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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
SYNTHETECH, INC.
(Exact name of registrant as specified in its charter)
Oregon 84-0845771
(State of incorporation or (I.R.S. employer
organization) identification no.)
1290 Industrial Way
Albany, Oregon 97321
(Address of principal executive (zip code)
offices)
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
------------------- ------------------------------
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
(Title of class)
<PAGE> 2
Item 1. Description of Registrant's Securities to Be Registered
On July 23, 1998, the Board of Directors of Synthetech,
Inc. (the "Company") declared a dividend of one common share
purchase right (a "Right") for each outstanding share of
common stock, $.001 par value per share (the "Common Shares"),
of the Company. The dividend is payable on August 4, 1998
(the "Record Date") to the shareholders of record on that
date. Each Right entitles the registered holder to purchase
from the Company one Common Share, at a price of $30 per one
one-hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and American Securities
Transfer & Trust, Inc., as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired
beneficial ownership of 15% or more of the outstanding Common
Shares or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of
the outstanding Common Shares (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share
certificate with a copy of this Summary of Rights attached
thereto.
Until the Distribution Date (or earlier redemption or
expiration of the Rights), the Rights will be transferred with
and only with the Common Shares. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new
Common Share certificates issued after the Record Date upon
transfer or new issuance of Common Shares will contain a
notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record
Date, even without such notation or a copy of the Summary of
Rights attached thereto, will also constitute the transfer of
the Rights associated with the Common Shares represented by
such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of
the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone
will evidence the Rights.
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The Rights are not exercisable until the Distribution
Date. The Rights will expire on August 3, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is
extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Common
Shares or other securities or property issuable, upon exercise
of the Rights are subject to adjustment from time to time to
prevent dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common
Shares, (ii) upon the grant to holders of the Common Shares of
certain rights or warrants to subscribe for or purchase Common
Shares at a price, or securities convertible into Common
Shares with a conversion price, less than the then-current
market price of the Common Shares or (iii) upon the
distribution to holders of the Common Shares of evidences of
indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or
dividends payable in Common Shares) or of subscription rights
or warrants (other than those referred to above).
The number of outstanding Rights and the number of Common
Shares issuable upon exercise of each Right are also subject
to adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in
Common Shares or subdivisions, consolidations or combinations
of the Common Shares occurring, in any such case, prior to the
Distribution Date.
If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated
assets or earning power are sold after a person or group has
become an Acquiring Person, proper provision will be made so
that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right. If any person or group of affiliated or
associated persons becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other
than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to
receive upon exercise that number of Common Shares having a
market value of two times the exercise price of the Right.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No
fractional Common Shares will be issued and in lieu thereof,
an adjustment in cash will be made based on the market price
of the Common Shares on the last trading day prior to the date
of exercise.
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At any time after any person or group becomes an
Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding Common Shares, the
Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will
have become void), in whole or in part, at an exchange ratio
of one Common Share per Right (subject to adjustment).
At any time prior to the earlier to occur of the
Distribution Date or the Final Expiration Date, the Board of
Directors of the Company may redeem the Rights in whole, but
not in part, at a price of $.0001 per Right (the "Redemption
Price"). The redemption of the Rights may be made effective
at such time on such basis with such conditions as the Board
of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, except that from and after such time as any person
or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
As of July 23, 1998, there were approximately 14,199,383
Common Shares of the Company outstanding and 825,400 Common
Shares reserved for issuance under outstanding warrants and
options to purchase Common Shares. Each Common Share of the
Company outstanding at the close of business on August 4,
1998, will receive one Right. The Board of Directors of the
Company has reserved sufficient Common Shares for issuance
upon exercise of the Rights.
The Rights have certain antitakeover effects. The Rights
will cause substantial dilution to a person or group that
attempts to acquire the Company on terms not approved by the
Board of Directors. The Rights should not affect any
prospective offeror willing to make an all-cash offer at a
full and fair price, or willing to negotiate with the Board of
Directors of the Company. The Rights will not interfere with
any merger or other business combination approved by the Board
of Directors since the Board of Directors may, at its option,
redeem all but not less than all of the then outstanding
Rights at the Redemption Price.
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A copy of the Rights Agreement is attached as Exhibit 1
hereto. A copy of the Rights Agreement is available free of
charge from the Company. This summary description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is hereby
incorporated herein by reference.
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Item 2. Exhibits
1. Rights Agreement dated as of July 23, 1998, between
Synthetech, Inc. and American Securities Transfer & Trust,
Inc., including the Form of Rights Certificate and Summary of
Rights attached thereto as Exhibits A and B, respectively.
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SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, as amended the registrant
duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
Date: July 24, 1998
SYNTHETECH, INC.
By /s/ Charles B. Williams
-----------------------
Charles B. Williams,
Vice President and CFO
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EXHIBIT INDEX
Exhibit
Number Description Page
- ------ ----------- ----
1. Rights Agreement dated as of July 23,
1998, between Synthetech, Inc. and
American Securities Transfer & Trust,
Inc., as rights agent.
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Exhibit Number 1
________________________________________________________________
Synthetech, Inc.
and
American Securities Transfer & Trust, Inc.,
Rights Agent
Rights Agreement
Dated as of July 23, 1998
_________________________________________________________________
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TABLE OF CONTENTS
Section 1. Certain Definitions........................................1
Section 2. Appointment of Rights Agent................................4
Section 3. Issue of Right Certificates................................4
Section 4. Form of Right Certificates.................................6
Section 5. Countersignature and Registration..........................7
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates...............................................7
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.....................................................8
Section 8. Cancellation and Destruction of Right Certificates.........9
Section 9. Availability of Common Stock...............................9
Section 10. Common Stock Record Date..................................10
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights.................................................11
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares....................................................18
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.............................................18
Section 14. Fractional Rights and Fractional Shares...................19
Section 15. Rights of Action..........................................20
Section 16. Agreement of Right Holders................................20
Section 17. Right Certificate Holder Not Deemed a Shareholder.........21
Section 18. Concerning the Rights Agent...............................22
Section 19. Merger or Consolidation or Change of Name of Rights
Agent.....................................................22
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Section 20. Duties of Rights Agent.....................................23
Section 21. Change of Rights Agent.....................................25
Section 22. Issuance of New Right Certificates.........................26
Section 23. Redemption.................................................26
Section 24. Exchange...................................................27
Section 25. Notice of Certain Events...................................28
Section 26. Notices....................................................29
Section 27. Supplements and Amendments.................................29
Section 28. Successors.................................................30
Section 29. Benefits of This Agreement.................................30
Section 30. Severability...............................................30
Section 31. Governing Law..............................................30
Section 32. Counterparts...............................................30
Section 33. Descriptive Headings.......................................31
Exhibit A - Form of Right Certificate
Exhibit B - Summary of Rights to Purchase Shares of Common Stock
<PAGE> 4
RIGHTS AGREEMENT
Agreement, dated as of July 23, 1998, between Synthetech,
Inc., an Oregon corporation (the "Company"), and American
Securities Transfer & Trust, Inc., (the "Rights Agent").
The Board of Directors of the Company has authorized and
declared a dividend of one Right for each share of Common
Stock, par value $.001 per share of the Company (the "Common
Stock") outstanding on August 4, 1998 (the "Record Date"),
each Right initially 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 and the Final Expiration Date (as such terms
are hereinafter defined).
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions
For purposes of this Agreement, the following terms have
the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock of the Company then outstanding, but
shall not include the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any Subsidiary of
the Company, or any entity holding Common Shares for or
pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the
result of an acquisition of shares of Common Stock by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the outstanding shares
of Common Stock of the Company; provided, however, that if a
Person shall become the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock of the Company by reason of
share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional shares of Common Stock of the Company, then such
Person shall be deemed to be an "Acquiring Person."
Notwithstanding the foregoing, if the Board of Directors of
the Company determines in good faith that a Person who would
otherwise be an
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"Acquiring Person," as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as
practicable a sufficient number of share of Common Stock so
that such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner"
of and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary
agreements with and between underwriters and selling
group members with respect to a bona fide public offering
of securities), or upon the exercise of conversion
rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered
pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than
customary
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agreements with and between underwriters and selling
group members with respect to a bona fide public offering
of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso
to Section 1(c)(ii)(B)) or disposing of any securities of
the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when
used with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such
securities then issued and outstanding together with the
number of such securities not then actually issued and
outstanding which such Person would be deemed to own
beneficially hereunder.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in
the State of Oregon are authorized or obligated by law or
executive order to close.
(e) "Close of business" on any given date shall
mean 5:00 p.m., Portland time, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 p.m., Portland time, on the next succeeding Business Day.
(f) "Common Stock" means the shares of common
stock, par value $.001 per share, of the Company. "Common
Stock" when used with reference to any Person other than the
Company shall mean the capital stock (or equity interest) with
the greatest voting power of such other Person or, if such
other Person is a Subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned Person.
(g) "Continuing Director" means any member of the
Board of Directors of the Company who (i) is not an Acquiring
Person or an Affiliate or Associate of an Acquiring Person and
(ii) was either a member of the Board of Directors of the
Company on the date of this Agreement or who subsequently
became a director of the Company and whose initial election or
initial nomination for election was approved by a majority of
the Continuing Directors then on the Board of Directors of the
Company.
(h) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(i) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
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(j) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(k) "Purchase Price" shall have the meaning set
forth in Section 7 hereof.
(l) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(m) "Redemption Price" shall have the meaning set
forth in Section 23 hereof.
(n) "Requisite Majority" means, at any time, the
affirmative vote of a majority of the Continuing Directors
then in office.
(o) "Stock Acquisition Date" shall mean the first
date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such.
(p) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the voting
power of the voting equity securities or equity interest is
owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent
The Company hereby appoints the Rights Agent to act as
agent for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares) in
accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Right Certificates
(a) Until the earlier of (i) the 10th day after the
Stock Acquisition Date and (ii) the 10th business day (or such
later date as may be determined by action of the Board of
Directors before such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of
the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of any Person (other than
the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the
Company or any entity
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holding Common Shares for or pursuant to the terms
of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
Beneficial Owner of shares of Common Stock aggregating 15% or
more of the outstanding shares of Common Stock (including any
such date which is after the date of this Agreement and before
the issuance of the Rights; the earlier of such dates being
herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced (subject to the provisions of Section 3(b)
hereof) by the certificates for shares of Common Stock
registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates as
hereinafter defined) and not by separate Right Certificates,
and (y) the right to receive Right Certificates will be
transferable only in connection with the transfer of shares of
Common Stock. As soon as practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent
will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-
class, insured, postage-prepaid mail, to each record holder of
shares 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 Company, a Right Certificate, in substantially
the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right for each share of Common Stock so held
(subject to appropriate adjustments, as hereinafter defined).
As of the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of
Rights, in substantially the form of Exhibit B hereto (the
"Summary of Rights"), by first-class, postage-prepaid mail, to
each record holder of shares 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 Company. With respect to
certificates for shares of 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 earlier of the Distribution Date,
the Redemption Date and the Final Expiration Date, the
surrender for transfer of any certificate for shares of 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 the
shares of Common Stock represented thereby.
(c) Certificates for shares of Common Stock which
become outstanding after the Record Date but before the
earliest of the Distribution Date, the Redemption Date and the
Final Expiration Date shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
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This certificate also evidences and entitles the
holder hereof to certain rights as set forth in a Rights
Agreement between Synthetech, Inc. and American Securities
Transfer & Trust, Inc., dated as of July 23, 1998 (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 Synthetech, Inc. 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. Synthetech, Inc.
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, as set forth
in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person (as defined in the Rights
Agreement) may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated
with the shares of 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
shares of Common Stock represented thereby. If the Company
purchases or acquires any shares of Common Stock after the
Record Date but before the Distribution Date, any Rights
associated with such shares of Common Stock shall be deemed
cancelled and retired so that the Company shall not be
entitled to exercise any Rights associated with the shares of
Common Stock which are no longer outstanding.
Section 4. Form of Right Certificates
The Right Certificates (and the forms of election to
purchase and of assignment to be printed on the reverse
thereof) shall be substantially the same as Exhibit A hereto
and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any
stock exchange or quotation system on which the Rights may
from time to time be listed, or to conform to usage. Subject
to the provisions of 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 set forth therein (the "Purchase Price"), but the
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number of such shares and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. Countersignature and Registration
The Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive
Officer, its President, any of its Vice Presidents, or its
Treasurer, either manually or by facsimile signature. The
Right Certificates shall be countersigned by the Rights Agent
and shall not be valid for any purpose unless countersigned.
In case any officer of the Company who shall have signed any
of the Right Certificates shall cease to be such officer of
the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and
issued and delivered by the Company with the same force and
effect as though the person who signed such Right Certificates
had not ceased to be such officer of the Company; and any
Right Certificate may be signed on behalf of the Company by
any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to
sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not
such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office, 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 date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates
Subject to the provisions of Section 14 hereof, at any
time after the close of business on the Distribution Date, and
at or before the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right
Certificates representing Rights that have become void
pursuant to Section 11(a) (ii) hereof or that have been
exchanged pursuant to Section 24 hereof) 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 as the Right Certificate or
Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split
up, combine or exchange any Right Certificate 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
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the principal office of the Rights Agent. Thereupon the
Rights Agent shall countersign and deliver to the person
entitled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer,
split up, combination or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, at the Company's
request, reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon surrender
to the Rights Agent and cancellation of the Right Certificate
if mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to
the registered holder in lieu of the Right Certificate so
lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights
(a) The registered holder of any Right Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the principal
office of the Rights Agent, together with payment of the
Purchase Price for each shares as to which the Rights are
exercised, at or prior to the earliest of (i) the close of
business on August 3, 2008 (the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date"), or (iii) the time
at which such Rights are exchanged as provided in Section 24
hereof.
(b) The purchase price for each share of Common
Stock purchasable pursuant to the exercise of a Right shall
initially be $30.00, and shall be subject to adjustment from
time to time as provided in Section 11 or 13 hereof (the
"Purchase Price") and shall be payable in lawful money of the
United States of America in accordance with paragraph (c)
below.
(c) Upon receipt of a Right Certificate
representing exercisable Rights, with the form of election to
purchase duly executed, accompanied by payment of the Purchase
Price for the shares to be purchased and an amount equal to
any applicable transfer tax required to be paid by the holder
of such Right Certificate in accordance with Section 9 hereof
by certified check, cashier's check or money order payable to
the order of the Company, the Rights Agent shall thereupon
promptly (i) (A) requisition from any transfer agent of the
shares of Common Stock certificates
PAGE 8
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for the number of shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or
(B) 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 shares of
Common Stock represented by such receipts shall be deposited
by the transfer agent with the depositary agent) and the
Company hereby directs the depositary agent to comply with
such request, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate, registered
in such name or names as may be designated by such holder and
(iv) when appropriate, after receipt, deliver such cash to or
upon the order of the registered holder of such Right
Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right
Certificate or to his or her duly authorized assigns, subject
to the provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates
All Right Certificates surrendered for the purpose of
exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Right Certificates shall be issued in
lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Right
Certificate purchased or acquired by the Company otherwise
than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such
cancelled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Availability of Common Stock
The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
shares of Common Stock the number of shares of Common Stock
that will be sufficient to permit the exercise in full of all
outstanding Rights.. The Company covenants and agrees that it
will take all such action as may be necessary to ensure that
all shares of Common Stock delivered upon
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exercise of Rights shall, at the time of delivery of the
certificates for such shares of Common Stock (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer
taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any
shares of Common Stock upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer
tax which may be payable in respect of any transfer or
delivery of Right Certificates to a person other than, or the
issuance or delivery of certificates or depositary receipts
for the shares of Common Stock 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
upon the exercise of any Rights until any such tax shall have
been paid (any such tax being payable by the holder of such
Right Certificate at the time of surrender) or until it has
been established to the Company's reasonable satisfaction that
no such tax is due.
Section 10. Common Stock Record Date
Each person in whose name any certificate for shares of
Common Stock 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 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
transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business
Day on which the shares of Common Stock transfer books of the
Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Right Certificate shall not
be entitled to any rights of a holder of shares of Common
Stock for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
PAGE 10
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Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights
The Purchase Price, the number of shares of Common Stock
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on the
Common Stock payable in shares of 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 Company is the continuing or surviving
corporation), except as otherwise provided in this
Section 11(a), 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 Company were open, he or she 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
Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement, in the
event any Person becomes an Acquiring Person, each holder of a
Right shall thereafter have a right to receive, upon exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of shares of Common Stock for which a
Right is then exercisable, 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 number of shares of Common Stock for
which a Right is then exercisable and dividing that product by
(y) 50% of the then current per share market price of the
Company's Common Stock (determined pursuant to Section 11(d)
hereof) on the date of the occurrence of such event. If any
Person shall become an Acquiring Person and the Rights shall
then be outstanding, the Company shall not take any action
which would eliminate or diminish the benefits intended to be
afforded by the Rights.
PAGE 11
<PAGE> 15
From and after the occurrence of such event, any Rights
that are or were acquired or beneficially owned by any
Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) shall be void and any holder of such Rights
shall thereafter have no right to exercise such Rights under
any provision of this Agreement. No Right Certificate shall
be issued pursuant to Section 3 that represents Rights
beneficially owned by an Acquiring Person whose Rights would
be void pursuant to the preceding sentence or any Associate or
Affiliate thereof; no Right Certificate shall be issued at any
time upon the transfer of any Rights to an Acquiring Person
whose Rights would be void pursuant to the preceding sentence
or any Associate or Affiliate thereof or to any nominee of
such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the
preceding sentence shall be cancelled.
(iii) If there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Company
shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exercise
of the Rights. In the event the Company shall, after good
faith effort, be unable to take all such action as may be
necessary to authorize such additional shares of Common Stock,
the Company shall (A) determine the value of the shares
issuable upon the exercise of a Right (the "Current Value"),
and (B) with respect to each Right, make adequate provision to
substitute for the shares issuable upon exercise of a Right
(1) cash, (2) a reduction in the Purchase Price, (3) other
equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock),
that a Requisite Majority has deemed to have essentially the
same rights, privileges and preferences as shares of Common
Stock ("Common Stock Equivalents")), (4) debt securities of
the Company, (5) other assets, or (6) any combination of the
foregoing, having an aggregate value equal to the Current
Value, where such aggregate value has been conclusively
determined by a Requisite Majority based upon the advice of a
nationally recognized investment banking firm selected by a
Requisite Majority; provided, however, that if the Company has
not made adequate provision to deliver value pursuant to
clause (b) above within 30 days following the first occurrence
of a Section 11(a)(ii) Event, then the Company will be
obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price,
shares of Common Stock (to the extent available) and then, if
necessary, cash, which shares or cash have an aggregate value
equal to the Spread. The term "Spread" means the excess of
(i) the Current Value over (ii) the Purchase Price. For
purposes of this Section 11(a)(iii), the Current Value of each
share of Common Stock issuable upon exercise of a Right will
be the Current Market Price per share of the Common Stock on
the effective date of the Section 11(a)(ii) Event and the
PAGE 12
<PAGE> 16
per share or per unit value of any Common Stock Equivalent
will be deemed to equal the Current Market Price per share of
the Common Stock on such date.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
shares of Common Stock entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe
for or purchase shares of Common Stock or securities
convertible into shares of Common Stock or equivalent shares
at a price per share (or having a conversion price per share,
if a security convertible into Common Stock) less than the
then current per share market price of the Common Stock (as
defined in Section 11(d)) on such record date, the Purchase
Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, 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 and/or equivalent
shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be
offered) would purchase at such current market price and the
denominator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of
additional shares of Common Stock and/or equivalent shares to
be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right. In
case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent. Shares of Common Stock owned by or held for the
account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and if
such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been
fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Common
Stock (including any such distribution made in connection with
a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Common Stock) 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
PAGE 13
<PAGE> 17
Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the
then current per share market price 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 Company, whose
determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription
rights or warrants applicable to one share of Common Stock and
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 Company to be issued upon
exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and if such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder,
the "current per share market price" of Common Stock on any
date shall be deemed to be the average of the daily closing
prices per share of such Common Stock for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately
prior to such date; provided, however, that if the current per
share market price of the Common Stock is determined during a
period following the announcement by the issuer of such Common
Stock of (A) a dividend or distribution on such Common Stock
payable in shares of such Common Stock or securities
convertible into such shares, or (B) any subdivision,
combination or reclassification of such Common Stock and prior
to the expiration of 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 Common Stock. The closing price for
each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common Stock
is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed
on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if the
Common Stock 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 Common Stock is not quoted
PAGE 14
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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 Common Stock selected by
the Board of Directors of the Company. 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
Company, whose determination shall be described in a statement
filed with the Rights Agent. The term "Trading Day" shall
mean a day on which the principal national securities exchange
on which the Common Stock is listed or admitted to trading is
open for the transaction of business or, if the Common Stock
is not listed or admitted to trading on any national
securities exchange, a Business Day.
(e) 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 years
from the date of the transaction which requires such
adjustment and (ii) the date of the expiration of the right to
exercise any Rights.
(f) If as a result of an adjustment made pursuant
to Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than Common Stock,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Common Stock
contained in Section 11(a) through (c), inclusive, and the
provisions of Sections 7, 9, 10 and 13 with respect to the
Common Stock shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of shares of Common Stock
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately prior
PAGE 15
<PAGE> 19
to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase
Price, that number of shares of Common Stock (calculated to
the nearest one-hundredth of a share of Common Stock) obtained
by (i) multiplying (x) the number of shares covered by a Right
immediately prior to this adjustment by (y) the Purchase Price
in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(i) The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of
Rights, in substitution for 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 Company shall make a public announcement
of its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be
the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of
such adjustment, or, at the option of the Company, shall cause
to be distributed to such holders of record in substitution
and replacement for the Right Certificates held by such
holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be
entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein and shall be registered in the
names of the holders of record of Right Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock
issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to
express the
PAGE 16
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Purchase Price and the number of shares of Common
Stock which were expressed in the initial Right Certificates
issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the Common Stock issuable upon exercise of
the Rights, the Company shall take any corporate action which
may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such
record date of the Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise
over and above the Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver
to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional
shares upon the occurrence of the event requiring such
adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of
the Common Stock, issuance wholly for cash of any shares of
Common Stock at less than the current market price, issuance
wholly for cash of shares of Common Stock or securities which
by their terms are convertible into or exchangeable for Common
Stock, dividends on Common Stock payable in Common Stock or
issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to
holders of its Common Stock shall not be taxable to such
shareholders.
(n) If at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall
(i) declare or pay any dividend on the Common 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 a
greater or lesser number of shares of Common Stock, then in
any such case (A) the number of shares of Common Stock
purchasable after such event upon proper exercise of each
Right shall be determined by multiplying the number of shares
of Common Stock so purchasable immediately prior
PAGE 17
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to such event by a fraction, the numerator of which
is the number of shares Common Stock outstanding immediately
before such event and the denominator of which is the number
of shares of Common Stock outstanding immediately after such
event, and (B) each share of Common Stock outstanding
immediately after such event shall have issued with respect to
it that number of Rights which each share of Common Stock
outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this
Section 11(n) shall be made successively whenever such a
dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares
Whenever an adjustment is made as provided in
Section 11 or 13 hereof, the Company shall promptly
(a) prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent
for the Common Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power
In the event, directly or indirectly, at any time after a
Person has become an Acquiring Person, (a) the Company shall
consolidate with, or merge with and into, any other Person,
(b) any Person shall consolidate with the Company, or merge
with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the shares of
Common Stock shall be changed into or exchanged for stock or
other securities of any other Person (or the Company) or cash
or any other property, or (c) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one or more transactions,
assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person other than the Company or one or
more of its wholly-owned Subsidiaries, then, and in each such
case, proper provision shall be made so that (i) each holder
of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise
thereof at a price equal to the then current Purchase Price,
such number of shares of Common Stock of such other Person
(including the Company as successor thereto or as the
surviving corporation) 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 and dividing that product by (B) 50% of the then
current per share market
PAGE 18
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price of the Common Stock of such other Person
(determined pursuant to Section 11(d) hereof) on the date of
consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Stock shall thereafter be
liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term
"Company" shall thereafter be deemed to refer to such issuer;
and (iv) such issuer shall take such steps (including, but not
limited to, the reservation of a sufficient number of its
shares of Common Stock in accordance with Section 9 hereof) in
connection with such consummation as may be necessary to
ensure 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. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto
the Company and such issuer shall have executed and delivered
to the Rights Agent a supplemental agreement so providing.
The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such
transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements
which, as a result of the consummation of such transaction,
would eliminate or substantially diminish the benefits
intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares
(a) The Company shall not be required to issue fractions
of Rights or to distribute Right Certificates which evidence
fractional Rights. 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 asked prices in the over-the-
counter market, as reported by
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Nasdaq or such other system then in use or, if on any
such date the Rights are not quoted by any such organization,
the average of the closing bid and asked prices as furnished
by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the
Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions
of shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock,
the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one shares of Common Stock.
(c) The holder of a Right by the acceptance of the Right
expressly waives his or her right to receive any fractional
Rights or any fractional shares upon exercise of a Right
(except as provided above).
Section 15. Rights of Action
All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered
holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of the shares of
Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the shares
of 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 shares of Common Stock), may, in his
or her own behalf and for his or her own benefit, enforce, and
may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect
of, his or her right to exercise the Rights evidenced by such
Right Certificate in the manner provided in such Right
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights,
it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of
this Agreement and will be entitled to specific performance of
the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject
to, this Agreement.
Section 16. Agreement of Right Holders
Every holder of a Right, by accepting the same, consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
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<PAGE> 24
(a) prior to the Distribution Date, the Rights are
transferable only in connection with the transfer of the
shares of Common Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the principal office of the
Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer;
(c) the Company and the Rights Agent may deem and
treat the person in whose name 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 Certificates or the
associated Common Stock certificate made by anyone other than
the Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to
the contrary, neither the Company nor the Rights Agent will
have any liability to any holder of a Right or other Person as
a result of its inability to perform any of its obligations
under this Agreement by reason of any preliminary or permanent
injunction or other order, decree, or ruling issued by a court
of competent jurisdiction or by a governmental, regulatory, or
administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
will use its reasonable 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
Shareholder
No holder, as such, of any Right Certificate shall be
entitled to vote, receive dividends or be deemed for any
purpose the holder of the shares of Common Stock or any other
securities of the Company which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate,
as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
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Section 18. Concerning the Rights Agent
The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense,
incurred without negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted
by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises.
The 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 the shares of Common Stock or for other
securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons, or otherwise
upon the advice of counsel as set forth in Section 20 hereof.
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 corporate trust powers of the Rights
Agent or any successor Rights Agent, shall be the successor to
the Rights Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of
the parties hereto; provided, that such corporation would be
eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned;
and in case at that time any of the Right Certificates shall
not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of
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<PAGE> 26
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 the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by
the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof
be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer or
the Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder to
the Company and any other Person only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained
in this Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and shall be deemed
to have been made by the Company only.
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<PAGE> 27
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained
in this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to
Section 11(a)(ii) hereof) or any adjustment in the terms of
the Rights (including the manner, method or amount thereof)
provided for in Section 3, 11, 13, 23 or 24, or the
ascertaining of the existence of facts that would require any
such change or adjustment (except with respect to the exercise
of Rights evidenced by Right Certificates after actual notice
that such change or adjustment is required); 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 nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this
Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the
performance of its duties hereunder from any one of the
Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the Treasurer
of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not
be liable for any action taken or suffered by it in good faith
in accordance with instructions of any such officer or for any
delay in acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to
the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through
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<PAGE> 28
its attorneys or agents, and the Rights Agent shall
not be answerable or accountable for any act, default, neglect
or misconduct of any such attorneys or agents or for any loss
to the Company resulting from any such act, default, neglect
or misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
Section 21. Change of Rights Agent
The Rights Agent or any successor Rights Agent may resign
and be discharged from its duties under this Agreement upon 30
days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock by registered or certified
mail, and to the holders of the Right Certificates by first-
class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed
to the Rights Agent or successor Rights Agent, as the case may
be, and to each transfer agent of the Common Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall
resign or be removed or shall otherwise become incapable of
acting, the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment
within a period of 30 days after 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 or her Right Certificate for inspection by
the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction
for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a
court, shall be a corporation organized and doing business
under the laws of the United States or of the State of Oregon
or 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 Oregon or New York), in
good standing, having an office in the State of Oregon or 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 $50 million. After
appointment, the successor Rights Agent shall be vested with
the same powers, rights, duties and responsibilities as if it
had been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common
Stock, and mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to
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give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the case
may be.
Section 22. Issuance of New Right Certificates
Notwithstanding any of the provisions of this Agreement
or of the Rights to the contrary, the Company may, at its
option, issue new Right Certificates evidencing Rights in such
form as may be approved by its Board of Directors to reflect
any adjustment or change in the Purchase Price and the number
or kind or class of shares or other securities or property
purchasable under the Right Certificates made in accordance
with the provisions of this Agreement.
Section 23. Redemption
(a) The Board of Directors of the Company may, at
its option, at any time prior to the earlier of the
Distribution Date or the Final Expiration Date, redeem all but
not less than all the then outstanding Rights at a redemption
price of $.0001 per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The
redemption of the Rights by the Board of Directors may be made
effective at such time, on such basis and with such conditions
as the Board of Directors in its sole discretion may
establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights
pursuant to paragraph (a) of this Section 23, 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.
The Company shall promptly give public notice of any such
redemption; provided, however, that the failure to give, or
any defect in, any such notice shall not affect the validity
of such redemption. Within 10 days after such action of the
Board of Directors ordering the redemption of the Rights, the
Company shall mail a notice of redemption to all the holders
of the then outstanding Rights at their last addresses as they
appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Any notice which is
mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the
payment of the Redemption Price will be made.
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Section 24. Exchange
(a) The Board of Directors of the Company 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 shares of Common Stock at an exchange ratio of one
share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or
pursuant to the terms of any such 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 Company ordering the exchange of any Rights
pursuant to paragraph (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 Company
shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange.
The Company promptly shall mail a notice of any such exchange
to all of the holders of such Rights at their last addresses
as they appear upon the registry books of the Rights Agent.
Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares 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.
(c) If there shall not be sufficient shares of
Common Stock authorized but unissued to permit any exchange of
Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to
authorize additional shares of Common Stock for issuance upon
exchange of the Rights or shall take such other action
specified in Section 11(a)(iii) hereof.
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(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common Stock.
In lieu of such fractional shares of Common Stock, the Company
shall pay to the registered holders of the Right Certificates
with regard to which such fractional shares of Common Stock
would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole share of
Common Stock. For the purposes of this paragraph (d), the
current market value of a whole share of Common Stock shall be
the closing price of a Common Share (as determined pursuant to
the second sentence of Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of exchange pursuant
to this Section 24.
Section 25. Notice of Certain Events
(a) In case the Company shall propose (i) to pay
any dividend payable in stock of any class to the holders of
Common Stock or to make any other distribution to the holders
of Common Stock (other than a regular quarterly cash
dividend), (ii) to offer to the holders of 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 Common Stock (other than a
reclassification involving only the subdivision of outstanding
Common Stock), (iv) to effect any consolidation or merger into
or with, or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other
transfer), in one or more transactions, of 50% or more of the
assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or
(vi) to declare or pay any dividend on the Common Stock
payable in Common Stock or to effect a subdivision,
combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in
Common Stock), then, in each such case, the Company shall give
to each holder of a Right Certificate, in accordance with
Section 26 hereof, a notice of such proposed action, 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 10 days prior to the record
date for determining holders of Common Stock for purposes of
such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of
Common Stock, whichever shall be the earlier.
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(b) In case the event set forth in
Section 11(a)(ii) hereof shall occur, then the Company shall
as soon as practicable thereafter give to each holder of a
Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices
Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the
Rights Agent) as follows:
Synthetech, Inc.
1290 Industrial Way
Albany, OR 97321
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
American Securities Transfer & Trust, Inc.
938 Quail, Suite 101
Lakewood, Colorado 80215
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder
at the address of such holder as shown on the registry books
of the Company.
Section 27. Supplements and Amendments
The Company may from time to time supplement or amend
this Agreement without the approval of any holders of Right
Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or
to make any other provisions with respect to the Rights which
the Company may deem necessary or desirable, any such
supplement or amendment to be evidenced by a writing signed by
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the Company and the Rights Agent; provided, however,
that from and after such time as any Person becomes an
Acquiring Person, this Agreement shall not be amended in any
manner which would adversely affect the interests of the
holders of Rights.
Section 28. Successors
All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and
assigns hereunder.
Section 29. Benefits of This Agreement
Nothing in this Agreement shall be construed to give to
any person or corporation other than the Company, the Rights
Agent and the registered holders of the Right Certificates
(and, prior to the Distribution Date, the shares of Common
Stock) any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to
the Distribution Date, the shares of Common Stock).
Section 30. 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 31. Governing Law
This Agreement and each Right Certificate issued
hereunder shall be deemed to be a contract made under the laws
of the State of Oregon 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 32. 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.
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Section 33. 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, all as of the day and year
first above written.
SYNTHETECH, INC.
By: /s/ M. Sreenivasan
Name: M. Sreenivasan
Its: President & CEO
AMERICAN SECURITIES TRANSFER &
TRUST, INC.
By: /s/ Laura Sisneros
Name: Laura Sisneros
Its: Vice President - Trust
Officer
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Exhibit A
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER AUGUST 3, 2008 OR EARLIER
IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS
ARE SUBJECT TO REDEMPTION AT $.0001 PER RIGHT
AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT.
Right Certificate
SYNTHETECH, INC.
This certifies that _____________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject
to the terms, provisions and conditions of the Rights
Agreement, dated as of July 23, 1998 (the "Rights Agreement"),
between Synthetic, Inc., an Oregon corporation (the
"Company"), and American Securities Transfer & Trust, Inc.
(the "Rights Agent"), to purchase from the Company at any time
after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M., Portland, Oregon
time, on August 3, 2008 at the principal office of the Rights
Agent, or at the office of its successor as Rights Agent, a
fully paid non-assessable share of Common Stock, par value
$.001 per share (the "Common Stock"), of the Company, at a
purchase price of $30.00 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 July 23, 1998,
based on the Common Stock as constituted at such date. As
provided in the Rights Agreement, the Purchase Price and the
number of shares of Common Stock which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening
of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of
the rights, limitations of
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rights, obligations, duties and immunities hereunder of
the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at
the principal executive offices of the Company and the 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 as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have
entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by
the Company at a redemption price of $.0001 per Right or
(ii) may be exchanged in whole or in part for shares of the
Company's Common Stock, no par value per share.
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 the shares of Common Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of
the Company or any right to vote for the election of directors
or upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
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<PAGE> 37
WITNESS the facsimile signature of the proper officers of
the Company. Dated as of ______________.
SYNTHETECH, INC.
By_____________________________
Countersigned:
AMERICAN SECURITIES TRANSFER & TRUST, INC.
By_______________________________
Authorized Signature
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<PAGE> 38
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 this Right Certificate on the books of the within-named
Company, with full power of substitution.
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as such terms are defined in the Rights Agreement).
Dated: _________________________
Signature_________________________________
Signature Guarantee*
__________________________________________
*Your signature must be guaranteed by an eligible guarantor institution (a
bank, stock brokerage firm, savings and loan association or credit union with
membership in an approved signature medallion program).
- -----------------------------------------------------------------------------
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<PAGE> 39
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
To: SYNTHETECH, INC.
The undersigned hereby irrevocably elects to exercise____________________
Rights represented by this Right Certificate to purchase the shares of Common
Stock issuable upon the exercise of such Rights and requests that certificates
for such shares of Common Stock 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)
_____________________________________________________________________
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement).
Dated: __________________
Signature________________________________
Signature Guarantee*
_________________________________________
*Your signature must be guaranteed by an eligible guarantor institution (a
bank, stock brokerage firm, savings and loan association or credit union with
membership in an approved signature medallion program).
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Form of Reverse Side of Right Certificate -- continued
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
NOTICE
The signature in the Form of Assignment or Form of
Election to Purchase, as the case may be, must conform to the
name as written upon the face of this Right Certificate in
every particular, without alteration or enlargement or any
change whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights
Agent will deem the beneficial owner of the Rights evidenced
by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights
Agreement) and such Assignment or Election to Purchase will
not be honored.
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Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF COMMON STOCK
On July 23, 1998, the Board of Directors of Synthetech,
Inc. (the "Company") declared a dividend of one common share
purchase right (a "Right") for each outstanding share of
common stock, no par value per share (the "Common Shares"), of
the Company. The dividend is payable on August 4, 1998 (the
"Record Date") to the shareholders of record on that date.
Each Right entitles the registered holder to purchase from the
Company one share of Common Stock, par value $.001 per share
(the "Common Stock"), of the Company at a price of $30 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 Company and
American Securities Transfer & Trust, Inc., as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") have acquired
beneficial ownership of 15% or more of the outstanding Common
Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or
announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of
the outstanding Common Stock (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced,
with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock
certificate with a copy of this Summary of Rights attached
thereto.
The Rights Agreement provides that, until the
Distribution Date (or earlier redemption or expiration of the
Rights), 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 shares of 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
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<PAGE> 42
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. The Rights will expire on August 3, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is
extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of shares of
Common Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of, the
shares of Common Stock, (ii) upon the grant to holders of the
shares of Common Stock of certain rights or warrants to
subscribe for or purchase shares of Common Stock at a price,
or securities convertible into shares of 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 shares of Common Stock of evidences of indebtedness or
assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Common
Stock) 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.
If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated
assets or earning power are sold after a person or group has
become an Acquiring Person, proper provision will be made so
that each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right. If any person or group of affiliated or
associated persons becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other
than Rights beneficially owned by the Acquiring Person (which
will thereafter be void), will thereafter have the right to
receive upon exercise that number of Common Shares having a
market value of two times the exercise price of the Right.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase
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Price. No fractional shares of Common Stock 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 after any person or group becomes an
Acquiring Person and prior to the acquisition by such person
or group of 50% or more of the outstanding shares of Common
Stock, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such person or group which
will have become void), in whole or in part, at an exchange
ratio of one Common Share per Right (subject to adjustment).
At any time prior to the earlier to occur of the
Distribution Date or the Final Expiration Date, the Board of
Directors of the Company may redeem the Rights in whole, but
not in part, at a price of $.0001 per Right (the "Redemption
Price"). The redemption of the Rights may be made effective
at such time on such basis with such conditions as the Board
of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, except that from and after such time as any person
or group of affiliated or associated persons becomes an
Acquiring Person no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
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 July 24, 1998. A
copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby
incorporated herein by reference.
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