liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except (1) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (2) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) under Section 174 of the General
Corporation Law, or (4) for any transaction from which the director derived
an improper personal benefit. Any repeal of this Article, or any amendment
of this Article insofar as it would in any way enlarge the liability of any
director of the Corporation, shall be ineffective with respect to any acts
or omissions occurring prior to the date of such repeal or amendment.
IN WITNESS WHEREOF, the undersigned has signed this Certificate
this 5th day of May, 1987.
/s/ James S. Gleason
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Chairman and President
ATTEST:
/s/ Morton A. Polster
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Secretary
As Amended May 7, 1991
BY-LAWS
OF
GLEASON CORPORATION
ARTICLE I
STOCKHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
stockholders for the election of directors and the transaction of other
business shall be held on such date during the month of May as the Board
of Directors may designate.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
stockholders may be called at any time by the Board of Directors.
SECTION 3. PLACE OF MEETING. Meetings of stockholders of the
Corporation shall be held at such place, either within or without the
State of Delaware, as shall be fixed by the Board of Directors and
specified in the notice of said meeting. Unless otherwise provided by
action of the Board of Directors, all meetings of stockholders shall be
held at the principal office of the Corporation.
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SECTION 4. NOTICE OF MEETINGS.
(a) Notice of each meeting of stockholders shall be in writing
and shall state the place, date, and hour of the meeting. Notice of a
special meeting shall state the purpose or purposes for which the
meeting is being called and shall indicate that the notice is being
issued by or at the direction of the person or persons calling the
meeting. If, at any meeting, action is proposed to be taken which
would, if taken, entitle stockholders to the appraisal rights of Section
262 of the Delaware General Corporation Law, the notice of such meeting
shall indicate that appraisal rights are available and shall include a
copy of Section 262 of the Delaware General Corporation Law.
(b) A copy of the notice of any meeting shall be given
personally or by mail not less than ten (10) (not less than twenty (20)
if action is proposed to be taken which would, if taken, entitle
stockholders to the appraisal rights of Section 262 of the Delaware
General Corporation Law) nor more than sixty (60) days before the date
of the meeting to each stockholder entitled to vote at the meeting. If
mailed, such notice is given when deposited in the United States mail,
postage prepaid, directed to the stockholder at his address as it
appears on the records of the Corporation.
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(c) Notice of meetings need not be given to any stockholder
who submits a signed waiver of notice in person or by proxy whether
before or after the meeting. The attendance of any stockholder at a
meeting in person or by proxy shall constitute a waiver of notice of
such meeting, except when the person attends a meeting for the express
purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called
or convened.
SECTION 5. QUORUM. At any annual or special meeting of the
stockholders, except where otherwise provided by law or the Certificate
of Incorporation, the holders of a majority of the shares entitled to
vote thereat, present in person or by proxy, shall constitute a quorum
for the transaction of any business. When a quorum is once present to
organize a meeting, it is not broken by the subsequent withdrawal of any
stockholders.
SECTION 6. ADJOURNED MEETINGS. The stockholders present at a
meeting in person or by proxy may adjourn the meeting to another time
and place, despite the absence of a quorum, and it shall not be
necessary to give any notice of the adjourned meeting, if the time and
place to which the meeting is adjourned are announced at the meeting at
which the adjournment is taken. However, if the adjournment is for more
than thirty days, or if after the
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adjournment the Board fixes a new record date for the adjourned meeting,
a notice of the adjourned meeting shall be given to each stockholder of
record on the new record date entitled to notice under Section 4 of this
Article 1. At the adjourned meeting any business may be transacted that
might have been transacted on the original date of the meeting.
SECTION 7. PROXIES.
(a) Every stockholder entitled to vote at a meeting of
stockholders may authorize another person or persons to act for him by
proxy, but no such proxy shall be voted or acted upon after three years
from its date, unless the proxy provides for a longer period.
(b) Without limiting the manner in which a stockholder may
authorize another person or persons to act for him as proxy pursuant to
Subsection (a) of this Section, the following shall constitute a valid
means by which a stockholder may grant such authority:
(i) A stockholder may execute a writing authorizing
another person or persons to act for him as proxy, execution
thereof being accomplished by the stockholder or his authorized
officer, director, employee or agent signing such writing or
causing his or her signature to be
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affixed to such writing by any reasonable means including, but
not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons
to act for him as proxy by transmitting or authorizing the
transmission of a telegram, cablegram, or other means of
electronic transmission to the person who will be the holder of
the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such telegram, cablegram or
other means of electronic transmission must either set forth or
be submitted with information from which it can be determined
that the telegram, cablegram or other electronic transmission
was authorized by the stockholder. If it is determined that
such telegrams, cablegrams or other electronic transmissions
are valid, the inspectors shall specify the information upon
which they relied.
(c) Any copy, facsimile telecommunication or
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other reliable reproduction of the writing or transmission created
pursuant to Subsection (b) of this Section may be substituted or used in
lieu of the original writing or transmission for any and all purposes
for which the original writing or transmission could be used, provided
that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or
transmission.
SECTION 8. ORGANIZATION. At every meeting of stockholders,
the Chief Executive Officer or, in his absence, the Chairman of the
Board or the President or, in the absence of all of them, such person as
the Board of Directors shall designate shall act as chairman of the
meeting, unless the stockholders shall appoint another chairman. The
Secretary or, in his absence, an Assistant Secretary, shall act as
secretary of the meeting, and, in the absence of both the Secretary and
an Assistant Secretary, a person selected by the chairman of the meeting
shall act as secretary of the meeting.
SECTION 9. VOTING.
(a) At each meeting of stockholders each stockholder of record
of the Corporation entitled to vote at the meeting shall be entitled to
cast one vote for each share of stock of the Corporation registered in
his name on the books of the Corporation on the record date for the
<PAGE>
7
meeting. Whenever any corporate action, other than the election of
directors, is to be taken by a vote of the stockholders, it shall,
except as otherwise required by law or by the Certificate of
Incorporation, be authorized by a majority of the votes cast at a
meeting of stockholders by the holders of shares entitled to vote
thereon.
(b) The Board of Directors, or the Chief Executive Officer, or
such other officer as will in his absence preside at the meeting, shall,
in advance of any meeting of stockholders, appoint one or more
inspectors to act at the meeting and to make a written report thereof,
and may designate one or more persons as alternate inspectors to replace
any inspector who fails to act. If no inspector or alternate is able to
act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting. Each
inspector, before entering upon the discharge of his duties, shall take
and sign an oath faithfully to execute the duties of an inspector with
strict impartiality and according to the best of his ability.
(c) The inspectors shall (i) ascertain the number of shares
outstanding and the voting power of each, (ii) determine the shares
represented at a meeting and the validity of proxies and ballots, (iii)
count all votes and
<PAGE>
8
ballots, (iv) determine and retain for a reasonable period a record of
the disposition of any challenges made to any determination by the
inspectors, and (v) certify their determination of the number of shares
represented at the meeting, and their count of all votes and ballots.
The inspectors may appoint or retain other persons or entities to assist
them in the performance of their duties as inspectors.
(d) The time of the opening and the closing of the polls for
each matter upon which the stockholders will vote at a meeting shall be
announced at the meeting. No ballot, proxies or votes, nor any
revocations thereof or changes thereto, shall be accepted by the
inspectors after the closing of the polls.
(e) In determining the validity and counting of proxies and
ballots, the inspectors shall be limited to an examination of the
proxies, any envelopes submitted with those proxies, and information
provided in accordance with Section 7(b)(2) of this Article I, ballots
and the regular books and records of the Corporation, except that the
inspectors may consider other reliable information for the limited
purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more
votes than the holder of a proxy is authorized by the record
<PAGE>
9
owner to cast or more votes than the stockholder holds of record. If
the inspectors consider other reliable information for the limited
purpose permitted herein, they shall at the time they make their
certification pursuant to Subsection (c)(v) of this Section 9 specify
the precise information considered by them including the person or
persons from whom they obtained the information, when the information
was obtained, the means by which the information was obtained and the
basis for the inspectors' belief that such information is accurate and
reliable.
SECTION 10. LIST OF STOCKHOLDERS. It shall be the duty of the
Secretary or other officer of the Corporation who shall have charge of
its stock ledger, either directly or through another officer of the
Corporation designated by him or through a transfer agent or transfer
clerk appointed by the Board of Directors, to prepare and make, at least
ten (10) days before every meeting of stockholders, a complete list of
the stockholders entitled to vote thereat, arranged in alphabetical
order and showing the address of each stockholder and the number of
shares registered in the name of each stockholder and the number of
shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for a purpose germane to the
meeting, during ordinary business
<PAGE>
10
hours, for said ten (10) days, either at a place within the city where
the meeting is to be held, which place shall be specified in the notice
of meeting, or, if not so specified, at the place where the meeting is
to be held. This list shall be produced and kept at the time and place
of the meeting during the whole time thereof and may be inspected by any
stockholder who is present thereat. The original or duplicate stock
ledger shall be the only evidence as to who are the stockholders
entitled to examine the stock ledger, such list or the books of the
Corporation, or to vote in person or by proxy at such meeting.
SECTION 11. INTRODUCTION OF BUSINESS AT A MEETING OF
STOCKHOLDERS. At an annual meeting of stockholders, only such business
shall be conducted, and only such proposals shall be acted upon, as
shall have been properly brought before the annual meeting of
stockholders (a) by, or at the direction of, the Board of Directors, or
(b) by a stockholder of the Corporation who complies with the procedures
set forth in this Section 11. For business or a proposal to be properly
brought before an annual meeting, of stockholders by a stockholder, the
stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a stockholder's notice must
be delivered to or mailed and
<PAGE>
11
received at the principal executive offices of the Corporation not less
than 60 days nor more than 90 days prior to the scheduled date of the
annual meeting, regardless of any postponement, deferrals or
adjournments of that meeting to a later date; PROVIDED, HOWEVER, that if
less than 70 days' notice or prior public disclosure of the date of the
annual meeting is given or made to stockholders, notice by the
stockholder to be timely must be so delivered or received not later than
the close of business on the 10th day following the earlier of (i) the
day on which such notice of the date of the meeting was mailed or (ii)
the day on which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to
each matter the stockholder proposes to bring before an annual meeting
of stockholders (i) a description, in 500 words or less, of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and
address, as they appear on the Corporation's books, of the stockholder
proposing such business and any other stockholder proposing such
business and any other stockholders known by such stockholder to be
supporting such proposal, (iii) the class and number of shares of the
Corporation which are beneficially owned by
<PAGE>
12
such stockholder ont he date of such stockholder's notice and by any
other stockholders known by such stockholder to be supporting such
proposal on the date of such stockholder's notice, (iv) a description,
in 500 words or less, of any interest of the stockholder in such
proposal, and (v) a representation that the stockholder is a holder of
record of stock of the Corporation and intends to appear in person or by
proxy at the meeting to present the proposal specified in the notice.
Notwithstanding anything in the By-Laws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance
with the procedures set forth in this Section 11.
The Chairman of the meeting shall, if the facts warrant,
determine and declare to the meeting that the business was not properly
brought before the meeting in accordance with the procedures prescribed
by the By-Laws, and if he should so determine, he shall so declare to
the meeting and any such business not properly brought before the
meeting shall not be transacted. Notwithstanding the foregoing, nothing
in this Section 11 shall be interpreted or construed to require the
inclusion of information about any such proposal in any proxy statement
distributed by, at the direction of, or on behalf of, the board of
directors.
<PAGE>
13
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. POWER OF BOARD AND QUALIFICATION OF DIRECTORS. The
business and affairs of the Corporation shall be managed under the
direction of its Board of Directors. A director need not be a
stockholder.
SECTION 2. NUMBER AND TERM.
(a) The Board of Directors shall consist of not less than five
nor more than fifteen members, the number of directors within such limits
to be determined from time to time by resolution of a majority of the
entire Board of Directors, provided that no decrease in the number of
directors shall shorten the term of any incumbent director.
(b) The Board of Directors shall be divided into three classes
of approximately equal number. The term of one class of directors shall
expire at each annual meeting. SECTION 3. ELECTION.
(a) Directors shall, except as otherwise required by law, be
elected by a plurality of the votes cast at a meeting of stockholders by
the holders of shares entitled to vote in the election.
(b) At each annual meeting one class of directors shall be
elected, each to hold office until the third succeeding annual meeting
and until his successor
<PAGE>
14
has been elected and has qualified. A director elected to a newly
created directorship shall be elected to hold office until the
expiration of the terms of the other directors in the class to which he
is assigned, and a director elected to fill a vacancy shall be elected
to fill such vacancy for the remainder of such term.
SECTION 4. RESIGNATION AND REMOVAL. Any director may resign
at any time by giving written notice to the Corporation. Such
resignation shall take effect at the time specified in such notice or,
if no time is specified, on delivery. Any or all of the directors may
be removed for cause by vote of the stockholders.
SECTION 5. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Newly
created directorships and vacancies occurring in the Board of Directors
for any reason may be filled by a majority of the directors then in
office, although less than a quorum or by a sole remaining director.
SECTION 6. ORGANIZATIONAL AND REGULAR MEETINGS. As soon as
practical after each annual election of directors, the Board of
Directors shall meet for the purposes of organization, the election of
officers and the transaction of other business. Regular meetings of the
Board of Directors shall be held at such place or places and on such
days and at such hours as the Board of
<PAGE>
15
Directors may by resolution appoint. Notice of organizational meetings
and regular meetings need not be given.
SECTION 7. SPECIAL MEETINGS. Special meetings of the Board of
Directors may be called by the Chairman of the Board or President or by
any two directors. Notice of a special meeting shall state the date,
place and time of such meeting, and shall be deemed sufficient if given
orally, delivered in writing or sent by telegram not less than twelve
(12) hours before the meeting or mailed not less than forty-eight (48)
hours before the meeting.
SECTION 8. WAIVER OF NOTICE. Notice of a meeting need not be
given to any director if waived by him in writing or by telegraph,
cable, wireless, or other form of recorded communication, whether before
or after the meeting or who attends the meeting.
SECTION 9. QUORUM AND ACTION BY THE BOARD.
(a) Except as otherwise provided by law or the Certificate of
Incorporation, a majority of the entire Board of Directors shall
constitute a quorum for the transaction of business, and the affirmative
vote of a majority of directors present at the time of the vote, if a
quorum is present, shall be the act of the Board.
(b) Any action required or permitted to be taken by the Board
of Directors, or any committee thereof, may
<PAGE>
16
be taken without a meeting if all members of the Board or committee, as
the case may be, consent thereto in writing and such writing or writings
are filed with the minutes of the proceedings of the Board or committee.
(c) Any one or more members of the Board of Directors, or any
committee thereof, may participate in a meeting of such Board or
committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting by such means shall
constitute presence in person at a meeting.
SECTION 10. ADJOURNED MEETINGS. A majority of the directors
present at a meeting, whether or not a quorum is present, may adjourn
the meeting to another time and place without notice to any director,
except that such notice shall be given to all directors not present at
the time of adjournment if such adjournment is to a time more than
forty-eight (48) hours subsequent.
SECTION 11. COMPENSATION. The Board of Directors shall have
authority to fix the compensation of directors for services in any
capacity and shall fix the compensation of the Chairman of the Board and
President.
SECTION 12. INTERESTED DIRECTORS.
(a) No contract or other transaction between the Corporation
and one or more of its directors or officers,
<PAGE>
17
or between the Corporation and any other corporation, firm, association
or other organization in which one or more of its directors or officers
are directors or officers, or have a financial interest, shall be void
or voidable solely for this reason or solely because such director or
officer is present at or participates in the meeting of the Board of
Directors, or committee thereof, which authorizes such contract or
transaction, or solely because his or their votes are counted for
purpose, if:
(1) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or are known to the
Board or committee and the Board or committee, in good faith authorizes
such contract or transaction by the affirmative votes of a majority of
the disinterested directors, even though the disinterested directors be
less than a quorum, or
(2) The material facts as to his relationship or interest
and as to the contract or transaction are disclosed or known to the
stockholders entitled to vote thereon, and such contract or transaction
is specifically approved in good faith by vote of the stockholders, or
(3) The contract or transaction is fair as to the Corporation
at the time it is authorized, approved, or ratified by the Board, a
committee thereof, or the stockholders.
<PAGE>
18
SECTION 13. NOMINATIONS AND QUALIFICATIONS OF DIRECTORS.
Subject to the rights of holders of Preferred Stock, only persons
nominated in accordance with the procedures set forth in this Section
shall be eligible for election as directors. Nominations of persons for
election to the Board may be made at an annual meeting of stockholders
or special meeting of stockholders called by the Board of Directors for
the purpose of electing directors (i) by or at the direction of the
Board, or (ii) by any stockholder of the Corporation entitled to vote
for the election of directors at such meeting who complies with the
notice procedures set forth in this Section 13. Such nominations, other
than those made by or at the direction of the Board, shall be made
pursuant to timely notice in writing to the Secretary of the
Corporation. To be timely, a stockholder's notice must be delivered to
or mailed and received at the principal executive offices of the
Corporation not less than 60 days nor more than 90 days prior to the
scheduled date of the meeting, regardless of postponements, deferrals,
or adjournments of that meeting to a later date; PROVIDED, HOWEVER, that
if less than 70 days' notice or prior public disclosure of the date of
the meeting is given or made to stockholders, notice by the stockholder
to be timely must be so delivered or received not later than the close
of
<PAGE>
19
business on the 10th day following the earlier of (i) the day on which
such notice of the date of such meeting was mailed or (ii) the day on
which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as
to each person whom the stockholder proposes to nominate for election or
reelection as a director
(a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c)
the class and number of shares of the Corporation which are beneficially
owned by such person on the date of such stockholder's notice and (d)
any other information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (including without
limitation such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (ii) as
to the stockholder giving the notice
(a) the name and address, as they appear on the Corporation's books, of
such stockholder and any other stockholders known by such stockholder to
be supporting such nominees, (b) the class and number of shares of the
Corporation which are beneficially owned by such
<PAGE>
20
stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such nominee(s)
on the date of such stockholder's notice, (c) a representation that the
stockholder is a holder of record of stock of the Corporation entitled
to vote at such meeting and intends to appear in person or by proxy at
the meeting to nominate the person or persons specified in the notice;
and (iii) a description of all arrangements or understandings between
the stockholder and each nominee and other person or persons (naming
such person or persons) pursuant to which the nomination or nominations
are to be made by the stockholder.
No persons shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth
in this Section 13. The Chairman of the meeting shall, if the facts
warrant, determine and declare to the meeting that a nomination was not
made in accordance with the procedures prescribed by the By-Laws, and if
he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
<PAGE>
21
ARTICLE III
COMMITTEES
SECTION 1. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the whole Board, designate from among
its members one or more committees each of which shall consist of three
or more directors and shall serve at the pleasure of the Board. The
Board may designate one or more directors as alternate members of any
such committee who may replace any absent or disqualified member at any
meeting of such committee. In the absence or disqualification of a
member of a committee, the member or members thereof present at any
meeting and not disqualified from voting, whether or not he or they
constitute a quorum, may unanimously appoint another member of the Board
to act at the meeting in the place of any such absent or disqualified
member. Each committee shall have such powers and authority as provided
in the resolution of the Board, but no committee shall have power or
authority in reference to:
(1) Amending the Certificate of Incorporation (except that a
committee may, to the extent authorized in the resolution
or resolutions providing for the issuance of shares of
stock adopted by the Board of Directors as provided in
Section 151(a) of the Delaware General Corporation Law,
fix any of the preferences or rights of such shares
relating to dividends, redemption,
<PAGE>
22
dissolution, any distribution of assets of the Corporation
or the conversion into, or the exchange of such shares
for, shares of any other class or classes or any other
series of the same or any other class or classes of stock
of the Corporation).
(2) Amending the By-laws of the Corporation.
(3) Adopting an agreement of merger or consolidation.
(4) Recommending to the stockholders the sale, lease or
exchange of all or substantially all of the Corporation's
property and assets.
(5) Recommending to the stockholders a dissolution of the
Corporation or a revocation of a dissolution.
Unless a resolution of the Board expressly so provides, no committee
shall have the power or authority to declare a dividend, to authorize
the issuance of stock, or to adopt a certificate of ownership and merger
pursuant to Section 253 of the Delaware General Corporation Law.
SECTION 2. RULES OF PROCEDURE. Except to the extent otherwise
determined by the Board of Directors, each committee shall fix its own
rules of procedure. Regular meetings of each committee shall be held at
such times as may be fixed from time to time by resolution of the Board
or the committee. Special meetings shall be held whenever called by the
Chief Executive Officer or the chairman of the committee. No notice
need be given of regular meetings. Notice of special meetings shall
comply
<PAGE>
23
with Article II, Section 7, of the By-laws. At all meetings of
committees a majority of the members of the committee shall constitute a
quorum.
ARTICLE IV
OFFICERS
SECTION 1. OFFICERS ENUMERATED. The officers of the
Corporation shall be a Chairman of the Board, President, one or more
Vice Presidents, a Secretary and a Treasurer, and such other officers as
the Board of Directors may in its discretion elect or appoint. Any two
or more offices may be held by the same person.
SECTION 2. CHAIRMAN OF THE BOARD. The Chairman of the Board
of Directors, if there is one, shall preside at all meetings of the
Board of Directors at which he is present, and shall, if he is not the
Chief Executive Officer, perform such other duties and exercise such
other powers which may from time to time be assigned to him by the Chief
Executive Officer or the Board of Directors.
SECTION 3. PRESIDENT. The President shall, in the absence of
the Chairman of the Board, preside at all meetings of the Board of
Directors at which he is present, and shall, if he is not the Chief
Executive Officer, perform such other duties and exercise such other
powers
<PAGE>
24
which may from time to time be assigned to him by the Chief Executive
Officer or the Board of Directors.
SECTION 4. CHIEF EXECUTIVE OFFICER. The Chief Executive
Officer shall be either the Chairman of the Board or the President, as
the Board of Directors shall from time to time determine, and shall have
general powers and duties of management of the Corporation's business
and affairs, subject to the control of the Board of Directors, shall
preside at meetings of stockholders and shall perform such duties which
may from time to time be assigned to him by the Board of Directors. The
duties of the Chief Executive Officer shall in the event of his absence
or disability be performed by such other officer as he or the Board of
Directors shall designate.
SECTION 5. VICE PRESIDENTS. The Vice President or, if there
be more than one, Vice Presidents may be designated by such title or
titles as the Board of Directors may determine, and each Vice President
shall perform such duties as may be assigned to him from time to time by
the Chief Executive Officer or the Board of Directors.
SECTION 6. TREASURER. The Treasurer shall have the care and
custody of the funds and securities of the Corporation, shall deposit
such funds in the name of the Corporation in such banks, trust companies
or other
<PAGE>
25
depositories as are designated by the Board of Directors, shall have
supervision over the accounts of receipts and disbursements of the
Corporation, shall sign such instruments as require his signature, and
shall perform such other duties as usually pertain to his office or as
may be assigned to him by the Chief Executive Officer or the Board of
Directors.
SECTION 7. SECRETARY. The Secretary, when authorized by the
Board of Directors, shall issue notices of all meetings of stockholders,
and, when authorized by the Chairman of the Board, the President or any
two directors, shall issue notices of meetings of the Board of Directors
where notice is required, shall keep the minutes of all meetings of
stockholders and the Board of Directors, shall sign such instruments as
require his signature, shall be custodian of the corporate seal and
shall affix it to documents on which it is duly required, and shall
perform such other duties as usually pertain to his office or as may be
assigned to him by the Chief Executive Officer or the Board of
Directors.
SECTION 8. OTHER OFFICERS. The Board of Directors may elect
or appoint such other officers as from time to time it may determine,
which officers shall perform such duties as may be assigned to them by
the Chief Executive Officer or the Board of Directors.
<PAGE>
26
SECTION 9. TERM OF OFFICES. The officers required by Section
1 of this Article IV shall be elected or appointed annually by the Board
of Directors at its organizational meeting following the annual meeting
of stockholders. Unless a shorter term is provided by the Board when
electing or appointing each officer, each officer shall hold office
until the organizational meeting of the Board following the next annual
meeting of stockholders and until his successor, if one is required, has
been elected or appointed and qualified.
SECTION 10. REMOVAL OF OFFICERS. Any officer may be removed
by the Board of Directors, with or without cause, at any time. Removal
of an officer without cause shall be without prejudice to his contract
rights, if any, but his election as an officer shall not of itself
create contract rights.
SECTION 11. RESIGNATIONS. Any officer may, subject to any
contract rights of the Corporation, resign at any time by giving written
notice to the Secretary. Such resignation shall take effect at the time
specified in such notice or, if no time is specified, on delivery.
SECTION 12. PROXIES IN RESPECT OF SECURITIES OF OTHER CORPORATIONS.
Unless otherwise provided by resolution adopted by the Board of
Directors, the Chairman of the Board, the President, a Vice President,
or the
<PAGE>
27
Secretary or an Assistant Secretary or the Treasurer or an Assistant
Treasurer, or any one of them, may exercise or appoint an attorney or
attorneys, or an agent or agents, to exercise in the name and on behalf
of the Corporation the powers and rights which the Corporation may have
as the holder of stock or other securities in any other corporation to
vote or to consent in respect of such stock or other securities; may
instruct the person or persons so appointed as to the manner of
exercising such powers and rights; and may execute or cause to be
executed in the name and on behalf of the Corporation and under its
corporate seal, or otherwise, all such ballots, consents, proxies,
powers of attorney or other written instruments as they or any of them
may deem necessary in order that the Corporation may exercise such
powers and rights. Any stock or other securities in any other
corporation which may from time to time be owned by or stand in the name
of the Corporation may, without further action, be endorsed for sale or
transfer or sold or transferred by the Chairman of the Board, the
President or a Vice President, or the Secretary or an Assistant
Secretary or the Treasurer or an Assistant Treasurer of the Corporation.
<PAGE>
28
ARTICLE V
STOCK CERTIFICATES AND THEIR TRANSFER
SECTION 1. STOCK CERTIFICATES. The shares of the Corporation
shall be represented by certificates. Every stockholder shall be
entitled to have a certificate in such form as approved from time to
time by the Board of Directors representing the shares of stock of the
Corporation owned by him, signed by, or in the name of the Corporation
by the Chairman of the Board, the President or a Vice President and by
the Treasurer or an Assistant Treasurer or by the Secretary or an
Assistant Secretary. Any or all of the signatures on the certificate
may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed on a
certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he were such officer, transfer
agent or registrar at the date of issue.
SECTION 2. TRANSFER OF SHARES. Shares of the Corporation
shall be transferred on the books of the Corporation only upon surrender
to the Corporation or its authorized transfer agent of the certificate
duly endorsed
<PAGE>
29
or accompanied by proper evidence of succession, assignment or authority
to transfer. Every certificate surrendered to the Corporation shall be
cancelled, and no new certificate shall be issued in exchange therefor
until the old certificate has been surrendered and cancelled. The Board
of Directors shall have power and authority to make all such rules and
regulations as it may deem expedient, not inconsistent with this section
of the
by-laws, concerning the issue, registration and transfer of certificates
for shares, and may appoint transfer agents and registrars thereof.
SECTION 3. REGISTERED STOCKHOLDERS. Except as otherwise
provided by law, the Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of
shares to receive dividends or other distributions, and to vote as such
owner, and shall not be bound to recognize any equitable or legal claim
to or interest in such share or shares on the part of any person.
SECTION 4. RECORD DATE.
(a) For the purpose of determining the stockholders entitled
to notice of, or vote at, any meeting of stockholders or any adjournment
thereof, or determining stockholders entitled to receive payment of any
dividend or other distribution or the allotment or any
<PAGE>
30
rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix in advance a record date which
shall be not more than sixty (60) nor less than ten (10) days before the
date of any such meeting, nor more than sixty (60) days prior to any
other such action.
(b) In each such case, except as otherwise provided by law,
only such persons as shall be stockholders of record on the date so
fixed shall be entitled to notice of, and to vote at, such meeting and
any adjournment thereof, or to receive payment of such dividend or such
allotment of rights, or otherwise to be recognized as stockholders for
the purpose of any other action affecting the interests of stockholders,
notwithstanding any registration of transfer of shares on the books of
the Corporation after any such record date so fixed.
SECTION 5. LOST, STOLEN OR DESTROYED CERTIFICATES. The Board
of Directors may direct a new certificate for shares to be issued in
place of any certificate theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate to be lost or
destroyed. When authorizing
<PAGE>
31
such issue of a new certificate, the Board, may, in its discretion, and
as a condition precedent to the issuance thereof, require the owner of
such allegedly lost, stolen or destroyed certificate, or his legal
representative, to give the Corporation a bond sufficient to indemnify
it against any claim that may be made against the Corporation on account
of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
ARTICLE VI
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends on the outstanding shares of
the Corporation may be declared and paid out of the surplus or in the
case there shall be no such surplus, out of its net profits for the
fiscal year in which the dividend is declared and/or the preceding
fiscal year, as often and in such amounts as the Board of Directors may
determine.
SECTION 2. OBLIGATIONS. All checks, drafts and other orders
for the payment of money out of the funds of the Corporation and all
notes or other evidence of indebtedness of the Corporation shall be
signed on behalf
<PAGE>
32
of the Corporation by such officer or officers or other person or
persons as shall be designated by the Board of Directors.
SECTION 1. SEAL. The seal of the Corporation shall be in the
form approved by the Board of Directors and shall at least bear the name
of the Corporation and its year of incorporation.
SECTION 4. FISCAL YEAR. The fiscal year of the Corporation
shall end on December 31 of each year.
ARTICLE VII
INDEMNIFICATION
SECTION 1. INDEMNIFICATION. To the full extent authorized by
law, the Corporation shall indemnify any person made, or threatened to
be made, a party in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he is or was a director or officer of the
Corporation, or is serving or served any other corporation, or any
partnership, joint venture, trust, employee benefit plan or other
enterprise, in any such capacity at the request of the Corporation,
("indemnitee") against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement
<PAGE>
33
actually and reasonably incurred by him in connection therewith.
SECTION 2. ADVANCEMENT OF EXPENSES. Expenses actually and
reasonably incurred by an indemnitee in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon an
undertaking by or on behalf of such indemnitee to repay such amount if
it shall ultimately be determined, by final judicial decision from which
there is no further right of appeal, that he is not entitled to be
indemnified by the Corporation. The indemnitee shall, however,
cooperate in good faith with any request by the Corporation that common
counsel be used by parties to such action or proceeding who are
similarly situated unless it would be inappropriate to do so because of
actual or potential conflicts between the interests of such parties.
SECTION 3. SUIT FOR INDEMNIFICATION. If a claim for
indemnification under Section 1 is not paid in full within sixty days,
or if a claim for advancement of expenses under Section 2 is not paid in
full within twenty days, after receipt of the written claim by the
Corporation, the indemnitee may at any time thereafter prior to such
payment bring suit against the Corporation to recover the unpaid amount
of the claim. If successful
<PAGE>
34
in whole or in part in such suit, the indemnitee shall be entitled also
to recover from the Corporation that proportion of the expenses
(including attorneys' fees) actually and reasonably incurred by him in
such suit as the amount recovered therein bears to the amount of his
unpaid claim or claims sued upon. Neither the failure of the Board of
Directors, legal counsel or the stockholders of the Corporation to make
a determination that the indemnitee is entitled to indemnification, nor
a determination by any of them that he is not entitled to
indemnification, for whatever reason, shall create a presumption in such
a suit that the indemnitee has not met the applicable standard of
conduct or be a defense to such suit. In any such suit the burden of
establishing that the indemnitee is not entitled to indemnification or
advancement of expenses shall be on the Corporation.
SECTION 4. CONTRACT RIGHT. This Article shall be deemed to
constitute a contract between the Corporation and each person who serves
as a director or officer at any time while this Article is in effect.
No repeal or amendment of this Article, insofar as it reduces the extent
of the indemnification of any such person shall without his written
consent be effective as to such person with respect to any event, act or
omission occurring or allegedly occurring prior to (a) the date of such
repeal
<PAGE>
35
or amendment if on that date he is not serving as a director or officer,
or (b) the thirtieth day following delivery to him of written notice of
such amendment as to any such capacity in which he is then serving for
any other corporation or any partnership, joint venture, trust, employee
benefit plan or other enterprise at the Corporation's request, or (c)
the later of the thirtieth day following delivery to him of such notice
or the end of the term of any office (for whatever reason) he is serving
as director or officer of the Corporation on the date of such repeal or
amendment, with respect to service in that capacity. This Article shall
be binding on any successor to the Corporation. The right to
indemnification and advancement of expenses provided by this Article
shall continue as to a person who has ceased to be a director or officer
and shall inure to the benefit of the heirs, executors and
administrators of such person.
SECTION 5. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may, to the extent authorized by the Board of Directors,
grant rights of indemnification and advancement of expenses to any
employee or agent of the Corporation to the full extent of the
provisions of this Article with respect to indemnification and
advancement of expenses of directors and officers of the Corporation.
<PAGE>
36
SECTION 6. NON-EXCLUSIVITY. The indemnification provided by
this Article shall not be deemed exclusive of any other rights to which
any person covered hereby may be entitled other than pursuant to this
Article.
ARTICLE VIII
AMENDMENTS
SECTION 1. AMENDMENTS. The By-laws of the Corporation may be
amended, repealed or adopted by vote of the holders of the shares
entitled to vote or by the Board of Directors.
GLEASON CORPORATION
and
Chase Lincoln First Bank, N.A.
Rights Agent
Rights Agreement
Dated as of June 8, 1989
<PAGE>
TABLE OF CONTENTS
Page
Section 1. CERTAIN DEFINITIONS***************************** 1
Section 2. APPOINTMENT OF RIGHTS AGENT********************* 6
Section 3. ISSUE OF RIGHT CERTIFICATES********************* 7
Section 4. FORM OF RIGHT CERTIFICATES********************** 10
Section 5. COUNTERSIGNATURE AND REGISTRATION*************** 12
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHT CERTIFICATES; MUTILATED,
DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES******************************** 13
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATION DATE OF RIGHTS******************* 15
Section 8. CANCELLATION AND DESTRUCTION OF RIGHT
CERTIFICATES******************************** 20
Section 9. RESERVATION AND AVAILABILITY OF
PREFERRED SHARES**************************** 20
Section 10. PREFERRED SHARES RECORD DATE******************** 23
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER
AND KIND OF SHARES OR NUMBER OF RIGHTS****** 24
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR
NUMBER OF SHARES**************************** 42
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER
OF ASSETS OR EARNING POWER****************** 42
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES********* 48
Section 15. RIGHTS OF ACTION******************************** 51
Section 16. AGREEMENT OF RIGHT HOLDERS********************** 52
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED
A STOCKHOLDER******************************* 53
Section 18. CONCERNING THE RIGHTS AGENT********************* 54
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF
NAME OF RIGHTS AGENT************************ 55
-i-
<PAGE>
Section 20. DUTIES OF RIGHTS AGENT************************** 56
Section 21. CHANGE OF RIGHTS AGENT************************** 61
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES************** 63
Section 23. REDEMPTION AND TERMINATION********************** 63
Section 24. EXCHANGE**************************************** 67
Section 25. NOTICE OF CERTAIN EVENTS************************ 70
Section 26. NOTICES***************************************** 72
Section 27. SUPPLEMENTS AND AMENDMENTS********************** 73
Section 28. DETERMINATION AND ACTIONS BY THE
BOARD OF DIRECTORS, ETC********************* 75
Section 29. SUCCESSORS************************************** 75
Section 30. BENEFITS OF THIS AGREEMENT********************** 75
Section 31. SEVERABILITY************************************ 76
Section 32. GOVERNING LAW*********************************** 76
Section 33. COUNTERPARTS************************************ 77
Section 34. DESCRIPTIVE HEADINGS**************************** 77
Exhibit A - Form of Certificate of Designations of Gleason Corporation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
-ii-
<PAGE>
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of June 8, 1989 (the "AGREEMENT"),
between Gleason Corporation, a Delaware corporation (the "COMPANY"), and
Chase Lincoln First Bank, N.A. (the "RIGHTS AGENT").
The Board of Directors of the Company has authorized and declared
a dividend of one preferred share purchase right (a "RIGHT") for each
Common Share (as hereinafter defined) of the Company outstanding on June
16, 1989 (the "RECORD DATE"), each Right representing the right to purchase
one one-hundredth of a Preferred Share (as hereinafter defined), upon the
terms and subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect to each
Common Share that shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date (as such terms are hereinafter defined).
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "ACQUIRING PERSON" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of securities representing 20% or more of the Voting Power
(other than as a result of a Permitted Offer (as defined in Section
11(a)(ii) hereof)) or who
<PAGE>
-2-
was such a Beneficial Owner at any time after the date hereof, whether or
not such person continues to be the Beneficial Owner of securities
representing 20% or more of the Voting Power. Notwithstanding the
foregoing, the term "Acquiring Person" shall not include (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company or (iv) any Person or entity
organized, appointed or established by the Company for or pursuant to the
terms of any such plan.
(b) "ACT" shall mean the Securities Act of 1933, as amended and
as in effect on the date of this Agreement.
(c) "AFFILIATE" and "ASSOCIATE" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement (the "Exchange Act").
(d) A Person shall be deemed the "BENEFICIAL OWNER" of and shall
be deemed to "BENEFICIALLY OWN" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with respect to a
bona fide public
<PAGE>
-3-
offering of securities), 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, 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; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which such
Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with respect to a
bona
<PAGE>
-4-
fide public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to
Section 1(d)(ii)(B)) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "THEN OUTSTANDING," when used with
reference to a Person's Beneficial Ownership of securities of the Company,
shall mean the number of such securities then issued and outstanding
together with the number of such securities not then actually issued and
outstanding which such Person would be deemed to own beneficially
hereunder.
(e) "BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or federal holiday.
(f) "CLOSE OF BUSINESS" on any given date shall mean 5:00 P.M.,
New York time, on such date; PROVIDED, HOWEVER, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next succeeding
Business Day.
(g) "COMMON SHARES" when used with reference to the Company
shall mean the shares of common stock, par value $1 per share, of the
Company. "COMMON SHARES" when used with reference to any Person other than
the Company shall mean the capital stock (or equity interest) with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
<PAGE>
-5-
(h) "DISTRIBUTION DATE" shall have the meaning set forth in
Section 3 hereof.
(i) "FINAL EXPIRATION DATE" shall have the meaning set forth in
Section 7 hereof.
(j) "INTERESTED PERSON" with respect to a Transaction shall mean
(x) any Person who (i) is or will become an Acquiring Person if the
Transaction were to be consummated, and (ii) directly or indirectly
proposed or nominated a director of the Company which director is in office
at the time of consideration of the Transaction, or (y) an Affiliate or
Associate of such a Person.
(k) "PERSON" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
(l) "PREFERRED SHARES" Shall mean shares of Series A Junior
Participating Preferred Stock, par value $1 per share, of the Company
having the rights and preferences set forth in the Form of Certificate of
Designations attached to this Agreement as Exhibit A.
(m) "REDEMPTION DATE" shall have the meaning set forth in
Section 7 hereof.
(n) "SECTION 11(A)(II) EVENT" shall mean any event described in
Section 11(a)(ii) hereof.
(o) "SECTION 13 EVENT" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
<PAGE>
-6-
(p) "SHARES ACQUISITION DATE" shall mean the first date of
public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such.
(q) "SUBSIDIARY" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
(r) "TRANSACTION" shall mean any merger, consolidation or sale
of assets described in Section 13(a) hereof or any acquisition of Common
Shares of the Company which would result in a Person becoming an Acquiring
Person.
(s) "TRIGGERING EVENT" shall mean any Section 11(a)(ii) Event or
any Section 13 Event.
(t) "VOTING POWER" shall mean the voting power of all securities
of the Company then outstanding generally entitled to vote for the election
of directors of the Company.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders
of the Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of Common Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment.
<PAGE>
-7-
The Company may from time to time appoint such co-Rights Agents as it may
deem necessary or desirable.
Section 3. ISSUE OF RIGHT CERTIFICATES. (a) Until the earlier
of (i) the Shares Acquisition Date or (ii) the close of business on the
tenth day (or such later date as may be determined by action of the
Company's Board of Directors) after the date of the commencement by any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company or any employee benefit plan of the Company or of
any Subsidiary of the Company or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan) to commence (which intention to commence remains in effect for five
Business Days after such announcement), a tender or exchange offer the
consummation of which would result in any Person becoming an Acquiring
Person (including, in the case of both (i) and (ii), any such date which is
after the date of this Agreement and prior to the issuance of the Rights),
the earlier of such dates being herein referred to as the "DISTRIBUTION
DATE", (x) the Rights will be evidenced (subject to the provisions of
Section 3(b) hereof) by the certificates for Common Shares
<PAGE>
-8-
registered in the names of the holders thereof (which certificates shall
also be deemed to be Right Certificates) and not by separate Right
Certificates, and (y) the right to receive Right Certificates will be
transferrable only in connection with the transfer of the underlying Common
Shares (including a transfer to the Company). As soon as practicable after
the Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent by
first-class, insured, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the address
of such holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit B hereto (a "RIGHT CERTIFICATE"),
evidencing one Right for each Common Share so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights to Purchase Preferred
Shares, in substantially the form of Exhibit C hereto (the "SUMMARY OF
RIGHTS"), by first-class, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Record Date, at the
address of such holder shown on the records of the Company. With respect
to certificates for Common Shares outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof
<PAGE>
-9-
together with a copy of the Summary of Rights attached thereto. Until the
Distribution Date (or the earlier of the Redemption Date or the Final
Expiration Date), the surrender for transfer of any certificate for Common
Shares outstanding on the Record Date, with or without a copy of the
Summary of Rights attached thereto, shall also constitute the transfer of
the Rights associated with such Common Shares.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred to in the
last sentence of this paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Gleason
Corporation and Chase Lincoln First Bank, N.A., dated as of June
8, 1989 (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file
at the principal executive offices of Gleason Corporation. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Gleason Corporation
will mail to the holder of this certificate a copy of
the Rights Agreement without charge after receipt of a written
request therefor. Under certain circumstances set forth in the
Rights Agreement, Rights issued to, or held by, any Person who
is, was or becomes an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and
certain related persons, whether currently held by or on behalf
of such Person or by any subsequent holder, may become null and
void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with the Common Shares
represented by such certificates shall be
<PAGE>
-10-
evidenced by such certificates alone, and the surrender for transfer of any
such certificate shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby. In the event that
the Company purchases or acquires any Common Shares after the Record Date
but prior to the Distribution Date, any Rights associated with such Common
Shares shall be deemed cancelled and retired so that the Company shall not
be entitled to exercise any Rights associated with the Common Shares which
are no longer outstanding.
Section 4. FORM OF RIGHT CERTIFICATES. (a) The Right
Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall be substantially in the form set
forth in Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 22 hereof, the Right Certificates shall entitle
the holders thereof to purchase such number of one one-hundredths of a
Preferred Share as shall be set forth therein at the price per one
one-hundredth of a Preferred Share set forth therein (the "PURCHASE
PRICE"), but the amount and type of securities
<PAGE>
-11-
purchasable upon the exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned by: (i) an
Acquiring Person or any 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 either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or
to any Person with whom such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a
transfer 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 avoidance of Section 7(e) hereof, and any Right Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer, exchange,
replacement or adjustment of any other Right Certificate referred to in
this sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Right Certificate are or
were beneficially owned by a Person who was or became
an Acquiring Person or an Affiliate or Associate of an
<PAGE>
-12-
Acquiring Person (as such terms are defined in the
Rights Agreement). Accordingly, this Right Certificate
and the Rights represented hereby shall become null and
void in the circumstances specified in Section 7(e) of
such Agreement.
Provisions of Section 7(e) of this Rights Agreement shall be operative
whether or not the foregoing legend is contained on any such Right
Certificate.
Section 5. COUNTERSIGNATURE AND REGISTRATION. The Right
Certificates shall be executed on behalf of the Company by its Chairman of
the Board, its Chief Executive Officer, its President, any of its Vice
Presidents, or its Treasurer, either manually or by facsimile signature,
shall have affixed thereto the Company's seal or a facsimile thereof, and
shall be attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Right Certificates
shall be countersigned by the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who
shall have signed any of the Right Certificates shall cease to be such
officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates 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 officer of the
Company; and any Right Certificate may be signed on behalf of the Company
<PAGE>
-13-
by any person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this Rights Agreement
any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of such Right Certificate or transfer,
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 on its
face by each of the Right Certificates and the certificate number and the
date of each of the Right Certificates.
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHT CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT
CERTIFICATES. Subject to the provisions of Section 4(b), Section 7(e) and
Section 14 hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of business on the earlier
of the Redemption Date or the Final Expiration Date, any Right Certificate
or Right Certificates may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of one one-hundredths of a
Preferred Share (or, following a Triggering
<PAGE>
-14-
Event, other securities, cash or other assets, as the case may be) as the
Right Certificate or Right Certificates surrendered then entitled such
holder (or former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any
Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at
the principal office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such
surrendered Right Certificate until the registered holder shall have
completed and signed the certificate 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
Section 4(b), Section 7(e) and Section 14 hereof, 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>
-15-
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of 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 cancellation of the Right Certificate if mutilated, the
Company will make and deliver a new Right Certificate of like tenor to the
Rights Agent for countersignature and delivery to the registered holder in
lieu of the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE
OF RIGHTS. (a) Subject to Section 7(e) hereof, 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 and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of the
Rights Agent designated for such purpose, together with payment of the
aggregate Purchase Price for the total number of one-hundredths of a
Preferred Share (or other securities, cash or assets, as the case may be)
as to which such surrendered Rights are exercised, at or prior to the
earliest of (i) the close of
<PAGE>
-16-
business on June 15, 1999 (the "FINAL EXPIRATION DATE"), or (ii) the time
at which the Rights are redeemed as provided in Section 23 hereof (the
"REDEMPTION DATE").
(b) The Purchase Price for each one-hundredth of a Preferred
Share pursuant to the exercise of a Right shall initially be $45, shall be
subject to adjustment from time to time as provided in Sections 11 and
13(a) hereof and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly
executed, accompanied by payment of the Purchase Price for the shares (or
other securities, cash or assets, as the case may be) to be purchased and
an amount equal to any applicable transfer tax required to be paid by the
holder of such Right Certificate in accordance with Section 9 hereof by
certified check, cashier's check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i) (A) requisition from
any transfer agent of the Preferred Shares 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, in its sole discretion, shall have elected to deposit the
Preferred Shares issuable upon exercise of the Rights hereunder into a
depositary, requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Preferred Share as are
to be purchased (in
<PAGE>
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which case certificates for the Preferred Shares represented by such
receipts shall be deposited by the transfer agent with the depositary
agent) and the Company will direct the depositary agent to comply with such
requests, (ii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in accordance with
Section 14 hereof, (iii) 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 thereof, deliver such cash to or upon the order of the registered
holder of such Right Certificate. In the event that the Company is
obligated to issue other securities (including Common Shares) of the
Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so
that such other securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Right
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Right
Certificate no longer include the rights provided by Section 11(a)(ii) of
the Rights Agreement and if less than all the Rights represented by such
<PAGE>
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Right Certificate were so exercised, the Rights Agent shall indicate on the
Right Certificate the number of Rights represented thereby which continue
to include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued, or an appropriate notation shall be put on the
Right Certificate with respect to those Rights exercised, by the Rights
Agent to the registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Section 11(a)(ii) Event, any
Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any Associate or Affiliate thereof) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee of an Acquiring
Person (or of any Associate or Affiliate thereof) who becomes a transferee
prior to or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom the Acquiring Person has a
<PAGE>
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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 Agreement or otherwise. The
Company shall use all reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied with, but shall have
no liability to any holder of Right Certificates or other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7 unless
such registered holder shall have (i) completed and signed the certificate
contained in the form of election to purchase set forth on the reverse side
of the 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.
<PAGE>
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Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES.
All Right Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or
to any of its agents, be delivered to the Rights Agent for cancellation or
in cancelled form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Rights
Agreement. The Company shall deliver to the Rights Agent for cancellation
and retirement, and the Rights Agent shall so cancel and retire, any other
Right Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all cancelled Right
Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. RESERVATION AND AVAILABILITY OF PREFERRED SHARES.
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, the number of
Preferred Shares that will be sufficient to permit the exercise in full of
all outstanding Rights and, after the occurrence of an event specified in
Section 11, shall so reserve and keep available a sufficient number of
Preferred Shares (and/or other securities) which may be required
<PAGE>
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to permit the exercise in full of the Rights pursuant to this Agreement.
So long as the Preferred Shares (and, after the occurrence of an
event specified in Section 11, Common Shares and/or any other securities)
issuable upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable, all shares reserved
for such issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares (or Common
Shares and/or other securities, as the case may be) delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such
shares or other securities (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and nonassessable
shares or securities.
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 the Right
Certificates or of any Preferred Shares (or Common Shares and/or other
securities and/or other property, as the case may be) upon the exercise of
Rights. The Company shall not, however, be required to pay any transfer
tax which may be payable in respect of any transfer or delivery of Right
<PAGE>
-22-
Certificates to a person other than, or the issuance or delivery of
certificates or depositary receipts for the Preferred Shares (or Common
Shares and/or other securities and/or other property, as the case may be)
in a name other than that of, the registered holder of the Right
Certificate evidencing Rights surrendered for exercise, or to issue or to
deliver any certificates or depositary receipts for Preferred Shares (or
Common Shares and/or other securities and/or other property, as the case
may be) upon the exercise of any Rights, until any such tax shall have been
paid (any such tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to the Company's
reasonable satisfaction that no such tax is due.
The Company shall use its best efforts to (i) file, as soon as
practicable following the Distribution Date, a registration statement under
the Act, with respect to the securities purchasable upon exercise of the
Rights on an appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and (iii) cause
such registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Act and the rules and regulations
thereunder) until the date of the expiration of the rights provided by
Section 11(a)(ii). The Company will also take such action as may be
appropriate under the blue sky laws of the various states.
<PAGE>
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Section 10. PREFERRED SHARES RECORD DATE. Each person in whose
name any certificate for Preferred Shares (or Common Shares and/or other
securities, as the case may be) is issued upon the exercise of Rights shall
for all purposes be deemed to have become the holder of record of the
Preferred Shares (or Common Shares and/or other securities, as the case may
be) represented thereby on, and such certificate shall be dated, the date
upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that, if the date of such surrender and
payment is a date upon which the Preferred Shares (or Common Shares and/or
other securities, as the case may be) transfer books of the Company are
closed, such person shall be deemed to have become the record holder of
such shares on, and such certificate shall be dated, the next succeeding
Business Day on which the Preferred Shares (or Common Shares and/or other
securities, as the case may be) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the holder of a
Right Certificate shall not be entitled to any rights of a stockholder of
the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
<PAGE>
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Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF
SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number and kind of
shares covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred Shares into a smaller number
of Preferred Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the Purchase Price
in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and
the number and kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holder of any Right exercised after
such time shall be entitled to receive the aggregate number and kind of
shares of capital stock which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Shares transfer books
of the Company were open, such holder would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision,
<PAGE>
-25-
combination or reclassification; PROVIDED, HOWEVER, that in no event shall
the consideration to be paid upon the exercise of one Right be less than
the aggregate par value of the shares of capital stock of the Company
issuable upon exercise of one Right. If an event occurs which would
require an adjustment under both Section 11(a)(i) and Section 11(a)(ii),
the adjustment provided for in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii).
(ii) Subject to Section 24 of this Agreement, in the event
any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the Company,
or any Person or entity organized, appointed or established by the Company
for or pursuant to the terms of any such plan), alone or together with its
Affiliates and Associates, shall become an Acquiring Person (except
pursuant to a tender or exchange offer which is not made by an Interested
Person and which is for all outstanding Common Shares at a price and on
terms determined, prior to the purchase of shares under such tender or
exchange offer, by at least a majority of the members of the Board of
Directors who are not officers of the Company and who are not Acquiring
Persons or Affiliates, Associates, nominees or representatives of an
Acquiring Person, to be fair to stockholders (taking into account all
factors that such Directors deem relevant including, without limitation,
prices that could reasonably be achieved if the Company or its
<PAGE>
-26-
assets were sold on an orderly basis designed to realize maximum value) and
otherwise in the best interests of the Company and its stockholders (other
than the Person or an Affiliate or Associate thereof on whose behalf the
offer is being made) (a "Permitted Offer")), then proper provision shall be
made so that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall, for a period of 60 days after the later of the
occurrence of any such event or the effective date of an appropriate
registration statement pursuant to Section 9 hereof, have a right to
receive, upon exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with
the terms of this Agreement and in lieu of Preferred Shares, such number of
Common Shares of the Company as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the then number of one
one-hundredths of a Preferred Share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event, and
dividing that product by (y) 50% of the then current per share market price
of the Company's Common Shares (determined pursuant to Section 11(d)
hereof) on the date of such first occurrence (such number of shares being
referred to as the "ADJUSTMENT SHARES").
(iii) In lieu of issuing Common Shares in accordance with
Section 11(a)(ii), if the Board of Directors of the Company determines that
the action described below in this
<PAGE>
-27-
Section 11(a)(iii) is necessary or appropriate and not contrary to the
interests of the holders of Rights (other than any Acquiring Person and any
Affiliate or Associate of such Person), the Company may: (A) determine the
excess of (1) the value of the Adjustment Shares issuable upon the exercise
of a Right (the "CURRENT VALUE") over (2) the Purchase Price (such excess
being referred to as the "SPREAD"), and (B) with respect to each Right,
make adequate provision to substitute for the Adjustment Shares, upon
payment of the applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price (but in no event less than the par value per share), (3)
Common Shares or other equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock which the Board
of Directors of the Company has deemed to have the same value as Common
Shares (such shares of preferred stock being referred to as "COMMON STOCK
EQUIVALENTS")), (4) debt securities of the Company, (5) other assets, or
(6) any combination of the foregoing, having an aggregate value equal to
the Current Value, where such aggregate value has been determined by the
Board of Directors of the Company based upon the advice of a nationally
recognized investment banking firm selected by the Board of Directors of
the Company; PROVIDED, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within thirty (30)
days following the Shares Acquisition Date, then the Company shall be
obligated to deliver, upon the surrender for exercise of a Right and
without requiring
<PAGE>
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payment of the Purchase Price, Common Shares (to the extent available) and
then, if necessary, common stock equivalents, which shares and/or common
stock equivalents have an aggregate value equal to the Spread. If the
Board of Directors of the Company shall determine in good faith that it is
likely that sufficient additional Common Shares could be authorized for
issuance upon exercise in full of the Rights, the thirty (30) day period
set forth above may be extended to the extent necessary, but not more than
ninety (90) days after the Shares Acquisition Date, in order that the
Company may seek shareholder approval for the authorization of such
additional shares (such period, as it may be extended, being referred to as
the "SUBSTITUTION PERIOD"). To the extent that the Company determines that
some action need be taken pursuant to the first and/or second sentences of
this Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence and to determine
the value thereof. In the event of any such suspension, the Company shall
notify the Rights Agent and issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, and shall
notify the Rights Agent and issue an appropriate public announcement at
such time as the suspension is no longer in
<PAGE>
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effect stating such. For purposes of this Section 11(a)(iii), the value of
the Common Shares shall be the current per share market price (as
determined pursuant to Section 11(d) hereof) of the Common Shares on the
Shares Acquisition Date and the value of any "common stock equivalent"
shall be deemed to have the same value as the Common Shares on such date.
(b) In case the Company shall fix a record date for the issuance
of rights (other than the Rights), options or warrants to all holders of
Preferred Shares entitling them (for a period expiring within 45 calendar
days after such record date) to subscribe for or purchase Preferred Shares
(or shares having the same rights, privileges and preferences as the
Preferred Shares ("EQUIVALENT PREFERRED SHARES")) or securities convertible
into Preferred Shares or equivalent preferred shares at a price per
Preferred Share or equivalent preferred share (or having a conversion price
per share, if a security convertible into Preferred Shares or equivalent
preferred shares) less than the then current per share market price of the
Preferred Shares (as determined pursuant to Section 11(d) hereof) on such
record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of Preferred Shares outstanding on such record date plus the
number of Preferred Shares which the aggregate offering price of the total
number of Preferred Shares and/or equivalent preferred shares so to be
<PAGE>
-30-
offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price,
and the denominator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of additional Preferred
Shares and/or equivalent preferred shares to be offered for subscription or
purchase (or into which the convertible securities so to be offered are
initially convertible); PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable
upon exercise of one Right. In case such subscription price may be paid in
a consideration part or all of which shall be in a form other than cash,
the value of such consideration shall be determined in good faith by the
Board of Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent. Preferred Shares owned by or
held for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that
such rights, options or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in effect if
such record date had not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a
<PAGE>
-31-
consolidation or merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness or assets (other than a regular
quarterly cash dividend or a dividend payable in Preferred Shares) or
subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the then current per share market price (as determined pursuant to
Section 11(d) hereof) of the Preferred Shares on such record date, less the
fair market value (as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed
with the Rights Agent and shall be binding on the Rights Agent) of the
portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one Preferred Share
and the denominator of which shall be such current per share market price
of the Preferred Shares; PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company to be
issued upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall again be
adjusted to be the
<PAGE>
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Purchase Price which would then be in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation hereunder, the
"CURRENT PER SHARE MARKET PRICE" of any security (a "SECURITY" for the
purpose of this Section 11(d)(i)) on any date shall be deemed to be the
average of the daily closing prices per share of such Security for the
thirty (30) consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; PROVIDED, HOWEVER, that in the event that
the current per share market price of the Security is determined during a
period following the announcement by the issuer of such Security of (A) a
dividend or distribution on such Security payable in shares of such
Security or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and prior to
the expiration of thirty (30) Trading Days after the ex-dividend date for
such dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current
per share market price shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock
<PAGE>
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Exchange or, if the Security is not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which the Security is listed or
admitted to trading or, if the Security is not listed or admitted to
trading on any national securities exchange, the last quoted price or, if
not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or such
other system then in use, or, if on any such date the Security is not
quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the
Security selected by the Board of Directors of the Company.
If on any such date no such market maker is making a market in the
Security, the fair value of the Security on such date as determined in good
faith by the Board of Directors of the Company shall be used. The term
"TRADING DAY" shall mean a day on which the principal national securities
exchange on which the Security is listed or admitted to trading is open for
the transaction of business or, if the Security is not listed or admitted
to trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"CURRENT PER SHARE MARKET PRICE" of the Preferred Shares shall be
determined in accordance with the method set
<PAGE>
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forth in Section 11(d)(i). If the Preferred Shares are not publicly
traded, the "current per share market price" of the Preferred Shares shall
be conclusively deemed to be the current per share market price of the
Common Shares as determined pursuant to Section 11(d)(i) (appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof), multiplied by one hundred. If neither
the Common Shares nor the Preferred Shares are publicly held or so listed
or traded, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such adjustment
would require an increase or decrease of at least 1% in the Purchase Price;
PROVIDED, HOWEVER, that any adjustments which by reason of this
Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest one
one-millionth of a Preferred Share or one ten-thousandth of any other share
or security as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three (3) years
<PAGE>
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from the date of the transaction which mandates such adjustment or (ii) the
Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of
the Company other than Preferred Shares, thereafter the number of other
shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Preferred Shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares shall
apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of one
one-hundredths of a Preferred Share purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-hundredths of a Preferred Share (calculated to the
<PAGE>
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nearest one one-millionth of a Preferred Share) obtained by (i) multiplying
(x) the number of one one-hundredths of a share covered by a Right
immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and
(ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of one one-hundredths of a Preferred Share
purchasable upon the exercise of a Right. Each of the Rights outstanding
after such adjustment of the number of Rights shall be exercisable for the
number of one one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect immediately after
adjustment of the Purchase Price. The Company shall make a public
announcement of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the amount of
the adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued,
<PAGE>
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shall be at least ten (10) days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section 11(i), the Company shall,
as promptly as practicable, cause to be distributed to holders of record of
Right Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by such
holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates evidencing all the Rights
to which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Preferred Share issuable
upon the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the number
of one one-hundredths of a Preferred Share which were expressed in the
initial Right Certificates issued hereunder.
<PAGE>
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(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the number
of one one-hundredths of a Preferred Share, Common Shares or other
securities issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue such number of fully
paid and nonassessable one one-hundredths of a Preferred Share, Common
Shares or other securities at such adjusted Purchase Price. If upon any
exercise of the Rights, a holder is to receive a combination of Common
Shares and common share equivalents, a portion of the consideration paid
upon such exercise, equal to at least the then par value of a Common Share
of the Company, shall be allocated as the payment for each Common Share of
the Company so received.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right exercised after such
record date the Preferred Shares and other capital stock or securities of
the Company, if any, issuable upon such exercise over and above the
Preferred Shares and other capital stock or securities of the Company, if
any, issuable upon exercise on the basis of the Purchase Price in effect
prior to such adjustment; PROVIDED, HOWEVER, that the Company shall deliver
to such holder a due bill
<PAGE>
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or other appropriate instrument evidencing such holder's right to receive
such additional shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that it in its sole discretion shall
determine to be advisable in order that (i) any consolidation or
subdivision of the Preferred Shares, (ii) issuance wholly for cash of
Preferred Shares at less than the current market price, (iii) issuance
wholly for cash of Preferred Shares or securities which by their terms are
convertible into or exchangeable for Preferred Shares, (iv) stock dividends
or (v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of its Preferred
Shares shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person
(other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any other Person (other
than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any Subsidiary
to sell or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more than 50%
<PAGE>
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of the assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately
after such consolidation, merger or sale, the stockholders of the Person
who constitutes, or would constitute, the "Principal Party" for purposes of
Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and Associates.
The Company shall not consummate any such consolidation, merger, sale or
transfer unless prior thereto the Company and such other Person shall have
executed and delivered to the Rights Agent a supplemental agreement
evidencing compliance with this Section 11(n).
(o) The Company covenants and agrees that, after the Shares
Acquisition Date, it will not, except as permitted by Section 23 or
Section 27 hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that such action
will substantially diminish or otherwise eliminate the benefits intended to
be afforded by the Rights.
<PAGE>
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(p) Anything in this Agreement to the contrary notwithstanding,
in the event that at any time after the date of this Agreement and prior to
the Distribution Date, the Company shall (i) declare or pay any dividend on
the Common Shares payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into a greater or
lesser number of Common Shares, then in any such case (i) the number of one
one-hundredths of a Preferred Share purchasable after such event upon
proper exercise of each Right shall be determined by multiplying the number
of one one-hundredths of a Preferred Share so purchasable immediately prior
to such event by a fraction, the numerator of which is the number of Common
Shares outstanding immediately before such event and the denominator of
which is the number of Common Shares outstanding immediately after such
event, and (ii) each Common Share outstanding immediately after such event
shall have issued with respect to it that number of Rights which each
Common Share outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section 11(p) shall be
made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
(q) The exercise of Rights under Section 11(a)(ii) shall only
result in the loss of rights under Section 11(a)(ii) to the extent so
exercised and shall not otherwise affect the
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rights represented by the Rights under this Rights Agreement, including the
rights represented by Section 13.
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall promptly (a) prepare a certificate setting forth
such adjustment, and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for
the Common Shares or the Preferred Shares a copy of such certificate and
(c) mail a brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of such adjustment
unless and until it shall have received such certificate.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS
OR EARNING POWER. (a) In the event that, following the Shares Acquisition
Date, directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person, (y) any Person shall consolidate
with the Company, or merge with and into the Company and the Company shall
be the continuing or surviving corporation of such merger (other than, in a
case of any transaction described in (x) or (y), a merger or consolidation
which would result in all of the Voting Power
<PAGE>
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represented by the securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into securities of the surviving entity) all of the Voting
Power represented by the securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation and the holders
of such securities not having changed as a result of such merger or
consolidation), or (z) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof), then, and
in each such case (except as provided in Section 13(d) hereof), proper
provision shall be made so that (i) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable, in accordance with
the terms of this Agreement and in lieu of Preferred Shares, such number of
freely tradeable Common Shares of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of
first refusal or
<PAGE>
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other adverse claims, as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to Section 11(a)(ii)) and
dividing that product by (B) 50% of the then current per share market price
of the Common Shares of such Principal Party (determined pursuant to
Section 11(d) hereof) on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and shall assume,
by virtue of such Section 13 Event, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of a Section 13
Event; and (iv) such Principal Party shall take such steps (including, but
not limited to, the reservation of a sufficient number of its Common
Shares) in connection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common
Shares thereafter deliverable upon the exercise of the Rights.
(b) "PRINCIPAL PARTY" shall mean
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which Common
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Shares of the Company are converted in such merger or consolidation, and if
no securities are so issued, the Person that is the other party to such
merger or consolidation (including, if applicable, the Company if it is the
surviving corporation); and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions; PROVIDED, HOWEVER, that in
any such case, (1) if the Common Shares of such Person are not at such time
and have not been continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Shares of which
are and have been so registered, "Principal Party" shall refer to such
other Person; (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Shares of two or more of
which are and have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common Shares having the
greatest aggregate market value; and (3) in case such Person is owned,
directly or indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same Person, the rules
set forth in (1) and (2) above shall apply to each of the chains of
ownership having an interest in such joint venture as if such party were a
"Subsidiary" of both or all of
<PAGE>
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such joint venturers and the Principal Parties in each such chain shall
bear the obligations set forth in this Section 13 in the same ratio as
their direct or indirect interests in such Person bear to the total of such
interests.
(c) The Company shall not consummate any such consolidation,
merger, sale or transfer unless the Principal Party shall have a sufficient
number of its authorized Common Shares which have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and
such Principal Party shall have executed and delivered to the Rights Agent
a supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing that, as
soon as practicable after the date of any consolidation, merger, sale or
transfer mentioned in paragraph (a) of this Section 13, the Principal Party
will
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Act) until the
Final Expiration Date;
(ii) use its best efforts to qualify or register the Rights
and the securities purchasable upon exercise of the
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Rights under the blue sky laws of such jurisdictions as may be necessary or
appropriate; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10 under the
Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. The
rights under this Section 13 shall be in addition to the rights to exercise
Rights and adjustments under Section 11(a)(ii) and shall survive any
exercise thereof.
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if: (i) such transaction is
consummated with a Person or Persons who acquired Common Shares pursuant to
a tender or exchange offer for all outstanding Common Shares which complies
with the exception contained in Section 11(a)(ii) hereof (or a wholly owned
Subsidiary of any such Person or Persons); (ii) the price per Common Share
offered in such transaction is not less than the price per Common Share
paid to all holders of Common Shares whose shares were purchased pursuant
to such tender or exchange offer; and (iii) the form of consideration being
offered to the remaining holders of Common Shares pursuant to such
transaction is the same as the form of consideration paid pursuant to such
tender or exchange offer. Upon consummation of any such
<PAGE>
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transaction contemplated by this Section 13(d), all Rights hereunder shall
expire.
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The
Company shall not be required to issue fractions of Rights or to distribute
Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this
Section 14(a), the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.
The closing price for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading
or, if the Rights are not listed or admitted to trading on any national
<PAGE>
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securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use or, if on
any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the Company shall be
used.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are one one-hundredth or
integral multiples of one one-hundredth of a Preferred Share) upon exercise
of the Rights or to distribute certificates which evidence fractional
Preferred Shares (other than fractions which are one one-hundredth or
integral multiples of one one-hundredth of a Preferred Share). Fractions
of Preferred Shares in integral multiples of one one-hundredth of a
Preferred Share may, at the election of the Company, be evidenced by
depositary receipts, pursuant to an appropriate agreement between the
Company and a depositary selected by it; PROVIDED, that such agreement
shall provide that the holders of such depositary receipts shall have the
rights, privileges and preferences to which they are entitled as beneficial
owners of the Preferred Shares represented by such depositary receipts. In
<PAGE>
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lieu of fractional Preferred Shares that are not one one-hundredth or
integral multiples of one one-hundredth of a Preferred Share, the Company
shall pay to the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Preferred Share. For the
purposes of this Section 14(b), the current market value of a Preferred
Share shall be the closing price of a Preferred Share (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day immediately prior
to the date of such exercise.
(c) Following the occurrence of one of the transactions or
events specified in Section 11 giving rise to the right to receive Common
Shares, common share equivalents (other than Preferred Shares) or other
securities upon the exercise of a Right, the Company shall not be required
to issue fractions of shares or units of such Common Shares, common share
equivalents or other securities upon exercise of the Rights or to
distribute certificates which evidence fractions of such Common Shares,
common share equivalents or other securities. In lieu of fractional shares
or units of such Common Shares, common share equivalents or other
securities, the Company may 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 a
share or unit of such Common Shares, common share equivalent or other
securities. For purposes of this Section 14(c), the current market value
<PAGE>
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shall be determined in the manner set forth in Section 11(d) hereof for the
Trading Day immediately prior to the date of such exercise and, if such
common share equivalent is not traded, each such common share equivalent
shall have the value of one one-hundredth of a Preferred Share.
(d) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional share upon exercise of a Right (except as provided above).
Section 15. RIGHTS OF ACTION. All rights of action in respect
of this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
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 Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it
<PAGE>
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is specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of the obligations of any
Person subject to, this Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a
Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate form fully executed;
(c) subject to Section 6 and Section 7(f) hereof, the Company
and the Rights Agent may deem and treat the person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common
Shares certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the
<PAGE>
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Right Certificate or the associated Common Shares certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent, subject to the
last sentence of Section 7(e) hereof, shall be required to be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or a beneficial interest in a Right or other Person as a
result of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of
such obligation; PROVIDED, HOWEVER, the Company must use its best efforts
to have any such order, decree or ruling lifted or otherwise overturned as
soon as possible.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
<PAGE>
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anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except
as provided in Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. CONCERNING THE RIGHTS AGENT. The Company agrees to
pay to the Rights Agent reasonable compensation for all services rendered
by it hereunder and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements incurred in
the administration and execution of this Agreement and the exercise and
performance of its duties hereunder. The Company also agrees to indemnify
the Rights Agent for, and to hold it harmless against, any loss, liability,
or expense, incurred without negligence, bad faith or willful misconduct on
the part of the Rights Agent, for anything done or omitted by the Rights
Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim
of liability in the premises. The indemnity provided for herein shall
survive
<PAGE>
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the expiration of the Rights and the termination of this Agreement.
The Rights Agent shall be protected and shall incur no liability
for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance upon any
Right Certificate or certificate for Common Shares or for other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to
be signed, executed and, where necessary, verified or acknowledged, by the
proper Person or Persons.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT. Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or all or substantially all of the
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time
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such successor Rights Agent shall succeed to the agency created by this
Agreement, any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the
countersignature of a 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 or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes
only those duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of
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which the Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of an Acquiring
Person and the determination of the current market price of any Security)
be proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice
President, 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 Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in
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this Agreement or in the Right Certificates (except its countersignature on
such Right Certificates) or be required to verify the same, but all such
statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Rights Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 7(e) hereof) or any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after receipt of the certificate
described in Section 12 hereof); 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 Agreement or any Right Certificate or as to whether any Preferred
Shares or Common Shares will, when issued, be validly authorized and
issued, fully paid and nonassessable.
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(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer of the
Company, and to apply to such officers for advice or instructions in
connection with its duties, and shall not be liable for any action taken or
suffered by it in good faith or lack of action in accordance with
instructions of any such officer or for any delay in acting while waiting
for those instructions. Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set
forth in writing any action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on or after which such
action shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in any such application
on or after the date specified in such application (which date shall not be
less than five Business Days after the date any officer of the Company
actually receives such
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application, unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective
date in the case of an omission), the Rights Agent shall have received
written instruction in response to such application specifying the action
to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or in the
exercise of its rights if there shall be
<PAGE>
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reasonable grounds for believing that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to
it.
(k) If, with respect to any Rights Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to the
form of assignment or form of election to purchase, as the case may be, has
not been completed, the Rights Agent shall not take any further action with
respect to such requested exercise of transfer without first consulting
with the Company.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days' notice in writing mailed to the
Company and to each transfer agent of the Common Shares or Preferred Shares
by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon sixty (60) 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 or Preferred Shares by
registered or certified mail, and to holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such appointment
within
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a period of sixty (60) days after giving notice of such removal or after it
has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United States or of the
State of New York (or of any other state of the United States so long as
such corporation is authorized to do business as a banking institution in
the State of New York), in good standing, having an office in the State of
New York, which is authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $100,000,000.
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
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appointment the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Shares or
Preferred Shares, and mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or
the appointment of the successor Rights Agent, as the case may be.
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary,
the Company may, at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or
class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. REDEMPTION AND TERMINATION.
(a) (i) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (x) the time that any person
becomes an Acquiring Person, or (y) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a redemption price of
$.01 per Right, as such amount may be appropriately adjusted to reflect any
stock
<PAGE>
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split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the
"REDEMPTION PRICE") and the Company may, at its option, pay the Redemption
Price either in Common Shares (based on the "current per share market
price," as defined in Section 11(d) hereof, of the Common Shares at the
time of redemption) or cash; provided that if the Company elects to pay the
Redemption Price in Common Shares, the Company shall not be required to
issue any fractional Common Shares and the number of Common Shares issuable
to each holder of Rights shall be rounded down to the next whole share.
(ii) In addition, the Board of Directors of the Company may
redeem all but not less than all of the then outstanding Rights at the
Redemption Price following the occurrence of a Shares Acquisition Date but
prior to any event described in Section 13(a) either (x) in connection with
any event specified in Section 13(a) in which all holders of Common Shares
are treated alike and not involving (other than as a holder of Common
Shares being treated like all other such holders) an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or any other Person in which
such Acquiring Person, Affiliate or such Associate has any interest, or any
other Person acting directly or indirectly on behalf of or in association
with any such Acquiring Person, Affiliate or Associate, or (y) following
the occurrence of an event set forth in, and the expiration of any period
during which the holder of
<PAGE>
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Rights may exercise the rights under, Section 11(a)(ii) if and for as long
as the Acquiring Person is not thereafter the Beneficial Owner of
securities representing 10% or more of the outstanding shares of the Voting
Power, and at the time of redemption there are not other persons who are
Acquiring Persons.
(b) Notwithstanding the provisions of Section 23(a), in the
event that a majority of the Board of Directors of the Company is comprised
of persons elected at a meeting of stockholders who were not nominated by
the Board of Directors in office immediately prior to such meeting, then
(i) the Rights shall not be redeemed for a period of 180 days following the
effectiveness of such election if such redemption is reasonably likely to
have the purpose or effect of facilitating a Transaction with an Interested
Person and (ii) the Rights shall not be redeemed if (x) during such 180 day
period, the Company enters into any agreement, arrangement or understanding
with any Interested Person which is reasonably likely to have the purpose
or effect of facilitating a Transaction with any Interested Person and (y)
such redemption is reasonably likely to have the purpose or effect of
facilitating a Transaction with any Interested Person.
(c) In the case of a redemption permitted under Section
23(a)(i), immediately upon the date set forth in a resolution of the Board
of Directors of the Company ordering the redemption of the Rights, evidence
of which shall have been filed with the Rights Agent, and without any
further action and without
<PAGE>
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any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. In the case of a redemption
permitted only under Section 23(a)(ii), evidence of which shall have been
filed with the Rights Agent, the right to exercise the Rights will
terminate and represent only the right to receive the Redemption Price only
after expiration of any period during which the rights under Section
11(a)(ii) may be exercised. The Company shall promptly give public notice
of any such redemption; PROVIDED, HOWEVER, that the failure to give, or any
defect in, any such notice shall not affect the validity of such
redemption. Within ten (10) days after such date set forth in a resolution
of the Board of Directors ordering the redemption of the Rights, the
Company shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption
Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time
in any manner other than that specifically set forth in this Section 23 or
in Section 24
<PAGE>
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hereof, and other than in connection with the purchase of Common Shares
prior to the Distribution Date.
(d) The Company may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights in accordance with this
Agreement and (ii) mailing payment of the Redemption Price to the
registered holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the Transfer Agent of the Common Shares, and upon
such action, all outstanding Right Certificates shall be null and void
without any further action by the Company.
Section 24. EXCHANGE. (a) The Board of Directors of the
Company may, at its option, at any time prior to any Shares Acquisition
Date (or such later date as the Board of Directors of the Company may
determine provided that such determination is made prior to any Shares
Acquisition Date) determine to exchange all or part of the Rights which are
outstanding and become exercisable upon such Shares Acquisition Date for
Common Shares at an exchange ratio of one Common Share per Right,
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "EXCHANGE RATIO"), PROVIDED, however,
that the Board of Directors may not authorize an
<PAGE>
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exchange in connection with a Transaction with an Interested Person.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to subsection (a) of
this Section 24 and without any further action and without any notice,
the right to exercise such Rights pursuant to Section 11(a)(ii) hereof upon
such Shares Acquisition Date shall become null and void and the only right
thereafter under Section 11(a)(ii) of a holder of such Rights upon the
occurrence of such Shares Acquisition Date shall be to receive that number
of Common Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange and file a certificate with the Rights Agent to
that effect; PROVIDED, HOWEVER, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the holders of
such Rights at their last addresses as they appear upon the registry books
of the Rights Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the
exchange of the Common Shares for Rights will be effected.
(c) In any exchange pursuant to this Section 24, the Company, at
its option, may substitute Preferred Shares (or equivalent preferred
shares, as such term is defined in
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Section 11(b) hereof) for Common Shares exchangeable for Rights, at the
initial rate of one one-hundredth of a Preferred Share (or equivalent
preferred share) for each Common Share, as appropriately adjusted to
reflect adjustments in the voting rights of the Preferred Shares pursuant
to the terms thereof, so that the fraction of a Preferred Share delivered
in lieu of each Common Share shall have the same voting rights as one
Common Share.
(d) In the event that (i) the Company elects to make the
exchange contemplated by this Section 24, (ii) a Shares Acquisition Date
occurs and (iii) there shall not be sufficient Common Shares or Preferred
Shares issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize
additional Common Shares or Preferred Shares for issuance upon exchange of
the Rights.
(e) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence fractional
Common Shares. In lieu of such fractional Common Shares, the Company shall
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 a whole
Common Share. For the purposes of this paragraph (e), the current market
value of a whole Common Share shall be the closing
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price of a Common Share (as determined pursuant to the last three sentences
of Section 11(d)(i) hereof) for the Trading Day immediately prior to the
date of exchange pursuant to this Section 24.
Section 25. NOTICE OF CERTAIN EVENTS. (a) In case the Company
shall propose (i) to pay any dividend payable in stock of any class to the
holders of its Preferred Shares or to make any other distribution to the
holders of its Preferred Shares (other than a regularly quarterly cash
dividend), (ii) to offer to the holders of its Preferred Shares rights or
warrants to subscribe for or to purchase any additional Preferred Shares or
shares of stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred
Shares), (iv) to effect any consolidation or merger into or with any other
Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect any sale
or other transfer) in one or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of which complies with
Section 11(o) hereof), or (v) to effect the liquidation, dissolution or
winding up of
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the Company, then, in each such case, the Company shall give to each holder
of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action to the extent feasible and file a certificate with the
Rights Agent to that effect, which shall specify the record date for the
purposes of such stock dividend, or distribution of rights or warrants, or
the date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the Preferred Shares, if
any such date is to be fixed, and such notice shall be so given in the case
of any action covered by clause (i) or (ii) above at least twenty (20) days
prior to the record date for determining holders of the Preferred Shares
for purposes of such action, and in the case of any such other action, at
least twenty (20) days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the Preferred
Shares, whichever shall be the earlier.
(b) In case of a Section 11(a)(ii) Event, then (i) the Company
shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding paragraph (a) to Preferred
Shares
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shall be deemed thereafter to refer to Common Shares and/or, if
appropriate, other securities.
Section 26. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
Gleason Corporation
30 Corporate Woods
Rochester, New York 14692
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Chase Lincoln First Bank, N.A.
Corporate Agency Department
Seneca Building, 5th Floor
20 S. Clinton Avenue
Rochester, New York 14604
Attention: John N. Hamling
Assistant Vice President
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate or, if
prior to the Distribution Date, to the holder of certificates representing
Common Shares shall be sufficiently given or made if sent by first-class
mail, postage
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prepaid, addressed to such holder at the address of such holder as shown on
the registry books of the Company.
Section 27. SUPPLEMENTS AND AMENDMENTS. Prior to the
Distribution Date, and subject to the penultimate sentence of this
paragraph, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing Common Shares. From
and after the Distribution Date and subject to the penultimate sentence of
this paragraph, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any
holders of Right Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder or (iv) to change or supplement the
provisions hereunder in any manner which the Company may deem necessary or
desirable and which shall not adversely affect the interests of the holders
of Right Certificates (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); PROVIDED, HOWEVER, that this Agreement
may not be supplemented or amended to lengthen, pursuant to clause (iii) of
this sentence, (A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any
other time period unless such lengthening is for the purpose of protecting,
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enhancing or clarifying the rights of, and/or the benefits to, the holders
of Rights. Upon the delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall
execute such supplement or amendment, provided that such supplement or
amendment does not adversely affect the rights or obligations of the Rights
Agent under Section 18 or Section 20 of this Agreement. Notwithstanding
anything contained in this Agreement to the contrary, no supplement or
amendment shall be made which changes the Redemption Price or the number of
Preferred Shares or Common Shares for which a Right is exercisable. Prior
to the Distribution Date, the interests of the holders of Rights shall be
deemed coincident with the interests of the holders of Common Shares.
Notwithstanding anything contained in this Rights Agreement to
the contrary, in the event that a majority of the Board of Directors of the
Company is comprised of persons elected at a meeting of stockholders who
were not nominated by the Board of Directors in office immediately prior to
such meeting, then for a period of 180 days following the effectiveness of
such action this Rights Agreement shall not be amended or supplemented in
any manner reasonably likely to have the purpose or effect of facilitating
a Transaction with an Interested Person.
<PAGE>
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Section 28. DETERMINATION AND ACTIONS BY THE BOARD OF DIRECTORS,
ETC. The Board of Directors of the Company shall have the exclusive power
and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board, or the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation the right and power to (i) interpret the provisions of
this Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the
Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all omissions
with respect to the foregoing) which are done or made by the Board in good
faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Right Certificates and all other parties,
and (y) not subject the Board to any liability to the holders of the Right
Certificates.
Section 29. SUCCESSORS. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 30. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any person or corporation other
than the Company, the Rights Agent and the
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registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Shares).
Section 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated; PROVIDED, HOWEVER, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company determines in its
good faith judgment that severing the invalid language from this Agreement
would adversely affect the purpose or effect of this Agreement, the right
of redemption set forth in Section 23 hereof shall be reinstated and shall
not expire until the close of business on the tenth day following the date
of such determination by the Board of Directors.
Section 32. GOVERNING LAW. This Agreement, each Right and each
Right Certificate issued hereunder shall be deemed
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to be a contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed entirely within
such State.
Section 33. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and attested, all as of the date and year first above
written.
GLEASON CORPORATION
Attest:
By /s/ Ralph E. Harper By /s/ James S. Gleason
Name: Ralph E. Harper Name: James S. Gleason
Title: Assistant Secretary Title: President
CHASE LINCOLN FIRST BANK, N.A.
Attest:
By Paul A. Simon By /s/ Richard C. Boesel
Name: Paul A. Simon Name: Richard C. Boesel
Title: Vice President Title: Vice President
<PAGE>
EXHIBIT A
GLEASON CORPORATION
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
PAR VALUE $1.00 PER SHARE
Pursuant to Title 8, Section 151 of the
General Corporation Law of the State Delaware
We, James S. Gleason, Chairman of the Board, and Ralph E. Harper,
Assistant Secretary, of Gleason Corporation, a corporation organized and
existing under the General Corporation Law of the State of Delaware, in
accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Certificate of Incorporation of the said
Corporation, the said Board of Directors on June 6, 1989, adopted the
following resolution creating a series of 87,500 shares of Preferred Stock
designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of its
Restated Certificate of Incorporation, a series of Preferred Stock of the
Corporation be and it hereby is created, and that the designation and
amount thereof and the voting powers, preferences and relative,
participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
Section 1. DESIGNATION, AMOUNT AND PAR VALUE. The shares of
such series shall be designated as "Series A Junior Participating Preferred
Stock," the number of shares constituting such series shall be 87,500 and
the par value of such series shall be $1.00 per share.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of
any shares of any series of Preferred Stock ranking prior and superior to
the shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock shall be entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose,
A-1
<PAGE>
quarterly dividends payable in cash on the first business day of January,
April, July and October in each year (each such date being referred to
herein as a "QUARTERLY DIVIDEND PAYMENT DATE"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Junior Participating Preferred Stock, in an
amount per share (rounded to the nearest cent) equal to the greater of (a)
$1.00 or (b) subject to the provision for adjustment hereinafter set forth,
100 times the aggregate per share amount of all cash dividends, and 100
times the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise), declared on the Common Stock, par value
$1.00 per share, of the Corporation (the "COMMON STOCK") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to
the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time after June 6, 1989
(the "RIGHTS DECLARATION DATE") (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the amount to which holders of shares of
Series A Junior Participating Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in
paragraph (A) above immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares
of Common Stock); provided that, in the event no dividend or distribution
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 $1.00 per share on the Series A Junior
Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Junior Participating Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of issue of
such shares of Series A Junior Participating Preferred Stock, unless the
date of issue of such shares is prior to the record date for the first
Quarterly Dividend Payment Date, in which case dividends on such shares
shall begin to accrue from the date of issue of such shares, or unless the
date of issue is a Quarterly Dividend Payment Date or is a date after the
record
A-2
<PAGE>
date for the determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Junior Participating
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.
The Board of Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which
record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Junior Participating Preferred Stock shall have the following voting
rights:
(A) Except as provided in paragraph C of this Section 3 and
subject to the provision for adjustment hereinafter set forth, each share
of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the stockholders
of the Corporation. In the event the Corporation shall at any time after
the Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number
of shares, then in each such case the number of votes per share to which
holders of shares of Series A Junior Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by law, the holders
of shares of Series A Junior Participating Preferred Stock and the holders
of shares of Common Stock shall vote together as one class on all matters
submitted to a vote of stockholders of the Corporation.
(C) (i) Notwithstanding the provisions of paragraphs A and B of
this Section 3, if, on the date used to determine stockholders of record
for any meeting of stockholders for the election of directors, a default in
preference dividends (as defined in subparagraph (v) below) on the Series A
Junior Participating Preferred Stock shall exist, the holders of the
Series A Junior Participating Preferred Stock shall have the right, voting
as a class as described in subparagraph (ii) below, to elect two directors
(in addition to the directors elected by
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holders of Common Stock of the Corporation). Such right may be exercised
at any meeting of stockholders for the election of directors until all such
accrued dividends (referred to above) shall have been paid in full.
(ii) The right of the holders of Series A Junior
Participating Preferred Stock to elect two directors, as described above,
shall be exercised as a class concurrently with the rights of holders of
any other series of Preferred Stock upon which voting rights to elect such
directors have been conferred and are then exercisable. The Series A
Junior Participating Preferred Stock and any additional series of Preferred
Stock which the Corporation may issue and which may provide for the right
to vote with the foregoing series of Preferred Stock are collectively
referred to herein as "VOTING PREFERRED STOCK."
(iii) Each director elected by the holders of shares of
Voting Preferred Stock shall be referred to herein as a "PREFERRED
DIRECTOR." A Preferred Director so elected shall continue to serve as such
director for a term of one year, except that upon any termination of the
right of all of such holders to vote as a class for Preferred Directors,
the term of office of such directors shall terminate. Any Preferred
Director may be removed by, and shall not be removed except by, the vote of
the holders of record of a majority of the outstanding shares of Voting
Preferred Stock then entitled to vote for the election of directors,
present (in person or by proxy) and voting together as a single class
(i) at a meeting of the stockholders, or (ii) at a meeting of the holders
of shares of such Voting Preferred Stock, called for the purpose in
accordance with the By-laws of the Corporation, or (iii) by written consent
signed by the holders of a majority of the then outstanding shares of
Voting Preferred Stock then entitled to vote for the election of directors,
taken together as a single class.
(iv) So long as a default in any preference dividends on the
Series A Junior Participating Preferred Stock shall exist or the holders of
any other series of Voting Preferred Stock shall be entitled to elect
Preferred Directors, (i) any vacancy in the office of a Preferred Director
may be filled (except as provided in the following clause (ii)) by an
instrument in writing signed by the remaining Preferred Director and filed
with the Corporation and (ii) in the case of the removal of any Preferred
Director, the vacancy may be filled by the vote or written consent of the
holders of a majority of the outstanding shares of Voting Preferred Stock
then entitled to vote for the election of directors, present (in person or
by proxy) and voting together as a single class, at such time as the
removal shall be effected. Each director appointed as aforesaid by the
remaining Preferred Director shall be deemed, for all purposes hereof, to
be a Preferred Director. Whenever (i) no default in preference dividends
on the Series A Junior Participating Preferred Stock shall exist and
(ii) the holders of other series of Voting Preferred Stock shall no longer
be
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entitled to elect such Preferred Directors, then the number of directors
constituting the Board of Directors of the Corporation shall be reduced by
two.
(v) For purposes hereof, a "DEFAULT IN PREFERENCE
DIVIDENDS" on the Series A Junior Participating Preferred Stock shall be
deemed to have occurred whenever the amount of accrued and unpaid dividends
on the Series A Junior Participating Preferred Stock shall be equivalent to
six full quarterly dividends or more (whether or not consecutive), and,
having so occurred, such default shall be deemed to exist thereafter until,
but only until, all accrued dividends on all shares of the Series A Junior
Participating Preferred Stock then outstanding shall have been paid through
the last Quarterly Dividend Payment Date.
(D) Except as set forth herein, holders of Series A Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Junior Participating 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 Junior Participating 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 Junior
Participating 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
Junior Participating Preferred Stock, except dividends paid ratably on the
Series A Junior Participating 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
Junior Participating 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
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dividends or upon dissolution, liquidation or winding up) to the Series A
Junior Participating Preferred Stock;
(iv) purchase or otherwise acquire for consideration any
shares of Series A Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series A Junior Participating 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
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. REACQUIRED SHARES. Any shares of Series A Junior
Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and cancelled
promptly after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of Preferred Stock and
may be reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.
(A) Subject to the prior and superior rights of holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of Series A Junior Participating Preferred Stock with respect to
liquidation, dissolution or winding up rights, upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to
the Series A Junior Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Junior Participating Preferred Stock
shall have received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment (the "SERIES A LIQUIDATION PREFERENCE"). Following
the payment of the full amount of the Series A Liquidation Preference, no
additional distributions shall be made to the holders of shares of Series A
Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share (the "COMMON
ADJUSTMENT") equal to the quotient obtained by dividing (i) the
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Series A Liquidation Preference by (ii) 100 (as appropriately adjusted as
set forth in subparagraph C below to reflect such events as stock splits,
stock dividends and recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "ADJUSTMENT NUMBER"). Following the
payment of the full amount of the Series A Liquidation Preference and the
Common Adjustment in respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock, respectively, holders of
Series A Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment Number to
1 with respect to such Preferred Stock and Common Stock, on a per share
basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series A Liquidation Preference
and the liquidation preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior Participating
Preferred Stock, then such remaining assets shall be distributed ratably to
the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii) combine or consolidate the outstanding Common Stock into a smaller
number of shares, then in each such case the Adjustment Number in effect
immediately prior to such event shall be adjusted by multiplying such
Adjustment Number by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. 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 and/or any other property,
then in any such case the shares of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount
per share (subject to the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock, securities, cash and/or
any other property (payable in kind), as the case may be, into which or for
which each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time after the Rights Declaration Date (i) declare
any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine or
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consolidate the outstanding Common Stock into a smaller number of shares,
then in each such case the amount set forth in the preceding sentence with
respect to the exchange or change of shares of Series A Junior
Participating Preferred Stock shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which
is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. NO REDEMPTION. The shares of Series A Junior
Participating Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Junior Participating Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution of assets, unless
the terms of any such series shall provide otherwise.
Section 10. AMENDMENT. The Restated Certificate of
Incorporation of the Corporation shall not be further amended in any manner
which would materially alter or change the powers, preferences or special
rights of the Series A Junior Participating Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior Participating Preferred
Stock, voting separately as a class.
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IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury this day of June, 1989.
James S. Gleason
Chairman of the Board
Attest:
Ralph E. Harper
Assistant Secretary
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EXHIBIT B
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER JUNE 15, 1999 OR EARLIER IF REDEEMED OR
EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION
AT $.01 PER RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT.
Right Certificate
GLEASON 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 June 8, 1989 (the "RIGHTS AGREEMENT"),
between Gleason Corporation, a Delaware corporation (the "COMPANY"), and
Chase Lincoln First Bank, N.A. (the "RIGHTS AGENT"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 P.M., New York time, on June 15,
1999 at the principal office or offices of the Rights Agent designated for
such purpose, or at the office of its successor as Rights Agent, one
one-hundredth of a fully paid non-assessable share of Series A Junior
Participating Preferred Stock, par value $1 per share (the "Preferred
Shares"), of the Company, at a purchase price of $45 per one one-hundredth
of a Preferred Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase
duly executed. The number of Rights evidenced by this Right Certificate
(and the number of one one-hundredths of a Preferred Share which may be
purchased upon exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of 1 19 based on the
Preferred Shares as constituted at such date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Right
Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate who becomes a transferee after the Acquiring
Person becomes such, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such, such Rights shall become null and void and
no
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holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a Preferred Share which may be purchased
upon the exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of certain
events, including Triggering Events.
This Right Certificate is subject to all of the terms, provision
and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Right Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the principal executive offices of the Company and
the principal office or offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal office of the Rights Agent, may be
exchanged for another Right Certificate or Right Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Right or (ii) may be exchanged in whole or in
part for Preferred Shares or shares of the Company's Common Stock, par
value $1 per share.
No fractional Preferred Shares will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are one
one-hundredth or integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by
depositary receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise hereof,
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nor shall anything contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except
as provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by
this Right Certificate shall have been exercised as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of ___________, 19__.
[SEAL]
ATTEST: GLEASON CORPORATION
_________________________ By
Name: Name:
Title: Title:
Countersigned:
CHASE LINCOLN FIRST BANK, N.A.
By_______________________
Authorized Signature
Name:
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Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________________ hereby sells,
assigns and transfers unto _________________
___________________________________________________________
(Please print name and address of transferee)
___________________________________________________________
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and
appoint _______________ Attorney, to transfer the within
Right Certificate books of the within-named Company, with full power of
substitution.
Dated: __________, 19__
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
- ----------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Right Agreement).
Signature
- ----------------------------------------------------------------
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Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the Right Certificate.)
To ______________, INC.
The undersigned hereby irrevocably elects to exercise
____________________________ Rights represented by this Right Certificate
to purchase the Common Shares issuable upon the exercise of such Rights and
requests that certificates for such Common Shares be issued in the name of:
Please insert social security
or other indentifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security
or other indentifying number
(Please print name and address)
Dated: ____________, 19__
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
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Form of Reverse Side of Right Certificate -- continued
- ----------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights Agreement).
Signature
-----------------------------------------------------------------
NOTICE
The signature on the foregoing Forms of Assignment and Election
must conform to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, the Company and the Rights Agent will deem the beneficial owner
of the Rights evidenced by this Right Certificate to be an Acquiring Person
or an Affiliate or Associate thereof (as defined in the Rights Agreement)
and such Assignment or Election to Purchase will not be honored.
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EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On June 6, 1989, the Board of Directors of Gleason Corporation
(the "COMPANY") declared a dividend distribution of one preferred share
purchase right (a "RIGHT") for each outstanding share of common stock, par
value $1 per share (the "COMMON SHARES"), of the Company. The dividend is
payable to the stockholders of record on June 16, 1989 (the "RECORD DATE").
Each Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred Stock,
par value $1 per share (the "PREFERRED SHARES"), of the Company at a price
of $45 per one one-hundredth of a Preferred Share (the "PURCHASE PRICE"),
subject to adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "RIGHTS AGREEMENT") between the Company
and Chase Lincoln First Bank, N.A., as Rights Agent (the "RIGHTS AGENT"),
dated as of June 8, 1989.
Initially, the Rights will be attached to all Common Share
certificates representing shares then outstanding, and no separate Right
Certificates will be distributed. The Rights will separate from the Common
Shares upon the earlier to occur of (i) a person or group of affiliated or
associated persons (an "ACQUIRING PERSON") having acquired beneficial
ownership of 20% or more of the outstanding Common Shares (the "SHARES
ACQUISITION DATE") (except pursuant to an offer which is not made by an
Interested Person (as hereinafter defined) and which is for all the
outstanding Common Shares at a price and on terms which a majority of
certain members of the Board of Directors determines to be fair and in the
best interests of its stockholders other than such person, its affiliates
and associates) or (ii) 10 days (or such later date as the Board may
determine) following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer the consummation of which would
result in the beneficial ownership by a person or group of 20% or more of
such outstanding Common Shares (the earlier of such dates being called the
"DISTRIBUTION DATE").
The Rights Agreement provides that, until the Distribution Date,
the Rights will be transferred with and only with the Common Shares. Until
the Distribution Date (or earlier redemption or expiration of the Rights),
new Common Share certificates issued after the Record Date, upon transfer
or new issuance of Common Shares will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for Common Shares, outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will
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also constitute the transfer of the Rights associated with the Common
Shares represented by such certificate. As soon as practicable following
the Distribution Date, separate certificates evidencing the Rights ("RIGHT
CERTIFICATES") will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on June 15, 1999 unless earlier
redeemed by the Company as described below.
In the event that any person becomes an Acquiring Person (except
pursuant to a tender or exchange offer which is not made by an Interested
Person (as hereinafter defined) and which is for all outstanding Common
Shares at a price and on terms which a majority of certain members of the
Board of Directors determines to be fair and in the best interests of the
Company and its stockholders, other than such Acquiring Person, its
affiliates and associates (a "PERMITTED OFFER")), each holder of a Right
will thereafter have the right (the "SUBSCRIPTION RIGHT") to receive upon
exercise the number of Common Shares (or, in certain circumstances, cash,
property or other securities of the Company or a reduction in the purchase
price) having a value (immediately prior to such triggering event) equal to
two times the exercise price of the Right. The Board of Directors of the
Company, however, may determine to issue, without payment of the Purchase
Price and upon surrender of the Subscription Right, Common Shares and/or
securities having an economic value equivalent to the Common Shares, which
have an aggregate value equal to the market value of the Common Shares
issuable upon the exercise of the Subscription Right less the Purchase
Price. Notwithstanding the foregoing, following the occurrence of the
event described above, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void.
In the event that, at any time following the Shares Acquisition
Date, (i) the Company is acquired in a merger or other business combination
transaction in which the holders of all the Company's voting power
immediately prior to the consummation of the transaction are not the
holders of all of the surviving corporation's voting power, or (ii) more
than 50% of the Company's assets or earning power is sold or transferred,
each holder of a Right (except Rights which previously have been voided as
set forth above) shall thereafter have the right to receive, upon exercise,
common shares of the acquiring company having a value equal to two times
the exercise price of the Right. The holder of a right will continue to
have the right described in this paragraph whether or not such holder
exercises or surrenders the Subscription Right.
The Purchase Price payable, and the number of Preferred Shares or
other securities or property issuable, upon exercise of
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the Rights are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Shares, (ii) upon the grant to holders
of the Preferred Shares of certain rights or warrants to subscribe for or
purchase Preferred Shares at a price, or securities convertible into
Preferred Shares with a conversion price, less than the then current market
price of the Preferred Shares or (iii) upon the distribution to holders of
the Preferred Shares of evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of one
one-hundredths of a Preferred Share issuable upon exercise of each Right
are also subject to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common Shares or
subdivisions, consolidations or combinations of the Common Shares
occurring, in any such case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $1 per share; thereafter, and
after the holders of the Common Shares receive a liquidation payment of $1
per share, the holders of the Preferred Shares and the holders of the
Common Shares will share the remaining assets in the ratio of 100 to 1 (as
adjusted) for each Preferred Share and Common Share so held, respectively.
In the event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $100 per share,
but, if greater, will be entitled to an aggregate payment of 100 times the
payment made per Common Share. Each Preferred Share will have 100 votes,
voting together with the Common Shares. In the event that the amount of
accrued and unpaid dividends on the Preferred Shares is equivalent to six
full quarterly dividends or more, the holders of the Preferred Shares shall
have the right, voting as a class, to elect two directors in addition to
the directors elected by the holders of the Common Shares and the Preferred
Shares as above described until all accrued dividends on the Preferred
Shares have been paid through the last quarterly dividend payment date.
Finally, in the event of any merger, consolidation or other transaction in
which Common Shares are exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per Common Share. These rights are
protected by customary antidilution provisions.
At any time prior to the date a person becomes an Acquiring
Person (or such later date as the Board of Directors of the Company may
determine provided that such determination is made prior to any Shares
Acquisition Date), the Board of Directors of the Company may, at its
option, determine that following a Shares Acquisition Date the Rights
(other than those
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held by an Acquiring Person) will be exchanged, in whole or in part, at an
exchange ratio of one Common Share, or one one-hundredth of a Preferred
Share (or of a share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per Right (subject
to adjustment), such exchange to be in lieu of the Subscription Right.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional Preferred Shares will be issued
(other than fractions which are one one-hundredth or integral multiples of
one one-hundredth of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu thereof, an
adjustment in cash will be made based on the market price of the Preferred
Shares on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person
becoming an Acquiring Person or (ii) the expiration of the Rights, the
Company may redeem the Rights in whole, but not in part, at a price of $.01
per Right (the "Redemption Price") or, at the Company's option, for Common
Shares, which redemption shall be effective upon the action of the Board of
Directors. Additionally, the Company may following the Shares Acquisition
Date redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price provided that such redemption is (i) in connection with a
merger or other business combination transaction or series of transactions
involving the Company in which all holders of Common Shares are treated
alike but not involving an Acquiring Person or any person who was an
Acquiring Person or (ii) following an event giving rise to, and the
expiration of the exercise period for, the Subscription Right if and for as
long as no person beneficially owns securities representing 10% or more of
the voting power of the Company's voting securities. However, in the event
that a majority of the board is comprised of persons elected at a meeting
who were not nominated by the directors in office immediately prior to such
meeting, then (x) the Rights may not be redeemed for 180 days after such
election if such redemption is reasonably likely to have the purpose of
facilitating certain business combination transactions with the person
nominating such newly elected directors (an "INTERESTED PERSON") and (y)
the Rights may not be redeemed if during the 180 day period the Company
enters into any agreement reasonably likely to facilitate a transaction
with an Interested Person and the redemption is reasonably likely to
facilitate such a transaction. Upon the effective date of the redemption
of the Rights, the right to exercise the Rights will terminate and the only
right of the holders of Rights will be to receive the Redemption Price.
Other than those provisions relating to the principal economic
terms of the Rights, any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company
C-4
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prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to
cure any ambiguity, defect or inconsistency, to make changes which do not
adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or, subject to certain limitations, to
shorten or lengthen any time period under the Rights Agreement; however, in
the event that a majority of the Board of Directors of the Company is
comprised of persons elected at a meeting of stockholders who were not
nominated by the Board of Directors in office immediately prior to such
meeting, then for a period of 180 days following the effectiveness of such
action the Rights Agreement may not be amended or supplemented in any
manner reasonably likely to have the purpose or effect of facilitating
certain business combination transactions with an Interested Person.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to stockholders of the
Company, stockholders may, depending upon the circumstances, recognize
taxable income should the Rights become exercisable or upon the occurrence
of certain events thereafter.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form
B-A dated 1989. A copy of the Rights Agreement is available free of charge
from the Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety to reference to the Rights
Agreement, which is hereby incorporated herein by reference.
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AMENDMENT NQ. 1 TO RIGHTS AGREEMENT
Amendment No. 1, dated as of February 26, 1990, to the Rights
Agreement (the "Rights Agreement"), dated as of June 8, 1989, between
Gleason Corporation (the "Company") and Chase Lincoln First Bank, N.A. (the
"Rights Agent").
The Company and the Rights Agent desire to amend the Rights
Agreement pursuant to Section 27 thereof.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS: Each capitalized term defined in the Rights
Agreement shall have the same meaning in this Amendment No. 1 as in the
Rights Agreement, unless otherwise provided herein.
2. AMENDMENTS
2.1 Section l(a) of the Rights Agreement is amended by
deleting "20%" each time it appears in Section l(a) and replacing it with
"15%".
2.2 Section 1(a) of the Rights Agreement is also amended by
adding the following to the end of the last sentence thereof:
"(the Persons described in clauses (i) through (iv) are
collectively referred to as the "Company Persons"), and
any securities of the Company beneficially owned by any
Company Person shall not be aggregated with the
securities of the Company otherwise beneficially owned
by any other Person for the purpose of determining
whether such other Person is an Acquiring Person."
2.3 Section 1(d) of the Rights Agreement is amended by
adding the following sentence to the end of the last paragraph thereof:
"Notwithstanding anything in this definition of
Beneficial Ownership to the contrary, a Person who is a
trustee, director, officer or other fiduciary of any
Company Person shall not be deemed to be the Beneficial
owner of any securities of the Company beneficially
owned by any such Company Person."
2.4 Section 3(c) of the Rights Agreement is hereby amended
by modifying the fifth line of the legend therein to read in its entirety
as follows:
", as amended by Amendment No. 1, dated as of
February 26, 1990 (as amended, the "Rights Agreement"),
the terms of which are"
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<PAGE>
2.5 Exhibit B to the Rights Agreement is hereby amended by
modifying the fifth line of the first paragraph of text to read in its
entirety as follows:
"Agreement, dated as of June 8, 1989, as amended by
Amendment No. 1, dated as of February 26, 1990 (as
amended, the "Rights Agreement"),"
2.6 Exhibit C to the Rights Agreement is hereby amended by
deleting the final sentence of the first paragraph and inserting in its
place the following:
"The description and terms of the Rights are set forth
in a Rights Agreement between the Company and Chase
Lincoln First Bank, N.A., as Rights Agent (the "Rights
Agent"), dated as of June 8, 1989, as amended by
Amendment No. 1, dated as of February 26, 1990 (as
amended, the "Rights Agreement")."
2.7 Exhibit C to the Rights Agreement is amended by
deleting "20%" from the second paragraph each time it appears and replacing
it with "15%".
2.8 Section 13(c) of the Rights Agreement is amended by
modifying the second sentence of the last paragraph thereof to read in its
entirety as follows:
"The rights under this Section 13 shall be in addition
to the rights to exercise Rights and adjustments under
Section 11(a)(ii) and 11(a)(iii) and shall survive any
exercise thereof."
3. RIGHTS AGREEMENT. Except as amended hereby, the Rights
Agreement shall remain in full force and effect.
4. GOVERNING LAW. This Amendment No. 1 shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes
shall be governed and construed in
2
<PAGE>
accordance with the laws of such state applicable to contracts to be made
and to be performed entirely within such state.
5. COUNTERPARTS. This Amendment No. 1 may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
6. DESCRIPTIVE HEADINGS. Descriptive headings of this
Amendment No. 1 are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 1 to be duly executed and attested, all as of the date and year first
above written.
ATTEST: GLEASON CORPORATION
By:/S/ RALPH E. HARPER By: /S/ JAMES S. GLEASON
Name: Ralph E. Harper Name: James S. Gleason
Title: Secretary Title: Chairman and President
ATTEST: CHASE LINCOLN FIRST BANK, N.A.
By: /S/ PAUL A. SIMON By: /S/ JOHN N. HAWLING
Name: Paul A. Simon Name: John N. Hawling
Title: Vice President Title: Assistant Vice President
3
<PAGE>
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Amendment No. 2, dated as of December 18, 1991, between Gleason Corporation
(the "Company") and American Stock Transfer & Trust Company, as successor
Rights Agent (the "Rights Agent"), to the Rights Agreement dated as of June 8,
1989, between the Company and Chase Lincoln First Bank, N.A., as original
Rights Agent, as heretofore amended by Amendment No. 1 dated as of February 26,
1990 ("Amendment No. 1") (as so amended, the "Rights Agreement").
The Company and the Rights Agent desire pursuant to Section 27 of the Rights
Agreement to further amend the Rights Agreement.
Accordingly, the parties hereto agree as follows:
1. DEFINITIONS: Each capitalized term defined in the Rights Agreement
shall have the same meaning in this Amendment No. 2 as in the Rights Agreement
unless otherwise provided herein.
2. AMENDMENTS
2.1 Section 1(c) of the Rights Agreement is amended by adding
thereto the following sentence:
"Notwithstanding anything in this definition of Affiliate and
Associate to the contrary, Gleason Memorial Fund, Inc. shall not be
considered an Affiliate or Associate of any of its directors or
officers, and no director or officer of Gleason Memorial Fund, Inc.
shall be considered an Affiliate or Associate of it."
2.2 Section 1(d) of the Rights Agreement is amended by adding
thereto the following paragraph:
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, no director or officer of Gleason Memorial
Fund, Inc. shall be deemed the Beneficial Owner of or to beneficially
own any securities beneficially owned by Gleason Memorial Fund, Inc.
1
<PAGE>
2.3 Section 3(c) of the Rights Agreement is amended by deleting the
language added thereto by Amendment No. 1 and replacing it with the following:
", as heretofore and hereafter amended (as amended, the "Rights
Agreement"), the terms of which are"
2.4 Section 21 of the Rights Agreement is amended by deleting
"$100,000,000" at the end of the fifth sentence and replacing it with
"$10,000,000".
2.5 Exhibit B to the Rights Agreement, as amended by Amendment
No. 1, is further amended by modifying the original fourth through eighth lines
of the first paragraph of the text to read in their entirety as follows:
"Agreement, dated as of June 8,1989, between Gleason Corporation, a
Delaware corporation (the "COMPANY") and Chase Lincoln First Bank,
N.A., as Rights Agent, as amended by amendments between the Company
and such original or any successor Rights Agent ("RIGHTS AGENT") (as
so amended, the "RIGHTS AGREEMENT"), to purchase from the Company at
any time after the"
2.6 Exhibit C to the Rights Agreement, as amended by Amendment
No. 1, is further amended by deleting the final sentence of the first paragraph
added by Amendment No. 1 and inserting in its place the following:
"The description and terms of the Rights are set forth in a Rights
Agreement between the Company and Chase Lincoln First Bank, N.A., as
Rights Agent, as amended by amendments between the Company and such
original Rights Agent or any successor Rights Agent ("RIGHTS AGENT")
(as so amended, the "RIGHTS AGREEMENT")."
3. RIGHTS AGREEMENT. As amended hereby, the Rights Agreement shall
remain in full force and effect.
4. GOVERNING LAW. This Amendment No. 2 shall be deemed to be a contract
made under the laws of the State of Delaware and for all
2
<PAGE>
purposes shall be governed and construed in accordance with the laws of such
state applicable to contracts to be made and to be performed entirely within
such state.
5. COUNTERPARTS. This Amendment No. 2 may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
6. DESCRIPTIVE HEADINGS. Descriptive headings of this Amendment No. 2
are inserted for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed and attested, all as of the date and year first above written.
ATTEST: GLEASON CORPORATION
By:/S/ RALPH E. HARPER By: /S/ JAMES S. GLEASON
Name: Ralph E. Harper Name: James S. Gleason
Title: Secretary Title: Chairman and President
ATTEST: AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /S/ JOSEPH WOLF By:/S/ HERBERT J. LEMMER
Name: Joseph Wolf Name: Herbert J. Lemmer
Title: Vice President Title: Vice President
3
SUBSIDIARIES OF THE REGISTRANT
State or Country Percent
Subsidiary of Incorporation Ownership
---------- ---------------- ---------
Gleason Foreign Sales Corporation Barbados 100
The Gleason Works New York 100
Alliance Tool Corporation New York 100
Gleason Works (Holdings) Limited United Kingdom 100
Gleason Works Limited United Kingdom 100
Gleason International
Marketing Corporation Delaware 100
Gleason Corporation Sales Michigan 100
Gleason Australia (Services)
Pty. Limited Australia 100
Gleason - Hurth Maschinen
und Werkzeuge GmbH Germany 100
Gleason Works (India) Private
Limited India 100
Gleason-Pfauter Maschinenfabrik GmbH Germany 100
Hermann Pfauter GmbH & Co. Germany 100
Hermann Pfauter
Verwaltungsgesellschaft mbH Germany 100
Pfauter Italia srl Italy 100
Pfauter Italia SpA Italy 100
Pfauter France France 85
G.W. Acquisition Corp. Delaware 100
Pfauter Cutting Tools Inc. Illinois 100
Pfauter-Maag Cutting Tools
Limited Partnership Illinois 100
American Pfauter Management Inc. Illinois 100
American Pfauter L.P. Illinois 100
