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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
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THE TURNER CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 13-3209884
(State of incorporation or organization) (I.R.S. Employer Identification No.)
375 HUDSON STREET 10014
NEW YORK, NEW YORK (Zip Code)
(Address of principal executive offices)
Securities Act registration statement file number
to which this form relates: N/A
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered: each class is to be registered:
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PREFERRED STOCK AMERICAN STOCK EXCHANGE, INC.
PURCHASE RIGHTS
If this Form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective upon filing pursuant
to General Instruction A.(c), please check the following box. [ ]
If this Form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
None.
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<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
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On August 14, 1998, the Board of Directors (the "Board") of The
Turner Corporation (the "Company") declared a dividend distribution of one
Right for each outstanding share of Common Stock, par value $1.00 per
share, of the Company ("Common Stock"). The distribution is payable to the
stockholders of record at the close of business on September 21, 1998, and,
in addition, the Company has authorized the issuance of one Right with
respect to each share of Common Stock that shall become outstanding between
the close of business on September 21, 1998, and the earlier of the
Distribution Date or Expiration Date (as such terms are hereinafter
described) or the date, if any, on which Rights may be redeemed. When
exercisable, each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of a new series of the Company's
preference stock designated as Series F Participating Preference Stock
("Preference Stock") at a price of $80 per one one-hundredth of a 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 First Chicago Trust Company of New York, as Rights
Agent (the "Rights Agent").
The Rights replace certain similar rights which will expire at
the close of business on September 21, 1998 and which were issued under a
Rights Agreement dated September 9, 1988 between the Company and Morgan
Shareholder Services Trust Company.
Up to and including the Distribution Date, the Rights will be
evidenced, with respect to any of the Common Stock certificates outstanding
as of the close of business on September 21, 1998, by such Common Stock
certificates, whether or not a copy of the Summary of Rights is attached
thereto, and the Rights will be transferred with and only with Common
Stock. In addition, up to and including the Distribution Date (or earlier
redemption or expiration of the Rights), (i) new Common Stock certificates
issued after the close of business on September 21, 1998, upon transfer or
new issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference and (ii) the surrender for transfer of any
certificates for Common Stock outstanding on or after September 21, 1998,
with or without a copy of the Summary of Rights attached thereto, will also
constitute the transfer of the Rights associated with Common Stock
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 Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
Under the Rights Agreement, the Distribution Date is defined as
the earlier of the tenth business day after (i) the commencement of a
tender or exchange offer by any person (other than the Company, any
subsidiary of the Company or any employee benefit plan or employee stock
plan of the Company or of any subsidiary of the Company) for a number of
the outstanding shares of the Company's stock having in the aggregate 30%
or more of the general voting power of the Company, unless the Board
declares that the tenth business day following such tender or exchange
offer shall not be considered a Distribution Date, or (ii) the date (the
"Stock Acquisition Date") of a public announcement by the Company or an
Acquiring Person that an Acquiring Person has become such. In general,
under the Rights Agreement an Acquiring Person is a person or group of
affiliated or associated persons (other than the Company, any subsidiary of
the Company, any employee benefit plan or employee stock plan of the
Company or of any subsidiary of the Company, any person who is the
beneficial owner of shares of the Company's stock having in the aggregate
30% or more of the general voting power of the Company solely by reason of
the purchase or conversion of certain specified securities, including the
Company's Series C 8 1/2% Convertible Preference Stock and Series D 8 1/2%
Convertible Preference Stock, or any person who acquires shares of the
Company's stock having in the aggregate 30% or more of the general voting
power of the Company in connection with a transaction or series of
transactions approved in advance by the Board) who has acquired or obtained
the right to acquire beneficial ownership of a number of the outstanding
shares of the Company's stock having in the aggregate 30% or more of the
general voting power of the Company.
The Rights are not exercisable until after the date on which the
Company's right to redeem has expired. The Rights will expire on September
21, 2008 (the "Expiration Date"), unless earlier redeemed by the Company as
described below.
The Preference Stock will be non-redeemable and will rank equally
in respect of dividends and the distribution of assets to all other classes
or series of the Company's preference stock, unless the terms thereof shall
provide otherwise. The Preference Stock which is the subject of the Rights
may not be issued except upon exercise of Rights. Each share of Preference
Stock will have a minimum preferential quarterly dividend rate of $3 per
share but will be entitled to an aggregate of 100 times the cash and
non-cash (payable in kind) dividends and distributions (other than
dividends and distributions payable in Common Stock) declared on the
Company's Common Stock. In the event of liquidation, the holders of
Preference Stock will be entitled to receive a liquidation payment in an
amount equal to the greater of $100 per share or 100 times the payment made
per share of Common Stock, plus an amount equal to accrued and unpaid
dividends and distributions thereon. Each share of Preference Stock will
have 100 votes, voting together with the Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock
are exchanged, each share of Preference Stock will be entitled to receive
100 times the amount received per share of Common Stock. The rights of the
Preference Stock as to dividends, liquidation and voting are protected by
antidilution provisions.
The Purchase Price payable, and number of shares of Preference
Stock or other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on Common Stock, or a subdivision, combination or
reclassification of Common Stock or Preference Stock, (ii) upon the grant
to holders of Common Stock of certain rights or warrants to subscribe for
Common Stock or convertible securities at less than the current market
price of Common Stock, or (iii) upon the distribution to holders of Common
Stock of evidences of indebtedness or assets (excluding regular periodic
cash dividends out of earnings or retained earnings at a rate not in excess
of 125% of the rate of the last cash dividend theretofore paid or dividends
payable in Common Stock) or of subscription rights or warrants (other than
those referred to above).
In the event that, on or at any time after a Stock Acquisition
Date, the Company is acquired in a merger or other business combination
transaction (in which any shares of the Company's Common Stock are changed
into or exchanged for other securities or assets) or 50% or more of the
assets or earning power of the Company and its subsidiaries (taken as a
whole) are sold, proper provision shall be made so that each holder of a
Right shall thereafter have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such transaction
would have a market value (determined as provided in the Rights Agreement)
of two times the exercise price of the Right.
In the event that (i) on or at any time after a Stock Acquisition
Date, the Company is the surviving corporation in a merger or other
business combination and its Common Stock remains outstanding and
unchanged, (ii) an Acquiring Person engages in one or more self-dealing
transactions specified in the Rights Agreement, (iii) a person (other than
the Company, any subsidiary of the Company, any employee benefit plan or
employee stock plan of the Company or of any subsidiary of the Company, or
a person who acquires 30% or more of the general voting power of the
Company in connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of Directors of the
Company) alone, or together with his, her or its affiliates or associates,
becomes the beneficial owner of a number of the outstanding shares of the
Company's stock having in the aggregate 30% or more of the general voting
power of the Company or (iv) during such time as there is an Acquiring
Person, any of certain events described in the Rights Agreement occurs
which results in such Acquiring Person's ownership interest being increased
by more than 1%, then, and in each such case, proper provision shall be
made so that each holder of a Right (except as noted below) will thereafter
have the right to receive, upon payment of the Purchase Price, that number
of shares of Common Stock, or in the discretion of the Board of Directors
of the Company, one one-hundredths of a share of Preference Stock as shall
equal the result obtained by (A) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of Preference
Stock for which a Right was exercisable immediately prior to the first
occurrence of any one of the events listed above in this paragraph and (B)
dividing that product by 50% of the current market price per one share of
Common Stock.
The holder of any Rights that are, or were, beneficially owned by
an Acquiring Person or an affiliate or associate thereof or certain
transferees thereof which engaged in, or realized the benefit of, an event
or transaction or transactions described in the immediately preceding
paragraph, shall not be entitled to the benefit of the adjustment described
in the immediately preceding paragraph.
Rights are not exercisable until such time as the Rights are no
longer redeemable by the Company as described below.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares (other than fractions which
are integral multiples of the fraction of a share for which a Right is then
exercisable) will be issued and in lieu thereof an adjustment in cash will
be made based on the market price of Common Stock on the last trading date
prior to the date of exercise.
Up to and including the tenth business day after a Stock
Acquisition Date, which time period may be extended by the Board to any
time up to and including the twentieth business day after a Stock
Acquisition Date, the Company may redeem the rights in whole, but not in
part, at a price of $.01 per Right, which amount may be adjusted as
provided in the Rights Agreement (the "Redemption Price"). Promptly upon
the action of the Board electing to redeem the Rights, the Company shall
make an announcement thereof and, upon such announcement, the right to
exercise the Rights will terminate and the only right of the holders of
Rights will be to receive the Redemption Price.
Any of the provisions of the Rights Agreement may be amended by
the Board prior to the Distribution Date. On and after the Distribution
Date, the provisions of the Rights Agreement may be amended by the Board in
order to cure any ambiguity, correct or supplement any provision contained
in the Rights Agreement which may be defective or inconsistent with any
other provisions in the Rights Agreement, to make changes which do not
adversely affect the interests of holders of Rights (other than an
Acquiring Person or an Affiliate or Associate thereof), or to shorten or
lengthen any time period under the Rights Agreement; provided, however,
that the Rights Agreement may not be supplemented or amended to lengthen a
time period relating to when the rights may be redeemed at such time as the
Rights are not redeemable, or any other time period unless such lengthening
is for the purpose of protecting, enhancing or clarifying the rights of,
and/or benefits to, the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company with respect to a Right
held, including, without limitation, the right to vote or to receive
dividends.
The present distribution of the Rights is not taxable to the
Company or its shareholders. The Rights are not dilutive and will not affect
reported earnings per share. The Company will receive no proceeds from the
issuance of the Rights as a dividend.
As of August 3, 1998, there were 8,349,998 shares of Common Stock
issued and outstanding, including 313,512 shares of Common Stock held in
the Company's treasury, and 5,879,631 shares of Common Stock reserved for
issuance with respect to (A) options which have been granted under the
Company's stock option plans or (B) conversion of the Company's Series B ESOP
Convertible Preference Stock, Series C 8-1/2% Convertible Preference Stock
and Series D 8-1/2% Convertible Preference Stock. A total of 200,000 shares
of Preference Stock have been reserved for issuance upon exercise of the
Rights.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by the Company's Board of Directors. The
Rights should not interfere with any merger or other business combination
approved by the Board since the Rights may be redeemed by the Company at
$.01 per Right, subject to adjustment, at any time up to and including the
tenth business day (twentieth business day if the Board so
determines) following the Stock Acquisition Date.
The Rights Agreement, dated as of September 21, 1998 between the
Company and First Chicago Trust Company of New York, as Rights Agent,
specifying the terms of the Rights, which includes as Exhibit A the form of
Right Certificate, as Exhibit B the form of Summary of Rights to Purchase
Preference Stock and as Exhibit C the form of Certificate of Designation,
Preference and Rights of the Series F Participating Preference Stock
specifying the terms of the Preference Stock are filed herewith as exhibits
and incorporated herein by reference. The foregoing description of the
Rights is qualified in its entirety by reference to such exhibits.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
Dated: September 3, 1998
THE TURNER CORPORATION
By: /s/ Sara J. Gozo
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Sara J. Gozo
Vice President, Secretary and
General Counsel
<PAGE>
Exhibit
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Number
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(1) Rights Agreement, dated as of September 21, 1998, between the Turner
Corporation and First Chicago Trust Company of New York, as Rights
Agent. The Rights Agreement includes the form of Right Certificate as
Exhibit A, the Summary of Rights to Purchase Preference Stock as
Exhibit B and the form of Certificate of Designation, Preference and
Rights of the Series F Participating Preference Stock specifying the
terms of the Preference Stock as Exhibit C.
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Exhibit 1
THE TURNER CORPORATION
and
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Rights Agent
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Rights Agreement
Dated as of September 21, 1998
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<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Definitions............................................1
Section 2. Appointment of Rights Agent....................................4
Section 3. Issue of Right Certificates....................................5
Section 4. Form of Right Certificates.....................................6
Section 5. Countersignature and Registration..............................7
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates...........................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights....................................................9
Section 8. Cancellation and Destruction of Right Certificates............10
Section 9. Reservation and Availability of Shares of Preference Stock....11
Section 10. Preference Stock Record Date..................................11
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights.....................................................12
Section 12. Certification of Adjusted Purchase Price or Number of
Shares........................................................20
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.................................................20
Section 14. Fractional Rights and Fractional Shares.......................23
Section 15. Rights of Action..............................................24
Section 16. Agreement of Right Holders....................................24
Section 17. Right Certificate Holder Not Deemed a Stockholder.............25
Section 18. Concerning the Rights Agent...................................25
Section 19. Merger or Consolidation or Change of Name of Rights Agent.....26
Section 20. Duties of Rights Agent........................................26
Section 21. Change of Rights Agent........................................28
Section 22. Issuance of New Right Certificates............................29
Section 23. Redemption....................................................29
Section 24. Notice of Proposed Actions....................................30
Section 25. Notices.......................................................30
Section 26. Supplements and Amendments....................................31
Section 27. Successors....................................................32
Section 28. Benefits of this Agreement....................................32
Section 29. Governing Law.................................................32
Section 30. Counterparts..................................................32
Section 31. Severability..................................................32
Section 32. Descriptive Headings..........................................32
Section 33. Determinations and Actions Taken by the Board of Directors....32
Exhibit A Form of Right Certificate.................................A-1
Exhibit B Summary of Rights to Purchase
Preference Stock..........................................B-1
Exhibit C Form of Certificate of Designation, Preferences and
Rights of Series F Participating Preference Stock.........C-1
<PAGE>
RIGHTS AGREEMENT
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This Agreement, dated as of September 21, 1998 between The Turner
Corporation, a Delaware corporation (the "Company"), and First Chicago
Trust Company of New York, a New York corporation (the "Rights Agent"):
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Board of Directors of the Company has authorized and
declared a dividend distribution of one right (a "Right") for each share of
Common Stock, par value $1.00 per share, of the Company ("Common Stock")
outstanding at the Close of Business on September 21, 1998 and has
authorized the issuance of one Right with respect to each share of Common
Stock that shall become outstanding between September 21, 1998 and the
earlier of the Distribution Date or the Expiration Date (as such terms are
hereinafter defined) or the date, if any, on which such Rights are
redeemed, each Right representing the right to purchase one one-hundredth
of a share of Series F Participating Preference Stock of the Company
("Preference Stock") having the rights and preferences set forth in the
form of Certificate of Designation, Preferences and Rights attached hereto
as Exhibit C upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms 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 a Substantial Block, but shall not include (i)
the Company, (ii) any Subsidiary of the Company, (iii) any employee
benefit plan or employee stock plan of the Company or of any
Subsidiary of the Company or any Person organized, appointed,
established or holding Voting Stock by, for or pursuant to, the terms
of any such plan, (iv) any Person who is the Beneficial Owner of a
Substantial Block solely because of (A) the purchase of Series C 8
1/2% Convertible Preference Stock ("Series C Stock") and Series D 8
1/2% Convertible Preference Stock ("Series D Stock") pursuant to a
Purchase Agreement, dated June 3, 1992 (the "Purchase Agreement")
between Karl Steiner Holding AG ("Steiner") and the Company, (B) the
conversion of an 8 1/2% Convertible Debenture due 1997 (the
"Debenture") into Series D Stock, (C) the exchange of Series C Stock
for Series E 8 1/2% Convertible Preference Stock ("Series E Stock") of
the Company, (D) the conversion of Series C Stock, Series D Stock or
Series E Stock into Common Stock, (E) the exercise by Steiner of any
option granted to it in an Agreement Regarding Security Holder's
Rights Obligations and Options, dated July 20, 1992, between Steiner
and the Company (the "Rights and Options Agreement"), (F) a
solicitation of tenders by Steiner permitted by Paragraph 7(c) of the
Rights and Options Agreement, (G) the acquisition by a Person from
Steiner of the Debenture or of shares of Series C Stock, Series D
Stock, Series E Stock or Common Stock, in a transaction which complies
with all provisions of the Rights and Options Agreement or (H) the
purchase by Steiner of Voting Stock at any time after Steiner
purchases Common Stock from the Company through exercise of a
Sale/Purchase Option or a Steiner Purchase Option created under
paragraph 8 of the Rights and Options Agreement or of a Termination
Sale/Purchase Option or a Steiner Termination Purchase Option created
under subparagraphs (11)(b) and (c), of the Rights and Options
Agreement, and (v) any Person who acquires a Substantial Block in
connection with a transaction or series of transactions approved prior
to such transaction or transactions by the Board of Directors of the
Company.
(b) "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 in effect as
of the date hereof.
(c) 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, or upon
the exercise of any conversion, exchange or purchase rights
(other than the Rights), warrants or options, or otherwise,
provided, however, that a Person shall not be deemed the
Beneficial Owner of securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for payment, or (B) the right to vote pursuant to
any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of any securities of the Company;
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 arises solely from
a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
provided, further, that nothing in this paragraph (c) shall cause a
Person engaged in business as an underwriter of securities to be the
Beneficial Owner of, or to Beneficially Own, any securities acquired
through such Person's participation in good faith in a firm commitment
underwriting until the expiration of forty days after the date of such
acquisition.
(d) "Business Day" shall mean any day other than a Saturday,
Sunday or day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M.,
New York City time, on such date; provided, however, that if such date
is not a Business Day it shall mean 5:00 P.M., New York City time, on
the next succeeding Business Day.
(f) "Common Stock" shall have the meaning assigned to it in the
recital, and "common stock" (i) when used with reference to any Person
other than the Company shall mean the capital stock with the greatest
voting power of such Person or, if such Person is a Subsidiary of
another Person, the Person which ultimately controls such
first-mentioned Person and (ii) when used with reference to any Person
other than the Company which shall not be organized in corporate form
shall mean units of beneficial interest which (A) shall represent the
right to participate generally in the profits and losses of such
Person (including, without limitation, any flow-through tax benefits
resulting from an ownership interest in such Person) and which (B)
shall be entitled to exercise the greatest voting power of such Person
or, in the case of a limited partnership, shall have the power to
remove the general partner or partners.
(g) "Distribution Date" shall have the meaning assigned to it in
Section 3.
(h) "Equivalent Stock" shall have the meaning assigned to it in
Section 7.
(i) "Exchange Act" shall have the meaning assigned to it in
Section 1(c).
(j) "Expiration Date" shall have the meaning assigned to it in
Section 7.
(k) "Person" shall mean any individual, firm, corporation or
other entity and shall include any successor by merger or otherwise to
such entity.
(l) "Preference Stock" shall have the meaning assigned to it in
the recital.
(m) "Purchase Price" shall have the meaning assigned to it in
Section 4.
(n) "Redemption Price" shall have the meaning assigned to it in
Section 23.
(o) "Stock Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(p) "Subsidiary" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership
interests having ordinary voting power sufficient, in the absence of
contingencies, to elect a majority of the board of directors or other
persons performing similar functions are at the time directly or
indirectly owned by such Person and any Affiliate of such Person.
(q) "Substantial Block" shall mean a number of shares of Voting
Stock having in the aggregate 30% of more of the general voting power.
(r) "Trading Day" shall have the meaning assigned to it in
Section 11(d).
(s) "Voting Stock" shall mean shares of the Company's capital
stock having general voting power. For the purposes hereof, "voting
power," when used with reference to the capital stock of, or units of
equity interests in, any Person shall mean the power under ordinary
circumstances (and not merely upon the happening of a contingency) to
vote in the election of directors of such Person (if such Person is a
corporation) or to participate in the management and control of such
Person (if such Person is not a corporation).
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, shall prior to the
Distribution Date also be the holders of Common Stock) in accordance with
the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights Agent
or Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates. (a) The "Distribution
Date" shall mean the earlier of (i) the tenth Business Day after the date
of the commencement of a tender or exchange offer (as determined by
reference to Rule 14d-2(a) (or any successor rule) under the Exchange Act)
by any Person (other than the Company, any Subsidiary of the Company, or
any employee benefit plan or employee stock plan of the Company or any
Subsidiary of the Company) for a number of shares of the outstanding voting
Stock having 30% or more of the general voting power, unless (A) during
such ten Business Day period the Company's Board of Directors declares that
the tenth Business Day following such tender or exchange offer shall not be
a Distribution Date, or (B) the tender offer is a solicitation of tenders
by Steiner permitted by Paragraph 7(c) of the Rights and Options Agreement,
or (ii) the tenth Business Day after a Stock Acquisition Date. Up to and
including the Distribution Date, (x) the Rights will be evidenced by the
certificates for Common Stock registered in the names of the holders of
Common Stock (which certificates for Common Stock shall be deemed also to
be Right Certificates) and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only in connection
with the transfer of Common Stock. As soon as practicable after the
Distribution Date, the Rights Agent will mail, by first-class, insured,
postage prepaid mail, to each record holder of Common Stock as of the Close
of Business on the Distribution Date, as shown by the records of the
Company at the Close of Business on the Distribution Date, at the address
of such holder shown on such records, a Right Certificate, in substantially
the form of Exhibit A hereto (a "Right Certificate"), evidencing one Right
for each share of Common Stock so held.
(b) On September 21, 1998 or as soon as practicable thereafter,
the Company will send a copy of a Summary of Rights to Purchase Preference
Stock ("Summary of Rights"), in substantially the form attached hereto as
Exhibit B, by first-class mail, postage prepaid, to each record holder of
Common Stock as of the Close of Business on September 21, 1998, at the
address of such holder shown on the records of the Company.
(c) As soon as practicable, the Company will cause certificates
for Common Stock issued after September 21, 1998, but prior to the earlier
of the Distribution Date or the Expiration Date or the date, if any, on
which the Rights are redeemed, to have impressed on, printed on, written on
or otherwise affixed to them the following legend:
This certificate also entitles the holder hereof to
certain Rights as set forth in a Rights Agreement
between The Turner Corporation and First Chicago Trust
Company of New York, dated as of September 21, 1998, as
the same shall be amended from time to time (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 The
Turner 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. The Turner
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 any Affiliate or
Associate thereof (as such terms are defined in the
Rights Agreement) or one of certain transferees
thereof, whether currently held by or on behalf of such
Person or by any subsequent holder, may be limited as
provided in Section 7(e) of the Rights Agreement.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with Common Stock represented
by such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Stock certificate.
(d) Until the Distribution Date, the surrender for transfer of
any of the certificates for Common Stock outstanding on or after the Close
of Business on September 21, 1998, with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights
associated with Common Stock represented by such certificates. After the
Distribution Date, the Rights will be evidenced solely by the Right
Certificates.
Section 4. Form of Right Certificates. (a) The Right Certificates
(and the forms of assignment and of election to purchase shares to be
printed on the reverse thereof) shall be in substantially the form of
Exhibit A hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the Company
may deem appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any law or with any
rule or regulation made pursuant thereto or with any rule or regulation of
any stock exchange 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, the Right Certificates, whenever issued, shall be dated as of September
21, 1998, and on their face shall entitle the holders thereof to purchase
such number of shares of Preference Stock as shall be set forth therein at
the price per one one-hundredth of a share set forth therein (the "Purchase
Price"), but the number of such shares and the Purchase Price shall be
subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or
Section 22 that represents Rights Beneficially Owned by: (i) an Acquiring
Person or any Associate or Affiliate of such 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), and any Right Certificate issued pursuant to Section 6 or Section 11
upon transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent
feasible and reasonably identifiable as such) 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
Acquiring Person (as such terms are defined in the
Rights Agreement) or one of certain transferees
thereof. Accordingly, under certain circumstances as
provided in the Rights Agreement, this Right
Certificate and the Rights represented hereby may be
limited as provided in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration. (a) The Right
Certificates shall be executed on behalf of the Company by its Chairman of
the Board and Chief Executive Officer, its President or any Vice President,
either manually or by facsimile signature, and have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned
by the Rights Agent and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have signed any
of the Right Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be countersigned by
the Rights Agent, issued and delivered 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 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.
(b) Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its principal stock transfer office, which as of
the date hereof is located at Suite 4660, 525 Washington Blvd, 3rd Floor,
Jersey City, New Jersey 07310, 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 Right Certificate, the date of each
Right Certificate and the number of each Right Certificate.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Section 4(b), Section 7(e) and Section 14, at
any time after the Close of Business on the Distribution Date, and prior to
the Close of Business on the Expiration Date or the day prior to the day,
if any, on which the Rights are to be redeemed pursuant to Section 23, any
Right Certificate or Certificates may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates, entitling
the registered holder to purchase such number of shares of Preference Stock
as the Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Right Certificate shall make such request in
writing, signed by the registered holder with such signature guaranteed in
such manner as is reasonably satisfactory to the Rights Agent, 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 stock transfer office of the Rights Agent. 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, 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.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and
reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate, if mutilated, the Company will
execute and deliver a new Right Certificate of like tenor to the Rights
Agent for delivery to the registered owner 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) and unless previously redeemed, the
registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in Section 9 and
Section 23) in whole or in part at any time after the date on which the
Company's right to redeem has expired, upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal stock transfer
office of the Rights Agent, together with payment of the Purchase Price for
each one one-hundredth of a share of Preference Stock as to which the
Rights are exercised, at or prior to the Close of Business on September 21,
2008 (such date being hereinafter referred to as the "Expiration Date"). If
at any time after the Rights become exercisable hereunder but prior to the
Expiration Date the Company is prohibited by its Restated Certificate of
Incorporation from issuing Preference Stock upon the exercise of all of the
outstanding Rights, the Company may issue upon the exercise of the Rights
shares of stock or other securities of the Company of equivalent value to
the Preference Stock ("Equivalent Stock"), as determined by the Board of
Directors.
(b) The Purchase Price for each one one-hundredth of a share of
Preference Stock pursuant to the exercise of a Right shall initially be
$80, shall be subject to adjustment from time to time as provided in
Sections 11 and 13 and shall be payable in lawful money of the United
States of America.
(c) Upon receipt of a Right Certificate, with the form of
election to purchase duly executed, accompanied by payment of the Purchase
Price for the shares to be purchased and an amount equal to any applicable
transfer tax in cash, or by certified check or money order payable to the
order of the Company, the Rights Agent shall, subject to this Section 7,
thereupon promptly (i) requisition from any transfer agent of Preference
Stock (or any Equivalent Stock then issuable) a certificate for the number
of shares of Preference Stock (or any Equivalent Stock then issuable) to be
purchased and the Company hereby irrevocably authorizes its transfer agent
to comply with all such requests, (ii) when appropriate, requisition from
the Company the amount of cash to be paid in lieu of issuance of a
fractional share in accordance with Section 14 and (iii) promptly after
receipt of such certificate, 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, when
appropriate, after receipt promptly deliver such cash to or upon the order
of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14.
(e) Notwithstanding any provision of this Agreement to the
contrary, upon the occurrence of any of the events described in
subparagraphs (A), (B) or (C) of Section 11(a)(ii), the adjustment provided
for under Section 11(a)(ii) shall not apply with respect to any Rights that
are at the time of the occurrence of such event Beneficially Owned by (i)
an Acquiring Person or by any Associate or Affiliate of such Acquiring
Person or (ii) a transferee of an Acquiring Person or of any Associate or
Affiliate of such Acquiring Person (A) who becomes a transferee after the
Acquiring Person becomes such, or (B) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (1) 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
(2) 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). Upon the exercise of
such Rights, the holders thereof shall be entitled to receive, upon payment
of the Purchase Price, the number of shares of Preference Stock issuable
upon exercise of a Right without giving effect to the adjustment provided
for under Section 11(a)(ii). The Company shall use all reasonable efforts
to insure that the provisions of this Section 7(e) and Section 4(b) are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its making or failing 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.
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 this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and the Rights Agent
shall so cancel and retire, any other 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.
Section 9. Reservation and Availability of Shares of Preference
Stock. The Company covenants and agrees that it shall from time to time (a)
cause to be reserved and kept available out of its authorized and unissued
shares of Preference Stock, or its authorized and issued shares of
Preference Stock held in its treasury, the number of shares of Preference
Stock that will be sufficient to permit the exercise in full of all
outstanding Rights, (b) take all such action as may be necessary to insure
that all shares of Preference Stock delivered upon exercise of Rights
shall, at the time of delivery of the certificates for such shares (subject
to payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable, (c) 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
shares of Preference Stock upon the exercise of Rights and (d) take all
such action, from and after the date the Rights became exercisable
hereunder, as may be necessary to permit the exercise of the Rights for
Preference Stock, including any required registration under the Securities
Act of 1933, as amended (the "1933 Act"), and, in connection therewith and
if deemed desirable by the Company, use its best efforts to list (or
continue the listing of) the Preference Stock on a national securities
exchange and to cause all shares of Preference Stock reserved for issuance
upon exercise of Rights to be listed on such exchange upon official notice
of issuance upon such exercise. The Company will also take such action as
may be appropriate under, or to ensure compliance with, the securities or
"blue sky" laws of the various states in connection with the exercisability
of the Rights. The Company may temporarily suspend, for a period of time
not to exceed ninety (90) days, the exercisability of the Rights in order
to comply with all applicable Federal and state securities laws. Upon any
such suspension, the Company shall issue a public announcement (and shall
provide written notice to the Rights Agent) stating that the exercisability
of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained and until a
registration statement has been declared effective. Notwithstanding the
provisions of clause (c) of the first sentence of this Section 9, the
Company shall not be required to pay any transfer tax which may be payable
in respect of any transfer involved in the transfer or delivery of Right
Certificates or the issuance or delivery of certificates for Preference
Stock in a name other than that of the registered holder of the Right
Certificate evidencing Rights surrendered for exercise or to issue or
deliver any certificates for shares of Preference Stock upon the exercise
of any Rights until any such tax shall have been paid (any such tax being
payable by the holder of such Right Certificate at the time of surrender)
or until it has been established to the Company's satisfaction that no such
tax is due.
Section 10. Preference Stock Record Date. Each Person in whose
name any certificate for shares of Preference Stock is issued upon the
exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Preference Stock 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
Preference Stock 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 Preference Stock 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.
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights. The Purchase Price, the number 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 Common Stock payable in shares
of Common Stock, (B) subdivide the outstanding Common Stock, (C) combine
the outstanding Common Stock into a smaller number of shares or (D) issue
any shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing corporation), except as
otherwise provided in this Section 11(a), then and in each such event the
number of shares of Preference Stock issuable upon the exercise of a Right
and the Purchase Price payable after such event shall be the number of
shares of Preference Stock issuable immediately prior to such event
multiplied by a fraction the numerator of which is the number of Rights
outstanding immediately prior to such event and the denominator of which is
the number of Rights outstanding immediately after such event and the
Purchase Price after such event shall be the Purchase Price in effect
immediately prior to such event multiplied by such fraction. 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 Section 11(a)(i) shall be
in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(ii) in the event that
(A) on or at any time after a Stock Acquisition Date, directly or
indirectly, any Person (other than a wholly owned Subsidiary of the
Company) shall merge into the Company or any of its Subsidiaries or
otherwise combine with the Company or any of its Subsidiaries and the
Company or such Subsidiary shall be the continuing or surviving
corporation of such merger or combination, or any Person shall sell or
otherwise transfer, in one or more transactions, assets to the Company
or any of its Subsidiaries in exchange for 50% or more of the shares
of any class of capital stock of the Company or any of its
Subsidiaries, and Common Stock of the Company shall remain outstanding
and unchanged, or at any time after the date of this Agreement,
directly or indirectly, any Acquiring Person shall (1) in one or more
transactions, transfer any assets to the Company or any of its
Subsidiaries in exchange (in whole or in part) for shares of any class
of capital stock of the Company or any of its Subsidiaries or for
securities exercisable for or convertible into shares of any class of
capital stock of the Company or any of its Subsidiaries or otherwise
obtain from the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital stock of
the Company or any of its Subsidiaries or other securities exercisable
for or convertible into shares of any class of capital stock of the
Company or any of its Subsidiaries (other than as part of a pro rata
distribution to all holders of Common Stock), (2) sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise dispose of
(in one or more transactions), to, from or with, as the case may be,
the Company or any of its Subsidiaries, assets on terms and conditions
less favorable to the Company or such Subsidiary than the Company or
such Subsidiary would be able to obtain in arm's-length negotiation
with an unaffiliated third party, (3) receive any compensation from
the Company or any of the Company's Subsidiaries other than
compensation for full-time employment as a regular employee, or fees
for serving as director, at rates in accordance with the Company's (or
its Subsidiaries') past practices, or (4) receive the benefit,
directly or indirectly (except proportionately as a stockholder), of
any loans, advances, guarantees, pledges or other financial assistance
provided by the Company or any of its Subsidiaries on terms and
conditions less favorable to the Company or such Subsidiary than the
Company or such Subsidiary would be able to obtain in arm's-length
negotiation with an unaffiliated party,
(B) during such time as there is an Acquiring Person, there shall
be any reclassification of securities (including any reverse stock
split), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries or any other
similar transaction or series of transactions involving the Company or
any of its Subsidiaries (whether or not with or into or otherwise
involving an Acquiring Person) which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate share of
the outstanding shares of any class of equity securities or of
securities exercisable for or convertible into equity securities of
the Company or any of its Subsidiaries which is directly or indirectly
owned by any Acquiring Person or any Associate or Affiliate of any
Acquiring Person or
(C) any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan or employee stock plan of the
Company or of any Subsidiary of the Company or any Person organized,
appointed, established or holding Voting Stock by, for or pursuant to,
the terms of any such plan or any Person who acquires a Substantial
Block in connection with a transaction or series of transactions
approved prior to such transaction or transactions by the Board of
Directors of the Company, but only to the extent of the Substantial
Block acquired in such transaction or transactions approved by the
Board of Directors), who or which alone or together with its
Affiliates and Associates, shall, at any time after the date of this
Agreement, become the Beneficial Owner of a number of shares of the
outstanding Voting Stock having 30% or more of the general voting
power of the Company;
then, and in each such case, proper provision shall be made so that each
holder of a Right, except as provided below and in Section 7(e), shall
thereafter have the right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this Agreement, such
number of shares of Common Stock of the Company (or, in the discretion of
the Board, one one-hundredths of a share of Preference Stock) as shall
equal the result obtained by (A) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of Preference
Stock for which a Right was exercisable immediately prior to the first
occurrence of any one of the events listed above in this subparagraph (ii)
and (B) dividing that product by 50% of the current market price per one
share of Common Stock (determined pursuant to Section 11(d)) on the date of
the occurrence of any one of the events listed above in this subparagraph
(ii); provided, however, that if the transaction that would otherwise give
rise to the foregoing adjustment is also subject to the provisions of
Section 13, then only the provisions of Section 13 shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii). The Company
shall not consummate any such merger, combination, transfer or transaction
unless prior thereto there shall be sufficient authorized but unissued
Common Stock (or Preference Stock, as the case may be) and authorized and
issued Common Stock (or Preference Stock, as the case may be) held in its
treasury to permit the exercise in full of the Rights in accordance with
the foregoing sentence; provided, however, that in no case may the Company
consummate any such merger, combination, transfer or transaction if at the
time of or immediately after such transaction 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.
In the event that the issuance of any Common Stock (or Preference
Stock, as the case may be) pursuant to the exercise of the Rights as
required by the preceding paragraph is prohibited by any provision of the
Company's Restated Certificate of Incorporation, then upon the exercise of
a Right in accordance with the preceding paragraph, proper provision shall
be made so that each holder of a Right (except as provided in Section 7(e))
shall thereafter have the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this Agreement,
such number of shares or other units of Equivalent Stock of the Company as
shall equal the result obtained by (x) multiplying the then current
Purchase Price per one one-hundredth of a share of Preference Stock by the
number of shares of Common Stock (or one one-hundredths of a share of
Preference Stock, as the case may be) for which a Right is then exercisable
and dividing that product by (y) 50% of the current market price per share
or other unit of the Equivalent Stock of the Company (determined on
substantially the same basis as is prescribed by Section 11(d) with respect
to the valuation of the Common Stock (or Preference Stock, as the case may
be)) on the date of consummation of such merger, combination or transfer.
In the event that at any time the Company should be prohibited by law, by
any provision of its Restated Certificate of Incorporation or by any
instrument or agreement to which the Company is a party or by which it is
bound from issuing sufficient Equivalent Stock to permit the exercise of
all outstanding Rights in accordance with the foregoing sentence, then, in
lieu of issuing such Equivalent Stock upon such exercise, the Company shall
pay to each holder of a Right (except as provided in Section 7(e)) upon
surrender of the Right as provided herein but without payment of the
Purchase Price, an amount in cash for each Right equal to the Purchase
Price.
(iii) In the event the Company shall at any time after the date
of this Agreement (A) combine or subdivide the outstanding Preference Stock
into a different number of shares or (B) issue any shares of its capital
stock in a reclassification of the Preference Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e), the holder of any Right
exercised after such time shall be entitled to receive, upon payment of the
Purchase Price, the number of shares of Preference Stock or the number and
kind of shares of such other capital stock, as the case may be, issuable on
the effective date of such combination, subdivision or reclassification
which such holder would have been entitled to receive had such holder been
the holder of the number of shares of Preference Stock to which such Right
related immediately prior to such effective date. If an event occurs which
would require an adjustment under both this Section 11(a)(iii) and Section
11(a)(ii), the adjustment provided for in this Section 11(a)(iii) shall be
in addition to, and shall be made prior to, any adjustment required
pursuant to Section 11(a)(ii).
(b) In case the Company shall fix a record date for the issuance
of rights or warrants to all holders of shares of Common Stock entitling
them (for a period expiring within 45 calendar days after such record date)
to subscribe for or purchase Common Stock or securities convertible into
Common Stock at a price per share of Common Stock (or having a conversion
price per share, if a security convertible into Common Stock) less than the
current market price per share of Common Stock (as defined in Section
11(d)) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, of which the numerator
shall be the number of shares of Common Stock outstanding on such record
date plus the number of shares of Common Stock which the aggregate offering
price of the total number of shares of Common Stock so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market price
and of which the denominator shall be the number of shares of Common Stock
outstanding on such record date plus the number of additional shares of
Common Stock to be offered for subscription or purchase (or into which the
convertible securities to be offered are initially convertible). In case
such subscription price may be paid in a consideration part or all of which
shall be in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent. Shares of Common Stock 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 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 shares of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of indebtedness or
assets (other than a regular periodic cash dividend at a rate not in excess
of 125% of the rate of the last cash dividend theretofore paid or a
dividend payable in Common Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b)), the Purchase Price to be in
effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, of which the numerator shall be the current market price per
share of Common Stock (as defined in Section 11(d)) on such record date,
less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such subscription
rights or warrants applicable to one share of Common Stock, and of which
the denominator shall be such current market price per share of Common
Stock. Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the "current
market price" per share of Preference Stock or Common Stock on any date
shall be deemed to be the average of the daily closing prices per share of
such stock for the 30 consecutive Trading Days immediately prior to such
date; provided, however, that in the event that the current market price
per share of such stock is determined during a period following the
announcement by the issuer of such stock of a dividend or distribution on
such stock payable in shares of such stock or securities convertible into
shares of such stock, and prior to the expiration of 30 Trading Days after
the ex-dividend date for such dividend or distribution, then, and in each
such case, the current market price shall be appropriately adjusted to
reflect the current market price per share of such stock. 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 American Stock Exchange or, if the shares of
such stock are not listed or admitted to trading on the American Stock
Exchange, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which the shares of such stock are listed or
admitted to trading or, if the shares of such stock are not listed or
admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the Nasdaq Stock
Market or such other system then in use, or, if on any such date the shares
of such stock are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker,
selected by the Board, making a market in the shares of such stock. If on
any such date the shares of such stock are not quoted by any such
organization, the fair value of such shares on such date as determined in
good faith by the Board of Directors of the Company shall be used. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares of such stock are listed or admitted to
trading is open for the transaction of business or, if the shares of such
stock are not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the State of New York are not authorized or obligated by
law or executive order to close. If such stock is not publicly held or not
so listed or traded, "current market price" per share shall mean the fair
value per share as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a statement filed
with the Rights Agent.
(e) Except as hereinafter provided, no adjustment in the Purchase
Price shall be required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one-hundredth of a share, as the case may
be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction which mandates
such adjustment or (ii) the date of the expiration of the right to exercise
any Rights.
(f) In the event that at any time, as a result of an adjustment
made pursuant to Section 11(a), the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of
the Company other than shares of Preference Stock, thereafter the number of
such 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 shares
contained in Section 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10 and 13 with respect to the shares of Preference Stock
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 share of Preference Stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Section 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 share (calculated to the nearest
one-ten-thousandth) obtained by (i) multiplying (x) the number of one
one-hundredths of a share covered by a Right immediately prior to such
adjustment by (y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in substitution for
any adjustment in the number of one one-hundredths of a share of Preference
Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredths of a share of Preference
Stock to which such Right related 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, shall be at least 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, the additional Rights
to which such holders shall be entitled as a result of such adjustment, or,
at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Right Certificates evidencing all
the Rights to which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and may bear, at the
option of the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Right Certificates on the record
date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a share of Preference Stock
issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the Purchase
Price per one one-hundredth share and the number of shares which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value of the shares of
Preference Stock issuable upon exercise of the Rights, the Company shall
take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully
paid and nonassessable shares of such Preference Stock at such adjusted
Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such
record date the shares of Preference Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and
above the shares of Preference Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
and securities upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of the Common
Stock or Preference Stock, issuance wholly for cash of any Common Stock at
less than the current market price, issuance wholly for cash of Common
Stock or securities which by their terms are convertible into or
exchangeable for Common Stock, stock dividends or issuance of rights,
options or warrants referred to hereinabove in this Section 11, hereafter
made by the Company to holders of its Common Stock and/or Preference Stock
shall not be taxable to such stockholders.
Section 12. Certification of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Section 11 or 13, the
Company shall (a) promptly prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Preference Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in accordance
with Section 25. Notwithstanding the foregoing sentence, the failure of the
Company to give such notice shall not affect the validity of, or the force
or effect of, the requirement for such adjustment.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power. In the event that on or at any time after a Stock
Acquisition Date, directly or indirectly, (a) the Company shall consolidate
with, or merge with and into, any other Person, (b) any other Person shall
consolidate, merge with and into the Company, the Company shall be the
continuing or surviving corporation of such merger and, in connection with
such merger, all or part of the Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any
other property, or (c) the Company shall sell or otherwise transfer (or one
or more of its Subsidiaries shall sell or otherwise transfer), in one or
more transactions, assets or earning power aggregating more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person (other than a pro rata distribution by the
Company of assets (including securities) of the Company or any of its
Subsidiaries to all holders of the Company's Common Stock), then, and in
each such case:
(A) proper provision shall be made so that (i) each holder of a
Right shall thereafter have the right to receive, upon the exercise
thereof at the then-current Purchase Price in accordance with the
terms of this Agreement, such number of shares of common stock of the
Principal Party (as hereinafter defined) as shall, based on the
current market price per share of the common stock of the Principal
Party (determined in the same manner as the current market price of
Common Stock is determined under Section 11(d)) on the date of
consummation of such consolidation, merger, sale or transfer, have a
value equal to twice the Purchase Price; (ii) the Principal Party
shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, 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;
and (iv) the Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its
common stock in accordance with Section 9) in connection with such
consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in
relation to the shares of its common stock thereafter deliverable upon
the exercise of the Rights;
provided, however, that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all assets, recapitalization,
reclassification of shares, reorganization or other extraordinary
transaction in respect of such Principal Party, each holder of a Right
shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price, such cash, shares, rights, warrants and
other property which such holder would have been entitled to receive had
such holder, at the time of such transaction, owned the shares of common
stock of the Principal Party purchasable upon the exercise of a Right, and
such Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms hereof for
such cash, shares, rights, warrants and other property.
(B) "Principal Party" shall mean
(1) in the case of any transaction described in (a) or (b)
of the first sentence of this Section 13, (i) the Person that is
the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, or, if
there is more than one such issuer, the issuer the common stock
of which has the greatest market value or (ii) if no securities
are so issued, (x) the Person that is the other party to the
merger or consolidation and that survives said merger or
consolidation, or, if there is more than one such Person, the
Person the common stock of which has the greatest market value or
(y) if the Person that is the other party to the merger or
consolidation does not survive the merger or consolidation, the
Person that does survive the merger or consolidation (including
the Company if it survives); and
(2) in the case of any transaction described in (c) of the
first sentence of Section 13, the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions, or, if
each Person that is a party to such transaction or transactions
receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of
the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of common stock having the greatest
market value of shares outstanding;
provided, however, that in any such case, (w) if the common stock of such
Person is not at such time or has not been continuously over the preceding
12-month period registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another corporation the common
stock of which is and has been so registered, "Principal Party" shall refer
to such other corporation, (x) if the common stock of such Person is not or
has not been so registered and such Person is not a direct or indirect
Subsidiary of another corporation the common stock of which is and has been
so registered, "Principal Party" shall refer to the corporation, if there
be one, which ultimately controls such Person, (y) in case such Person is a
Subsidiary, directly or indirectly, of more than one corporation, the
common stocks of all of which are and have been so registered, Principal
Party shall refer to whichever of such corporations is the issuer of the
common stock having the greatest market value of shares held by the public,
and (z) 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 (w) - (y) above
shall apply to each of the chains of ownership having an interest in such
joint venture as if such party were a Subsidiary of both or all of such
joint venturers and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio as their direct
or indirect interests in such Person bear to the total of such interests.
The Company shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Company and such issuer shall
have executed and delivered to the Rights Agent a supplemental agreement
making valid provision for the result described in subsections (A) and (B)
above; provided, however, that in no case may the Company consummate any
such consolidation, merger, sale or transfer if (i) at the time of or
immediately after such transaction 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 (ii) prior to, simultaneously with or immediately
after such transaction, the shareholders of the Person who constitutes, or
would constitute, the Principal Party for purposes of Section 13 shall have
received a distribution of Rights previously owned by such Person or any of
its Affiliates and Associates. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales or other
transfers.
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. If the Company shall
determine not to issue such 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 American Stock Exchange or, if the Rights are not listed or admitted
to trading on the American Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities listed
on the principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or admitted
to trading on any national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the Nasdaq Stock Market or such
other system then in use, or, if on any such date the shares of such stock
are not quoted by any such organization, the average closing bid and asked
prices as furnished by a professional market maker, selected by the Board,
making a market in the shares of such stock. If on any such date the Rights
are not quoted by any such organization, 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
shares (other than fractions which are integral multiples of the fraction
of a share for which a Right is then exercisable) upon exercise of the
Rights or to distribute certificates which evidence fractional shares
(other than fractions which are integral multiples of the fraction of a
share for which a Right is exercisable). In lieu of fractional shares that
are not integral multiples of the fraction for which a Right is then
exercisable, the Company shall pay to the registered holders of Right
Certificates at the time such Right Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of a share of Preference Stock. For purposes of this Section 14, the
current market value of a share of Preference Stock shall be the closing
price of a share of Preference Stock (as determined pursuant to the second
sentence of Section 11(d)) for the Trading Day immediately prior to the
date of such exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares (other than fractions which are integral multiples of the
fraction of a share for which a Right is then exercisable) upon exercise of
a Right.
Section 15. Rights of Action . All rights of action in respect of
this Agreement are vested in the respective registered holders of the Right
Certificates (and prior to the Distribution Date, the registered holders of
the Common Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, any registered holder of the Common Stock),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, any registered holder of
the Common Stock), may, on his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his right to exercise
the Rights evidenced by such Right Certificate in the manner provided in
such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of the obligations of any
Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right
by accepting the same, consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) up to and including the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent and then if
surrendered at the principal stock transfer office of the Rights Agent,
duly endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Right Certificate or the
associated Common Stock certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company
nor the Rights Agent shall be affected by any notice to the contrary.
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 Preference
Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except
as provided in Section 24), 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. (a) The Company agrees
to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done or
omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Agreement in reliance upon
any Right Certificate or certificate for Common Stock or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons.
(c) If, and so long as, the Rights are listed on the American
Stock Exchange, the Rights Agent, if its principal offices are located
outside New York City, shall maintain in the New York City area facilities
for the servicing of the Rights in the area of Manhattan located south of
Chambers Street. Such facilities may consist of either an office or agency
where transactions in the Rights are serviced directly or a "drop" where
Common Stock certificates, Right Certificates, and other instruments
relating to transactions in Rights may be received for redelivery to an
office or agency outside New York City, all in accordance with the
provisions of Part 8 of the Company Guide of the American Stock Exchange.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer 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. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any of
the Right Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned, and in case at that time any of the Right Certificates shall
not have been countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the predecessor Rights Agent
or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of 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 be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by the Chairman
of the Board and Chief Executive Officer, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights Agent; and
such certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 13 or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Preference Stock to be issued pursuant to this
Agreement or any Right Certificate or as to whether any shares of
Preference Stock will, when issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board and Chief Executive Officer, the President, any
Vice President, the Secretary, any Assistant Secretary, the Treasurer or
any Assistant Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not the Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company
or for any other 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.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days' notice in writing mailed to the Company and to
each transfer agent of Common Stock and Preference Stock by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days' notice in writing, mailed to the Rights Agent or successor
Rights Agent, as the case may be, and to each transfer agent of Common
Stock and Preference Stock by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Rights Agent. If the Company
shall fail to make such appointment within a period of 30 days after such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder
of a Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then such registered holder of
a 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) a corporation
organized and doing business under the laws of the United States or of a
state of the United States which is authorized under such laws to exercise
stock transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50,000,000 or (b)
a U.S. corporate Affiliate of a corporation described in clause (a) of this
sentence. After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and
deliver any further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of Common Stock and Preference Stock, and
mail a notice thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
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 per share and the number or
kind or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with the
provisions of this Agreement.
Section 23. Redemption. The Board of Directors may, at its option
and as provided herein, elect to redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right, as such amount
may be appropriately adjusted to reflect any combination or subdivision of
the outstanding Common Stock, any dividend payable in Common Stock in
respect of the outstanding Common Stock or any other similar transaction
occurring after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price") at any time up to and including the
tenth Business Day after a Stock Acquisition Date; provided, however, that
the Board of Directors of the Company may extend the time during which the
Rights may be redeemed to be at any time up to and including the twentieth
Business Day after a Stock Acquisition Date. Promptly upon the action of
the Board of Directors of the Company electing to redeem the Rights, the
Company shall make a public announcement thereof, and on and after the date
of such announcement, without any further action and without any further
notice, the only right of the holders of Rights shall be to receive the
Redemption Price and such holders shall have no right to exercise the
Rights. As soon as practicable after the action of the Board of Directors
ordering the redemption of the Rights, the Company shall give notice of
such redemption to the holders of the then outstanding Rights by mailing
such notice to all such holders 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 redemption will state the method
by which the payment of the Redemption Price will be made. Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall not
be exercisable prior to the expiration of the Company's right of redemption
hereunder.
Section 24. Notice of Proposed Actions. In case the Company,
after the Distribution Date, shall propose (a) to pay any dividend payable
in stock of any class to the holders of its Common Stock or Preference
Stock or to make any other distribution to the holders of its Common Stock
or Preference Stock (other than a regular periodic cash dividend at a rate
not in excess of 125% of the rate of the last cash dividend theretofore
paid), or (b) to offer the holders of its Common Stock or Preference Stock
rights or warrants to subscribe for or to purchase any additional shares of
Common Stock or Preference Stock or shares of stock of any class or any
other securities, rights or options, or (c) to effect any reclassification
of its Common Stock or Preference Stock (other than a reclassification
involving only the subdivision of outstanding shares of Common Stock), or
(d) to effect any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions, of more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, or (e) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the
Company shall give to each holder of a Right, in accordance with Section
25, a notice of such proposed action, which shall specify the record date
for the purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders of Common Stock
and/or Preference Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (a) or (b)
above at least twenty days prior to the record date for determining holders
of Common Stock and/or Preference Stock for purposes of action, and in the
case of any such other action, at least twenty days prior to the date of
the taking of such proposed action or the date of participation therein by
the holders of Common Stock and/or Preference Stock, whichever shall be the
earlier. The failure to give notice required by this Section 24 or any
defect therein shall not affect the legality or validity of the action
taken by the Company or the vote upon any such action.
Section 25. 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:
The Turner Corporation
375 Hudson Street
New York, New York 10014
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company or by the
holder of any 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:
First Chicago Trust Company of New York
Suite 4660
525 Washington Blvd, 3rd Floor
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges Administration
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the
registry books of the Rights Agent.
Section 26. Supplements and Amendments. Prior to the Distribution
Date, the Company and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement, including, without
limitation, the modification of the definition of Substantial Block,
without the approval of any holders of certificates representing shares of
Common Stock. From and after the Distribution Date, 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 thereof);
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, 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 26, 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 20
of this Agreement. Prior to the Distribution Date, the interests of the
holders of Rights shall be deemed coincident with the interests of the
holders of Common Stock.
Section 27. 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 28. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any person or corporation other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, registered holders of
Common Stock) 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.
Section 29. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State except for
Sections 18, 19, 20 and 21, which for all purposes shall be governed by and
construed in accordance with the laws of the State of New York.
Section 30. 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 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, illegal, or unenforceable, (a) such
invalid, illegal or unenforceable term, provision, covenant or restriction
shall nevertheless be valid, legal and enforceable to the extent, if any,
provided by such court or authority, and (b) the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
Section 32. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 33. Determinations and Actions Taken by the Board of
Directors. For all purposes of this Agreement, any calculation of the
number of shares of Common Stock or of any other class of capital stock
outstanding at any particular time, including for purposes of determining
the particular percentage of the outstanding Common Stock of which any
Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) (as in effect on the date of this
Agreement) of the General Rules and Regulations under the Exchange Act. 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 to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of
this Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the
Agreement).
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
Attest: THE TURNER CORPORATION
By /s/ Sara J. Gozo By /s/ Ellis T. Gravette, Jr.
-------------------------------- --------------------------------
Title: Vice President and Title: Chairman of the Board
Secretary and Chief Executive
Officer
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By /s/ Mary E. Garcia By /s/ Joanne Gorostiola
-------------------------------- --------------------------------
Title: Customer Service Officer Title: Assistant Vice President
<PAGE>
Exhibit A
---------
[Form of Right Certificate]
Certificate No. R- __________ Rights
NOT EXERCISABLE UNTIL RIGHT OF REDEMPTION HAS EXPIRED. THE RIGHTS
ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01
PER RIGHT (SUBJECT TO ADJUSTMENT) ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. IN THE EVENT THAT THE RIGHTS REPRESENTED BY
THIS CERTIFICATE ARE ISSUED TO A PERSON WHO IS AN ACQUIRING
PERSON OR AN ASSOCIATE OR AFFILIATE THEREOF (AS DEFINED IN THE
RIGHTS AGREEMENT) OR CERTAIN TRANSFEREES THEREOF, THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BE SUBJECT TO
CERTAIN LIMITATIONS IN THE CIRCUMSTANCES SPECIFIED IN SECTION
7(e) OF THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
THE TURNER 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 September 21, 1998 (the
"Rights Agreement"), between The Turner Corporation, a Delaware corporation
(the "Company"), and First Chicago Trust Company of New York, a New York
corporation (the "Rights Agent"), to purchase from the Company, unless the
Rights have been previously redeemed, at any time after the date on which
the Company's right to redeem has expired and prior to the Expiration Date
(as such term is defined in the Rights Agreement), at the principal stock
transfer office of the Rights Agent, or its successor as Rights Agent, one
one-hundredth (1/100) of a fully paid and nonassessable share of the Series
F Participating Preference Stock of the Company ("Preference Stock"), at a
purchase price of $80 per one one-hundredth of a 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 shares which may be purchased
upon exercise thereof) set forth above, and the Purchase Price per one
one-hundredth of a share set forth above, are the number and Purchase Price
as of September 21, 1998 based on the shares of Preference Stock of the
Company as constituted at such date.
Upon the occurrence of an event described in subparagraph (A),
(B) or (C) of Section 11(a)(ii) of the Rights Agreement, the holder of any
Rights that are, or were, beneficially owned by an Acquiring Person or an
Associate or Affiliate thereof (as defined in the Rights Agreement) or
certain transferees thereof shall not be entitled to the benefit of the
adjustment described in Section 11(a)(ii).
As provided in the Rights Agreement, the Purchase Price and the
number of shares of Preference Stock or other securities which may be
purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening
of certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of
the Right Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the above-mentioned office of the Rights Agent and
at the principal office of the Company.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal stock transfer 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 such
number of shares of Preference Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part,
the holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price of $.01 per Right, which amount is subject to
adjustment as provided in the Rights Agreement.
No fractional shares of Preference Stock (other than fractions
which are integral multiples of the fraction of a share for which a Right
is then exercisable) will be issued upon the exercise of any Right or
Rights evidenced hereby, but in lieu thereof a cash payment shall 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 Preference
Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right or Rights
evidenced by this Right Certificate shall have been exercised as provided
in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ____________________.
Attest: THE TURNER CORPORATION
By
- ---------------------------------- ----------------------------------
Secretary Title:
Countersigned:
- -------------------------------
By
-----------------------------
Authorized Signature
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _____________________________________ hereby
sells, assigns and transfers unto_______________________________________
- -------------------------------------------------------------------------
(Please print name and address of transferee) this Right Certificate,
together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint __________________ Attorney to transfer
the within Right Certificate on the books of the within-named Rights Agent,
with full power of substitution.
Dated: __________, ______
---------------------------------
Signature
Signature Guaranteed:
<PAGE>
Certificate
-----------
The undersigned hereby certifies (after due inquiry and to the
best knowledge of the undersigned) by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement);
(2) the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: __________, ______ ---------------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature to the foregoing Assignment must correspond to the
name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To The Turner Corporation:
The undersigned hereby irrevocably elects to exercise ___________
Rights represented by this Right Certificate to purchase the shares of
Preference Stock issuable upon the exercise of such Rights and requests
that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number
- -------------------------------------------------------------------------------
(Please print name and address)
- -------------------------------------------------------------------------------
If such number of rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- -------------------------------------------------------------------------------
(Please print name and address)
- -------------------------------------------------------------------------------
Dated: _______________, ___________________________
-----------------------------------
Signature
Signature Guaranteed:
<PAGE>
Certificate
-----------
The undersigned hereby certifies (after due inquiry and to the
best knowledge of the undersigned) by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ]
are not being exercised by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement);
(2) the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: __________, ______ -----------------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of this
Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
<PAGE>
Exhibit B
---------
SUMMARY OF RIGHTS TO PURCHASE PREFERENCE STOCK
On August 14, 1998, the Board of Directors of The Turner
Corporation (the "Company") declared a dividend distribution of one Right
for each outstanding share of Common Stock, par value $1.00 per share, of
the Company ("Common Stock"). The distribution is payable to the
stockholders of record at the close of business on September 21, 1998, and,
in addition, the Company has authorized the issuance of one Right with
respect to each share of Common Stock that shall become outstanding between
the close of business on September 21, 1998, and the earlier of the
Distribution Date or Expiration Date (as such terms are hereinafter
described) or the date, if any, on which Rights may be redeemed. When
exercisable, each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of a new series of the Company's
preference stock designated as Series F Participating Preference Stock
("Preference Stock") at a price of $80 per one one-hundredth of a 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 First Chicago Trust Company of New York, as Rights
Agent (the "Rights Agent").
The Rights replace certain similar rights which expired at the
close of business on September 21, 1998 and which were issued under a
Rights Agreement dated September 9, 1988 between the Company and Morgan
Shareholder Services Trust Company.
Up to and including the Distribution Date, the Rights will be
evidenced, with respect to any of the Common Stock certificates outstanding
as of the close of business of September 21, 1998, by such Common Stock
certificates, whether or not a copy of the Summary of Rights is attached
thereto, and the Rights will be transferred with and only with Common
Stock. In addition, up to and including the Distribution Date (or earlier
redemption or expiration of the Rights), (i) new Common Stock certificates
issued after the close of business on September 21, 1998, upon transfer or
new issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference and (ii) the surrender for transfer of any
certificates for Common Stock outstanding on or after September 21, 1998,
with or without a copy of the Summary of Rights attached thereto, will also
constitute the transfer of the Rights associated with Common Stock
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 Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
Under the Rights Agreement, the Distribution Date is defined as
the earlier of the tenth business day after (i) the commencement of a
tender or exchange offer by any person (other than the Company, any
subsidiary of the Company or any employee benefit plan or employee stock
plan of the Company or of any subsidiary of the Company) for a number of
the outstanding shares of the Company's stock having in the aggregate 30%
or more of the general voting power of the Company, unless the Board
declares that the tenth business day following such tender or exchange
offer shall not be considered a Distribution Date, or (ii) the date (the
"Stock Acquisition Date") of a public announcement by the Company or an
Acquiring Person that an Acquiring Person has become such. In general,
under the Rights Agreement an Acquiring Person is a person or group of
affiliated or associated persons (other than the Company, any subsidiary of
the Company, any employee benefit plan or employee stock plan of the
Company or of any subsidiary of the Company, any person who is the
beneficial owner of shares of the Company's stock having in the aggregate
30% or more of the general voting power of the Company solely by reason of
the purchase or conversion of certain specified securities, including the
Company's Series C 8 1/2% Convertible Preference Stock and Series D 8 1/2%
Convertible Preference Stock, or any person who acquires shares of the
Company's stock having in the aggregate 30% or more of the general voting
power of the Company in connection with a transaction or series of
transactions approved in advance by the Board) who has acquired or obtained
the right to acquire beneficial ownership of a number of the outstanding
shares of the Company's stock having in the aggregate 30% or more of the
general voting power of the Company.
The Rights are not exercisable until after the date on which the
Company's right to redeem has expired. The Rights will expire on September
21, 2008 (the "Expiration Date"), unless earlier redeemed by the Company as
described below.
The Preference Stock will be non-redeemable and will rank equally
in respect of the dividends and the distribution of assets to all other
classes or series of the Company's preference stock, unless the terms
thereof shall provide otherwise. The Preference Stock which is the subject
of the Rights may not be issued except upon exercise of Rights. Each share
of Preference Stock will have a minimum preferential quarterly dividend
rate of $3 per share but will be entitled to an aggregate of 100 times the
cash and non-cash (payable in kind) dividends and distributions (other than
dividends and distributions payable in Common Stock) declared on the
Company's Common Stock. In the event of liquidation, the holders of
Preference Stock will be entitled to receive a liquidation payment in an
amount equal to the greater of $100 per share or 100 times the payment made
per share of Common Stock, plus an amount equal to accrued and unpaid
dividends and distributions thereon. Each share of Preference Stock will
have 100 votes, voting together with the Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock
are exchanged, each share of Preference Stock will be entitled to receive
100 times the amount received per share of Common Stock. The rights of the
Preference Stock as to dividends, liquidation and voting are protected by
antidilution provisions.
The Purchase Price payable, and number of shares of Preference
Stock or other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i) in the
event of a stock dividend on Common Stock, or a subdivision, combination or
reclassification of Common Stock or Preference Stock, (ii) upon the grant
to holders of Common Stock of certain rights or warrants to subscribe for
Common Stock or convertible securities at less than the current market
price of Common Stock, or (iii) upon the distribution to holders of Common
Stock of evidences of indebtedness or assets (excluding regular periodic
cash dividends out of earnings or retained earnings at a rate not in excess
of 125% of the rate of the last cash dividend theretofore paid or dividends
payable in Common Stock) or of subscription rights or warrants (other than
those referred to above).
In the event that, on or at any time after a Stock Acquisition
Date, the Company is acquired in a merger or other business combination
transaction (in which any shares of the Company's Common stock are changed
into or exchanged for other securities or assets) or 50% or more of the
assets or earning power of the Company and its subsidiaries (taken as a
whole) are sold, proper provision shall be made so that each holder of a
Right shall thereafter have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such transaction
would have a market value (determined as provided in the Rights Agreement)
of two times the exercise price of the Right.
In the event that (i) on or at any time after a Stock Acquisition
Date, the Company is the surviving corporation in a merger or other
business combination and its Common Stock remains outstanding and
unchanged, (ii) an Acquiring Person engages in one or more self-dealing
transactions specified in the Rights Agreement, (iii) a person (other than
the Company, any subsidiary of the Company, any employee benefit plan or
employee stock plan of the Company or of any subsidiary of the Company, or
a person who acquires 30% or more of the general voting power of the
Company in connection with a transaction or series of transactions approved
prior to such transaction or transactions by the Board of Directors of the
Company) alone, or together with his, her or its affiliates or associates,
becomes the beneficial owner of a number of the outstanding shares of the
Company's stock having in the aggregate 30% or more of the general voting
power of the Company or (iv) during such time as there is an Acquiring
Person, any of certain events described in the Rights Agreement occurs
which results in such Acquiring Person's ownership interest being increased
by more than 1%, then, and in each such case, proper provision shall be
made so that each holder of a Right (except as noted below) will thereafter
have the right to receive, upon payment of the Purchase Price, that number
of shares of Common Stock, or in the discretion of the Board of Directors
of the Company, one one-hundredths of a share of Preference Stock as shall
equal the result obtained by (A) multiplying the then current Purchase
Price by the then number of one one-hundredths of a share of Preference
Stock for which a Right was exercisable immediately prior to the first
occurrence of any one of the events listed above in this paragraph and (B)
dividing that product by 50% of the current market price per one share of
Common Stock.
The holder of any Rights that are, or were, beneficially owned by
an Acquiring Person or an affiliate or associate thereof or certain
transferees thereof which engaged in, or realized the benefit of, an event
or transaction or transactions described in the immediately preceding
paragraph, shall not be entitled to the benefit of the adjustment described
in the immediately preceding paragraph.
Rights are not exercisable until such time as the Rights are no
longer redeemable by the Company as described below.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at least
1% in such Purchase Price. No fractional shares (other than fractions which
are integral multiples of the fraction of a share for which a Right is then
exercisable) will be issued and in lieu thereof an adjustment in cash will
be made based on the market price of Common Stock on the last trading date
prior to the date of exercise.
Up to and including the tenth business day after a Stock
Acquisition Date, which time period may be extended by the Board of
Directors of the Company to any time up to and including the twentieth
business day after a Stock Acquisition Date, the Company may redeem the
rights in whole, but not in part, at a price of $.01 per Right, which
amount may be adjusted as provided in the Rights Agreement (the "Redemption
Price"). Promptly upon the action of the Board of Directors of the Company
electing to redeem the Rights, the Company shall make an announcement
thereof and, upon such announcement, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
Any of the provisions of the Rights Agreement may be amended by
the Board of Directors of the Company prior to the Distribution Date. On
and after the Distribution Date, the provisions of the Rights Agreement may
be amended by the Board in order to cure any ambiguity, correct or
supplement any provision contained in the Rights Agreement which may be
defective or inconsistent with any other provisions in the Rights
Agreement, to make changes which do not adversely affect the interests of
holders of Rights (other than an Acquiring Person or an Affiliate or
Associate thereof), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that the Rights Agreement may not be
supplemented or amended to lengthen a time period relating to when the
rights may be redeemed at such time as the Rights are not redeemable, or
any other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or benefits to, the
holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company with respect to a Right
held, including, without limitation, the right to vote or to receive
dividends.
The present distribution of the Rights is not taxable to the
Company or its shareholders. The Rights are not dilutive and will not affect
reported earnings per share. The Company will receive no proceeds from the
issuance of the Rights as a dividend.
As of August 3, 1998, there were 8,349,998 shares of Common Stock
issued and outstanding, including 313,512 shares of Common Stock held in
the Company's treasury, and 5,879,631 shares of Common Stock reserved for
issuance with respect to (A) options which have been granted under the
Company's stock option plans or (B) conversion of the Company's Series B ESOP
Convertible Preference Stock, Series C 8-1/2% Convertible Preference Stock
and Series D 8-1/2% Convertible Preference Stock. A total of 200,000 shares
of Preference Stock have been reserved for issuance upon exercise of the
Rights.
The Rights have certain anti-takeover effects. The Rights will
cause substantial dilution to a person or group that attempts to acquire
the Company on terms not approved by the Company's Board of Directors. The
Rights should not interfere with any merger or other business combination
approved by the Board since the Rights may be redeemed by the Company at
$.01 per Right, subject to adjustment, at any time up to and including the
tenth business day (twentieth business day if the Board so
determines) following the Stock Acquisition Date.
A copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
<PAGE>
EXHIBIT C
---------
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES F PARTICIPATING PREFERENCE STOCK
OF
THE TURNER CORPORATION
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
We, Ellis T. Gravette, Jr., Chairman of the Board and Chief
Executive Officer, and Sara J. Gozo, Vice President and Secretary, of The
Turner 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 said Corporation,
the said Board of Directors on August 14, 1998, adopted the following
resolutions creating a series of 200,000 shares of Preferred Stock, par
value $1.00 per share, classified as Series F Participating Preference
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 Preference Stock of the
Corporation be and is hereby created, and that the designation and amount
thereof and the relative rights, preferences and limitations thereof are as
follows:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series F Participating Preference Stock" (the
"Series F Preference Stock"), and the number of shares initially
constituting such series shall be 200,000, which number of shares may be
increased or decreased (but not below the number of shares then
outstanding) from time to time by action of the Board of Directors.
Section 2. Dividends and Distributions. Subject to the prior and
superior rights of the holders of any shares of any classes or series of
preference stock which are or may from time to time be ranking prior and
superior to the shares of Series F Preference Stock with respect to
dividends, the holders of shares of Series F Preference Stock shall be
entitled to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, quarterly dividends payable in
cash on the first day of March, June, September and December 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 F Preference
Stock, in an amount per share (rounded to the nearest cent) equal to the
greater of (a) $3 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 or
distribution 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 F
Preference Stock. If on any Quarterly Dividend Payment Date the
Corporation's Restated Certificate of Incorporation shall limit the amount
of dividends which may be paid on the Series F Preference Stock to an
amount less than that provided above, such dividends will be paid in the
maximum permissible amount and the shortfall from the amount provided above
shall accrue and be a cumulative dividend requirement and be carried
forward to subsequent Quarterly Dividend Payment Dates.
In the event the Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common Stock, or effect a
subdivision or a combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which holders
of shares of Series F Preference Stock were entitled immediately prior to
such event under the second 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.
When, as and if the Corporation shall declare a dividend or
distribution on the Common Stock (other than a dividend payable in shares
of Common Stock), the Corporation shall at the same time declare a dividend
or distribution on the Series F Preference Stock as provided in this
Section 2 and no such dividend or distribution on the Common Stock shall be
paid or set aside for payment on the Common Stock unless such dividend or
distribution on the Series F Preference Stock shall be simultaneously paid
or set aside for payment; 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 $3 per share on the Series F
Preference Stock shall nevertheless be payable, when, as and if declared by
the Board of Directors, on such subsequent Quarterly Dividend Payment Date.
Dividends shall begin to accrue and be cumulative on outstanding
shares of Series F Preference Stock from the date of issue of such shares
of Series F Preference Stock, unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series F Preference Stock entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in which event 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 F
Preference 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 F Preference Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date shall be
no more than 60 days prior to the relevant Quarterly Dividend Payment Date.
Section 3. Voting Rights. The holders of shares of Series F
Preference Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series F Preference 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 (i) declare or pay any dividend or make any distribution on
Common Stock payable in shares of Common Stock, (ii) effect a
subdivision or combination or consolidation of the outstanding shares
of Common Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser number of
shares of Common Stock or (iii) increase by 20% or more, other than
through the methods referred to in subclauses (i) and (ii) above, the
shares of Common Stock outstanding as compared with the shares of
Common Stock outstanding on the date hereof (adjusted for any stock
dividend, subdivision or combination to which subclauses (i) and (ii)
above apply), then in each such case the number of votes per share to
which holders of shares of Series F Preference 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 F Preference Stock, the holders of shares of Common
Stock and the holders of any other capital stock of the Corporation at
the time entitled thereto shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation and
notwithstanding that the holders of Series F Preference Stock, voting
as a class, may be entitled to elect two directors as hereinafter
provided, they shall be entitled to participate with the Common Stock
(or any other capital stock as aforesaid), in the election of any
other directors.
(C) In case at any time six or more full quarterly dividends
(whether consecutive or not) on the Series F Preference Stock shall be
in arrears, then during the period (hereinafter in this Section 3(C)
called the "Voting Period") commencing with such time and ending with
the time when all arrears in dividends on the Series F Preference
Stock shall have been paid and the full dividend on the Series F
Preference Stock for the then current quarterly dividend period shall
have been declared and paid or set aside for payment, at any meeting
of the stockholders of the Corporation held for the election of
directors during the Voting Period, the holders of Series F Preference
Stock present in person or represented by proxy at said meeting, shall
be entitled, as a class, to the exclusion of the holders of all other
classes of stock of the Corporation, to elect two directors of the
Corporation, each share of Series F Preference Stock entitling the
holder to one vote. Each of such two directors shall be elected to one
of the three classes of directors so that the three classes shall be
as equal in number as may be feasible and shall be elected to hold
office for a term expiring at the earlier of (i) the expiration of the
term of the class to which he is elected or (ii) the end of the Voting
Period. At no time shall the Board of Directors have more than two
directors elected solely by the holders of the Series F Preference
Stock.
Any director who shall have been elected by holders of Series F
Preference Stock or by any director so elected as herein contemplated,
may be removed at any time during a Voting Period, either for or
without cause, by, and only by, the affirmative votes of the holders
of record of a majority of the outstanding shares of Series F
Preference Stock given at a special meeting of such stockholders
called for the purpose, and any vacancy thereby created may be filled
during such Voting Period by the holders of Series F Preference Stock
present in person or represented by proxy at such meeting. Any
director to be elected by the Board of Directors of the Corporation to
replace a director elected by holders of Series F Preference Stock or
elected by a director as in this sentence provided shall be elected by
the remaining director theretofore elected by the holders of Series F
Preference Stock. At the end of the Voting Period the holders of
Series F Preference Stock shall be automatically divested of all
voting power vested in them under this Section 3(C) but subject always
to the subsequent vesting hereunder of voting power in the holders of
Series F Preference Stock in the event of any similar default or
defaults thereafter.
(D) Except as otherwise set forth herein, holders of Series F
Preference 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 or holders of any other class of capital
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 F Preference 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 F
Preference 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 F Preference
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 F
Preference Stock, except dividends paid ratably on the Series F
Preference 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) except as permitted by subparagraph (iv) of this Section
4(A), 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 F Preference
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 class of stock of the Corporation ranking junior (either
as to dividends or upon dissolution, liquidation or winding up) to the
Series F Preference Stock; or
(iv) purchase or otherwise acquire for consideration any shares
of Series F Preference Stock, or any shares of stock ranking on a
parity with the Series F Preference 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 all 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, provided that the Corporation may at any time purchase or
otherwise acquire shares of any such parity stock in exchange for
shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the
Series F Preference Stock.
(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
subparagraph (A) of this Section 4, purchase or otherwise acquire shares at
such time and in such manner.
(C) The Corporation shall not issue any shares of Series F
Preference Stock except upon exercise of Rights issued pursuant to that
certain Rights Agreement dated as of September 21, 1998 between the
Corporation and First Chicago Trust Company of New York, a copy of which is
on file with the Secretary of the Corporation at its principal executive
office and shall be made available to stockholders of record without charge
upon written request therefor addressed to said Secretary. Notwithstanding
the foregoing sentence, nothing contained in this Certificate of
Designation shall prohibit or restrict the Corporation from issuing for any
purpose any series of Preference Stock with rights and privileges similar
to or different from those of the Series F Preference Stock.
Section 5. Reacquired Shares. Any shares of Series F Preference
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition
thereof. All such shares shall upon their cancellation without designation
as to series become authorized but unissued shares of preference stock and
may be reissued as part of a new series of preference 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 and Winding Up. Upon any
voluntary liquidation, dissolution or winding up of the Corporation, no
distribution shall be made
(1) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the
Series F Preference Stock unless, prior thereto, the holders of shares
of Series F Preference Stock shall have received, subject to
adjustment as hereinafter provided, an aggregate amount equal to (a)
$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 or (b) if greater, an aggregate amount per share (subject
to the provision for adjustment hereinafter set forth) equal to 100
times the aggregate amount to be distributed per share to holders of
Common Stock, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, or
(2) to the holders of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series F Preference Stock, except distributions made ratably on the
Series F Preference Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up,
disregarding for this purpose the amounts referred to in clause (1)(b)
of this Section 6.
In the event the Corporation shall at any time declare or pay any
dividend or make any distribution on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series F Preference Stock
were entitled immediately prior to such event 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 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 proper provision shall be made so that the shares of
Series F Preference 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. The Corporation shall not consummate any such consolidation,
merger, combination or other transaction unless prior thereto the
Corporation and the other party or parties to such transaction shall have
so provided in any agreement relating thereto. In the event the Corporation
shall at any time declare or pay any dividend on Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount set forth in the first sentence of this
Section 7 with respect to the exchange or change of shares of Series F
Preference 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 F Preference Stock
shall not be redeemable. Notwithstanding the foregoing sentence, the
Corporation may acquire shares of Series F Preference Stock in any other
manner permitted by law, this Certificate of Designation and the Restated
Certificate of Incorporation of the Corporation, as from time to time
amended,
Section 9. Amendment. The Restated Certificate of Incorporation
of the Corporation shall not be amended in any manner which would alter or
change the powers, preferences or special rights of the shares of Series F
Preference Stock so as to affect them adversely without the affirmative
vote of the holders of two-thirds or more of the outstanding shares of
Series F Preference Stock, voting together as a single class.
Section 10. Ranking. The Series F Preference Stock will, with
respect to the payment of dividends and the distribution of assets on
liquidation, dissolution or winding-up of the Corporation, unless otherwise
provided in the Corporation's Restated Certificate of Incorporation or a
Certificate of Designations, Rights and Preferences relating to a
subsequently issued series of preference stock of the Corporation, rank (i)
on a parity with the Corporation's Series A Junior Participating Preference
Stock, the Series B ESOP Convertible Preference Stock, the Series C 8 1/2%
Convertible Preference Stock, the Series D 8 1/2% Convertible Preference
Stock, the Series E 8 1/2% Convertible Preference Stock and any other class
or series of preference stock issued by the Corporation and (ii) prior to
the Common Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties of
perjury this 14th day of August, 1998.
/s/ Ellis T. Gravette, Jr.
-------------------------------------
Ellis T. Gravette, Jr.
Chairman of the Board and
Chief Executive Officer
Attest:
/s/ Sara J. Gozo
- ---------------------------
Sara J. Gozo
Vice President and
Secretary
