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As filed with the Securities and Exchange Commission on September 5, 1995
File No._________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
______________________________
LANDMARK GRAPHICS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 76-0029459
(State of incorporation or organization) (I.R.S. Employer Identification No.)
15150 MEMORIAL DRIVE, HOUSTON, TEXAS 77079-4304
(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box. [ ]
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
[S] [C]
None Not Applicable
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Preferred Share Purchase Rights
(Title of Class)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On August 23, 1995, the Board of Directors of Landmark Graphics
Corporation (the "Company") declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $0.05
per share (the "Common Shares"), of the Company. The dividend is payable on
September 29, 1995 (or such earlier date as may be determined by the Board of
Directors) to all holders of record of Common Shares as of the close of
business on September 29, 1995 (or such earlier date as may be determined by
the Board of Directors) (the "Record Date"). Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $1.00 per share (the
"Preferred Shares"), of the Company at a price of $120.00 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 Chemical Bank, New York, New York,
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") has acquired beneficial ownership of 20% 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 20% or more of the outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced by the certificates representing Common Shares 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 Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after the Record Date upon transfer or new issuance of Common Shares will
contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights
being attached thereto, will 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
thereafter, such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on September 30, 2005 (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.
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At any time following the Distribution Date, Rights (other than Rights
owned by an Acquiring Person and the Acquiring Person's affiliates and
associates, which will have become void) may be exercised (subject to their
earlier termination, expiration or exchange) to acquire, in lieu of Preferred
Shares, at the then current Purchase Price of the Right, that number of Common
Shares (or if there are insufficient Common Shares, Preferred Shares or
fractions thereof) which at such time will have a market value of two times the
Purchase Price of the Right.
The Purchase Price payable, and the number of Preferred 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
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then-current market price of the Preferred Shares or (iii) upon
the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Preferred Shares) or of
subscription rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of One Dollar and No/100 ($1.00) per share but will
be entitled to an aggregate dividend of 100 times the dividend declared per
Common Share. In the event of liquidation, the holders of the Preferred Shares
will be entitled to a minimum preferential liquidation payment of $100 per
share but will be entitled to an aggregate payment of 100 times the payment
made per Common Share. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount received per
Common Share. These rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
In the event that 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 (other than an
Acquiring Person and the affiliates and associates of such Acquiring
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Person, whose Rights will have become void) 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 Purchase
Price of the Right. In the event that 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 or the affiliates and associates of such Acquiring Persons
(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
Purchase Price of the Right.
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 and their
respective affiliates and associates which will have become void), in whole or
in part, at an exchange ratio of one Common Share, or one one-hundredth of a
Preferred Share (or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to or within 10 business days following the
acquisition by a person or group of affiliated or associated persons of
beneficial ownership of 20% or more of the outstanding Common Shares, the Board
of Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 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.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
Pursuant to the Rights Agreement, certain actions (e.g. redeeming
outstanding Rights, amending the Rights Agreement, etc.) may only be made with
the approval of the Board of Directors of the Company, including a majority of
at least three (3) Continuing Directors (as hereinafter defined). As used
herein, a Continuing Director will mean any person (other than an Acquiring
Person (as defined in the Rights Agreement) or an affiliate or associate of an
Acquiring Person or a representative of an Acquiring Person or of any such
affiliate or associate) who was a director prior to the date of the Rights
Agreement and any person (other than an
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Acquiring Person or an affiliate or associate of an Acquiring Person or a
representative of an Acquiring Person or of any such affiliate or associate)
nominated for selection or elected to the Board of Directors pursuant to the
approval of a majority of the Continuing Directors.
ITEM 2. EXHIBITS
Exhibit
Number Document
------- --------
99.1 Rights Agreement, dated as of September 1, 1995,
between the Company and Chemical Bank, as Rights
Agent, which includes: as Exhibit A thereto, the
Form of Certificate of Designations of Series A
Junior Participating Preferred Stock, par value $1.00
per share, of the Company; as Exhibit B thereto, the
Form of Right Certificate; and as Exhibit C thereto,
the Summary of Rights to Purchase Preferred Shares.
99.2 Form of legend to be placed, pursuant to Section 3(c)
of the Rights Agreement, on all new Common Stock
certificates issued by the Company after September
29, 1995 and prior to the Distribution Date upon
transfer, exchange or new issuance.
99.3 Restated Certificate of Incorporation, as amended
(incorporated by reference to the Company's
Registration Statement on Form S-1 (Reg. No.
33-29916) filed with the Securities and Exchange
Commission on July 12, 1989).
99.4 Bylaws of the Company, as amended and restated August
23, 1995.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
LANDMARK GRAPHICS CORPORATION
Date: September 5, 1995 By: /s/William H. Seippel
William H. Seippel
Vice President, Finance and
Chief Executive Officer
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EXHIBIT INDEX
Exhibit
Number Document
------- --------
99.1 Rights Agreement, dated as of September 1, 1995, between the
Company and Chemical Bank, as Rights Agent, which includes:
as Exhibit A thereto, the Form of Certificate of Designations
of Series A Junior Participating Preferred Stock, par value
$1.00 per share, of the Company; as Exhibit B thereto, the
Form of Right Certificate; and as Exhibit C thereto, the
Summary of Rights to Purchase Preferred Shares.
99.2 Form of legend to be placed, pursuant to Section 3(c) of the
Rights Agreement, on all new Common Stock certificates issued
by the Company after September 29, 1995 and prior to the
Distribution Date upon transfer, exchange or new issuance.
99.3 Restated Certificate of Incorporation, as amended
(Incorporated by reference to the Company's Registration
Statement on Form S-1 (Reg. No. 33-29916) filed with the
Securities and Exchange Commission on July 12, 1989).
99.4 Bylaws of the Company, as amended and restated August 23, 1995.
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EXHIBIT 99.1
________________________________________________________________________________
RIGHTS AGREEMENT
by and between
LANDMARK GRAPHICS CORPORATION
and
CHEMICAL BANK
as
Rights Agent
Dated as of September 1, 1995
________________________________________________________________________________
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 1. Certain Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3. Issue of Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 4. Form of Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5. Countersignature and Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights . . . . . . . . . . . . . . . . . . . 15
Section 8. Cancellation and Destruction of Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 9. Availability of Preferred Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 10. Preferred Shares Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights . . . . . . . . . . . . . . . . . 20
Section 12. Certificate of Adjusted Purchase Price or Number of Shares . . . . . . . . . . . . . . . . . . . . . 32
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power . . . . . . . . . . . . . . . . 33
Section 14. Fractional Rights and Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 17. Right Certificate Holder Not Deemed a Stockholder . . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 18. Concerning the Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Section 19. Merger or Consolidation or Change of Name of Rights Agent . . . . . . . . . . . . . . . . . . . . . 40
</TABLE>
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TABLE OF CONTENTS
(Continued)
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 22. Issuance of New Right Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 23. Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 25. Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 26. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 28. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 29. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 30. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 31. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 34. Determinations and Actions by the Board of Directors, etc. . . . . . . . . . . . . . . . . . . . . . 53
</TABLE>
Exhibit A - Form of Certificate of Designation
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
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This Agreement, dated as of September 1, 1995, is by and between
Landmark Graphics Corporation, a Delaware corporation (the "Company"), and
Chemical Bank (the "Rights Agent").
RECITAL
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each Common
Share (as hereinafter defined) of the Company outstanding as of the close of
business on September 29, 1995 or such earlier date as may be determined by the
Board of Directors of the Company (the "Record Date"), each Right representing
the right to purchase one one-hundredth of a Preferred Share (as hereinafter
defined), upon the terms and subject to the conditions herein set forth, and
has further authorized and directed the issuance of one Right with respect to
each Common Share that shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date 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 (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall hereafter become a Beneficial Owner (as such term is hereinafter
defined) of 20% or more of the Common Shares of the Company then
outstanding, but shall not include the Company, any Subsidiary (as
such term is hereinafter defined) 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
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terms of any such plan. Notwithstanding the foregoing, no Person
shall be deemed to have become an "Acquiring Person" as the result of
an acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate
number of Common Shares beneficially owned by such Person to 20% or
more of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 20% or
more of the Common Shares of the Company then outstanding by reason of
Common Share purchases by the Company and shall, after such Common
Share purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person shall be
deemed to be an "Acquiring Person" as of the time of the acquisition
of such additional Common Shares by such Person. Notwithstanding the
foregoing, if the Board of Directors of the Company determines in good
faith pursuant to Continuing Board Action that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provisions of this Subsection 1(a), has become such
inadvertently, and such Person divests (within such period as of the
Board of Directors may deem appropriate pursuant to Continuing Board
Action) a sufficient number of Common Shares so that such Person is no
longer an "Acquiring Person," as defined pursuant to the foregoing
provisions of this Subsection 1(a), then such Person shall not be
deemed to be an "Acquiring Person" for any purposes of this Agreement.
(b) "ACT" shall mean the Securities Act of 1933, as amended.
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(c) "AFFILIATE" and "AFFILIATES" shall have the meaning ascribed
to such terms in Rule 12b-2 promulgated under the Exchange Act (as
such term is hereinafter defined), as in effect on the date of this
Agreement.
(d) "AGREEMENT" shall mean this agreement, as it may be amended or
supplemented from time to time pursuant to Section 27 hereof.
(e) "ASSOCIATE" and "ASSOCIATES" shall have the meaning ascribed
to such terms in Rule 12b-2 promulgated under the Exchange Act, as in
effect on the date of this Agreement.
(f) 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, as determined
pursuant to Rule 13d-3 promulgated under the Exchange Act;
(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 (pursuant to this Subsection 1(f)(ii)(A)) 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
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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 (or any comparable or successor
report) promulgated under the Exchange Act; 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 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 Subsection
1(f)(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.
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(g) "BUSINESS DAY" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to close.
(h) "CLOSE OF BUSINESS" on any given date shall mean 5:00 P.M.,
New York, New York time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., New York, New York
time, on the next succeeding Business Day.
(i) "COMMON SHARE" and "COMMON SHARES" when used with reference to
the Company shall mean, as applicable, one or more of the shares of
common stock, par value $0.05 per share, of the Company. "Common
Shares" when used with reference to any Person other than the Company
shall mean the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(j) "COMPANY" shall be deemed to have the meaning ascribed to such
term in the first paragraph of this Agreement.
(k) "CONTINUING BOARD ACTION" shall be deemed to mean an action
approved by the Board of Directors of the Company (including the
affirmative vote or approval of a majority of the Continuing
Directors) at a meeting of the Board of Directors of the Company duly
called and held at which a quorum was present and acting throughout;
provided, that at the time of such approval there are not less than
three (3) Continuing Directors.
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(l) "CONTINUING DIRECTORS" shall mean (i) any member of the Board
of Directors of the Company (while such Person is a member of the
Board of Directors) who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or a representative of an Acquiring
Person or of any such Affiliate or Associate and was a member of the
Board of Directors prior to the date of this Agreement or (ii) any
Person who subsequently becomes a member of the Board of Directors
(while such Person is a member of the Board of Directors) who is not
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person or a representative of an Acquiring Person or of any such
Affiliate or Associate, if such Person's nomination for selection or
election to the Board of Directors is approved by a majority of the
Continuing Directors.
(m) "CURRENT PER SHARE MARKET PRICE" shall have the meaning
ascribed to such term in Subsection 11(d)(i) of this Agreement.
(n) "DISTRIBUTION DATE" shall have the meaning ascribed to such
term in Section 3 hereof.
(o) "EQUIVALENT PREFERRED SHARES" shall have the meaning ascribed
to such term in Subsection 11(b) hereof.
(p) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended.
(q) "EXCHANGE RATIO" shall have the meaning ascribed to such term
in Subsection 24(a) hereof.
(r) "FINAL EXPIRATION DATE" shall have the meaning ascribed to
such term in Section 7 hereof.
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(s) "PAYMENT DATE" shall be deemed to mean September 29, 1995 or
such earlier date as may be determined by the Board of Directors of
the Company.
(t) "PERSON" and "PERSONS" shall mean any individual, firm,
corporation or other entity, and shall include any successor (by
merger or otherwise) of such entity or entities.
(u) "PREFERRED SHARES" shall mean shares of Series A Junior
Participating Preferred Stock, par value $1.00 per share, of the
Company having the rights and preferences set forth in the Form of
Certificate of Designation attached to this Agreement as EXHIBIT A.
(v) "PURCHASE PRICE" shall have the meaning ascribed to such term
in Subsection 4(a) hereof.
(w) "RECORD DATE" shall be deemed to have the meaning ascribed to
such term in the Recital to this Agreement.
(x) "REDEMPTION DATE" shall have the meaning ascribed to such term
in Section 7 hereof.
(y) "REDEMPTION PRICE" shall have the meaning ascribed to such
term in Subsection 23(a) hereof.
(z) "RIGHT" and "RIGHTS" shall be deemed to have the meaning
ascribed to such terms in the Recital to this Agreement.
(aa) "RIGHT CERTIFICATE" shall be deemed to mean the form of
certificate evidencing the ownership of Rights.
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<PAGE> 11
(ab) "RIGHTS AGENT" shall be deemed to have the meaning ascribed
to such term in the first paragraph of this Agreement and shall
include any additional or substitute rights agents hereafter appointed
pursuant to the terms of this Agreement.
(ac) "SHARES ACQUISITION DATE" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring
Person has become such.
(ad) "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 beneficially owned, directly
or indirectly, by such Person.
(ae) "SUMMARY OF RIGHTS" shall have the meaning ascribed to such
term in Subsection 3(b) hereof.
(af) "TRADING DAY" and "TRADING DAYS" shall have the meaning
ascribed to such terms in Subsection 11(d)(i) of this Agreement.
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 Board of Directors of the Company may, in accordance with the
provisions of Section 21, from time to time appoint such substitute rights
agents as it may deem necessary or desirable.
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<PAGE> 12
SECTION 3. ISSUE OF RIGHT CERTIFICATES.
(a) Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth Business Day (or such later date as
may be determined by the Board of Directors, pursuant to Continuing
Board Action, prior to 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 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 an Acquiring Person
(including any such date which is after the date of this Agreement and
prior to the issuance of the Rights; the earlier of such dates being
herein referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Subsection 3(b) hereof) by the
certificates for Common Shares registered in the names of the holders
thereof (which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only in
connection with the transfer of Common Shares. If the Distribution
Date would, pursuant to the foregoing provisions of this Subsection
3(a), occur prior to the Payment Date (but for the provisions of this
sentence), the Distribution Date shall, notwithstanding the foregoing
provisions of this Subsection 3(a), not be deemed to occur until the
Payment Date.
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<PAGE> 13
As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the
Company (or the Rights Agent, if requested by the Company) will send
or cause to be sent by first-class, insured, postage-prepaid mail, to
each record holder of Common Shares as of the close of business on the
Distribution Date, at the address of such holder shown on the records
of the Company, a Right Certificate, in substantially the form of
EXHIBIT B hereto, evidencing one Right for each Common Share so held.
As of and after the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Preferred
Shares, in substantially the form of EXHIBIT C hereto (the "Summary of
Rights"), by first-class, postage-prepaid mail, to each record holder
of Common Shares as of the close of business on the Record Date, at
the address of such holder shown on the records of the Company. With
respect to certificates for Common Shares outstanding as of the Record
Date, until the Distribution Date, the Rights will be evidenced by
such certificates registered in the names of the holders thereof
together with a copy of the Summary of Rights attached thereto. Until
the Distribution Date (or the earlier of the Redemption Date or the
Final Expiration Date), the surrender for transfer of any certificate
for Common Shares outstanding on the Record Date, with or without a
copy of the Summary of Rights attached thereto, shall also constitute
the transfer of the Rights associated with the Common Shares
represented thereby.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, certificates issued upon the transfer
of Common Shares and certificates
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<PAGE> 14
representing reacquired Common Shares referred to in the last sentence
of this Subsection 3(c)) after the Record Date but prior to the
earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date shall have impressed on, printed on, written on or
otherwise affixed to such certificates a legend in substantially the
following form:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Landmark
Graphics Corporation and Chemical Bank, dated as of September 1, 1995
(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 Landmark Graphics Corporation. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will
be evidenced by separate certificates and will no longer be evidenced
by this certificate. Landmark Graphics Corporation will mail to the
holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under certain
circumstances, 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 Common
Shares represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such
certificate shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby. In the event
that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated
with such Common Shares shall be deemed cancelled and retired so that
the Company shall not be entitled to exercise any Rights associated
with the Common Shares which are no longer outstanding.
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<PAGE> 15
SECTION 4. FORM OF RIGHT CERTIFICATES.
(a) The Right Certificates (and the forms of election to purchase
Preferred Shares and of assignment to be printed on the reverse
thereof) shall be substantially the same as EXHIBIT B hereto and may
have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Board of Directors of
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 automated
quotation system on which the Rights may from time to time be listed
or traded, 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 one one-hundredths of a Preferred
Share as shall be set forth therein at the price per one one-hundredth
of a Preferred Share set forth therein (the "Purchase Price"), but the
number of such one one-hundredths of a Preferred Share and the
Purchase Price shall be subject to adjustment as provided herein.
(b) Any Right Certificate issued pursuant hereto that represents
(i) Rights beneficially owned by an Acquiring Person or any Associate
or Affiliate of an Acquiring Person, (ii) Rights transferred to a
transferee by an Acquiring Person (or of any such Associate or
Affiliate) who becomes such a transferee after the Acquiring Person
becomes such or (iii) Rights transferred to a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes
such a transferee prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person
to holders of equity
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<PAGE> 16
interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which
the Board of Directors of the Company has determined is part of a
plan, arrangement or understanding which has as a primary purpose or
effect avoidance of the second paragraph of Subsection 11(a)(ii)
hereof, and any Right Certificate issued pursuant hereto upon
transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Right Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Subsection
11(a)(ii) of such Agreement.
In the case of a determination made pursuant to clause (iii) of
this Subsection 4(b) the Company shall notify the Rights Agent of such
determination.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION. From and after
the distribution of Right Certificates pursuant to the second paragraph of
Subsection 3(a), (i) the Right Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its Chief Executive Officer, its
President, any of its Vice Presidents, or its Treasurer, either manually or by
facsimile signature, shall have affixed thereto the Company's seal or a
facsimile thereof, and shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile signature; (ii) the
Right Certificates shall be manually countersigned by the Rights Agent and
shall not be valid for any purpose unless countersigned; (iii) in case any
officer of the Company who shall have signed any of the Right Certificates
shall cease to be such officer of
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<PAGE> 17
the Company before countersignature by the Rights Agent and issuance and
delivery thereof, such Right Certificates, nevertheless, may be countersigned
by the Rights Agent and issued and delivered with the same force and effect as
though the person who signed such Right Certificates had not ceased to be such
officer of the Company; and (iv) 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, the certificate
number of each Rights 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 prior to 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 Subsection 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 one one-hundredths
of a Preferred Share 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
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<PAGE> 18
writing delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the Rights Agent's offices in New York, New York. Neither the
Rights Agent nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Right Certificates until
the registered holder shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request. Thereupon the
Rights Agent shall 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
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<PAGE> 19
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 one one-hundredth of a
Preferred Share as to which the Rights are exercised, at or prior to
the earliest of (i) the close of business on September 30, 2005 (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 one one-hundredth of a Preferred
Share purchasable pursuant to the exercise of a Right shall initially
be $120.00, and shall be subject to adjustment from time to time as
provided in Section 11 or 13 hereof and shall be payable in lawful
money of the United States of America in accordance with Subsection
7(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 Common
Shares and/or Preferred Shares certificates for the number of Common
Shares and/or Preferred Shares to be purchased and the Company hereby
irrevocably authorizes and directs its transfer agent to comply with
all such requests, or (B) requisition from the depositary agent
depositary receipts representing such number of one one-hundredths of
a Preferred Share as are to be purchased (in which case certificates
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<PAGE> 20
for the Preferred Shares represented by such receipts shall be
deposited by the transfer agent with the depositary agent) and the
Company hereby authorizes and 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 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, 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
the provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the
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<PAGE> 21
Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
SECTION 9. AVAILABILITY OF PREFERRED SHARES.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
Preferred Shares or any Preferred Shares held in its treasury, the
number of Preferred Shares that will be sufficient to permit the
exercise in full of all outstanding Rights in accordance with Section
7. The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Common Shares and/or Preferred
Shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such Preferred Shares (subject to
payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable shares.
(b) So long as the Common Shares and/or Preferred Shares issuable
and deliverable upon the exercise of the Rights may be listed or
traded on any national securities exchange or automated quotation
system, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all Common Shares
and/or Preferred Shares reserved for such issuance to be listed on
such exchange or automated quotation system upon official notice of
issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the earliest date after the first occurrence of
an event under Subsection 11(a)(ii), a registration statement under
the Securities Act of 1933, as amended (the "Act"), with respect to
the securities purchasable upon exercise of the Rights on an
appropriate form, (ii) cause such registration statement to become
effective (with a prospectus at all times
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meeting the requirements of the Act) until the earlier of (A) the date
as of which the Rights are no longer exercisable for such securities,
and (B) the date of the expiration of the Rights. The Company will
also take such action as may be appropriate under, or to ensure
compliance with the securities or "blue sky" laws of the various
states in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (i) of the first
sentence of this Subsection 9(c), the exercisability of the Rights in
order to prepare and file such registration statement and permit it to
become effective. The Company will notify the Rights Agent of any
such suspension. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect. In addition, if the
Company shall determine that a registration statement is required
following the Distribution Date, the Company may temporarily suspend
the exercisability of the Rights until such time as a registration
statement has been declared effective. Notwithstanding any provision
of this Agreement to the contrary, the Rights shall not be exercisable
in any jurisdiction if the exercise thereof shall not be permitted
under applicable law.
(d) From and after the Distribution Date, 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 Common Shares and/or Preferred Shares 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
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<PAGE> 23
than, or the issuance or delivery of certificates or depositary
receipts for the Common Shares and/or Preferred Shares 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 Common Shares and/or
Preferred Shares 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. PREFERRED SHARES RECORD DATE. Each person in whose
name any certificate for Common Shares and/or Preferred Shares is issued upon
the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Common Shares and/or Preferred Shares 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
Shares and/or Preferred Shares 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 day on which the Common
Shares and/or Preferred Shares transfer books of the Company are open.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR
NUMBER OF RIGHTS. The Purchase Price, the number of Preferred Shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred
Shares, (C) combine the outstanding Preferred
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<PAGE> 24
Shares into a smaller number of Preferred Shares or (D) issue any
shares of its capital stock in a reclassification of the Preferred
Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this Subsection
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 Preferred Shares transfer books of the Company were
open, he 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. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii), the adjustment provided for in this Section 11(a)(i) shall
be in addition to and shall be made prior to any adjustment
required pursuant to Section 11(a)(ii).
(ii) Subject to Sections 23 and 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 one one-hundredths of a Preferred Share for which a Right is
then exercisable, in accordance with the terms of this Agreement and
in lieu of
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<PAGE> 25
Preferred Shares, such number of Common Shares of the Company as shall
equal the result obtained by (A) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred Share for
which a Right is then exercisable and (B) dividing that product by 50%
of the then "current per share market price" of the Company's Common
Shares on the date of the occurrence of such event. In the event that
any Person shall become an Acquiring Person and the Rights shall then
be outstanding, the Company shall not, except as permitted by Section
23, take any action which would eliminate or diminish the benefits
intended to be afforded by this Agreement or the benefits intended to
be afforded by the Rights.
From and after the occurrence of such event, any Rights (x)
that are or were acquired or beneficially owned by any Acquiring
Person (or any Associate or Affiliate of such Acquiring Person), (y)
transferred to a transferee by an Acquiring Person (or of any such
Associate or Affiliate) who becomes such a transferee after the
Acquiring Person becomes such, or (z) transferred to a transferee of
an Acquiring Person (or of any such Associate or Affiliate) who
becomes such a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (1) a
transfer (whether or not for consideration) from the Acquiring Person
to holders of equity interests in such Acquiring Person or to any
Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (2) a
transfer which the Board of Directors of the Company has determined is
part of a plan, arrangement or understanding which has a primary
purpose or effect the avoidance of this second paragraph of Subsection
11(a)(ii) shall be void and any holder and/or subsequent holder of
such Rights shall thereafter have no right to exercise such Rights
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<PAGE> 26
under any provision of this Agreement or to exercise any rights under
this Agreement with respect to such Rights. The Company shall use all
reasonable efforts to insure that the provisions of this Subsection
11(a)(ii) and Subsection 4(b) hereof are complied with, but shall have
no liability to any holder of Right Certificates or other Person as a
result of its failure to make any determination with respect to an
Acquiring Person or its Affiliates, Associates or transferees
hereunder. 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 second 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 second 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 second preceding sentence
shall be cancelled.
(iii) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but unissued to
permit the exercise in full of the Rights in accordance with the
foregoing Subsection 11(a)(ii), the Company shall take all such action
as may be necessary to authorize additional Common Shares 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 Common Shares, the Company
shall substitute, for each Common Share that would otherwise be
issuable upon exercise of a Right, a number of Preferred Shares or
fraction thereof such that the current per share market price of such
Preferred Shares or fraction thereof is equal to the
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<PAGE> 27
current per share market price of one Common Share as of the date of
issuance of such Preferred Shares or fraction thereof.
(b) In case the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Preferred Shares
entitling them (for a period expiring within 45 calendar days after
such record date) to subscribe for or purchase Preferred Shares (or
shares having substantially the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares"))
or securities convertible into Preferred Shares or equivalent
preferred shares at a price per Preferred Share or equivalent
preferred share (or having a conversion price per share, if a security
convertible into Preferred Shares or equivalent preferred shares) less
than the then current per share market price of the Preferred Shares
on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Preferred Shares outstanding
on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares
and/or equivalent preferred shares so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to
be offered) would purchase at such current per share market price and
the denominator of which shall be the number of Preferred Shares
outstanding on such record date plus the number of additional
Preferred Shares and/or equivalent preferred shares to be offered for
subscription or purchase (or into which the convertible securities so
to be offered are initially convertible); provided, however, that in
no event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of capital
stock of the Company issuable upon
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<PAGE> 28
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.
Preferred Shares owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date
is fixed; and in the event that such rights, options or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase
Price which would then be in effect if such record date had not been
fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the Preferred Shares (including any
such distribution made in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly
cash dividend or a dividend payable in Preferred Shares) or
subscription rights or warrants (excluding those referred to in
Subsection 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price
in effect immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market price of
the Preferred Shares on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription rights or
warrants applicable to one Preferred Share and the denominator of
which shall be such current per share market price of the Preferred
Shares; provided,
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however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company to be issued upon exercise of
one Right. Such adjustments shall be made successively whenever such
a record date is fixed; and in the event that such distribution is not
so made, the Purchase Price shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had not been
fixed.
(d) (i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security" for the
purpose of this Subsection 11(d)(i)) on any date shall be deemed to be
the average of the daily closing prices per share of such Security for
the 30 consecutive Trading Days immediately prior to such date;
provided, however, that in the event that the current per share market
price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares, or (B) any subdivision,
combination or reclassification of such Security and prior to the
expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
current per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of such
Security. The closing price for each day shall be the last sale
price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
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trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities
exchange on which the Security is listed or admitted to trading or, if
the Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities Dealers,
Inc. Automated Quotations System ("NASDAQ") or such other system then
in use, or, if on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Security selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is
not listed or admitted to trading on any national securities exchange,
a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Shares shall be
determined in accordance with the method set forth in Subsection
11(d)(i). If the Preferred Shares are not publicly traded, the
"current per share market price" of the Preferred Shares shall be
conclusively deemed to be the current per share market price of the
Common Shares as determined pursuant to Subsection 11(d)(i)
(appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof), multiplied by
one hundred. If neither the Common Shares nor the Preferred Shares
are publicly held or so listed or traded, "current per share market
price" shall mean the fair value per share as determined in good
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<PAGE> 31
faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent.
(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 Subsection 11(e) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest one one-millionth of a Preferred
Share or one ten-thousandth of any other share or security as the case
may be. Notwithstanding the first sentence of this Subsection 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 or (ii) the date of the expiration of the
right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Subsection
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 Preferred Shares, 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
Preferred Shares contained in Subsection 11(a) through (c), inclusive,
and the provisions of Sections 7, 9, 10 and 13 with respect to the
Preferred Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the
right to purchase, at the adjusted Purchase Price, the number of one
one-hundredths of a Preferred Share purchasable from
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<PAGE> 32
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 Subsection 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Subsections 11(b) and
(c), each Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at the
adjusted Purchase Price, that number of one one-hundredths of a
Preferred Share (calculated to the nearest one one-millionth of a
Preferred Share) obtained by (i) multiplying (x) the number of one
one-hundredths of a share covered by a Right immediately prior to this
adjustment by (y) the Purchase Price in effect immediately prior to
such adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights, in substitution
for any adjustment in the number of one one-hundredths of a Preferred
Share purchasable upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-hundredths of a Preferred Share
for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record
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<PAGE> 33
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
Distribution Date shall have occurred, shall be at least 10 days later
than the date of the public announcement. If the Distribution Date
shall have occurred, upon each adjustment of the number of Rights
pursuant to this Subsection 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Right Certificates
held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed shall
be issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of record
of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-hundredths of a Preferred Share issuable upon
the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the
number of one one-hundredths of a Preferred Share which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth of the then par
value, if any, of the Preferred
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Shares 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 Preferred Shares 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 Preferred Shares and other
capital stock or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Shares and other capital stock
or securities of the Company, if any, issuable upon 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 Board of Directors of the Company shall be entitled to make,
pursuant to Continuing Board Action, 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 Preferred Shares, issuance wholly for cash of any
Preferred Shares at less than the current market price, issuance
wholly for cash of Preferred Shares or securities which by their terms
are convertible into or exchangeable for Preferred Shares, dividends
on Preferred Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to hereinabove in Subsection
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<PAGE> 35
11(b), hereafter made by the Company to holders of its Preferred
Shares shall not be taxable to such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or
pay any dividend on the Common Shares payable in Common Shares or (ii)
effect a subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of dividends
in Common Shares) into a greater or lesser number of Common Shares,
then in any such case (A) the number of one one-hundredths of a
Preferred Share purchasable after such event upon proper exercise of
each Right shall be determined by multiplying the number of one
one-hundredths of a Preferred Share so purchasable immediately prior
to such event by a fraction, the numerator of which is the number of
Common Shares outstanding immediately before such event and the
denominator of which is the number of Common Shares outstanding
immediately after such event, and (B) each Common Share outstanding
immediately after such event shall have issued with respect to it that
number of Rights which each Common Share outstanding immediately prior
to such event had issued with respect to it. The adjustments provided
for in this Subsection 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
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Shares or the Preferred Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with
Section 25 hereof.
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 Common Shares 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 multiplied by the number of one
one-hundredths of a Preferred Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of Preferred Shares,
such number of Common Shares of 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
one one-hundredths of a Preferred Share for which a Right is then exercisable
and dividing that product by (B) 50% of the then current per share market price
of the Common Shares of such other Person (determined pursuant to Subsection
11(d) hereof) on the date of consummation of such consolidation, merger,
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sale or transfer; (ii) the issuer of such Common Shares 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 Common Shares in accordance
with Section 9 hereof) in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to the Common Shares 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 and further providing that, as soon as
practicable after the date of any such consolidation, merger or sale of assets,
the issuer will:
(x) prepare and file a registration statement under the Act with
respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, and will use its best efforts to
cause such registration statement to (1) become effective as soon as
practicable after such filing and (2) remain effective (with a
prospectus at all times meeting the requirements of the Act) until the
Expiration Date; and
(y) deliver to holders of the Rights historical financial
statements for the issuer and each of its Affiliates which comply in
all respects with the requirements for registration on Form 10 under
the Exchange Act.
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
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<PAGE> 38
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 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
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<PAGE> 39
the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the Company
shall be used.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than fractions which are integral multiples of
one one-hundredth of a Preferred Share) upon exercise of the Rights or
to distribute certificates which evidence fractional Preferred Shares
(other than fractions which are integral multiples of one
one-hundredth of a Preferred Share). Fractions of Preferred Shares in
integral multiples of one one-hundredth of a Preferred Share may, at
the election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a
depositary selected by it; provided, that such agreement shall provide
that the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are
not integral multiples of one one-hundredth of a Preferred Share, the
Company shall pay to the registered holders of Right Certificates at
the time such Rights are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of one
Preferred Share. For the purposes of this Subsection 14(b), the
current market value of a Preferred Share shall be the closing price
of a Preferred Share (as determined pursuant to the second sentence of
Subsection 11(d)(i) hereof) for the Trading Day immediately prior to
the date of such exercise.
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(c) The holder of a Right by the acceptance of the Right expressly
waives his 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, except the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the Rights Agent or of the holder of any other Right Certificate (or, prior to
the Distribution Date, of the Common Shares), may, in his own behalf and for
his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement.
SECTION 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right,
by accepting the same, consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
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<PAGE> 41
(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; and
(c) the Company and the Rights Agent may deem and treat the person
in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Right
Certificates or the associated Common Shares certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent 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 shall have any liability to
any holder of a Right or other Person as a result of the Company's or
Rights Agent's inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided,
however, the Company must use its best efforts to have any such order,
decree or ruling lifted or otherwise overturned as soon as possible.
SECTION 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preferred Shares or
any other securities of the Company which may at any time
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<PAGE> 42
be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors
or upon any matter submitted to stockholders at any meeting thereof, or to give
or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 25
hereof), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall have been
exercised in accordance with the provisions hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT. The Company agrees to
pay to the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the exercise and performance
of its duties hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the premises.
The 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 Preferred Shares or Common Shares or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified
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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 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
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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
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(except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent)
or in respect of the validity or execution of any Right Certificate
(except its countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition contained in
this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Subsection 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 Preferred Shares to be issued
pursuant to this Agreement or any Right Certificate or as to whether
any Preferred Shares 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.
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(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 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 Shares or Preferred
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<PAGE> 47
Shares by registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Board of Directors of the Company may
remove the Rights Agent or any successor Rights Agent, pursuant to Continuing
Board Action, upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Shares or Preferred Shares 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 Right Certificate
for inspection by the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the State of New
York (or of any other state of the United States so long as such corporation is
authorized to do business as a banking institution in the State of New York),
in good standing, having an office in the State of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $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
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at the time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not later than
the effective date of any such appointment the Company shall file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Common Shares or Preferred Shares, and mail a notice thereof in writing to
the registered holders of the Right Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, pursuant to Continuing Board Action, 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, pursuant to
Continuing Board Action, at its option, at any time prior to such time
as any Person becomes an Acquiring Person redeem all but not less than
all the then outstanding Rights at a redemption price of $.01 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
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as the Board of Directors in its sole discretion may establish,
pursuant to Continuing Board Action.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to Subsection
23(a), 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.
Neither the Company nor any of its Affiliates or Associates may
redeem, acquire or purchase for value any Rights at any time in any
manner other than that specifically set forth in this Section 23 or in
Section 24 hereof, and other than in connection with the purchase of
Common Shares prior to the Distribution Date.
SECTION 24. EXCHANGE.
(a) The Board of Directors of the Company may, pursuant to
Continuing Board Action, at its option, at any time after any Person
becomes an Acquiring Person, exchange
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all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the
provisions of Subsection 11(a)(ii) hereof) for Common Shares at an
exchange ratio of one Common Share per Right, appropriately adjusted
to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"). 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 Shares then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to Subsection
24(a) 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 Common
Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange; 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
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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 Subsection 11(a)(ii) hereof) held by each holder of
Rights.
(c) In the event that there shall not be sufficient Common Shares
issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24,
the Company shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon exchange 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 Common Shares, the Company shall substitute, for each
Common Share that would otherwise be issuable upon exchange of a
Right, a number of Preferred Shares or fraction thereof such that the
current per share market price of such Preferred Shares or fraction
thereof is equal to the current per share market price of one Common
Share as of the date of issuance of such Preferred Shares or fraction
thereof.
(d) The Company shall not be required to issue fractions of Common
Shares or to distribute certificates which evidence fractional Common
Shares. In lieu of such fractional Common Shares, the Company shall
pay to the registered holders of the Right Certificates with regard to
which such fractional Common Shares would otherwise be issuable an
amount in cash equal to the same fraction of the current market value
of a whole Common Share. For the purposes of this Subsection 24(d),
the current market value of a whole Common Share shall be the closing
price of a Common Share (as
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determined pursuant to the second sentence of Subsection 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) If at any time subsequent to the Shares Acquisition Date, the
Company shall propose (i) to pay any dividend payable in stock of any
class to the holders of its Preferred Shares or to make any other
distribution to the holders of its Preferred Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of its
Preferred Shares rights or warrants to subscribe for or to purchase
any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any
reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding
Preferred Shares), (iv) to effect any consolidation or merger into or
with, 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
Shares payable in Common Shares or to effect a subdivision,
combination or consolidation of the Common Shares (by reclassification
or otherwise than by payment of dividends in Common Shares), 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
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participation therein by the holders of the Common Shares and/or
Preferred Shares, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or
(ii) above at least 10 days prior to the record date for determining
holders of the Preferred Shares for purposes of such action, and in
the case of any such other action, at least 10 days prior to the date
of the taking of such proposed action or the date of participation
therein by the holders of the Common Shares and/or Preferred Shares,
whichever shall be the earlier.
(b) In case the event set forth in Subsection 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 Subsection 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:
Landmark Graphics Corporation
15150 Memorial Drive
Houston, Texas 77079
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
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Chemical Bank
c/o Chemical Mellon Shareholder Services
2323 Bryan Street, Suite 2300
Dallas, TX 75201
Attention: Rights Administrator
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 or the Rights Agent, as applicable.
SECTION 27. SUPPLEMENTS AND AMENDMENTS. The Board of Directors
of the Company may, pursuant to Continuing Board Action, 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 Board of Directors of the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing signed
by 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 (other than an Acquiring Person or an Affiliate or Associate
of an Acquiring Person); and provided, further, this Agreement may not be
supplemented or amended to lengthen (i) a time period relating to when the
Rights may be redeemed at such time as the Rights are not then redeemable or
(ii) any other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to, the
holders of Rights. Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made that changes the Redemption
Price, the Final Expiration Date, the
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Purchase Price or the number of one-hundredths of Preferred Shares for which a
Right is exercisable.
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 Common Shares) any legal
or equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
SECTION 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;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines, pursuant to Continuing Board Action, in its
good faith judgment that severing the invalid language from this Agreement would
adversely affect the purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day following the date of such
determination by the Board of Directors.
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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 Delaware and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
SECTION 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.
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.
SECTION 34. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS,
ETC. The Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors of the Company or to the Company,
or as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including a determination
to redeem or not redeem the Rights or to amend this Agreement). All such
actions, calculations, interpretations and determinations (including, for the
purposes of clause (B) below, all omissions with respect to the foregoing) which
are done or made by the Board of Directors of the Company in good faith and in
accordance with the provisions of this Agreement, shall (A) be final, conclusive
and binding on the Company, the Rights Agent, the holders of the rights and all
other parties, and (B) not subject the Board to any liability to the holder of
the Rights.
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SECTION 35. CONTINUING BOARD ACTION. Whenever any provision of
this Agreement contemplates action by the Board of Directors of the Company
pursuant to Continuing Board Action, such procedure will be deemed to be
mandatory and no other type of approval or authorization procedure by the Board
of Directors will be deemed to be adequate to accomplish the contemplated
action.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first above written.
LANDMARK GRAPHICS CORPORATION
Attest:
By: _______________________________ By: _________________________________
Title: Title:
Attest: CHEMICAL BANK
By: _______________________________ By: _________________________________
Title: Title:
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EXHIBIT A
Form of Certificate of Designation
<PAGE> 59
Exhibit A
FORM
of
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
LANDMARK GRAPHICS CORPORATION
(Pursuant to Section 151 of the
Delaware General Corporation Law)
____________________________
Landmark Graphics Corporation, a corporation organized and existing
under the General Corporation Law of the State of Delaware (hereinafter called
the "Corporation"), hereby certifies that the following resolution was adopted
by the Board of Directors of the Corporation as required by Section 151 of the
General Corporation Law at a meeting duly called and held on August 23, 1995:
RESOLVED, that pursuant to the authority granted to and vested in the
Board of Directors of this Corporation (hereinafter called the "Board of
Directors" or the "Board") in accordance with the provisions of the Certificate
of Incorporation of the Corporation, the Board of Directors hereby creates a
series of Preferred Stock, par value $1.00 per share (the "Preferred Stock"),
of the Corporation and hereby states the designation and number of shares, and
fixes the relative rights, preferences, and limitations thereof as follows:
Series A Junior Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock" (the
"Series A Preferred Stock") and the number of shares constituting the Series A
Preferred Stock shall be Five Hundred Thousand (500,000). Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of shares then outstanding
plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any
outstanding securities issued by the Corporation convertible into Series A
Preferred Stock.
Section 2. Dividends and Distributions.
(a) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking prior and
superior to the Series A Preferred Stock with respect to dividends,
the holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $0.05 per share (the "Common
Stock"), of the
A-1
<PAGE> 60
Corporation, and of any other junior stock, shall be entitled to
receive, when, as and if declared by the Board of Directors out of
funds legally available for the purpose, quarterly dividends payable
in cash on the first day of March, June, September and December in
each year (each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series A Preferred Stock, in an amount per share (rounded to
the nearest cent) equal to the greater of (i) One Dollar and No/100
($1.00) or (ii) subject to the provision for adjustment hereinafter
set forth, 100 times the aggregate per share amount of all cash
dividends, and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions, other than a
dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding Quarterly
Dividend Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such event
under clause (ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in paragraph
(a) of this Section 2 immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case dividends
on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the determination of
holders of shares of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro
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<PAGE> 61
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock
entitled to receive the payment of a dividend or distribution declared
thereon, which record date shall be not more than 60 days prior to the
date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Subject to the provision for adjustment hereinafter
set forth, each share of Series A Preferred Stock shall entitle the
holder thereof to 100 votes on all matters submitted to a vote of the
stockholders of the Corporation. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares
of Common Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes per share to which
holders of shares of Series A Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares
of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) Except as otherwise provided herein, in any other
Certificate of Designation creating a series of Preferred Stock or any
similar stock, or by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall vote
together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(c) Except as set forth herein, or as otherwise provided
by law, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
Section 4. Certain Restrictions.
(a) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on shares of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock;
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<PAGE> 62
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
dividends paid ratably on the Series A Preferred Stock and all
such parity stock on which dividends are payable or in arrears
in proportion to the total amounts to which the holders of all
such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock, provided that the Corporation
may at any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity with the Series A
Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board
of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and
preferences of the respective series and classes, shall
determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
paragraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, or in any other Certificate
of Designations creating a series of Preferred Stock or any similar stock or as
otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
liquidation, dissolution or winding up of the Corporation, no distribution
shall be made (a) to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment, provided that the holders of shares of
Series A Preferred Stock shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders of shares
of Common Stock, or (b) to the holders of shares of stock ranking on a parity
(either as to dividends or upon liquidation,
A-4
<PAGE> 63
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such parity
stock in proportion to the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution or winding up. In the
event the Corporation shall at any time declare or pay any dividend on the
Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the proviso in clause
(a) of the preceding sentence shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each share
of Series A Preferred Stock shall at the same time be similarly exchanged or
changed into an amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding sentence with respect to the
exchange or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank, with
respect to the payment of dividends and the distribution of assets, junior to
all series of any other class of the Corporation's Preferred Stock.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the
holders of at least two-thirds of the outstanding shares of Series A Preferred
Stock, voting together as a single class.
A-5
<PAGE> 64
IN WITNESS WHEREOF, this Certificate of Designation is executed on
behalf of the Corporation by its President this _____ day of September, 1995.
LANDMARK GRAPHICS CORPORATION
By: __________________________________
President
A-6
<PAGE> 65
EXHIBIT B
Form of Right Certificate
<PAGE> 66
Exhibit B
Form of Right Certificate
Certificate No. R- _____ Rights
CUSIP______________
NOT EXERCISABLE AFTER SEPTEMBER 30, 2005, OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT
PURSUANT TO WHICH THIS RIGHT CERTIFICATE HAS BEEN ISSUED.
Right Certificate
LANDMARK GRAPHICS CORPORATION
This certifies that ____________________________, or registered
assigns, is the registered owner of the number of Rights set forth above, each
of which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of September 1, 1995 (the "Rights
Agreement"), between Landmark Graphics Corporation, a Delaware corporation (the
"Company"), and Chemical Bank, New York, New York (the "Rights Agent"), to
purchase from the Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M., New York, New York
time, on September 30, 2005, at the principal office of the Rights Agent, or at
the office of its successor as rights agent, one one-hundredth of a fully paid
non-assessable share of Series A Junior Participating Preferred Stock, par
value $1.00 per share (the "Preferred Shares"), of the Company, at a purchase
price of $120.00 per one one-hundredth of a Preferred Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of Rights evidenced by
this Right Certificate (and the number of one one-hundredths of a Preferred
Share which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of
__________________, based on the Preferred Shares as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of one
one-hundredths of a Preferred Share which may be purchased upon the exercise of
the Rights evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned offices of the Rights Agent.
B-1
<PAGE> 67
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 evidencing Rights
entitling the holder to purchase a like aggregate number of Preferred Shares as
the Rights evidenced by the Right Certificate or Right Certificates surrendered
shall have entitled such holder to purchase. If this Right Certificate shall
be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a
redemption price of $.01 per Right or (ii) may be exchanged in whole or in part
for Preferred Shares or shares of the Company's common stock, par value $0.05
per share.
No fractional Preferred Shares or shares of the Company's common
stock will be issued upon the exercise of any Right or Rights evidenced hereby
(other than fractions of Preferred Shares which are integral multiples of one
one-hundredth of a Preferred Share, which may, at the election of the Company,
be evidenced by depositary receipts), but in lieu thereof a cash payment will
be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares or of any other securities of the Company which may at any time be
issuable on the exercise or exchange hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting stockholders (except
as provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
B-2
<PAGE> 68
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of _______________, _______.
ATTEST: LANDMARK GRAPHICS CORPORATION
__________________________________ By __________________________________
Countersigned:
CHEMICAL BANK
By _______________________________
Authorized Signature
B-3
<PAGE> 69
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To he 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, address and taxpayer identification number or social
security number (as applicable) of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _____________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement).
Signature
- --------------------------------------------------------------------------------
B-4
<PAGE> 70
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: LANDMARK GRAPHICS CORPORATION
The undersigned hereby irrevocably elects to exercise
_________________ Rights represented by this Right Certificate to purchase the
securities issuable upon the exercise of such Rights and requests that
certificates for such securities 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 elects to purchase (check one) _____ Preferred Shares or _____
Common Shares.
Dated: __________________, _______
_______________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an
office or correspondent in the United States.
B-5
<PAGE> 71
Form of Reverse Side of Right Certificate -- continued
- --------------------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
________________________________________
Signature
- --------------------------------------------------------------------------------
NOTICE
The signature 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.
B-6
<PAGE> 72
EXHIBIT C
Summary of Rights to Purchase Preferred Shares
<PAGE> 73
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On August 23, 1995, the Board of Directors of Landmark Graphics
Corporation (the "Company") declared a dividend of one preferred share purchase
right (a "Right") for each outstanding share of common stock, par value $0.05
per share (the "Common Shares"), of the Company. The dividend is payable on
September 29, 1995 (or such earlier date as may be determined by the Board of
Directors) to all holders of record of Common Shares as of the close of
business on September 29, 1995 (or such earlier date as may be determined by
the Board of Directors) (the "Record Date"). Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $1.00 per share (the
"Preferred Shares"), of the Company at a price of $120.00 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 Chemical Bank, New York, New York,
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") has acquired beneficial ownership of 20% 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 20% or more of the outstanding Common Shares
(the earlier of such dates being called the "Distribution Date"), the Rights
will be evidenced by the certificates representing Common Shares 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 Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), new Common Share certificates issued
after the Record Date upon transfer or new issuance of Common Shares will
contain a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights
being attached thereto, will 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
thereafter, such separate Right Certificates alone will evidence the Rights.
C-1
<PAGE> 74
The Rights are not exercisable until the Distribution Date. The
Rights will expire on September 30, 2005 (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.
At any time following the Distribution Date, Rights (other than Rights
owned by an Acquiring Person and the Acquiring Person's affiliates and
associates, which will have become void) may be exercised (subject to their
earlier termination, expiration or exchange) to acquire, in lieu of Preferred
Shares, at the then current Purchase Price of the Right, that number of Common
Shares (or if there are insufficient Common Shares, Preferred Shares or
fractions thereof) which at such time will have a market value of two times the
Purchase Price of the Right.
The Purchase Price payable, and the number of Preferred 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
Preferred Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a conversion price,
less than the then-current market price of the Preferred Shares or (iii) upon
the distribution to holders of the Preferred Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Preferred Shares) or of
subscription rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of one one-hundredths
of a Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such
case, prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of One Dollar and No/100 ($1.00) per share but will
be entitled to an aggregate dividend of 100 times the dividend declared per
Common Share. In the event of liquidation, the holders of the Preferred Shares
will be entitled to a minimum preferential liquidation payment of $100 per
share but will be entitled to an aggregate payment of 100 times the payment
made per Common Share. Each Preferred Share will have 100 votes, voting
together with the Common Shares. Finally, in the event of any merger,
consolidation or other transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the amount received per
Common Share. These rights are protected by customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation
and voting rights, the value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should approximate the value of
one Common Share.
C-2
<PAGE> 75
In the event that 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 (other than an
Acquiring Person and the affiliates and associates of such Acquiring Person,
whose Rights will have become void) 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 Purchase Price of
the Right. In the event that 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 or the affiliates and associates of such Acquiring Persons (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 Purchase
Price of the Right.
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 and their
respective affiliates and associates which will have become void), in whole or
in part, at an exchange ratio of one Common Share, or one one-hundredth of a
Preferred Share (or of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges), per Right (subject
to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth of a Preferred
Share, which may, at the election of the Company, be evidenced by depositary
receipts) and in lieu thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day prior to the date
of exercise.
At any time prior to or within 10 business days following the
acquisition by a person or group of affiliated or associated persons of
beneficial ownership of 20% or more of the outstanding Common Shares, the Board
of Directors of the Company may redeem the Rights in whole, but not in part, at
a price of $.01 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.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
Pursuant to the Rights Agreement, certain actions (e.g. redeeming
outstanding Rights, amending the Rights Agreement, etc.) may only be made with
the approval of the Board of Directors of the Company, including a majority of
at least three (3) Continuing Directors (as hereinafter defined). As used
herein, a Continuing Director will mean any person (other than an Acquiring
Person (as defined in the Rights Agreement) or an affiliate or associate of an
C-3
<PAGE> 76
Acquiring Person or a representative of an Acquiring Person or of any such
affiliate or associate) who was a director prior to the date of the Rights
Agreement and any person (other than an Acquiring Person or an affiliate or
associate of an Acquiring Person or a representative of an Acquiring Person or
of any such affiliate or associate) nominated for selection or elected to the
Board of Directors pursuant to the approval of a majority of the Continuing
Directors.
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.
C-4
<PAGE> 1
EXHIBIT 99.2
FORM OF LEGEND
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between Landmark Graphics Corporation
and Chemical Bank, dated as of September 1, 1995 (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 Landmark Graphics Corporation.
Under certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced by
this certificate. Landmark Graphics Corporation will mail to the holder of
this certificate a copy of the Rights Agreement without charge after receipt of
a written request therefor. Under certain circumstances, 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.
<PAGE> 1
EXHIBIT 99.4
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
BYLAWS
OF
LANDMARK GRAPHICS CORPORATION
(FORMERLY LGC-DELAWARE, INC.)
AS APPROVED APRIL 30, 1987
AMENDED AND RESTATED MAY 26, 1987
AMENDED AND RESTATED MARCH 18, 1993
AMENDED AND RESTATED AUGUST 23, 1995
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I
OFFICES
1.1. Offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
CAPITAL STOCK
2.1. Certificate Representing Share . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2. Transfer Agent and Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3. Registered Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.4. Transfer of Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.5. Lost, Stolen or Destroyed Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.6. Fractional Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE III
THE STOCKHOLDERS
3.1. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.3. Notice of Meetings - Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4. Fixing Record Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.5. Voting List . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6. Quorum and Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.7. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.8. Proxies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.9. Balloting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.10. Prohibition of Cumulative Voting for Directors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.11. Record of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.12. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
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TABLE OF CONTENTS (CONTINUED)
<TABLE>
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ARTICLE IV
THE BOARD OF DIRECTORS
4.1. Number, Qualifications and Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.2. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.3. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4. Regular Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8. Quorum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7. Procedure at Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8. Presumption of Assent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9. Action Without Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.10. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11. Executive Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.12. Other Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
OFFICERS
5.1. Number . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.2. Election; Term; Qualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.3. Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.4. Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.5. Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.6. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.7. Chief Executive Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.8. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.9. The Vice-Presidents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.10 . The Secretary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS (CONTINUED)
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
5.11. The Chief Financial Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.12. Assistant Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.13. Salaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.14. Bonds of Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.15. Delegation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI
MISCELLANEOUS
6.1. Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.2. Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.3. Checks, Drafts, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.4. Depositories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.5. Endorsement of Stock Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.6. Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.7. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.8. Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.9. Resignations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.10. Indemnification of Officers, Directors, Employees and Agents . . . . . . . . . . . . . . . . . . . . . . . 14
6.13. Meetings by Telephone . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.12. Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.13. Table of Contents; Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
</TABLE>
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<PAGE> 5
AMENDED AND RESTATED BYLAWS OF
LANDMARK GRAPHICS CORPORATION
(FORMERLY LGC-DELAWARE, INC.)
(THE "CORPORATION")
ARTICLE I
OFFICES
SECTION 1.1. OFFICES. The registered office of the Corporation
shall be at 1209 Orange Street, County of New Castle, Wilmington, Delaware, and
the name of its registered agent at such address is The Corporation Trust
Company. The Corporation may have such other offices within or without the
State of Delaware as the Board of Directors may from time to time establish.
ARTICLE II
CAPITAL STOCK
SECTION 2.1. CERTIFICATE REPRESENTING SHARES. Shares of the
classes of capital stock of the Corporation shall be represented by
certificates in such form or forms as the Board of Directors may approve;
provided that such form or forms shall comply with all applicable requirements
of law and of the Certificate of Incorporation. Such certificates shall be
signed by the President or any Vice-President, and by the Secretary or an
Assistant Secretary, of the Corporation and may be sealed with the seal of the
Corporation or imprinted or otherwise marked with a facsimile of such seal. In
the case of any certificate countersigned by any transfer agent or registrar,
provided such countersigner is not the Corporation itself or an employee
thereof, the signature of any or all of the foregoing officers of the
Corporation may be represented by a printed facsimile thereof. If any officer
whose signature, or a facsimile thereof, shall have been set upon any
certificate shall cease, prior to the issuance of such certificate, to occupy
the position in right of which his signature, or facsimile thereof, was so set
upon such certificate, the Corporation may nevertheless adopt and issue such
certificate with the same effect as if such officer occupied such position as
of such date of issuance; and, issuance and delivery of such certificate by the
Corporation shall constitute adoption thereof by the Corporation. The
certificates shall be consecutively numbered.
SECTION 2.2. TRANSFER AGENT AND REGISTRAR. The Board of
Directors may appoint one or more transfer agents or registrars of the shares,
or both, and may require all share certificates to bear the signature of a
transfer agent or registrar, or both.
SECTION 2.3. REGISTERED STOCKHOLDERS. The Corporation shall be
entitled to treat the holder of record of any shares or shares of stock as the
holder in fact thereof, and, accordingly, shall not be bound to recognize any
equitable or other claim or interest in such share or shares on the part of any
other person, whether or not it shall have express or other notice thereof,
except as otherwise provided by the laws of the State of Delaware.
<PAGE> 6
SECTION 2.4. TRANSFER OF STOCK. The shares represented by any
certificate of the Corporation are transferable only on the books of the
Corporation or its duly authorized transfer agent and registrar by the holder
of record thereof or by his duly authorized attorney or legal representative
upon surrender of the certificate for such shares, properly endorsed or
assigned. Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate representing shares duly endorsed or accompanied
by proper evidence of succession, assignment or authority to transfer, it shall
be the duty of the Corporation or the transfer agent and registrar of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books. The Board of
Directors may make such other rules and regulations concerning the issue,
transfer, registration and replacement of certificates as the Board of
Directors deems desirable or necessary.
SECTION 2.5. LOST, STOLEN OR DESTROYED CERTIFICATES. The
Corporation may issue a new certificate for shares of stock in the place of any
certificate theretofore issued and alleged to have been lost, stolen or
destroyed; but, the Board of Directors may require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to furnish an
affidavit as to such loss, theft or destruction and to give a bond in such form
and substance, and with such surety or sureties, with fixed or open penalty, as
the Board may direct, in order to indemnify the Corporation and its transfer
agents and registrars, if any, against any claim that may be made on account of
the alleged loss, theft or destruction of such certificate.
SECTION 2.6. FRACTIONAL SHARES. Only whole shares of the stock
of the Corporation shall be issued. In case of any transaction by reason of
which a fractional share might otherwise be issued, the Board of Directors, or
the officers in the exercise of powers delegated by the Board of Directors,
shall take such measures consistent with law, the Certificate of Incorporation
and these Bylaws, including (for example, and not by way of limitation) the
payment in cash or property of an amount equal to the fair value of any
fractional share, as they may deem proper to avoid the issuance of any
fractional share.
ARTICLE III
THE STOCKHOLDERS
SECTION 3.1. ANNUAL MEETING. (Revised 8/23/95) Commencing in
the calendar year 1987, the annual meeting of the stockholders for the election
of directors and for the transaction of such other business as may properly
come before the meeting shall be held at the principal office of the
Corporation, at 9:00 a.m. local time, on the third Tuesday of October of each
year unless such day is a legal holiday, in which case such meeting shall be
held at such hour on the first day thereafter which is not a legal holiday; or,
at such other place and time as may be designated by the Board of Directors.
Failure to hold any annual meeting or meetings shall not work a forfeiture or
dissolution of the Corporation. Nominations of persons for election to the
Board of Directors of the Corporation and the proposal of business to be
transacted by the stockholders may be made at an annual meeting of
stockholders (a) pursuant to the Corporation's
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<PAGE> 7
notice with respect to such meeting, (b) by or at the direction of the Board
of Directors or (c) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of the notice provided for in this
Section 3.1, who is entitled to vote at the meeting and who has complied with
the notice procedures set forth in this Section 3.1.
For nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of the second paragraph of this
Section 3.1, the stockholder must have given timely notice thereof in writing
to the Secretary of the Corporation and such business must be a proper matter
for stockholder action under the General Corporation Law of the State of
Delaware. To be timely, a stockholder's notice shall (except with respect to
the annual meeting of stockholders to be held in 1995) be delivered to the
Secretary at the principal executive offices of the Corporation not less than
90 days nor more than 120 days prior to the first anniversary of the preceding
year's annual meeting of stockholders; provided, however, that if the date of
the annual meeting is advanced more than 30 days prior to or delayed by more
than 60 days after such anniversary date, notice by the stockholder to be
timely must be so delivered not earlier than the 120th day prior to such annual
meeting and not later than the close of business on the later of the 90th day
prior to such annual meeting or the 10th day following the day on which public
announcement of the date of such meeting is first made. For the annual meeting
of stockholders to be held in 1995, notice by the stockholder to be timely
must be delivered as set forth above in this third paragraph of this Section
3.1, not less than 45 days nor more than 75 days prior to November 3, 1995,
the first anniversary of the date of the annual meeting of stockholders held
in 1994. Such stockholder's notice shall set forth: (a) as to each person
whom the stockholder proposes to nominate for election or reelection as a
director all information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is
otherwise required, in each case pursuant to Regulation 14A under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (including
such person's written consent to being named in the proxy statement as a
nominee and to serving as a director if elected); (b) as to any other business
that the stockholder proposes to bring before the meeting, a brief description
of such business, the reasons for conducting such business at the meeting and
any material interest in such business of such stockholder and the beneficial
owner, if any, on whose behalf the proposal is made; and (c) as to the
stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are
owned beneficially and of record by such stockholder and such beneficial owner.
Notwithstanding anything in the second sentence of the third paragraph of
this Section 3.1 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation is increased and there
is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the preceding year's
annual meeting, a stockholder's notice required by this Section 3.1 shall also
be considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to
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<PAGE> 8
the Secretary at the principal executive offices of the Corporation not later
than the close of business on the 10th day following the day on which such
public announcement is first made by the Corporation.
Only persons nominated in accordance with the procedures set forth in this
Section 3.1 shall be eligible and qualified to serve as directors and only such
business shall be conducted at an annual meeting of stockholders as shall have
been brought before the meeting in accordance with the procedures set forth in
this Section 3.1. The chair of the meeting shall have the power and the duty
to determine whether a nomination or any business proposed to be brought
before the meeting has been made in accordance with the procedures set forth in
these bylaws and, if any proposed nomination or business is not in compliance
with these bylaws, to declare that such defective proposed business or
nomination shall not be presented for stockholder action at the meeting and
shall be disregarded.
For purposes of this Section 3.1, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission
pursuant to Section 13, 14 or 15(d) of the Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.1, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to matters set forth
in this Section 3.1. Nothing in this Section 3.1 shall be deemed to affect
any rights of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act.
SECTION 3.2. SPECIAL MEETINGS. (Revised 8/23/95) Special
meetings of the stockholders, other than those required by statute, may be
called at any time by the Chairman of the Board of Directors, or the President,
or by the Board of Directors pursuant to a resolution approved by a majority
of the entire Board of Directors. Notice of every special meeting, stating the
time, place and purpose, shall be given pursuant to Section 3.3 hereof. The
Board of Directors may postpone, reschedule or cancel any previously scheduled
special meeting. Only such business shall be conducted at a special meeting
of stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting. Nominations of persons for election to the
Board of Directors may be made at a special meeting of stockholders at which
directors are to be elected pursuant to the Corporation's notice of meeting (a)
by or at the direction of the Board of Directors or (b) by any stockholder of
the Corporation who is a stockholder of record at the time of giving of notice
provided for in this Section 3.2, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this Section 3.2.
Nominations by stockholders of persons for election to the Board of Directors
may be made at such a special meeting of stockholders if the stockholder's
notice required by the third paragraph of Section 3.1 hereof shall be delivered
to the Secretary at the principal executive offices of the Corporation not
earlier than the 120th day prior to such special meeting and not later than the
close of business on the later of the 90th day prior to such special meeting
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<PAGE> 9
or the 10th day following the day on which public announcement is first made
of the date of the special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting.
SECTION 3.3. NOTICE OF MEETINGS - WAIVER. Written notice of
each meeting of stockholders, stating the place, day and hour of any meeting
and, in case of a special stockholders' meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten nor more than
sixty days before the date of such meeting, either personally or by mail, by or
at the direction of the President, the Secretary or the persons calling the
meeting, to each stockholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail addressed to the stockholder at his address as it appears on
the stock transfer books of the Corporation, with postage thereon prepaid.
Such further or earlier notice shall be given as may be required by law. The
signing by a stockholder of a written waiver of notice of any stockholders'
meeting, whether before or after the time stated in such waiver, shall be
equivalent to the receiving by him of all notice required to be given with
respect to such meeting. Attendance by a person at a stockholders' meeting
shall constitute a waiver of notice of such meeting except when a person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. No notice of any adjournment of any meeting shall be
required.
SECTION 3.4. FIXING RECORD DATE. (Revised 8/23/95) In order
that the Corporation may determine the stockholders entitled to notice of or to
vote at any meeting of stockholders or adjournment thereof, or entitled to
receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the Board
of Directors may fix, a record date, which record date shall not precede the
date upon which the resolution fixing the record date is adopted by the Board
of Directors and which shall not be more than sixty nor less than ten days
before the date of such meeting, nor more than sixty days prior to any other
action. If no record date is fixed, the record date shall be as follows: the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of or business on the day next
preceding the day on which notice is given, or, if notice is waived, at the
close of business on the day next preceding the day on which the meeting is
held and, the record date for determining stockholders for any purpose (other
than taking actions by written consent) shall be the close of business on the
day on which the Board of Directors adopts the resolutions relating thereto.
In order that the Corporation may determine the stockholders entitled to
consent to corporate action in writing without a meeting, the Board of
Directors may fix a record date, which record date shall not precede the date
upon which the resolution fixing the record date is adopted by the Board of
Directors, and which date shall not be more than 10 days after the date upon
which the resolution fixing the record date is adopted by the Board of
Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request that the Board of Directors fix a record date and
shall provide the Secretary with a description of the matter or
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<PAGE> 10
matters to be addressed in the proposed written consent. The Board of
Directors shall promptly, but in all events within 10 days after the date on
which such a request and notice is received, adopt a resolution fixing the
record date. If no record date has been fixed by the Board of Directors
within 10 days of the date on which such a request is received, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board of Directors is
required by applicable law, shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is delivered to
the Corporation by delivery to its registered office in the State of Delaware,
its principal place of business, or any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the Corporation's registered office shall be by
hand or by certified or registered mail, return receipt requested. If no
record date has been fixed by the Board of Directors and prior action by the
Board of Directors is required by applicable law, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the date on which the
Board of Directors adopts the resolution taking such prior action.
SECTION 3.5. VOTING LIST. The officer or agent having charge of
the stock transfer books for shares of the Corporation shall make, at least ten
days before each meeting of stockholders, a complete list of the stockholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of ten days prior to such meeting, shall be kept on
file at a place within the city where the meeting is to be held, which place
shall be specified in the notice of the meeting, or, if not so specified, at
the place where the meeting is to be held. The list shall be subject to lawful
inspection by any stockholder at any time during usual business hours. Such
list shall also be produced and kept open at the time and place of the meeting
and shall be subject to the inspection of any stockholder during the whole time
of the meeting.
SECTION 3.6. QUORUM AND OFFICERS. Except as otherwise provided
by law, by the Certificate of Incorporation or by these Bylaws, the holders of
a majority of the shares entitled to vote and represented in person or by proxy
shall constitute a quorum at a meeting of stockholders, but the stockholders
present at any meeting, although representing less than a quorum, may from time
to time adjourn to some other day and hour, without notice other than
announcement at the meeting. The stockholders present at a duly called meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than quorum. The vote of the
holders of a majority of the shares represented at a meeting at which a quorum
is present shall be the act of the stockholders' meeting, unless the vote of a
greater number is required by law. The President shall preside at, and the
Secretary shall keep the records of, each meeting of stockholders, and in the
absence of either such officer, his duties shall be performed by any other
officer authorized by these Bylaws or any person appointed by resolution duly
adopted at the meeting.
SECTION 3.7. VOTING RIGHTS. Each outstanding share shall be
entitled to one vote on
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<PAGE> 11
each matter submitted to a vote at a meeting of stockholders except to the
extent that the Certificate of Incorporation or the laws of the State of
Delaware provide otherwise.
SECTION 3.8. PROXIES. A stockholder may vote either in person
or by proxy executed in writing by the stockholder, but no such proxy shall be
voted or acted upon after three years from its date, unless the proxy provides
for a longer period. A duly executed proxy shall be irrevocable if it states
that it is irrevocable and if, and only as long as, it is coupled with an
interest sufficient in law to support an irrevocable power. A proxy may be
made irrevocable regardless of whether the interest with which it is coupled is
an interest in the stock itself or an interest in the Corporation generally.
SECTION 3.9. BALLOTING. All elections of directors shall be by
written ballot. Upon the demand of any stockholder, the vote upon any other
question before the meeting shall be by written ballot. At each meeting,
inspectors of election may be appointed by the presiding officer of the
meeting; and, at any meeting for the election of directors, inspectors shall be
so appointed on the demand of any stockholder present or represented by proxy
and entitled to vote in such election of directors. No director or candidate
for the office of director shall be appointed as such inspector. The number of
votes cast by shares in the election of directors shall be recorded in the
minutes of the meeting at which such vote was taken.
SECTION 3.10. PROHIBITION OF CUMULATIVE VOTING FOR DIRECTORS. No
stockholder shall have the right to cumulate his votes for the election of
directors, but each share shall be entitled to one vote in the election of each
director. In the case of any contested election for any directorship, the
candidate for such position receiving a plurality of the votes cast in such
election shall be elected to such position.
SECTION 3.11. RECORD OF STOCKHOLDERS. The Corporation shall keep
at its principal business office, or the office of its transfer agents or
registrars, a record of its stockholders, giving the names and addresses of all
stockholders and the number and class of the shares held by each.
SECTION 3.12. ACTION WITHOUT MEETING. Any action required by
statute to be taken at a meeting of the stockholders of the Corporation, or any
action which may be taken at a meeting of the stockholders, may be taken
without a meeting, without prior notice (except as set forth herein) and
without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all shares entitled to vote thereon were present
and voted.
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<PAGE> 12
ARTICLE IV
THE BOARD OF DIRECTORS
SECTION 4.1. NUMBER, QUALIFICATIONS AND TERM. (REVISED 3/18/93)
The business and affairs of the Corporation shall be managed or be under the
direction of the Board of Directors; and, subject to any restrictions imposed
by law, by the Certificate of Incorporation, or by these Bylaws, the Board of
Directors may exercise all the powers of the Corporation. The Board of
Directors shall consist of not less than three (3) nor more than seven (7)
members; such number to be determined by resolution of the Board of Directors
and may be increased or decreased by resolution approved by unanimous vote of
the directors incumbent immediately prior to such increase or decrease,
provided that no decrease shall effect a shortening of the term of any
incumbent director. Directors need not be residents of Delaware or
stockholders of the Corporation absent provision to the contrary in the
Certificate of Incorporation or laws of the State of Delaware. Except as
otherwise provided in Section 4.3 of these Bylaws, each position on the Board
of Directors shall be filled by election at the annual meeting of stockholders.
Any such election shall be conducted in accordance with Article III of these
Bylaws. Each person elected as a director shall hold office until the next
annual meeting of stockholders and until his successor is duly elected and
qualifies or until his death, resignation or removal in accordance with Section
4.2 of these Bylaws.
SECTION 4.2. REMOVAL. Any director or the entire Board of
Directors may be removed from office, with or without cause, at any special
meeting of stockholders by the affirmative vote of the holders of a majority of
the shares present in person or by proxy and entitled to vote at such meeting,
if notice of the intention to act upon such matter shall have been given in the
notice calling such meeting. If the notice calling such meeting shall have so
provided, the vacancy caused by such removal may be filled at such meeting by
the affirmative vote of the holders of a majority of the shares present in
person or by proxy and entitled to vote.
SECTION 4.3. VACANCIES. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, although less than
a quorum, or a sole remaining director. When one or more directors shall
resign from the Board, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this section. A director elected to fill a
vacancy shall be elected for the unexpired term of his predecessor in office.
SECTION 4.4. REGULAR MEETINGS. Regular meetings of the Board of
Directors shall be held immediately following each annual meeting of
stockholders, at the place of such meeting, and at such other times and places
as the Board of Directors shall determine. No notice of any kind of such
regular meetings need be given to either existing or newly elected members of
the Board of Directors.
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<PAGE> 13
SECTION 4.5. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be held at any time by call of the President, the Secretary or
any two directors. The Secretary shall give notice of each special meeting to
each director at his usual business or residence address by mail at least three
days before the meeting or by telegraph or telephone at least one day before
such meeting. Except as otherwise provided by law, by the Certificate of
Incorporation, or by these Bylaws, such notice need not specify the business to
be transacted at, or the purpose of, such meeting. No notice shall be
necessary for any adjournment of any meeting. The signing of a written waiver
of notice of any special meeting by the persons or persons entitled to such
notice, whether before or after the time stated therein, shall be equivalent to
the receiving of such notice. Attendance of a director at a meeting shall also
constitute a waiver of notice of such meeting, except where the director
attends a meeting for the express and announced purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
SECTION 4.6. QUORUM. A majority of the number of directors
fixed by these Bylaws shall constitute a quorum for the transaction of business
and the act of not less than a majority of such quorum of the directors shall
be required in order to constitute the act of the Board of Directors, unless
the act of a greater number shall be required by law, by the Certificate of
Incorporation, or by these Bylaws.
SECTION 4.7. PROCEDURE AT MEETINGS. The Board of Directors, at
each regular meeting held immediately following the annual meeting of
stockholders, shall appoint one of their number as Chairman of the Board of
Directors. The Chairman of the Board, shall preside at meetings of the Board.
If no Chairman of the Board is appointed or, if so appointed, in his absence at
any meeting, any officer authorized by these Bylaws or any member of the Board
selected by the members present shall preside. The Secretary of the
Corporation shall act as secretary at all meetings of the Board. In his
absence, the presiding officer of the meeting may designate any person to act
as secretary. At meetings of the Board of Directors, business shall be
transacted in such order as the Board may from time to time determine.
SECTION 4.8. PRESUMPTION OF ASSENT. Any director of the
Corporation who is present at a meeting of the Board of Directors at which
action on any corporate matter is taken shall be presumed to have assented to
the action taken unless his dissent shall be entered in the minutes of the
meeting or unless he shall file his written dissent to such action with the
person acting as the Secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
SECTION 4.9. ACTION WITHOUT MEETING. Any action required by
statute or permitted to be taken at a meeting of the directors of the
Corporation, or of any committee thereof, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
directors or all committee members as the case may be, and the consent in
writing shall be filed with the minutes of the proceedings of the Board or
committee.
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SECTION 4.10. COMPENSATION. Directors as such shall not receive
any stated salary for their service; but by resolution of the Board of
Directors, a fixed sum and reimbursement for reasonable expenses of attendance,
if any, may be allowed for attendance at each regular or special meeting of the
Board of Directors or at any meeting of the Executive Committee of the Board of
Directors, if any, to which such director may be elected in accordance with the
following Section 4.11, or at a meeting of any other committee, if any, to
which such director may be elected in accordance with the following Section
4.12. Nothing herein shall preclude any director from serving the Corporation
in any other capacity or receiving compensation therefor.
SECTION 4.11. EXECUTIVE COMMITTEES. (REVISED 10/18/88) The
Board of Directors, by resolution adopted by a majority of the whole Board, may
designate one or more Executive Committees, which committees shall consist of
one or more of the directors of the Corporation. Such Executive Committees may
exercise such authority of the Board of Directors in the business and affairs
of the Corporation as the Board of Directors may by resolution duly delegate to
it except as prohibited by law. The designation of such committees and the
delegation thereto of authority shall not operate to relieve the Board of
Directors, or any member thereof, of any responsibility imposed upon it or him
by law. Any member of an Executive Committee may be removed by the Board of
Directors by the affirmative vote of a majority of the Board of Directors
whenever in the judgment of the Board the best interests of the Corporation
will be served thereby.
The Executive Committees shall keep regular minutes of their
proceedings and report the same to the Board of Directors when required. The
minutes of the proceedings of the Executive Committees shall be placed in the
minute book of the Corporation.
SECTION 4.12. OTHER COMMITTEES. The Board of Directors may by
resolution adopted by a majority of the whole Board, appoint one or more other
committees of one or more directors, other than the Executive Committee, to the
extent provided in such resolution.
ARTICLE V
OFFICERS
SECTION 5.1. NUMBER. The officers of the Corporation shall
consist of a President, one or more Vice- Presidents, a Secretary and a
Treasurer; and, in addition, such other officers and assistant officers and
agents as may be deemed necessary or desirable. Officers shall be elected or
appointed by the Board of Directors. Any two or more offices may be held by
the same person. In its discretion, the Board of Directors may leave unfilled
any office except those of President and Secretary.
SECTION 5.2. ELECTION; TERM; QUALIFICATION. Officers shall be
chosen by the Board of Directors annually at the meeting of the Board of
Directors following the annual stockholders' meeting. Each officer shall hold
office until his successor has been chosen and qualifies, or until
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his death, resignation, or removal.
SECTION 5.3. REMOVAL. Any officer or agent elected or appointed
by the Board of Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Corporation will be served thereby,
provided that such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Election or appointment of an officer or
agent shall not of itself create any such contract rights.
SECTION 5.4. VACANCIES. Any vacancy in any office for any cause
may be filled by the Board of Directors at any meeting.
SECTION 5.5. DUTIES. The officers of the Corporation shall have
such powers and duties, except as modified by the Board of Directors, as
generally pertain to their offices, respectively, as well as such powers and
duties as from time to time shall be conferred by the Board of Directors and by
these Bylaws.
SECTION 5.6. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be a member of the Board of Directors and preside at all meetings of the
Board of Directors and the Executive Committee, if such a committee shall be so
appointed by the Board of Directors, and shall act as Chairman of the
stockholders' meeting and shall perform such other duties as may be assigned by
the Board of Directors.
SECTION 5.7. CHIEF EXECUTIVE OFFICER. (REVISED 3/19/92) The
Chief Executive Officer shall have general and active management of the
business of the Corporation and shall ensure that all orders and resolutions of
the Board of Directors are carried into effect, and he shall sign all
certificates of stock, and all deeds, conveyances, releases, pledges of assets
and other instruments requiring the seal of the Corporation, and shall perform
such other duties as may be assigned by the Board of Directors. In the absence
of the President or, in the event that the office of President shall be vacant,
the Chief Executive Officer shall assume all of the duties, obligations and
powers of that office including such additional powers and duties as from time
to time shall be conferred on the office of President by the Board of
Directors.
SECTION 5.8. PRESIDENT. The President shall be responsible for
the general supervision of the business of the Corporation. The President is
authorized to execute contracts and other instruments in writing, and subject
to such exclusive power as may from time to time be vested in other officers of
the Corporation, shall have all the general powers and duties usually vested in
the office of President of a corporation. In the absence or in the event of a
vacancy in the office of Chairman of the Board, the President shall perform the
duties of the Chairman of the Board.
SECTION 5.9. THE VICE-PRESIDENTS. At the request of the
President, or in his absence or disability, the Vice-Presidents, in the order
of their election, shall perform the duties of the President, and, when so
acting, shall have all the powers of, and be subject to all restrictions
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upon, the President. Any action taken by a Vice-President in the performance
of the duties of the President shall be conclusive evidence of the absence or
inability of the President at the time such action was taken. The
Vice-Presidents shall perform such other duties as may, from time to time, be
assigned to them by the Board of Directors or the President. A Vice-President
may sign, with the Secretary or an Assistant Secretary, certificates of stock
of the Corporation.
SECTION 5.10. THE SECRETARY. The Secretary shall keep the
minutes of all meetings of the stockholders, of the Board of Directors, and of
the Executive Committee, if any, of the Board of Directors, in one or more
books provided for such purpose and shall see that all notices are duly given
in accordance with the provisions of these Bylaws or as required by law. He
shall be custodian of the corporate records and of the seal (if any) of the
Corporation and see, if the Corporation has a seal, that the seal of the
Corporation is affixed to all documents, the execution of which on behalf of
the Corporation under its seal is duly authorized; shall have general charge of
the books and papers of the Corporation as the Board of Directors may direct,
all of which shall, at all reasonable times, be open to the examination of any
director, upon application at the office of the Corporation during business
hours; and in general shall perform all duties and exercise all powers incident
to the office of the Secretary and such other duties and powers as the Board of
Directors or the President from time to time may assign to or confer on him.
SECTION 5.11. THE CHIEF FINANCIAL OFFICER. (REVISED 7/16/92)
The Chief Financial Officer shall keep complete and accurate records of
account, showing at all times the financial condition of the Corporation. He
shall be the legal custodian of all money, notes, securities and other
valuables which may from time to time come into the possession of the
Corporation. He shall furnish at meetings of the Board of Directors, or
whenever requested, a statement of the financial condition of the Corporation,
and shall perform such other duties as these Bylaws may require or the
President or the Board of Directors may prescribe.
SECTION 5.12. ASSISTANT OFFICERS. Any Assistant Secretary or
Assistant Treasurer appointed by the Board of Directors shall have power to
perform, and shall perform, all duties incumbent upon the Secretary or
Treasurer of the Corporation, respectively, subject to the general direction of
such respective officers, and shall perform such other duties as these Bylaws
may require or the President or the Board of Directors may prescribe.
SECTION 5.13. SALARIES. The salaries or other compensation of
the officers shall be fixed from time to time by the Board of Directors. No
officer shall be prevented from receiving such salary or other compensation by
reason of the fact that he is also a director of the Corporation.
SECTION 5.14. BONDS OF OFFICERS. The Board of Directors may
secure the fidelity of any officer of the Corporation by bond or otherwise, on
such terms and with such surety or sureties, conditions, penalties or
securities as shall be deemed proper by the Board of Directors.
SECTION 5.15. DELEGATION. The Board of Directors may delegate
temporarily the powers
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and duties of any officer of the Corporation, in case of his absence or for any
other reason, to any other officer, and may authorize the delegation by any
officer of the Corporation of any of his powers and duties to any agent or
employee, subject to the general supervision of such officer.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. DIVIDENDS. Dividends on the outstanding shares of
the Corporation, subject to the provisions of the Certificate of Incorporation,
if any, may be declared by the Board of Directors at any regular or special
meeting, pursuant to law. Dividends may be paid by the Corporation in cash, in
property, or in the Corporation's own shares, but only out of the surplus of
the Corporation, except as otherwise allowed by law.
Subject to limitations upon the authority of the Board of Directors
imposed by law or by the Certificate of Incorporation, the declaration of and
provision for payment of dividends shall be at the discretion of the Board of
Directors.
SECTION 6.2. CONTRACTS. The President shall have the power and
authority to execute, on behalf of the Corporation, contracts or instruments in
the usual and regular course of business, and in addition, the Board of
Directors may authorize any officer or officers, agent or agents, of the
Corporation to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation, and such authority may be general
or confined to specific instances. Unless so authorized by the Board of
Directors or by these Bylaws, no officer, agent or employee shall have any
power or authority to bind the Corporation by any contract or engagement, or to
pledge its credit or to render it pecuniarily liable for any purpose or in any
amount.
SECTION 6.3. CHECKS, DRAFTS, ETC. All checks, drafts, or other
orders for the payment of money, notes, or other evidences of indebtedness
issued in the name of the Corporation shall be signed by such officers or
employees of the Corporation as shall from time to time be authorized pursuant
to these Bylaws or by resolution of the Board of Directors.
SECTION 6.4. DEPOSITORIES. All funds of the Corporation shall
be deposited from time to time to the credit of the Corporation in such banks
or other depositories as the Board of Directors may from time to time
designate, and upon such as shall be fixed by the Board of Directors. The
Board of Directors may from time to time authorize the opening and maintaining
within any such depository as it may designate, of general and special
accounts, and may make such special rules and regulations with respect thereto
as it may deem expedient.
SECTION 6.5. ENDORSEMENT OF STOCK CERTIFICATES. Subject to the
specific directions of the Board of Directors, any share or shares of stock
issued by any corporation and owned by
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the Corporation, may, for sale or transfer, be endorsed in the name of the
Corporation by the President or any Vice- President; and any such endorsement
may be attested or witnessed by the Secretary or any Assistant Secretary either
with or without the affixing thereto of the corporate seal.
SECTION 6.6. CORPORATE SEAL. The corporate seal, if any, shall
be in such form as the Board of Directors shall approve, and such seal, or a
facsimile thereof, may be impressed on, affixed to, or in any manner reproduced
upon, instruments of any nature required to be executed by officers of the
Corporation.
SECTION 6.7. FISCAL YEAR. The fiscal year of the Corporation
shall begin and end on such dates as the Board of Directors at any time shall
determine.
SECTION 6.8. BOOKS AND RECORDS. The Corporation shall keep
correct and complete books and records of account and shall keep minutes of the
proceedings of its stockholders and Board of Directors, and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its stockholders, giving the names and
addresses of all stockholders and the number and class of the shares held by
each.
SECTION 6.9. RESIGNATIONS. Any director or officer may resign
at any time. Such resignations shall be made in writing and shall take effect
at the time specified therein, or, if no time is specified, at the time of its
receipt by the President or Secretary. The acceptance of a resignation shall
not be necessary to make it effective, unless expressly so provided in the
resignation.
SECTION 6.10. INDEMNIFICATION OF OFFICERS, DIRECTORS, EMPLOYEES
AND AGENTS. (REVISED 4/30/87) The Corporation shall indemnify any person who
was or is a director, officer, employee or agent of the Corporation, or was or
is serving at the request of the Corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise in accordance with the provisions of the Corporation's Certificate
of Incorporation.
Any right of indemnification or advancement of expenses granted by the
provisions of the Corporation's Certificate of Incorporation or by this Section
6.10 shall be in addition to and not in lieu of any other such right which an
officer, director, employee or agent of the Corporation may at any time be
entitled under any section of these Bylaws, agreement, vote of stockholders or
disinterested directors or law of the State of Delaware.
SECTION 6.11. MEETINGS BY TELEPHONE. Subject to the provisions
required or permitted by these Bylaws or the laws of the State of Delaware for
notice of meetings, members of the Board of Directors, or members of any
committee designated by the Board of Directors, may participate in and hold any
meeting required or permitted under these Bylaws by telephone or similar
communications equipment by means of which all persons participating in the
meeting
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can hear each other. Participation in a meeting pursuant to this section shall
constitute presence in person at such a meeting, except where a person
participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
SECTION 6.12. AMENDMENTS. If permitted by the Certificate of
Incorporation, these Bylaws may be altered, amended or repealed, or new Bylaws
may be adopted, by the directors at any duly held meeting or pursuant to a
written consent in lieu of such meeting or by the holders of a majority of the
shares represented at any duly held meeting of stockholders; provided that
notice of such proposed action shall have been contained in the notice of any
such meeting.
SECTION 6.13. TABLE OF CONTENTS; HEADINGS. The Table of Contents
and headings used in these Bylaws have been inserted for convenience only and
do not constitute matters to be construed in interpretation of these Bylaws.
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CERTIFICATE OF SECRETARY
The undersigned, being the Secretary of Landmark Graphics Corporation,
hereby certifies that the foregoing code of Bylaws was duly adopted by the
Board of Directors of said corporation effective on the 30th day of April,
1987; amended and restated May 26, 1987; amended and restated on March 18, 1993
and amended and restated August 23, 1995.
IN WITNESS WHEREOF, I have signed this certification on the 23rd day
of August, 1995.
Patti L. Massaro, Secretary
