SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MOSCOM CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 16-1192368
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
3750 Monroe Avenue, Pittsford, New York 14534
(Address, including zip code of registrants principal
executive offices)
If this form relates to the registration of a class securities
pursuant to Section 12(b) of the Exchange Act and is effective 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 Act registration statement file number to which this form
relates: _____________________.
(If applicable)
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
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
______________________________________________________________
(Title of class)
<PAGE>
Item 1. Description of Registrants Securities to be Registered.
On December 15, 1997, the Board of Directors of Moscom Corporation
(the Corporation) declared a dividend of one common stock purchase right (a
Right) for each share of common stock, par value $.10 per share, of the
Corporation (Common Stock) outstanding on January 9, 1998 (the Record
Date), and further authorized and directed the issuance of one Right with
respect to each share of Common Stock that shall become outstanding between
the Record Date and the earliest of the Distribution Date, the Redemption
Date or the Final Expiration Date (as such terms are defined below).
Except as set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase from the Corporation one share
of Common Stock at a price of $40.00 per share (the Purchase Price),
subject to adjustment. The description and terms of the Rights are set
forth in a Stockholder Rights Agreement (the Rights Agreement) between the
Corporation and American Stock Transfer & Trust Company.
Initially, the Rights will be evidenced by the certificates for Common
Stock registered in the names of the holders of Common Stock and not by
separate Rights certificates. The Rights will separate from the Common
Stock upon the earliest to occur of: (i) a person being declared an adverse
person by the Board of Directors after a determination that such person,
alone or together with its affiliates and associates, has become the
beneficial owner of 10% or more of the Common Stock, or (ii) a person or
group of affiliated or associated persons having acquired beneficial
ownership of 15% or more of the outstanding shares of Common Stock (except
pursuant to a Permitted Offer, as defined below), or (iii) 10 days (or such
later date as the Board of Directors may determine) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in a person or group
becoming an Acquiring Person (as herein defined) (the earliest of such
dates being called the Distribution Date). A person or group whose
acquisition of Common Stock causes a Distribution Date pursuant to clauses
(i) or (ii) above is an Acquiring Person. The date a person or group
becomes an Acquiring Person is the Stock Acquisition Date.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier Redemption Date or Final Expiration Date),
new Common Stock certificates issued after the Record Date upon transfer or
new issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
Redemption Date or Final Expiration Date), the surrender for transfer of
any certificate or certificates for Common Stock outstanding as of the
Record Date, even without such notation or a copy of a summary of the
Rights being attached thereto, will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate.
As soon as practicable following the Distribution Date, separate
certificates evidencing the Rights (Rights Certificates) will be mailed to
holders of record of the Common Stock as of the close of business on the
Distribution Date, and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 14, 2007 (the Final Expiration
Date), unless earlier terminated by the Corporation as described below.
<PAGE>
In the event that any person becomes an Acquiring Person (except
pursuant to a tender or exchange offer which is for all outstanding Common
Stock at price and on terms which a majority of certain members of the
Board of Directors determines to be adequate and in the best interests of
the Corporation, its stockholders, other than such Acquiring Person, its
affiliates and associates (a Permitted Offer)), each holder of a Right will
thereafter have the right (the Flip-In-Right) to receive upon exercise the
number of shares of Common Stock (or, in certain circumstances, other
securities of the Corporation) having a value (immediately prior to such
triggering event) equal to two times the Purchase Price. Notwithstanding
the foregoing, following the occurrence of the event described above, all
Rights that are, or were, beneficially owned by any Acquiring Person or any
affiliate or associate thereof will be null and void.
In the event that, on or following the Stock Acquisition Date, (i) the
Corporation is consolidated with, or merged with and into, any Acquiring
Person, affiliate or associate of an Acquiring Person or any other person
in which any such Acquiring Person, affiliate or associate has an interest
or any person acting on behalf of or in concert with any such Acquiring
Person, affiliate or associate (Interested Stockholder) or, if in such
merger or consolidation all holders of Common Stock are not treated alike,
any other person, (ii) the Corporation consolidates with, or merges with,
any Interested Stockholder or, if in such merger or consolidation all
holders of Common Stock are not treated alike, any other person, and the
Corporation is the surviving corporation of such consolidation or merger
(other than, in a case of any transaction described in (i) or (ii), a
merger or consolidation which would result in all of the securities
generally entitled to vote in the election of directors ( voting
securities) of the Corporation outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into securities of the surviving entity) all of the voting
securities of the Corporation or such surviving entity outstanding
immediately after such merger or consolidation and the holders of such
securities not having changed as a result of such merger or consolidation),
or (iii) the Corporation sells or otherwise transfers assets or earning
power aggregating more than 50% of the assets or earning power of the
Corporation and its subsidiaries (taken as a whole) to any Interested
Stockholder or, if in such transaction all holders of Common Stock are not
treated alike, any other person, then each holder of a Right (except Rights
which previously have been voided as set forth above), shall thereafter
have the right (the Flip-Over Right) to receive, upon the exercise, common
shares of the acquiring company having a value equal to two times the
Purchase Price. The holder of a Right will continue to have the Flip-Over
Right whether or not such holder exercises or surrenders the Flip-In Right.
The Purchase Price payable, and the number of shares of Common Stock
or other securities issuable upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or reclassification of,
the Common Stock, (ii) upon the grant to holders of the Common Stock of
certain rights, options or warrants to subscribe for or purchase Common
Stock at a price, or securities convertible into Common Stock with a
conversion price, less than the then current market price of the Common
Stock or (iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding regular cash dividends) or
of subscription rights or warrants (other than the Rights).
<PAGE>
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the Final Expiration Date, and under certain other
circumstances, the Corporation may redeem the Rights in whole, but not in
part, at a price of $.001 per Right (the Redemption Right), which
redemption shall be effective upon the action of the Board of Directors.
Additionally, following the Stock Acquisition Date, the Corporation may
redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price provided that such redemption is in connection with a
merger or other business combination transaction or series of transactions
involving the Corporation in which all holders of the Common Stock are
treated alike but not involving any Acquiring Person or its affiliates or
associates.
Item 2. Exhibits.
1. Restated Certificate of Incorporation of the Registrant.*
2. Bylaws of the Registrant, as amended.**
3. Stockholder Rights Agreement dated as of December 15, 1997 by and
between the Registrant and American Stock Transfer and Trust
Company.
________________________
*Incorporated by reference from Exhibit 4-1 to the Registrants
Registration Statement on Form S-18 (No. 2-96787), filed on March 22, 1985.
** Incorporated by reference from Exhibit 3 to the Registrants
Registration Statement on Form S-8, filed October 5, 1992.
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.
Date: December ____, 1997 MOSCOM CORPORATION
By: _____________________________
David G. Mazzella, President
<PAGE>
STOCKHOLDER RIGHTS AGREEMENT
between
MOSCOM CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
<PAGE>
TABLE OF CONTENTS
Section 1. Certain Definitions.
Section 2. Appointment of Rights Agent.
Section 3. Issuance of Right Certificates.
Section 4. Form of Right Certificate.
Section 5. Countersignature and Registration.
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificate.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
Section 8. Cancellation and Destruction of Right Certificates.
Section 9. Reservation and Availability of Common Stock.
Section 10. Common Stock Record Date.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
Section 14. Fractional Rights and Fractional Shares.
Section 15. Rights of Action.
Section 16. Agreement of Right Holders.
Section 17. Right Certificate Holder Not Deemed a Stockholder.
Section 18. Concerning the Rights Agent.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Section 20. Duties of Rights Agent.
Section 21. Change of Rights Agent.
Section 22. Issuance of New Right Certificates.
Section 23. Redemption and Termination.
Section 24. Exchange.
Section 25. Notice of Certain Events.
Section 26. Notices.
Section 27. Supplements and Amendments.
Section 28. Determination and Actions by the Board of Directors, etc.
Section 29. Successors.
Section 30. Benefits of this Agreement.
Section 31. Severability.
Section 32. Governing Law.
Section 33. Counterparts.
Section 34. Descriptive Headings.
Exhibit A Form of Right Certificate
Exhibit B Summary of Rights to Purchase Common Stock
<PAGE>
STOCKHOLDER RIGHTS AGREEMENT
THE STOCKHOLDER RIGHTS AGREEMENT, dated as of December 15, 1997 (the
Agreement), between MOSCOM CORPORATION, a Delaware corporation (the
Corporation), and American Stock Transfer & Trust Company, a New York
corporation (the Rights Agent).
The Board of Directors of the Corporation has authorized and declared
a dividend of one common stock purchase right (a Right) for each share of
Common Stock of the Corporation (as defined herein) outstanding at the
close of business on January 9, 1998 (the Record Date), each Right
representing the right to purchase one share of Common Stock, upon the
terms and subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect to each
share of Common Stock that shall become outstanding between the Record Date
and the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date (as such terms are defined herein); provided, however, that
Rights may be issued with respect to shares of Common Stock that shall
become outstanding after the Distribution Date and prior to the earlier of
the Redemption Date and the Final Expiration Date in accordance with the
provisions of Section 22 of this Agreement.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) Acquiring Person shall mean any Adverse Person or any Person who
or which, together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of 15% or more of the then outstanding shares of
Common Stock (other than as a result of a Permitted Offer (as defined
herein)) or was such a Beneficial Owner at any time after the date hereof,
whether or not such person continues to be the Beneficial Owner of 15% or
more of the then outstanding Common Stock. Notwithstanding the foregoing,
(A) the term Acquiring Person shall not include (i) the Corporation, (ii)
any Subsidiary of the Corporation, (iii) any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation, (iv) any Person or
entity organized, appointed or established by the Corporation for or
pursuant to the terms of any such plan, or (v) any Person, who or which
together with all Affiliates and Associates of such Person becomes the
Beneficial Owner of 15% or more of the then outstanding Common Stock as a
result of the acquisition of Common Stock directly from the Corporation,
and (B) no Person shall be deemed to be an Acquiring Person either (X) as a
result of the acquisition of Common Stock by the Corporation which, by
reducing the number of shares of Common Stock outstanding, increases the
proportional number of shares beneficially owned by such Person together
with all Affiliates and Associates of such Person; except that if (i) a
Person would become an Acquiring Person (but for the operation of this
subclause (X)) as a result of the acquisition of Common Stock by the
Corporation, and (ii) after such share acquisition by the Corporation, such
Person, or an Affiliate or Associate of such Person, becomes the Beneficial
Owner of any additional shares of Common Stock, then such Person shall be
deemed an Acquiring Person, or (Y) if (i) within 8 days after such Person
would otherwise have become an Acquiring Person (but for the operation of
this subclause (Y)), such Person notifies the Board of Directors that such
Person did so inadvertently and (ii) within 2 days after such notification,
such Person is the Beneficial Owner of less than 15% of the outstanding
Common Stock.
<PAGE>
(b) Act shall mean the Securities Act of 1933, as amended and as in
effect on the date of this Agreement.
(c) Adverse Person shall mean any Person declared to be an Adverse
Person by the Board of Directors after (x) a determination that such
Person, alone or together with its Affiliates and Associates, has become
the Beneficial Owner of 10% or more of the Common Stock and (y) a
determination by the Board of Directors, after reasonable inquiry and
investigation, including such consultation, if any, with such persons as
such directors shall deem appropriate, that (a) such Beneficial Ownership
by such Person is intended to cause, is reasonably likely to cause or will
cause the Corporation to repurchase the shares of Common Stock beneficially
owned by such Person or to cause pressure on the Corporation to take action
or enter into a transaction or series of transactions which would provide
such person with short-term financial gain under circumstances where the
Board of Directors determine that the best long-term interests of the
Corporation and its stockholders, but for the actions and possible actions
of such Person, would not be served by taking such action or entering into
such transactions or series of transactions at that time or (b) such
Beneficial Ownership is causing or reasonably likely to cause a material
adverse impact (including, but not limited to, impairment of relationships
with customers or impairment of the Corporations ability to maintain its
competitive position) on the business or prospects of the Corporation;
provided, however, that the Board of Directors of the Corporation may not
declare a person to be an Adverse Person if, prior to the time such Person
acquired 10% or more of the Common Stock, such Person provided to the Board
of Directors in writing a statement of such Persons acquisition of Common
Stock, together with any other information reasonably requested of such
Person by the Board of Directors, and the Board of Directors, based on such
statement and reasonable inquiry and investigation, including such
consultation, if any, with such persons as the directors shall deem
appropriate, determine to notify and notifies such Person in writing that
it will not declare such Person to be an Adverse Person; provided, further,
that the Board of Directors may expressly condition in any manner a
determination not to declare a Person an Adverse Person on such conditions
as the Board of Directors may select, including without limitation, such
Persons not acquiring more than a specified amount of stock and/or on such
Persons not taking actions inconsistent with the purposes and intentions
disclosed by such Person in the statement provided to the Board of
Directors. No delay or failure by the Board of Directors to declare a
Person to be an Adverse Person shall in any way waive or otherwise affect
the power of the Board of Directors subsequently to declare a Person to be
an Adverse Person. In the event that the Board of Directors should at any
time determine, upon reasonable inquiry and investigation, including
consultation with such persons as the directors shall deem appropriate,
that such Person has not met or complied with any condition specified by
the Board of Directors, the Board of Directors may at any time thereafter
declare such Person to be an Adverse Person.
(d) Affiliate and Associate shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended and in effect on the
date of this Agreement (the Exchange Act).
<PAGE>
(e) A Person shall be deemed the Beneficial Owner of and shall be
deemed to beneficially own any securities:
(i) which such Person or any of such Persons Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Persons 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 conversion rights,
exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, securities tendered pursuant
to a tender or exchange offer made by or on behalf of such Person or any of
such Persons Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which such
Person (or any of such Persons Affiliates or Associates) has any agreement,
arrangement or understanding (other than customary agreements with and
between underwriters and selling group members with respect to a bona fide
public offering of securities) relating to the acquisition, holding, voting
(except to the extent contemplated by the proviso to Section 1(d)(ii)(B))
or disposing of any securities of the Corporation.
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, the phrase then outstanding, when used with reference to a
Persons Beneficial Ownership of securities of the Corporation, shall mean
the number of such securities then issued and outstanding together with the
number of such securities not then actually issued and outstanding which
such Person would be deemed to own beneficially hereunder.
<PAGE>
(f) Business Day shall mean any day other than a Saturday, Sunday or
U.S. federal holiday.
(g) Close of Business on any given date shall mean 5:00 P.M., New
York time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next succeeding
Business Day.
(h) Common Stock when used with reference to the Corporation shall
mean the shares of Common Stock, par value $.10 per share, of the
Corporation or, in the event of a subdivision, combination or consolidation
with respect to such shares of Common Stock, the shares of Common Stock
resulting from such subdivision, combination or consolidation. Common
Stock when used with reference to any Person other than the Corporation
shall mean: (i) in the case of Persons organized in corporate form, the
capital stock (or equity interest) with the greatest voting power of such
other Person or, if such other Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such first-mentioned Person;
and (ii) in the case of Persons not organized in corporate form, the units
of beneficial interest which (A) 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 (B) are 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.
(i) Continuing Director shall mean (i) any member of the Board of
Directors of the Corporation, while such Person is a member of the Board of
Directors, who is not an Acquiring Person, or an Affiliate or Associate of
an Acquiring Person, or a representative of an Acquiring Person or of any
such Affiliate or Associate, and was a member of the Board of Directors
prior to the date of this Agreement, or (ii) any Person who subsequently
becomes a member of the Board of Directors, while such Person is a member
of the Board of Directors, who is not any Acquiring Person or an Affiliate
or Associate of an Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate of Associate, if such Persons nomination
for election or election to the Board of Directors is recommended or
approved by a majority of the Continuing Directors.
(j) Distribution Date shall have the meaning set forth in Section 3
hereof.
(k) Final Expiration Date shall have the meaning set forth in Section
7 hereof.
(l) Independent Director shall mean an member of the Board of
Directors of the Corporation who is not an officer of the Corporation and
who is not an Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate.
(m) Interested Stockholder shall mean any Acquiring Person or any
Affiliate or Associate of an Acquiring Person or any other Person in which
any such Acquiring Person, Affiliate or Associate has an interest, or any
other Person acting directly or indirectly on behalf of or in concert with
any such Acquiring Person, Affiliate or Associate.
<PAGE>
(n) Permitted Offer shall mean a tender or exchange offer which is
for all outstanding shares of Common Stock at a price and on terms
determined, prior to the purchase of shares under such tender or exchange
offer, by at least a majority of the members of the Board of Directors who
are not officers of the Corporation and who are not Acquiring Persons or
Affiliates, Associates, nominees or representatives of an Acquiring Person,
or a Transaction Person to be adequate (taking into account all factors
that such Directors deem relevant including, without limitation, prices
that could reasonably be achieved if the Corporation or its assets were
sold on an orderly basis designed to realize maximum value) and otherwise
in the best interests of the Corporation and its stockholders (other than
the Person or any Affiliate or Associate thereof on whose basis the offer
is being made) taking into account all factors that such directors may deem
relevant.
(o) Person shall mean any individual, firm, partnership, corporation,
trust, association, joint venture or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(p) Redemption Date shall have the meaning set forth in Section 7
hereof.
(q) Section 11(a)(ii) Event shall mean any event described in Section
11(a)(ii) hereof.
(r) Section 13 Event shall mean any event described in clause (x),
(y) or (z) of Section 13(a) hereof.
(s) Stock Acquisition Date shall mean the first date of a public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to the Exchange Act) by the
Corporation or an Acquiring Person that an Acquiring Person has become
such; provided that, if such Person is determined not to have become an
Acquiring Person pursuant to Section 1(b)(Y) hereof, then no Stock
Acquisition Date shall be deemed to have occurred.
(t) Subsidiary of any Person shall mean any corporation or other
Person of which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such
Person.
(u) Transaction Person with respect to a Transaction shall mean (x)
any Person who (i) is or will become an Acquiring Person if the Transaction
were to be consummated, and (ii) directly or indirectly proposed or
nominated a director of the Corporation which director is in office at the
time of consideration of the Transaction, or (y) an Affiliate or Associate
of such Person.
(v) Transaction shall mean any merger, consolidation or sale of
assets described in Section 13(a) hereof or any acquisition of shares of
Common Stock of the Corporation which would result in a Person becoming a
Transaction Person.
(w) Triggering Event shall mean any Section 11(a)(ii) Event or any
Section 13 Event.
<PAGE>
Section 2. Appointment of Rights Agent. The Corporation hereby
appoints the Rights Agent to act as agent for the Corporation and the
holders of the Rights (who, in accordance with Section 3 hereof shall prior
to the Distribution Date also be the holders of shares of Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Corporation may from time to time
appoint such co-Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Right Certificates. (a) Until the earlier of
(i) the Stock Acquisition Date or (ii) the Close of Business on the tenth
day (or such later date as may be determined by action of the Corporations
Board of Directors) after the date of the commencement by any Person (other
than the Corporation, any Subsidiary of the Corporation, any employee
benefit plan of the Corporation or of any Subsidiary of the Corporation or
any Person or entity organized, appointed or established by the Corporation
for or pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Corporation,
any Subsidiary of the Corporation, any employee benefit plan of the
Corporation or of any Subsidiary of the Corporation or any Person or entity
organized, appointed or established by the Corporation for or pursuant to
the terms of any such plan) to commence (which intention to commence
remains in effect for five Business Days after such announcement), a tender
or exchange offer the consummation of which would result in any Person
becoming an Acquiring Person (including, in the case of both (i) and (ii),
any such date which is after the date of this Agreement and prior to the
issuance of the Rights), the earlier of such dates being referred to herein
as the Distribution Date, (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Common Stock
registered in the names of the holders of Common Stock (which certificates
shall also be deemed to be Right Certificates) and not by separate Right
Certificates, and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of the underlying Common
Stock (including a transfer to the Corporation); provided, however, that if
a tender offer is terminated prior to the occurrence of a Distribution
Date, then no Distribution Date shall occur as a result of such tender
offer. As soon as practicable after the Distribution Date, the Corporation
will prepare and execute, the Rights Agent will countersign and the
Corporation will send or cause to be sent by first-class, postage-prepaid
mail, to each record holder of Common Stock as of the close of business on
the Distribution Date, at the address of such holder shown on the records
of the Corporation, a Right Certificate, substantially in the form of
Exhibit A hereto (a Right Certificate), evidencing one Right for each
Common Share so held. As of and after the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
<PAGE>
(b) As promptly as practicable following the Record Date, the
Corporation will send a copy of a Summary of Rights to Purchase Common
Stock, in substantially the form of Exhibit B hereto (the Summary of
Rights), by first-class, postage-prepaid mail, to each record holder of
Common Stock as of the close of business on the Record Date, at the address
of such holder shown on the records of the Corporation. With respect to
certificates for Common Stock outstanding as of the Record Date, until the
Distribution Date, the Rights will be evidenced by such certificates
registered in the names of the holders thereof together with a copy of the
Summary of Rights attached thereto. Until the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), the surrender
for transfer of any certificate for Common Stock outstanding on the Record
Date, with or without a copy of the Summary of Rights attached thereto,
shall also constitute the transfer of the Rights associated with such
Common Stock.
(c) Certificates for Common Stock which become outstanding
(including, without limitation, reacquired Common Stock referred to in the
last sentence of this paragraph (c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date, shall be deemed also to be certificates for Rights, and
shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Stockholder
Rights Agreement between Moscom Corporation and
American Stock Transfer & Trust Company dated as of
December 15, 1997 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 Moscom 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. Moscom Corporation
will mail to the holder of this certificate a copy of
the Rights Agreement without charge after receipt of a
written request therefor. Under certain circumstances
set forth in the Rights Agreement, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring
Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement) and certain related persons,
whether currently held by or on behalf of such Person
or by any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with the Common 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
represented thereby. In the event that the Corporation purchases or
acquires any Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Stock shall be
deemed canceled and retired so that the Corporation shall not be entitled
to exercise any Rights associated with the Common Stock which are no longer
outstanding.
<PAGE>
Section 4. Form of Right Certificate. (a) The Right Certificates
(and the forms of election to purchase and of assignment to be printed on
the reverse thereof) shall be substantially in the form set forth in
Exhibit A hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as the
Corporation may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the provisions
of Section 11 and Section 22 hereof, the Right Certificates shall entitle
the holders thereof to purchase such number of shares of Common Stock as
shall be set forth therein at the price per share of Common Stock set forth
therein (the Purchase Price), but the amount and type of securities
purchasable upon the exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section
22 hereof that represents Rights which are null and void pursuant to
Section 7(e) of this Agreement and any Right Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this sentence,
shall contain (to the extent feasible) the following legend:
The Rights represented by this Right Certificate are or
were beneficially owned by a Person who was or became
an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the
Rights Agreement). Accordingly, this Right Certificate
and the Rights represented hereby are null and void.
Provisions of Section 7(e) of this Rights Agreement shall be operative
whether or not the foregoing legend is contained on any such Right
Certificate.
Section 5. Countersignature and Registration. The Right Certificates
shall be executed on behalf of the Corporation by its Chairman of the
Board, its Chief Executive Officer, its President, any of its Vice
Presidents, or its Treasurer, either manually or by facsimile signature,
shall have affixed thereto the Corporations seal or a facsimile thereof,
and shall be attested by the Secretary or an Assistant Secretary of the
Corporation, either manually or by facsimile signature. The Right
Certificates shall be countersigned by the Rights Agent and shall not be
valid for any purpose unless so countersigned. In case any officer of the
Corporation who shall have signed any of the Right Certificates shall cease
to be such officer of the Corporation before countersignature by the Rights
Agent and issuance and delivery by the Corporation, such Right Certificates
may nevertheless be countersigned by the Rights Agent and issued and
delivered by the Corporation with the same force and effect as though the
person who signed such Right Certificates had not ceased to be such officer
of the Corporation; and any Right Certificate may be signed on behalf of
the Corporation by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Corporation to
sign such Right Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
<PAGE>
Following the Distribution Date, the Rights Agent will keep or cause
to be kept, at its principal office or offices designated as the
appropriate place for surrender of such Right Certificate or transfer,
books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Right Certificates, the number of Rights evidenced on its
face by each of the Right Certificates and the certificate number and the
date of each of the Right Certificates.
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificate.
Subject to the provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the Close of Business on the Distribution Date,
and at or prior to the Close of Business on the earlier of the Redemption
Date or the Final Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for
another Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of shares of Common Stock as the Right
Certificate or Right Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Right
Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at
the principal office or offices of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Corporation 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 Corporation
shall reasonably request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof, countersign and deliver
to the Person entitled thereto a Right Certificate or Right Certificates,
as the case may be, as so requested. The Corporation 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.
Upon receipt by the Corporation and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and,
at the Corporations request, reimbursement to the Corporation 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 Corporation will make and deliver a new Right Certificate of
like tenor to the Rights Agent for countersignature and delivery to the
registered holder in lieu of the Right Certificate so lost, stolen,
destroyed or mutilated.
<PAGE>
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Subject to Section 7(e) hereof, the registered holder of any
Right Certificate may exercise the Right evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office or offices of the
Rights Agent designated for such purpose, together with payment of the
aggregate Purchase Price for the total number of shares of Common Stock (or
other securities, as the case may be) as to which such surrendered Rights
are exercised, at or prior to the earliest of (i) the close of business on
December 14, 2007 (the Final Expiration Date), or (ii) the time at which
the Rights are redeemed as provided in Section 23 hereof (the Redemption
Date).
(b) The Purchase Price for each share of Common Stock pursuant to the
exercise of a Right shall initially be $40.00, shall be subject to
adjustment from time to time as provided in the next sentence and in
Sections 11 and 13(a) hereof and shall be payable accordance with paragraph
(c) below. Anything in this Agreement to the contrary notwithstanding, in
the event that at any time after the date of this Agreement and prior to
the Distribution Date, the Corporation shall (i) declare or pay any
dividend on the Common Stock payable in Common Stock or (ii) effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in Common Stock)
into greater or lesser number of Common Stock, then in any such case, each
Common Share outstanding following such subdivision, combination or
consolidation shall continue to have Right associated therewith and the
Purchase Price following any such event shall be proportionately adjusted
to equal the result obtained by multiplying the Purchase Price immediately
prior to such event by a fraction the numerator of which shall be the total
number of Common Stock outstanding immediately prior to the occurrence of
the event and the denominator of which shall be the total number of Common
Stock outstanding immediately following the occurrence of such event. The
adjustment provided for in the preceding sentence shall be made
successively whenever such a dividend is declared or paid or such a
subdivision, combination consolidation is effected.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form election to purchase and the certificate duly
executed, accompanied by payment of the Purchase Price for the Common Stock
(or other securities, as the case may be) to be purchased and an amount
equal to any applicable transfer tax required to be paid by the holder of
such Right Certificate in accordance with Section 6 hereof by certified
check, cashiers check or money order payable to the order of the
Corporation, the Rights Agent thereupon shall promptly (i) (A) requisition
from any transfer agent of the Common Stock certificates for the number of
shares of Common Stock to be purchased and the Corporation hereby
irrevocably authorizes its transfer agent to comply with all such requests,
or (B) if the Corporation, in its sole discretion, shall have elected to
deposit the Common Stock issuable upon exercise of the Rights hereunder
into a depositary, requisition from the depositary agent depositary
receipts representing such number of shares of Common Stock as are to be
purchased (in which case certificates for the Common Stock represented by
such receipts shall be deposited by the transfer agent with the depositary
agent) and the Corporation will direct the depositary agent to comply with
<PAGE>
such requests, (ii) when appropriate, requisition from the Corporation the
amount of cash to be paid in lieu of issuance of fractional shares in
accordance with Section 14 hereof, (iii) after receipt of such certificates
or depositary receipts, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate, registered in such name
or names as may be designated by such holder, and (iv) when appropriate,
after receipt thereof, deliver such cash to or upon the order of the
registered holder of such Right Certificate. In the event that the
Corporation is obligated to issue other securities of the Corporation
pursuant to Section 11(a) hereof, the Corporation will make all
arrangements necessary so that such other securities are available for
distribution by the Rights Agent, if and when appropriate.
In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Right
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Right
Certificate no longer include the rights provided by Section 11(a)(ii) of
the Rights Agreement and if less than all the Rights represented by such
Right Certificate were so exercised, the Rights Agent shall indicate on the
Right Certificate the number of Rights represented thereby which continue
to include the rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof, or the Rights Agent shall place an
appropriate notation on the Right Certificate with respect to those Rights
exercised.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate
of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any
Affiliate or Associate thereof) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person
(or of any Affiliate or Associate thereof) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom the Acquiring Person has a
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of the
Corporation has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section
7(e), shall become null and void without any further action and no holder
of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or otherwise. The
Corporation shall use all reasonable efforts to insure that the provisions
of this Section 7(e) and Section 4(b) hereof are complied with, but shall
have no liability to any holder of Right Certificates or other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder.
<PAGE>
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Corporation 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 Corporation
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 Corporation or to
any of its agents, be delivered to the Rights Agent for cancellation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by
it, and no Right Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Agreement. The
Corporation 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 Corporation otherwise than
upon the exercise thereof. The Rights Agent shall deliver all canceled
Right Certificates to the Corporation, or shall, at the written request of
the Corporation, destroy such canceled Right Certificates, and in such case
shall deliver a certificate of destruction thereof to the Corporation.
Section 9. Reservation and Availability of Common Stock. The
Corporation covenants and agrees that at all times prior to the occurrence
of a Section 11(a)(ii) Event it will cause to be reserved and kept
available out of its authorized and unissued Common Stock, or any
authorized and issued shares of Common Stock held in its treasury, the
number of shares of Common Stock that will be sufficient to permit the
exercise in full of all outstanding Rights and, after the occurrence of a
Section 11(a)(ii) Event, shall, to the extent reasonably practicable, so
reserve and keep available a sufficient number of shares of Common Stock
(and/or other securities) which may be required to permit the exercise in
full of the Rights pursuant to this Agreement.
So long as the Common Stock (and, after the occurrence of a Section
11(a)(ii) Event, any other securities) issuable upon the exercise of the
Rights may be listed on any national securities exchange, the Corporation
shall use its best efforts to cause, from and after such time as the Rights
become exercisable, all shares reserved for such issuance to be listed on
such exchange upon official notice of issuance upon such exercise.
The Corporation covenants and agrees that it will take all such action
as may be necessary to ensure that all shares of Common Stock (or other
securities, as the case may be) delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares or other
securities (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and non-assessable shares or
securities.
<PAGE>
The Corporation further covenants and agrees that it will pay when due
and payable any and all U.S. 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 Common Stock (or other securities, as the
case may be) upon the exercise of Rights. The Corporation shall not,
however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a person other
than, or the issuance or delivery of certificates or depository receipts
for the shares of Common Stock (or other securities, as the case may be) in
a name other than that of, the registered holder of the Right Certificate
evidencing Rights surrendered for exercise, or to issue or to deliver any
certificates or depositary receipts for shares of Common Stock (or other
securities, as the case may be) upon the exercise of any Rights, until any
such tax shall have been paid (any such tax being payable by the holder of
such Right Certificate at the time of surrender) or until it has been
established to the Corporations reasonable satisfaction that no such tax is
due.
The Corporation shall use its best efforts to (i) file, as soon as
practicable following the Stock Acquisition Date, a registration statement
under the Act, with respect to the securities purchasable upon exercise of
the Rights on an appropriate form, (ii) cause such registration statement
to become effective as soon as practicable after such filing, and (iii)
cause such registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Act and the rules and regulations
thereunder) until the date of the expiration of the rights provided by
Section 11(a)(ii). The Corporation will also take such action as may be
appropriate under the blue sky laws of the various states, in connection
with the exercisability of the Rights. The Corporation may temporarily
suspend, for a period of time not to exceed 90 days, the exercisability of
the Rights in order to prepare and file a registration statement or
statements for the purpose of effecting any such registration and permit
such statement(s) to become effective. At the commencement and termination
of any such suspension, the Corporation 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, or that such
suspension has terminated, as the case may be. Notwithstanding any
provision in 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.
Section 10. Common Stock Record Date. Each person in whose name any
certificate for shares of Common Stock (or other securities, as the case
may be) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of Common Stock
(or other securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made; provided, however,
that, if the date of such surrender and payment is a date upon which the
Common Stock (or other securities, as the case may be) transfer books of
the Corporation 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 Common Stock (or other
securities, as the case may be) transfer books of the Corporation are open.
<PAGE>
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Corporation shall at any time after the date
of this Agreement (A) declare a dividend on the Common Stock payable in
Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the
outstanding shares of Common Stock into a smaller number of shares of
Common Stock 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 Corporation is
the continuing or surviving corporation), except as otherwise provided in
this Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number and kind
of shares of capital stock issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be
entitled to receive the aggregate number and kind of shares of capital
stock which, if such Right had been exercised immediately prior to such
date and at a time when the Common Stock transfer books of the Corporation
were open, such holder would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision, combination or
reclassification; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Corporation
issuable upon exercise of one Right. If an event occurs which would
require an adjustment under both Section 11(a)(i) and Section 11(a)(ii),
the adjustment provided for in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment required pursuant to Section
11 (a)(ii).
(ii) In the event any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring Person, then proper
provision shall be made so that each holder of a Right (except as provided
below and in Section 7(e) hereof) shall, for a period of 60 days after the
later of the occurrence of any such event or the effective date of an
appropriate registration statement under the Act pursuant to Section 9
hereof, have a right to receive, upon exercise thereof at a price equal to
the then current Purchase Price, in accordance with the terms of this
Agreement, such number of shares of Common Stock as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the then
number of shares of Common Stock for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event, and
dividing that product by (y) 50% of the then current per share market price
of the Corporations Common Stock (determined pursuant to Section 11(d)
hereof) on the date of such first occurrence (such number of shares being
referred to as the Adjustment Shares); provided, however, that if the
transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13 hereof, then only the
provisions of Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii);
<PAGE>
(iii) In the event that there shall not be sufficient
treasury shares or authorized but unissued (and unreserved) Common Stock to
permit the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) and the Rights become so exercisable, notwithstanding any
other provision of this Agreement, to the extent necessary and permitted by
applicable law, each Right shall thereafter represent the right to receive,
upon exercise thereof at the then current Purchase Price in accordance with
the terms of this Agreement, (x) a number of (or fractions of) Common Stock
(up to the maximum number of shares of Common Stock which may permissibly
be issued) and (y) a number of (or fractions of) other equity securities of
the Corporation (or, in the discretion of the Board of Directors, debt)
which the Board of Directors of the Corporation has determined to have the
same aggregate current market value (determined pursuant to Section
11(d)(i) and (ii) hereof, to the extent applicable,) as one share of Common
Stock (such number of (or fractions of) other equity securities or debt of
the Corporation being referred to as a capital stock equivalent), equal in
the aggregate to the number of Adjustment Shares; provided, however, if
sufficient Common Stock and/or capital stock equivalents are unavailable,
then the Corporation shall, to the extent permitted by applicable law, take
all such action as may be necessary to authorize additional Common Stock or
capital stock equivalents for issuance upon exercise of the Rights,
including the calling of a meeting of stockholders; and provided, further,
that if the Corporation is unable to cause sufficient Common Stock and/or
capital stock equivalents to be available for issuance upon exercise in
full of the Rights, then each Right shall thereafter represent the right to
receive the Adjusted Number of Shares upon exercise at the Adjusted
Purchase Price (as such terms are defined herein). As used herein, the
term Adjusted Number of Shares shall be equal to that number of (or
fractions of) Common Stock (and/or capital stock equivalents) equal to the
product of (x) the number of Adjustment Shares and (y) a fraction, the
numerator of which is the number of shares of Common Stock (and/or capital
stock equivalents) available for issuance upon exercise of the Rights and
the denominator of which is the aggregate number of Adjustment Shares
otherwise issuable upon exercise in full of all Rights (assuming there were
a sufficient number of shares of Common Stock available) (such fraction
being referred to as the Proration Factor). The Adjusted Purchase Price
shall mean the product of the Purchase Price and the Proration Factor. The
Board of Directors may, but shall not be required to, establish procedures
to allocate the right to receive Common Stock and capital stock equivalents
upon exercise of the Rights among holders of Rights.
<PAGE>
(b) In case the Corporation shall fix a record date for the issuance
of rights (other than the Rights), options or warrants to all holders 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 then current per share market price per
share of Common Stock (as determined pursuant to Section 11(d) hereof) on
such record date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of 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 per share market price and the
denominator of which 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 so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Corporation issuable upon exercise of one
Right. In case such subscription price may be paid in a consideration part
or all of which shall be in a form other than cash the value of such
consideration shall be determined in good faith by the Board of Directors
of the Corporation, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent.
Shares of Common Stock owned by or held for the account of the Corporation
shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is
fixed; and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Corporation shall fix a record date for the making of
a distribution to all holders of the shares of Common Stock, whether by way
of a dividend, distribution, reclassification of stock, recapitalization,
reorganization or partial liquidation of the Corporation or otherwise
(including any such distribution made in connection with a consolidation or
merger in which the Corporation is the continuing or surviving
corporation), of evidences of indebtedness or assets (other than (i) a
regular periodic cash dividend at a rate not in excess of 150% of the rate
of the last cash dividend theretofore paid, (ii) a dividend payable in
Common Stock or (iii) a distribution which is part of or is made in
connection with a transaction to which Section 11(a)(ii) or Section 13
applies) or subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
<PAGE>
shall be the then current per share market price (as determined pursuant to
Section 11(d) hereof) of the Common Stock on such record date, less the
fair market value (as determined in good faith by the Board of Directors of
the Corporation, whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent) of
the portion of the assets or evidences of indebtedness so to be distributed
or of such subscription rights or warrants applicable to one share of
Common Stock and the denominator of which shall be such current per share
market price of the Common Stock; provided, however that in no event shall
the consideration to be paid upon the exercise of one Right be less than
the aggregate par value of the shares of capital stock of the Corporation
to be issued upon exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that
such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder the current per
share market price of any security (a Security for the purpose of this
Section 11(d)(i)) on any date shall be deemed to be the average of the
daily closing prices per share of such Security for the thirty (30)
consecutive Trading Days (as such term is defined herein) immediately prior
to such date; provided, however, that in the event that the current per
share market price of the Security is determined during a period following
the announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares, or (B) any subdivision,
combination or reclassification of such Security and prior to the
expiration of thirty (30) Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification then, and in each such case the current per
share market price shall be appropriately adjusted to reflect the current
market price per share equivalent of such Security. The closing price for
each day shall be the last sale price regular way, or in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the Security is not listed
or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed
or admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System
(NASDAQ) or such other system then in use, or, if on any such date the
Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in the Security selected by the Board of Directors of the
Corporation. If on any such date no such market maker is making market in
the Security, the fair value of the Security on such date as determined in
good faith by the Board of Directors of the Corporation shall be used. The
term Trading Day shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to trading
is open for the transaction of business or, if the Security is not listed
or admitted to trading on any national securities exchange, a Business Day.
<PAGE>
(ii) For the purpose of any computation hereunder, the current
per share market price of the Common Stock shall be determined in
accordance with the method set forth in Section 11(d)(i). If the Common
Stock is not publicly held or so listed or traded, current per share market
price shall mean the fair value per share as determined in good faith by
the Board of Directors of the Corporation, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding
on the Rights Agent.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be
made to the nearest cent or to the nearest one one-hundredth of a share of
Common Stock. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the
earlier of (i) three (3) years from the date of the transaction which
mandates such adjustment or (ii) the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of
the Corporation other than shares of Common Stock, thereafter the number of
other shares so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent
as practicable to the provisions with respect to the Common Stock contained
in Section 11(a) through (c), inclusive, and the provisions of Sections 7,
9, 10, 13 and 14 with respect to the shares of Common Stock shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Corporation subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of shares of Common
Stock purchasable from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) The Corporation may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in lieu of any
adjustment in the number of shares of Common 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 shares of
Common Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest one hundredth) 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
Corporation 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
<PAGE>
least ten (10) days later than the date of the public announcement. If
Right Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(h), the Corporation shall, as promptly
as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Corporation, 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 Corporation, new Right Certificates evidencing all the
Rights to which such holders shall be entitled after such adjustment. Right
Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(i) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Common Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of shares of Common
Stock which were expressed in the initial Right Certificates issued
hereunder.
(j) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the shares of
Common Stock or other securities issuable upon exercise of the Rights, the
Corporation shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Corporation may validly and
legally issue such number of fully paid and non-assessable shares of Common
Stock or other securities at such adjusted Purchase Price.
(k) 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 Corporation may elect to defer until the occurrence
of such event the issuance to the holder of any Right exercised after such
record date the shares of Common Stock or other securities of the
Corporation, if any, issuable upon such exercise over and above the shares
of Common Stock or other securities of the Corporation, if any, issuable
upon exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Corporation shall deliver to such
holder a due bill or other appropriate instrument evidencing such holders
right to receive such additional shares upon the occurrence of the event
requiring such adjustment.
(l) Anything in this Section 11 to the contrary notwithstanding, the
Corporation shall be entitled to make such adjustments in the number of
shares of Common Stock which may be acquired upon exercise of the Rights,
and such adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent
that it in its sole discretion shall determine to be advisable in order
that (i) any reclassification, consolidation or subdivision of the Common
Stock, (ii) any issuance wholly for cash of Common Stock at less than the
current market price, (iii) any issuance wholly for cash of Common Stock or
securities which by their terms are convertible into or exchangeable for
<PAGE>
Common Stock, (iv) any stock dividends or (v) any issuance of rights,
options or warrants referred to in this Section 11, hereafter made by the
Corporation to holders of its Common Stock shall not be taxable to such
stockholders.
(m) The Corporation covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person
(other than a Subsidiary of the Corporation in a transaction which does not
violate Section 11(n) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Corporation in a transaction which does not
violate Section 11(n) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more than 50% of the
assets or earning power of the Corporation and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Corporation and/or
any of its Subsidiaries in one or more transactions each of which does not
violate Section 11(n) hereof), if (x) at the time of or immediately after
such consolidation, merger, sale or transfer there are any charter or
by-law provisions or any rights, warrants or other instruments or
securities outstanding or agreements in effect or other actions taken,
which would materially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights or (y) prior to, simultaneously with
or immediately after such consolidation, merger or sale, the stockholders
of the Person who constitutes, or would constitute, the Principal Party for
purposes of Section 13(a) hereof shall have received a distribution of
Rights previously owned by such Person or any of its Affiliates and
Associates. The Corporation shall not consummate any such consolidation,
merger, sale or transfer unless prior thereto the Corporation and such
other Person shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with this Section 11(m).
(n) The Corporation covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23 or Section 27 hereof,
take (or permit any Subsidiary to take) any action the purpose of which is
to, or if at the time such action is taken it is reasonably foreseeable
that the effect of such action is to, materially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights.
(o) The exercise of Rights under Section 11(a)(ii) shall only result
in the loss of rights under Section 11(a)(ii) to the extent so exercised
and shall not otherwise affect the rights represented by the Rights under
this Rights Agreement, including the rights represented by Section 13.
<PAGE>
Section 12 Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 or 13
hereof, the Corporation shall promptly (a) prepare a certificate setting
forth such adjustment, and a brief statement of the facts accounting for
such adjustment, (b) file with the Rights Agent and with each transfer
agent for the Common Stock a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with
Section 26 hereof. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained and shall not
be deemed to have knowledge of such adjustment unless and until it shall
have received such certificate.
Section 13 Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. (a) In the event that, on or following the Stock
Acquisition Date, directly or indirectly, (x) the Corporation shall
consolidate with, or merge with and into, any Interested Stockholder or, if
in such merger or consolidation all holders of Common Stock are not treated
alike, any other Person, (y) the Corporation shall consolidate with, or
merge with, any Interested Stockholder or, if in such merger or
consolidation all holders of Common Stock are not treated alike, any other
Person, and the Corporation shall be the continuing or surviving
corporation of such consolidation or merger (other than, in a case of any
transaction described in (x) or (y), a merger or consolidation which would
result in all of the securities generally entitled to vote in the election
of directors ( voting securities) of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into securities of the surviving entity)
all of the voting securities of the Corporation or such surviving entity
outstanding immediately after such merger or consolidation and the holders
of such securities not having changed as a result of such merger or
consolidation), or (z) the Corporation shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Corporation
and its Subsidiaries (taken as a whole) to any Interested Stockholder or
Stockholders or, if in such transaction all holders of Common Stock are not
treated alike, any other Person (other than the Corporation or any
Subsidiary of the Corporation in one or more transactions each of which
does not violate Section 11(n) hereof), then, and in each such case (except
as provided in Section 13(d) hereof), proper provision shall be made so
that (i) each holder of a Right, except as provided in Section 7(e) hereof,
shall thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price, in accordance with the
terms of this Agreement and in lieu of shares of Common Stock, such number
of freely tradeable Common Stock of the Principal Party (as defined
herein), not subject to any liens, encumbrances, rights of first refusal or
other adverse claims, as shall equal the result obtained by (A) multiplying
the then current Purchase Price by the number of shares of Common Stock for
which a Right is then exercisable (without taking into account any
adjustment previously made pursuant to Section 11(a)(ii)) and dividing that
product by (B) 50% of the then current per share market price per share of
<PAGE>
the Common Stock of such Principal Party (determined pursuant to Section
11(d) hereof) on the date of consummation of such Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and shall assume, by
virtue of such Section 13 Event, all the obligations and duties of the
Corporation pursuant to this Agreement; (iii) the term Corporation shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of a Section 13
Event; and (iv) such Principal Party shall take such steps (including, but
not limited to, the reservation of a sufficient number of its Common Stock)
in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to the Common Stock
thereafter deliverable upon the exercise of the Rights.
(b) Principal Party shall mean
(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a), the Person that is the issuer
of any securities into which Common Stock of the Corporation are converted
in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to such merger or consolidation (including,
if applicable, the Corporation if it is the surviving corporation); and
(ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a), the Person that is the party receiving
the greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions; provided, however, that in any of the
foregoing cases (1) if the Common Stock of such Person are not at such time
and have not been continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which
are and have been so registered, Principal Party shall refer to such other
Person; (2) in case such Person is a Subsidiary, directly or indirectly, of
more than one Person, the Common Stock of two or more of which are and have
been so registered, Principal Party shall refer to whichever of such
Persons is the issuer of the Common Stock having the greatest aggregate
market value; and (3) in case such Person is owned, directly or indirectly,
by a joint venture formed by two or more Persons that are not owned
directly or indirectly, by the same Person. the rules set forth in (1) and
(2) above shall apply to each of the chains of ownership having an interest
in such joint venture as if such party were a Subsidiary of both or all of
such joint venturers and the Principal Parties in each such chain shall
bear the obligations set forth in this Section 13 in the same ratio as
their direct or indirect interests in such Person bear to the total of such
interests.
(c) The Corporation shall not consummate any such consolidation,
merger sale or transfer unless the Principal Party shall have a sufficient
number of its authorized Common Stock which have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Corporation
and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth in
paragraphs (a) and (b) of this Section 13 and further providing that, as
soon as practicable after the date of any consolidation, merger, sale or
transfer mentioned in paragraph (a) of this Section 13, the Principal Party
at its own expense shall:
<PAGE>
(i) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all times
meeting the requirements of the Act) until the Final Expiration Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the blue sky
laws of such jurisdictions as may be necessary or appropriate; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with the
requirements for registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. The rights under
this Section 13 shall be in addition to the rights to exercise Rights and
adjustments under Section 11(a)(ii) and shall survive any exercise thereof.
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in
subparagraphs (x) and (y) of Section 13(a) if: (i) such transaction is
consummated with a Person or Persons who acquired Common Stock pursuant to
a Permitted Offer (or a wholly owned Subsidiary of any such Person or
Persons); (ii) the price per share of Common Share offered in such
transaction is not less than the price per share of Common Share paid to
all holders of Common Stock whose shares were purchased pursuant to such
Permitted Offer; and (iii) the form of consideration offered in such
transaction is the same as the form of consideration paid pursuant to such
Permitted Offer. Upon consummation of any such transaction contemplated by
this Section 13(d), all Rights hereunder shall expire.
Section 14 Fractional Rights and Fractional Shares. (a) The
Corporation shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of
the Right Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section
14(a), the current market value of a whole Right shall be the closing price
of the Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Rights are
not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are
not listed or admitted to trading on any national securities exchange the
last quoted price or, if not so quoted the average of the high bid and low
<PAGE>
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Corporation. If on any such date
no such market maker is making a market in the Rights. the fair value of
the Rights on such date as determined in good faith by the Board of
Directors of the Corporation shall be used.
(b) The Corporation shall not be required to issue fractions of
shares upon exercise of the Rights or to distribute certificates which
evidence fractional shares. In lieu of fractional shares the Corporation
shall pay to the registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one share of Common Stock. For the
purposes of this Section 14(b), the current market value of a share of
Common Stock shall be the closing price of a share of Common Stock (as
determined pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the transactions or events
specified in Section 11 giving rise to the right to receive Common Stock,
capital stock equivalents or other securities upon the exercise of a Right,
the Corporation shall not be required to issue fractions of shares or units
of such Common Stock, capital stock equivalents or other securities upon
exercise of the Rights or to distribute certificates which evidence
fractions of such Common Stock, capital stock equivalents or other
securities. In lieu of fractional shares or units of such Common Stock,
capital stock equivalents or other securities, the Corporation may pay to
the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction
of the current market value of a share or unit of such Common Stock,
capital stock equivalents or other securities. For purposes of this
Section 14(c), the current market value shall be determined in the manner
set forth in Section 11(d) hereof for the Trading Day immediately prior to
the date of such exercise and, if such capital stock equivalent is not
traded, each such capital stock equivalent shall have the value of one
share of Common Stock.
(d) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional share
upon exercise of a Right (except as provided above).
<PAGE>
Section 15 Rights of Action. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Stock), may,
in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Corporation 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 Corporation and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Stock;
(b) on or after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent designated for such
purpose, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate form fully executed;
(c) subject to Section 6 and Section 7(f) hereof, the Corporation 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 Corporation or the Rights Agent) for all
purposes whatsoever, and neither the Corporation nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be required to
be affected by any notice to the contrary; and
<PAGE>
(d) notwithstanding anything in this Agreement to the contrary,
neither the Corporation nor the Rights Agent shall have any liability to
any holder of a Right or a beneficial interest in a Right or other Person
as a result of its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction or by a
governmental, regulatory or administrative agency or commission, or any
statute, rule, regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, the Corporation must use its best
efforts to have any such order, decree or ruling lifted or otherwise
overturned as soon as possible.
Section 17 Right Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of Common Stock
or any other securities of the Corporation 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 Corporation or any right to vote for the election
of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except
as provided in Section 25 hereof), or to receive dividends or other
distributions or to exercise any preemptive or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 18 Concerning the Rights Agent. The Corporation 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 Corporation also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending against any
claim of liability in the premises. The indemnity provided for herein
shall survive the expiration of the Rights and the termination of this
Agreement.
The Rights Agent shall be protected and shall incur no liability for,
or in respect of, any action taken, suffered or omitted by it in connection
with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for Common Stock or for other securities of the
Corporation, 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.
<PAGE>
Section 19 Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the stock transfer or all or substantially all of the
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of
the parties here to, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall succeed to
the agency created by this Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of a predecessor Rights Agent and deliver
such Right Certificates so counter- signed; and in case at that time any of
the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in the name of
the predecessor or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under
its prior name and deliver Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates
either in its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
Section 20 Duties of Rights Agent. The Rights Agent undertakes only
those duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Corporation 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 Corporation), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter (including without limitation, the identity of an Acquiring Person
and the determination of the current market price of any Security) be
proved or established by the Corporation prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer or the Secretary of the Corporation 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.
<PAGE>
(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 on such Right Certificates)
or be required to verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Corporation 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 Corporation of
any covenant or condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 7(e) hereof) or any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after receipt of the certificate
described in Section 12 hereof); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock to be issued pursuant to this
Agreement or any Right Certificate or as to whether any shares of Common
Stock will, when issued, be validly authorized and issued, fully paid and
non-assessable.
(f) The Corporation agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Treasurer or the Secretary of the
Corporation and to apply to such officers for advice or instructions in
connection with its duties, and shall not be liable for any action taken or
suffered by it in good faith or lack of action in accordance with
instructions of any such officer or for any delay in acting while waiting
for those instructions. Any application by the Rights Agent for written
instructions from the Corporation may, at the option of the Rights Agent,
set forth in writing any action proposed to be taken or omitted by the
Rights Agent under this Rights Agreement and the date on or after which
such action shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in any such application
on or after the date specified in such application (which date shall not be
less than five Business Days after the date any officer of the Corporation
actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instruction in response to such application
specifying the action to be taken or omitted.
<PAGE>
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Corporation or become pecuniarily interested in any
transaction in which the Corporation may be interested, or contract with or
lend money to the Corporation or otherwise act as fully and freely as
though it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the
Corporation 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 Corporation resulting
from any such act. default, neglect or misconduct, provided reasonable care
was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has not
been completed, the Rights Agent shall not take any further action with
respect to such requested exercise of transfer without first consulting
with the Corporation.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Agreement upon thirty (30) days notice in writing mailed to the
Corporation and to the transfer agent of the Common Stock by registered or
certified mail, and to the holders of the Right Certificates by first-class
mail. The Corporation may remove the Rights Agent or any successor Rights
Agent upon sixty (60) days notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to the transfer agent of
the Common Stock by registered or certified mail, and to holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Corporation shall appoint a successor to the Rights Agent. If the
Corporation shall fail to make such appointment within a period of sixty
(60) days after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who
shall, with such notice, submit his Right Certificate for inspection by the
Corporation), then the registered holder of any Right Certificate may apply
to any court of competent jurisdiction for the appointment of a new Rights
<PAGE>
Agent. Any successor Rights Agent, whether appointed by the Corporation or
by such a court, shall be a corporation organized and doing business under
the laws of the United States or of the State of New York (or of any other
state of the United States so long as such corporation is authorized to do
business as a banking institution in the State of New York), in good
standing, having an office in the State of New York which is authorized
under such laws to exercise corporate trust or stock transfer powers and is
subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital
and surplus of at least $100,000,000. After appointment, the successor
Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of
any such appointment the Corporation shall file notice thereof in writing
with the predecessor Rights Agent and the transfer agent of the Common
Stock, and mail a notice thereof in writing to the registered holders of
the Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary, the
Corporation may, at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number or kind or
class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
In addition, in connection with the issuance or sale of Common Stock
following the Distribution Date and prior to the earlier of the Redemption
Date and the Final Expiration Date, the Corporation (a) shall with respect
to Common Stock so issued or sold pursuant to the exercise of stock options
or under any employee plan or arrangement, or upon the exercise, conversion
or exchange of securities, notes or debentures issued by the Corporation,
and (b) may, in any other case, if deemed necessary or appropriate by the
Board of Directors of the Corporation, issue Right Certificates
representing the appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) the Corporation shall not be
obligated to issue any such Right Certificates if, and to the extent that,
the Corporation shall be advised by counsel that such issuance would create
a significant risk of material adverse tax consequences to the Corporation
or the Person to whom such Right Certificate would be issued, and (ii) no
Right Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
<PAGE>
Section 23. Redemption and Termination.
(a) (i) The Board of Directors of the Corporation may, at its option,
redeem all but not less than all the then outstanding Rights at a
redemption price of $.001 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being herein after
referred to as the Redemption Price), at any time prior to the earlier of
(x) the occurrence of a Section 11(a)(ii) Event, or (y) the Final
Expiration Date. The Corporation may, at its option, pay the Redemption
Price either in Common Stock (based on the current per share market price,
as defined in Section 11(d) hereof, of the Common Share at the time of
redemption) or cash; provided that if the Corporation elects to pay the
Redemption Price in Common Stock, the Corporation shall not be required to
issue any fractional Common Stock and the number of Common Stock issuable
to each holder of Rights shall be rounded down to the next whole share.
(ii) In addition, the Board of Directors of the Corporation may,
at its option, at any time following the occurrence of a Section 11(a)(ii)
Event and the expiration of any period during which the holder of Rights
may exercise the rights under Section 11(a)(ii) but prior to any Section 13
Event redeem all but not less than all of the then outstanding Rights at
the Redemption Price (x) in connection with any merger, consolidation or
sale or other transfer (in one transaction or in a series of related
transactions) of assets or earning power aggregating 50% or more of the
earning power of the Corporation and its Subsidiaries (taken as a whole) in
which all holders of Common Stock are treated alike and not involving
(other than as a holder of Common Stock being treated like all other such
holders) an Interested Stockholder or (y)(aa) if and for so long as the
Acquiring Person is not thereafter the Beneficial Owner of 15% of the
Common Stock, and (bb) at the time of redemption no other Persons are
Acquiring Persons.
<PAGE>
(b) Notwithstanding the provisions of Section 23(a), in the event
that a majority of the Board of Directors of the Corporation is comprised
of (i) persons elected at a meeting of or by written consent of
stockholders who were not nominated by the Board of Directors in office
immediately prior to such meeting or action by written consent, and/or (ii)
successors of such persons elected to the Board of Directors for the
purpose of either facilitating a Transaction with a Transaction Person or
circumventing, directly or indirectly the provisions of this Section 23(b),
then (I) the Rights may not be redeemed for a period of 180 days following
the effectiveness of such election if such redemption is reasonably likely
to have the purpose or effect of facilitating a Transaction with a
Transaction Person and (II) the Rights may not be redeemed following such
180-day period, if (x) such redemption is reasonably likely to have the
purpose or effect of facilitating a Transaction with a Transaction Person
and (y) during such 180-day period, the Corporation enters into any
agreement, arrangement or understanding with any Transaction Person which
is reasonably likely to have the purpose or effect of facilitating a
Transaction with any Transaction Person.
If the Board of Directors of the Corporation authorizes redemption of
the Rights in either of the circumstances set forth in clauses 23(a)(i) or
23(a)(ii) above, then there must be Continuing Directors then in office and
such authorization shall require only the concurrence of a majority of such
Continuing Directors if: (i) such authorization occurs on or after the time
a Person becomes an Acquiring Person, or (ii) such authorization occurs on
or after the date of a change (resulting from a proxy or consent
solicitation) in a majority of the directors in office at the commencement
of such solicitation if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such solicitation,
a majority of the Board of Directors of the Corporation has determined in
good faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would result in
such Person becoming an Acquiring Person or which would cause the
occurrence of a Triggering Event.
(c) In the case of a redemption permitted under Section 23(a)(i),
immediately upon the date for redemption set forth (or determined in the
manner specified in) in a resolution of the Board of Directors of the
Corporation ordering the redemption of the Rights, evidence of which shall
have been filed with the Rights Agent, and without any further action and
without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. In the case of a redemption
permitted only under Section 23(a)(ii), evidence of which shall have been
filed with the Rights Agent, the right to exercise the Rights will
terminate and represent only the right to receive the Redemption Price upon
the later of ten Business Days following the giving of such notice or the
expiration of any period during which the rights under Section 11(a)(ii)
may be exercised. The Corporation shall promptly give public notice of any
such redemption; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such redemption.
Within ten (10) days after such date for redemption set forth in a
resolution of the Board of Directors ordering the redemption of the Rights,
the Corporation shall mail a notice of redemption to all the holders of
the then outstanding Rights at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution Date, on
<PAGE>
the registry books of the transfer agent for the Common Stock. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption
Price will be made. Neither the Corporation nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time
in any manner other than that specifically set forth in this Section 23 and
other than in connection with the purchase of Common Stock prior to the
Distribution Date.
(d) The Corporation may, at its option, discharge all of its
obligations with respect to the Rights by (i) issuing a press release
announcing the manner of redemption of the Rights in accordance with this
Agreement and (ii) mailing payment of the Redemption Price to the
registered holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent of the Common Stock, and upon
such action, all outstanding Rights and Right Certificates shall be null
and void without any further action by the Corporation.
Section 24. Exchange. (a) The Board of Directors of the Corporation
may, at its option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and exercisable Rights
(which shall not include Rights that have become void pursuant to the
provisions of Section 11(a)(ii) hereof) for Common Stock of the Corporation
at an exchange ratio of one Common Share per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being referred to herein as the
Exchange Ratio). Notwithstanding the foregoing, the Board of Directors
shall not be empowered to effect such exchange at any time after any Person
(other than the Corporation, any Subsidiary of the Corporation, any
employee benefit plan of the Corporation, or any such Subsidiary, any
entity holding Common Stock for or pursuant to the terms of any such a
plan), together with all Affiliates and Associates of such Person, becomes
the Beneficial Owner of 50% or more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Corporation ordering the exchange of any Rights pursuant to subsection (a)
of this Section 24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
shares of Common Stock equal to the number of such Rights held by such
holder multiplied by the Exchange Ratio. The Corporation shall promptly
give public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Corporation shall promptly mail a notice of
any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the Common Stock
for Rights will be effected and, in the event of any partial exchange, the
number of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 11(a)(ii)hereof)
held by each holder of Rights.
<PAGE>
(c) In the event that there shall not be sufficient Common Stock
issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Corporation shall take all such action as may be necessary to authorize
additional Common Stock for issuance upon exchange of the Rights.
Section 25. Notice of Certain Events. (a) In case the Corporation
shall propose (i) to pay any dividend payable in stock of any class to the
holders of its Common Stock or to make any other distribution to the
holders of its Common Stock (other than a regular periodic cash dividend at
a rate not in excess of 150% of the rate of last cash dividend theretofore
paid), (ii) to offer to the holders of its Common Stock rights or warrants
to subscribe for or to purchase any additional shares of Common Stock or
shares of stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding Common
Stock), (iv) to effect any consolidation or merger into or with any other
Person (other than a Subsidiary of the Corporation in a transaction which
does not violate Section 11(n) hereof), or to effect any sale or other
transfer (or to permit one or more of its Subsidiaries to effect any sale
or other transfer) in one or more transactions, of 50% or more of the
assets or earning power of the Corporation and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Corporation and/or
any of its Subsidiaries in one or more transactions each of which does not
violate Section 11(n) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Corporation, then, in each such case, the
Corporation shall give to each holder of a Right Certificate, in accordance
with Section 26 hereof, a notice of such proposed action to the extent
feasible and file a certificate with the Rights Agent to that effect, which
shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the Common 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 (i) or (ii) above at least twenty (20) days prior to the record
date for determining holders of the Common Stock for purposes of such
action, and in the case of any such other action, at least twenty (20) days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of shares of Common Stock, whichever
shall be the earlier.
(b) In case of a Section 11(a)(ii) Event, then (i) the Corporation
shall as soon as practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding paragraph (a) to Common
Stock shall be deemed thereafter to refer also to, if appropriate other
securities of the Corporation.
<PAGE>
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Corporation 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:
Moscom Corporation
3750 Monroe Avenue
Pittsford, New York 14534
Attention: Robert L. Boxer, Vice President
Corporate Counsel and Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Corporation 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 Corporation)
as follows:
American Stock Transfer & Trust Company
6201 15th Avenue
Brooklyn, New York 11219
Attention: Herbert Lemmer, Esq., Vice
President
Notices or demands authorized by this Agreement to be given or made by the
Corporation 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 Corporation.
Section 27. Supplements and Amendments. Prior to the Distribution
Date, the Corporation and the Rights Agent shall, if the Corporation so
directs, supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing Common Stock. From
and after the Distribution Date, the Corporation and the Rights Agent
shall, if the Corporation 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
Corporation may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person);
provided, however, that this Agreement may not be supplemented or amended
to lengthen, pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as the Rights are
not then redeemable, or (B) any other time period unless such lengthening
is for the purpose of protecting, 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 Corporation which states
that the proposed supplement or amendment is in compliance with the terms
<PAGE>
of this Section 27, the Rights Agent shall execute such supplement or
amendment, provided that such supplement or amendment does not adversely
affect the rights or obligations of the Rights Agent under Section 18 or
Section 20 of this Agreement. 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. Notwithstanding anything
contained in this Rights Agreement to the contrary, in the event that a
majority of the Board of Directors of the Corporation is comprised of (i)
persons elected at a meeting of or by written consent of stockholders and
who were not nominated by the Board of Directors in office immediately
prior to such meeting or action by written consent and/or (ii) successors
of such persons elected to the Board of Directors for the purpose of either
facilitating a Transaction with a Transaction Person or circumventing
directly or indirectly the provisions of this Section 27, then for a period
of 180 days following the effectiveness of such action, this Rights
Agreement shall not be amended or supplemented in any manner reasonably
likely to have the purpose or effect of facilitating a Transaction with a
Transaction Person.
Section 28. Determination and Actions by the Board of Directors, etc.
The Board of Directors of the Corporation shall have the exclusive power
and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board, or the Corporation, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of
this Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including, without
limitation, a determination to redeem or not redeem the Rights or to amend
the Agreement and whether any proposed amendment adversely affects the
interests of the holders of Right Certificates). For all purposes of this
Agreement, any calculation of the number of Common Stock or other
securities outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding Common Stock or
any other securities of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act as in effect on the
date of this Agreement. All such actions, calculations, interpretations
and determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made by the
Board in good faith, shall (x) be final, conclusive and binding on the
Corporation, the Rights Agent, the holders of the Right Certificates and
all other parties, and (y) not subject the Board to any liability to the
holders of the Right Certificates.
Section 29. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Corporation or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person or corporation other than the
Corporation, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the 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 Corporation,
the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Stock).
<PAGE>
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect and shall in no way be affected, impaired
or invalidated.
Section 32. Governing Law. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Delaware and for all purposes shall be governed by
and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed and attested all as of the date and year first above written.
MOSCOM CORPORATION
Attest:
By_____________________________
By:______________________________
Name: Name:___________________________
Title:
Title:____________________________
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest:
By______________________________ By______________________________
Name: Name: Herbert Lemmer, Esq.
Title: Title: Vice President
<PAGE>
Common Stock
Exhibit A
Form of Right Certificate
Certificate
No.R- Rights
NOT EXERCISABLE AFTER DECEMBER 14, 2007, OR EARLIER IF REDEEMED BY THE
CORPORATION. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 PER RIGHT ON
THE TERMS SET FORTH IN THE STOCKHOLDER RIGHTS AGREEMENT.
Right Certificate
MOSCOM 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 Stockholder Rights Agreement, dated as of December 15, 1997 (the
Rights Agreement ), between Moscom Corporation, a Delaware corporation
(the Corporation), and American Stock Transfer & Trust Company (the Rights
Agent), to purchase from the Corporation at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior to 5:00
P.M., New York time, on December 14, 2007, unless the Rights evidenced
hereby shall have been previously redeemed by the Corporation, at the
principal office or offices of the Rights Agent designated for such
purpose, or at the office of its successor as Rights Agent, one fully paid
non-assessable share of Common Stock, par value $.10 per share (the Common
Stock), of the Corporation, at a purchase price of $40.00 per 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 of Common
Stock which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
, , based on the shares of Common Stock as constituted at such
date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Right
Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement), (ii) a transferee of any such Acquiring
Person, Associate or Affiliate who becomes a transferee after the Acquiring
Person becomes such, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of any such Acquiring Person, Associate or
Affiliate who becomes a transferee prior to or concurrently with the
Acquiring Person becoming such, such Rights shall become null and void and
no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
<PAGE>
As provided in the Rights Agreement, the Purchase Price and the number
of shares of Common 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,
including Triggering Events (as such term is defined in the Rights
Agreement).
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 Corporation and the holders of the Right
Certificates, which limitations of rights include the temporary suspension
of the exercisability of such Rights under the specific circumstances set
forth in the Rights Agreement. Copies of the Rights Agreement are on file
at the principal executive offices of the Corporation and the principal
office or offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number
of shares of Common Stock or other securities as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender hereof another
Right Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Corporation at a
redemption price of $.001 per Right (subject to adjustment as provided in
the Rights Agreement) payable in cash.
No fractional shares of Common Stock will be issued upon the exercise
of any Right or Rights evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of
Common Stock or of any other securities of the Corporation 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 Corporation 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 other distributions or to exercise
any preemptive or subscription agreements, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as
provided in the Rights Agreement.
<PAGE>
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Corporation and its corporate seal, Dated as of ____________, _______.
[SEAL]
ATTEST: MOSCOM CORPORATION
_________________________ By:_____________________________
Name:___________________________
Title:__________________________
Countersigned:
[ ]
By:________________________
Authorized Signatory
Name:
Title
<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 Corporation, with full power of substitution.
Dated: _______________, _______ ________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
The undersigned hereby certifies the (1) the Rights evidenced by this
Right Certificate are 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); and (2) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by this
Right Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ___________________, ______ _______________________________
Signature
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such
holder desires to exercise the Rights represented
by the Right Certificate)
To the Rights Agent:
The undersigned hereby irrevocably elects to exercise _____________
Rights represented by this Right Certificate and to purchase the shares of
Common Stock or other securities 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 must conform in all respects
to name of holder as specified on the
face of this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
<PAGE>
The undersigned hereby certifies the (1) the Rights evidenced by this
Right Certificate are 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); and (2) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced by this
Right Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated: ___________________, ______
_______________________________
Signature
<PAGE>
Common Stock Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF COMMON STOCK
On December 15, 1997, the Board of Directors of Moscom Corporation (the
Corporation) declared a dividend distribution of one common stock purchase
right (a Right) for each outstanding share of Common Stock, par value $.10
per share (the Common Stock), of the Corporation. The dividend is payable to
the stockholders of record on January 9, 1998 (the Record Date), and with
respect to Common Stock issued thereafter until the Distribution Date (as
defined below) and, in certain circumstances, with respect to Common Stock
issued after the Distribution Date. Except as set forth below, each Right,
when it becomes exercisable, entitles the registered holder to purchase from
the Corporation one share of Common Stock at a price of $40.00 per 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
Corporation and American Stock Transfer & Trust Company, as Rights Agent (the
Rights Agent), dated as of December 15, 1997.
Initially, the Rights will be attached to all certificates representing
shares of Common Stock then outstanding, and no separate Right Certificates
will be distributed. The Rights will separate from the Common Stock upon the
earliest to occur of (i) a person being declared an adverse person by the
Board after a determination that such person, alone or together with such
persons affiliates and associates, has become the beneficial owner of 10% or
more of the Common Stock; or (ii) a person or group of affiliated or
associated persons having acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock (except pursuant to a Permitted Offer, as
herein defined); or (ii) 10 days (or such later date as the Board may
determine) following the commencement of, or announcement of an intention to
make, a tender offer or exchange offer the consummation of which would result
in a person or group becoming an Acquiring Person (as defined herein) (the
earliest of such dates being called the Distribution Date). A person or
group whose acquisition of Common Stock causes a Distribution Date pursuant
to clause (i) and (ii) above is an Acquiring Person. The date that a person
or group becomes an Acquiring Person is the Stock Acquisition Date.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights) new
Common Stock certificates issued after the Record Date upon transfer or new
issuance of Common Stock will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any certificates
for Common Stock outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the 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 the Common Stock as of
the close of business on the Distribution Date (and to each initial record
holder of certain Common Stock issued after the Distribution Date), and such
separate Right Certificates alone will evidence the Rights.
<PAGE>
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on December 14, 2007, unless earlier redeemed
by the Corporation as described below.
In the event that any person becomes an Acquiring Person (except
pursuant to a tender or exchange offer which is for all outstanding Common
Stock at a price and on terms which a majority of certain members of the
Board of Directors determines to be adequate and in the best interests of the
Corporation, its stockholders and other relevant constituencies, other than
such Acquiring Person, its affiliates and associates (a Permitted Offer)),
each holder of a Right will thereafter have the right (the Flip-In Right) to
receive upon exercise the number of shares of Common Stock (or, in certain
circumstances, other securities of the Corporation) having a value
(immediately prior to such triggering event) equal to two times the exercise
price of the Right. Notwithstanding the foregoing, following the occurrence
of the event described above, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were, beneficially owned by
any Acquiring Person or any affiliate or associate thereof will be null and
void.
In the event that, on or following the Stock Acquisition Date, (i) the
Corporation is consolidated with, or merged with and into, any Acquiring
Person, affiliate or associate of an Acquiring Person or any other person in
which any such Acquiring Person, affiliate or associate has an interest or
any person acting on behalf of or in concert with any such Acquiring Person,
affiliate or associate (Interested Stockholder) or, if in such merger or
consolidation all holders of Common Stock are not treated alike, any other
person, (ii) the Corporation consolidates with, or merges with, any
Interested Stockholder or, if in such merger or consolidation all holders of
Common Stock are not treated alike, any other person, and the Corporation is
the surviving corporation of such consolidation or merger (other than, in a
case of any transaction described in (i) or (ii), a merger or consolidation
which would result in all of the securities generally entitled to vote in the
election of directors ( voting securities) of the Corporation outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into securities of the surviving entity)
all of the voting securities of the Corporation or such surviving entity
outstanding immediately after such merger or consolidation and the holders of
such securities not having changed as a result of such merger or
consolidation), or (iii) the Corporation sells or otherwise transfers assets
or earning power aggregating more than 50% of the assets or earning power of
the Corporation and its subsidiaries (taken as a whole) to any Interested
Stockholder or, if in such transaction all holders of Common Stock are not
treated alike, any other person, then each holder of a Right (except Rights
which previously have been voided as set forth above), shall thereafter have
the right (the Flip-Over Right) to receive, upon the exercise, common shares
of the acquiring company having a value equal to two times the Purchase
Price. The holder of a Right will continue to have the Flip-Over Right
whether or not such holder exercises or surrenders the Flip-In Right.
<PAGE>
The Purchase Price payable, and the number of shares of Common Stock or
other securities issuable, upon exercise or the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock, (ii) upon the grant to holders of Common Stock of certain rights or
warrants to subscribe for or purchase Common Stock at a price, or securities
convertible into Common Stock with a conversion price, less than the then
current market price of the Common Stock or (iii) upon the distribution to
holders of Common Stock of evidences of indebtedness or assets (excluding
regular cash dividends) or of subscription rights or warrants (other than
those referred to above).
The number of outstanding Rights and the number of shares of Common
Stock issuable upon exercise of each Right are also subject to adjustment in
the event of a stock split of the Common Stock or a stock dividend on the
Common Stock payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
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 will be issued and in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Stock on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, and under certain
other circumstances, the Corporation may redeem the Rights in whole, but not
in part, at a price of $.001 per Right (the Redemption Price) which
redemption shall be effective upon the action of the Board of Directors.
Additionally, following the Stock Acquisition Date, the Corporation may
redeem the then outstanding Rights in whole, but not in part, at the
Redemption Price, provided that such redemption is in connection with a
merger or other business combination transaction or series of transactions
involving the Corporation in which all holders of Common Stock are treated
alike but not involving an Acquiring Person or its affiliates or associates.
All of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Corporation prior to the Distribution Date. After
the Distribution Date, the provisions of the Rights Agreement may be amended
by the Board in order to cure any ambiguity, defect or inconsistency, to make
changes which do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person), or, subject to certain
limitations, to shorten or lengthen any time period under the Rights
Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Corporation, including, without limitation,
the right to vote or to receive dividends. While the distribution of the
Rights will not be taxable to stockholders of the Corporation, stockholders
may, depending upon the circumstances, recognize taxable income should the
Rights become exercisable or upon the occurrence of certain events
thereafter.
<PAGE>
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A
dated December ___, 1997. A copy of the Rights Agreement is available free
of charge from the Corporation. 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 incorporation herein by reference.
<PAGE>
