June 17, 1996
Securities and Exchange Commission
Operations Center
6432 General Green Way
Alexandria, VA 22312-2413
Dear Sir or Madam:
We are transmitting herewith Indiana Energy, Inc.'s
Amendment No. 2 to the Form 8-A dated August 4, 1986,
as amended by Amendment No. 1 filed April 16, 1990.
Respectfully,
/s/Ronald E. Christian
Ronald E. Christian, Esq.
REC:rs
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
AMENDMENT TO APPLICATION OR REPORT
Filed pursuant to Section 12, 13 or 15(d) of
THE SECURITIES AND EXCHANGE ACT OF 1934
INDIANA ENERGY, INC.
(Exact name of registrant as specified in charter)
AMENDMENT NO. 2
The undersigned registrant hereby amends the following
items, financial statements, exhibits or other portions of its
Registration Statement on Form 8-A dated August 4, 1986, as
amended by Amendment No. 1 filed April 16, 1990, as set forth in
the pages attached hereto:
Item 1: Description of Registrant's Securities to be Registered
Item 2: Exhibits
Exhibit 1 - Rights Agreement dated July 30, 1986, as amended
and restated as of December 8, 1989, and as further amended
and restated as of May 31, 1996, between Indiana Energy,
Inc. and First Chicago Trust Company of New York, as Rights
Agent, including form of Right Certificate.
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly
authorized.
INDIANA ENERGY, INC.
Dated: June 17, 1996 By: /s/Niel C. Ellerbrook
Niel C. Ellerbrook
Vice President, Treasurer
and Chief Financial Officer
Indiana Energy, Inc. an Indiana corporation (the "Company"),
hereby amends its Registration Statement on Form 8-A dated August
4, 1986, as amended by Amendment No. 1 filed April 16, 1990 (the
"Form 8-A"). Capitalized terms used herein that are not
otherwise defined herein shall have the meanings assigned to them
in the Form 8-A.
Item 1. Description of Registrant's Securities to be Registered.
On April 26, 1996, the Board of Directors of Indiana Energy,
Inc. (the "Company") authorized the amendment and restatement of
the Shareholder Rights Agreement relating to the common share
purchase rights (a "Right" or "Rights") issued for each
outstanding share of all common stock, without par value (the
"Common Shares"), of the Company. If and when the Rights
become exercisable, each Right will entitle the registered
holder to purchase from the Company one Common Share at a
purchase price of $60.00 (the "Purchase Price"), although
the price may be adjusted as described below. The description
and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and First Chicago Trust
Company of New York as Rights Agent (the "Rights Agent").
TRADING AND DISTRIBUTION OF RIGHTS
Initially, shareholders will not receive a separate
certificate for the Rights. The Rights will be represented by the
outstanding Common Share certificates with a copy of this Summary
of Rights attached thereto and the Rights cannot be bought, sold
or otherwise traded separately from the Common Shares.
Certificates for Common Shares issued after the initial Record
Date carry a notation that indicates that Rights are attached to
the Common Shares and that the terms of the Rights Agreement are
incorporated therein.
Separate certificates representing the Rights will be
distributed as soon as practicable after the "Distribution Date,"
which is the earliest to occur of:
(1) 10 calendar days following a public announcement that a
person or group of affiliated or associated persons (an
"Acquiring Person") has (a) acquired beneficial ownership of 15%
or more of the outstanding Common Shares or (b) become the
beneficial owner of an amount of the outstanding Common Shares
(but not less than 10%) which the Board of Directors determines
to be substantial and which ownership the Board of Directors
determines is intended or may be reasonably anticipated, in
general, to cause the Company to take actions determined by the
Board of Directors to be not in the Company's best long-term
interests (an "Adverse Person"), or
(2) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to the time
any person or group becomes an Acquiring Person) following the
commencement or announcement of an intention to make a tender
offer or exchange offer the consummation of which would result in
the beneficial ownership by a person or group of 15% or more of
such outstanding Common Shares.
Until the Distribution Date (or earlier exchange, 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.
EXERCISABILITY AND EXPIRATION
The holders of the Rights are not required to take any
action until the Rights become exercisable. As described above,
the Rights are not exercisable until the Distribution Date.
Holders of the Rights will be notified that the Rights have
become exercisable when the Rights Agent mails the Rights
Certificates. The Rights will expire on May 31, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed by the Company, in each
case, as described below.
ADJUSTMENTS
In order to protect the value of the Rights to the holders,
the Purchase Price payable and the number of Common Shares or
other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time (1) in the
event of a stock dividend on, or a subdivision, combination or
reclassification of, the Common Shares, (2) upon the grant to
holders of the Common Shares of certain rights or warrants to
subscribe for or purchase Common Shares at a price, or securities
convertible into Common Shares with a conversion price less than
the then current market price of Common Shares, or (3) upon the
distribution to holders of the Common Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends
paid out of earnings or retained earnings or dividends payable in
Common Shares) or of subscription rights or warrants, other than
those referred to above.
These adjustments are called anti-dilution provisions and
are intended to ensure that a holder of Rights will not be
adversely affected by the occurrence of such events. With
certain exceptions, the Company is not required to adjust the
Purchase Price until cumulative adjustments require a change of
at least 1% in the Purchase Price. No fractional Common Shares
will be issued and in lieu thereof, an adjustment in cash will be
made based on the market price of the Common Shares on the last
trading day prior to the date of exercise.
FLIP-OVER EVENTS AND FLIP-IN EVENTS
In the event that (1) the Company is acquired in a merger or
other business combination transaction and the Company is not the
surviving corporation, or (2) any person consolidates or merges
with the Company and all or part of the Company's Common Shares
are exchanged for securities, cash or property of any other
person, or (3) 50% or more of the Company's consolidated assets
or earning power are sold (collectively, "Flip-Over Events"),
proper provision will be made so that each holder of a Right will
thereafter have the right to receive, upon the exercise thereof
at the then current exercise price of the Right, that number of
shares of common stock of the acquiring company which at the time
of such transaction will have a market value of two times the
exercise price of the Right. In the event that a person (1)
acquires 15% or more of the outstanding Common Stock (an
"Acquiring Person") or (2) is declared an Adverse Person by the
Board of Directors of the Company,(collectively, "Flip-In
Events"), proper provision shall be made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring
Person (which will thereafter be void), will thereafter have the
right to receive upon exercise that number of Common Shares
having a market value of two times the exercise price of the
Right.
EXCHANGE OPTION
At any time after a person becomes an Acquiring Person, and
prior to the acquisition by such Acquiring Person of 50% or more
of the outstanding Common Shares, the Board of Directors of the
Company may exchange the Rights (other than Rights owned by such
person or group which have become void), in whole or in part, at
an exchange ratio of one Common Share per Right (subject to
adjustment).
REDEMPTION
At any time prior to the tenth calendar day following the
date of a public announcement that a person or group has become
an Acquiring Person, 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 and 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.
If the Board of Directors' ability to redeem the Rights
pursuant to the Rights Agreement has expired because a person or
group has become an Acquiring Person, but a Flip-Over Event or
certain Flip-In Events have not yet occurred, the redemption
right will be reinstated if the Acquiring Person disposes of a
sufficient number of the Company's Common Shares so that such
person then owns only 10% or less of the outstanding Company's
Common Shares and if certain other conditions are met.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, except that from and after such time as any person
becomes an Acquiring Person no such amendment may adversely
affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
Item 2. Exhibits.
Item 2 of the Form 8-A is hereby amended and restated to
read in it entirety as follows:
"Item 2. Exhibits.
Exhibit 1 - Rights Agreement dated July 30, 1986, as
amended and restated as of December 8, 1989, and as further
amended and restated as of May 31, 1996, between Indiana
Energy, Inc. and First Chicago Trust Company of New York, as
Rights Agent, including form of Right Certificate."
EXHIBIT 1
INDIANA ENERGY, INC.
and
First Chicago Trust Company of New York
Rights Agent
Rights Agreement
Dated as of July 30, 1986,
Amended and Restated as of December 8, 1989,
and as
Amended and Restated May 31, 1996
TABLE OF CONTENTS
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 6
Section 3. Issue of Right Certificates 6
Section 4. Form of Right Certificates 8
Section 5. Countersignature and Registration 8
Section 6. Transfer, Split-Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates 9
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights 10
Section 8. Cancellation and Destruction of Right Certificates. 11
Section 9. Reservation and Availability of Common Shares. 12
Section 10. Common Shares Record Date 13
Section 11. Adjustment of Purchase Price, Number of Common Shares
or Number of Rights. 14
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares 24
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 24
Section 14. Fractional Rights and Fractional Shares. 27
Section 15. Rights of Action 28
Section 16. Agreement of Right Holders 29
Section 17. Right Certificate Holder Not Deemed a Shareholder 29
Section 18. Concerning the Rights Agent 30
Section 19. Merger or Consolidation or Change of Name of Rights
Agent 30
Section 20. Duties of Rights Agent 31
Section 21. Change of Rights Agent. 34
Section 22. Issuance of New Right Certificates 35
Section 23. Redemption 36
Section 24. Notice of Certain Events 37
Section 25. Notices 38
Section 26. Exchange 39
Section 27. Supplements and Amendments 40
Section 28. Successors 41
Section 29. Benefits of this Agreement 41
Section 30. Severability 41
Section 31. Governing Law 41
Section 32. Counterparts 41
Section 33. Descriptive Headings 41
Signatures 42
Exhibit A Form of Rights Certificate A-1
Exhibit B Summary of Rights to Purchase Common Shares B-1
RIGHTS AGREEMENT
This Agreement, dated as of July 30, 1986, amended and
restated as of December 8, 1989, and as amended and restated
as of May 31, 1996, is between Indiana Energy, Inc., an
Indiana corporation (the "Company"), and First Chicago Trust
Company of New York, a Delaware corporation (the "Rights
Agent").
The Board of Directors of the Company authorized and de
clared a dividend of one common share purchase right (a
"Right") for each Common Share (as hereinafter defined) of
the Company outstanding on August 11, 1986, each Right
representing the right to purchase one share of Common Stock,
no par value, of the Company upon the terms and subject to
the conditions herein set forth, and further authorized the
issuance of one Right with respect to each Common Share that
shall become outstanding between August 11, 1986, and the
earliest of the Distribution Date, the Redemption Date and
the Final Expiration Date (as such terms are hereinafter
defined).
The Board of Directors of the Company retained the right
to amend and restate the Agreement to extend its Final
Expiration Date, and, so long as there is no Acquiring Person
(as hereinafter defined) to extend the period during which
the Rights may be redeemed.
The Agreement, unless amended and restated, will expire
on August 10, 1996, with shareholders of the Company having
neither the right of redemption nor the ability to exercise
the rights. The Board of Directors of the Company, therefore,
desire to extend the Final Expiration Date and to make
certain other amendments to this Agreement.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree
to amend and restate the Agreement as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean (i) any Person
(other than the Company or any Related Person), who or
which, together with all Affiliates and Associates (as
such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the Common Shares
then outstanding, or (ii) any Adverse Person; provided,
however, that a person shall not be deemed to have
become an Acquiring Person solely as a result of a
reduction in the number of Common Shares outstanding,
unless subsequent to such reduction such Person or any
Affiliate or Associate of such Person shall become the
Beneficial Owner of any additional Common Shares other
than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all
shareholders are treated equally.
(b) "Adverse Person" shall mean any Person
declared to be an Adverse Person by the Board of
Directors upon (i) a determination by the Board of
Directors, at any time after the date of this Agreement,
that such Person, alone or together with its Affiliates
and Associates, has become, or has announced an
intention to become, in one or more transactions, the
Beneficial Owner of a number of Common Shares which the
Board of Directors determines to be substantial (which
amount shall in no event be less than 10% of the Common
Shares then outstanding) and (ii) a determination by at
least a majority of the Board of Directors who are not
officers of the Company, after reasonable inquiry and
investigation, including consultation with such persons
as such directors shall deem appropriate, that (A) such
Beneficial Ownership by such Person (1) is intended to
cause the Company to repurchase the Common Shares
beneficially owned by such Person, (2) is intended or
may reasonably be anticipated to cause pressure on the
Company to take action or enter into a transaction or
series of transactions to provide such Person with short-
term financial gain under circumstances in which the
Board of Directors determines that the best long-term
interests of the Company and its shareholders would not
be served by taking such action or entering into such
transactions or series of transactions at that time, or
(3) is intended or may reasonably be anticipated to
permit such Person to acquire control of or a
controlling influence over the Company, as a result of
such Beneficial Ownership or one or more subsequent
actions or transactions, in a manner or pursuant to one
or more actions or transactions that the Board
determines to be unfair or coercive to shareholders, or
(B) such Beneficial Ownership is causing or may
reasonably be anticipated to cause a material adverse
impact on the business, financial condition or prospects
of the Company.
(c) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on May 31, 1996.
(d) A Person shall be deemed the "Beneficial Owner"
of and shall be deemed to "beneficially own" any
securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns,
directly or indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding, or upon the exercise of
conversion rights, exchange rights, rights
(other than these Rights), warrants or options,
or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or
to beneficially own, securities tendered
pursuant to a tender or exchange offer made by
or on behalf of such Person or any of such
Person's Affiliates or Associates until such
tendered securities are accepted for purchase
or exchange; or (B) the right to vote or
dispose of 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 of the Exchange Act and (2) is not
also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such
Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or
understanding for the purpose of acquiring,
holding, voting (except to the extent
contemplated by the provision to Section 1 (d)
(ii) (B)) or disposing of any securities of the
Company; provided, however, that nothing in
this paragraph shall cause a Person engaged in
business as an underwriter of securities to be
the Beneficial Owner of any securities acquired
through such Person's participation in good
faith in an underwriting syndicate pursuant to
an agreement to which the Company is a party
until the expiration of 40 calendar days after
the date of such acquisition and a Person shall
not be deemed the Beneficial Owner of, or to
beneficially own, any security if such
beneficial ownership arises solely as a result
of such Person's status as a "clearing agency"
as defined in Section 3(a)(23) of the Exchange
Act.
(e) "Business Day" shall mean any day other than a
Saturday, 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.
(f) "Close of Business" on any given date shall
mean 5:00 p.m., New York City time, on such date;
provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(g) "Common Shares" when used with reference to the
Company shall mean the shares of Common Stock, no par
value, of the Company; provided, however, that if the
Company is the continuing or surviving corporation in a
transaction described in Section ll (a) (ii) or Section
13(b) hereof, "Common Shares" when used with reference
to the Company shall mean the capital stock or equity
security with the greatest aggregate voting power of the
Company. "Common Shares" when used with reference to any
Person other than the Company (including an Issuer as
defined in Section 13 hereof) shall mean the capital
stock (or equity interest) with the greatest aggregate
voting power of such other Person.
(h) "Distribution Date" shall have the meaning set
forth in Section 3 hereof.
(i) "Final Expiration Date" shall have the meaning
set forth in Section 7 hereof.
(j) "Person" shall mean any individual, firm,
corporation, partnership, limited liability company,
limited liability partnership or other entity, and shall
include any successor (by merger or otherwise) of such
entity.
(k) "Redemption Date" shall have the meaning set
forth in Section 7 hereof.
(l) "Related Person" shall mean (i) any Subsidiary
of the Company, (ii) any employee benefit or stock
ownership plan of the Company or any entity holding
Common Shares for or pursuant to the terms of any such
plan, or (iii) any Person who acquires Common Shares
from the Company or any other Related Person in one or a
series of related transactions, each of which is
approved by the Board of Directors; provided, however,
that if any Person who becomes a Related Person solely
by virtue of subsection (iii) above, or any Affiliate or
Associate of such Person, subsequently becomes the
Beneficial Owner of any additional Common Shares in a
transaction or transactions not approved by the Board of
Directors, such Person shall no longer be deemed a
"Related Person" with respect to all Common Shares of
which it, or any of its Affiliates or Associates, is the
Beneficial Owner.
(m) "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.
(n) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the
voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such
Person.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the
Company and the holders of the Rights (who, in accordance
with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the Common Shares) in accordance with
the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time
appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Shares Acquisition
Date or (ii) the tenth day after the date of the commencement
of, or first public announcement of the intent 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
beneficial ownership by a Person of 15% or more of the
outstanding Common Shares (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 paragraph (b) of this
Section 3) by the certificates for Common Shares registered
in the names of the holders thereof (which certificates shall
also be deemed to be Right Certificates (as hereinafter
defined)) and not by separate Right Certificates, and (y) the
right to receive Right Certificates will be transferable only
in connection with the transfer of Common Shares. As soon as
practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights
Agent will, if requested, send) by first-class, insured,
postage prepaid mail, to each record holder of 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 A
hereto (a "Right Certificate"), evidencing one Right for each
Common Share so held. For the purpose of this Agreement, any
beneficial holder of Common Shares who shall have properly
elected to receive dividends directly pursuant to a duly
adopted recognition procedure of the Company, as authorized
in IND. CODE 23-1-30-4(a) (Cum. Supp. 1995) or any statute
of similar effect, shall be deemed to be a "record holder".
As of the Distribution Date, the Rights will be evidenced
solely by such Right Certificates.
(b) After May 31, 1996, the Company sent a copy of a
"Summary of Rights to Purchase Common Stock", in
substantially the form of Exhibit B hereto (the "Summary of
Rights"), by first-class, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on
May 31, 1996, at the address of such holder shown on the
records of the Company. With respect to certificates for
Common Shares outstanding as of August 11, 1986, 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. Until the
Distribution Date (or the earlier of the Redemption Date or
Final Expiration Date), the surrender for transfer of any
certificate for Common Shares outstanding on August 11, 1986,
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 issued for Common Shares (including,
without limitation, certificates issued upon transfer or
exchange of Common Shares and certificates for reacquired
Common Shares referred to in the last sentence of this
paragraph (c) after May 31, 1996 but prior to the earliest of
the Distribution Date, the Redemption Date and the Final
Expiration Date shall have impressed on, printed on, written
on or otherwise affixed to them the following legend:
This certificate also evidences and entitles
the holder hereof to certain Rights as set
forth in a Rights Agreement between Indiana
Energy, Inc. and First Chicago Trust Company
of New York, dated as of July 30, 1986,
amended and restated as of December 8, 1989,
and as amended and restated on May 31, 1996
(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 Indiana Energy,
Inc. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no
longer be evidenced by this certificate.
Indiana Energy, Inc. will mail to the holder
of this certificate a copy of the Rights
Agreement without charge after receipt of a
written request therefor. Under certain
circumstances, Rights beneficially owned by
Acquiring persons or any Affiliate or
Associate thereof (as such terms are 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 May 31,
1996 but prior to the Distribution Date, any Rights
associated with such Common Shares shall be deemed canceled
and retired so that the Company shall not be entitled to
exercise any Rights associated with the Common Shares which
are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Common
Shares and of assignment to be printed on the reverse
thereof) shall be substantially the same as Exhibit A hereto
and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as
the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to
the provisions of Section 22 hereof, the Right Certificates
shall entitle the holders thereof to purchase such number of
Common Shares as shall be set forth therein at the price per
Common Share set forth therein (the "Purchase Price"), but
the number of such Common Shares and the Purchase Price shall
be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The
Right Certificates shall be executed on behalf of the Company
by its Chief Executive Officer, President or any vice
president and shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by
facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof. The Right Certificates
shall be manually or by facsimile countersigned by the Rights
Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Company who shall
have signed any of the Right Certificates shall cease to be
such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such
Right Certificates, nevertheless, may be countersigned by the
Rights Agent, and issued and delivered by the Company with
the same force and effect as though the person who signed
such Right Certificates had not ceased to be such officer of
the Company; and any Right Certificate may be signed on
behalf of the Company by any person who, at the actual date
of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights
Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal offices, 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 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 (as such terms are defined in Section 7 hereof), any
Right Certificate or Right Certificates may be transferred,
split-up, combined or exchanged for another Right Certificate
or Right Certificates, entitling the registered holder to
purchase a like number of Common Shares as the Right
Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to
transfer, split-up, combine or exchange any Right Certificate
shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split-up, combined or
exchanged at the principal office of the Rights Agent, or at
its office in New York, New York. 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 owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) The registered holder of any
Right Certificate may exercise the Rights evidence thereby
(except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on
the reverse side thereof duly executed, to the Rights Agent
at the principal office of the Rights Agent, or at its office
in New York, New York, together with payment of the Purchase
Price for each Common Share as to which the Rights are
exercised, at or prior to the close of business on the
earlier of (i) the close of business on May 31, 2006 (the
"Final Expiration Date"), or (ii) the time at which the
Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date").
(b) The Purchase Price for each Common Share pursuant
to the exercise of a Right is $60.00, shall be subject to
adjustment from time to time as provided in Sections 11 and
13 hereof and shall be payable in lawful money of the United
States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase
duly executed, accompanied by payment of the Purchase Price
for the Common 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
in cash, or by certified check or cashier's check payable to
the order of the Company, the Rights Agent shall thereupon
promptly (i)(A) requisition from any transfer agent of the
Common Shares certificates for the number of Common Shares to
be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B)
requisition from the depository agent depository receipts
representing such number of Common Shares as are to be
purchased (in which case certificates for the Common Shares
represented by such receipts shall be deposited by the
transfer agent with the depository agent) and the Company
hereby directs the depository 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, (iii) after
receipt of such certificates or depository 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, promptly deliver such
cash to or upon the order of the registered holder of such
Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent
to the Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right
Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split-up, combination or
exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancellation
or in canceled form, or, if surrendered to the Rights Agent,
shall be canceled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any
of the provisions of this Rights Agreement. The 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 canceled Right Certificates to the Company,
or shall, at the written request of the Company, destroy such
canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Common
Shares. The Company covenants and agrees that it will cause
to be reserved and kept available out of its authorized and
unissued Common Shares or any Common Shares held in its
treasury the number of Common Shares that will be sufficient
to permit the exercise in full of all outstanding Rights.
The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Common
Shares delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such Common Shares
(subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and
nonassessable shares.
The Company further covenants and agrees that it will
pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect of
the issuance or delivery of the Right Certificates or of any
Common 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 than, or the issuance or
delivery of certificates or depository receipts for the
Common Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or deliver any certificates or
depository receipts for Common 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 satisfaction that any such tax is due.
The Company further covenants that it will use its best
efforts to (i) file on an appropriate form, as soon as
practicable following the later to occur of an event in
Section ll (a) (ii) or Section 13 hereof or the Distribution
Date, a registration statement under the Securities Act of
1933, as amended (the "Securities Act"), with respect to the
securities purchasable upon exercise of the Rights, (ii)
cause such registration statement to become effective as soon
as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus
at all times meeting the requirements of the Securities Act)
until the earlier of (A) the date as of which the Rights are
no longer exercisable for such securities, and (B) the
earlier of the Final Expiration Date or the Redemption Date.
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; provided, however, that the
Company may temporarily suspend the exercisability of the
Rights in order to prepare and file such registration
statement and permit it to become effective and upon any such
suspension the Company will 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.
Section 10. Common Shares Record Date. Each person in
whose name any certificate for Common 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
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 transfer books of the
Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day
on which the Common Shares transfer books of the Company are
open. Prior to the exercise of the Rights evidenced thereby,
the holder of a Right Certificate shall not be entitled to
any rights of a holder of Common Shares for which the Rights
shall be exercisable, including, without limitation, the
right to vote, or to receive dividends or other
distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided
herein.
Section 11. Adjustment of Purchase Price, Number of
Common Shares or Number of Rights. The Purchase Price, the
number of Common 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
Common Shares payable in Common Shares, (B) subdivide the
outstanding Common shares (C) combine the outstanding Common
Shares into a smaller number of Common Shares or (D) issue
any shares of its capital stock in a reclassification of the
Common Shares (including any such reclassification in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except
as otherwise provided in this Section ll(a), the Purchase
Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which,
if such Right had been exercised immediately prior to such
date and at a time when the Common 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. If an event
occurs which would require an adjustment under both this
Section ll (a) (i) and Section ll (a) (ii), the adjustment
provided for in this Section ll (a) (i) shall be in addition
to, and shall be made prior to, any adjustment required
pursuant to Section ll (a) (ii).
(ii) Subject to Section 24 of this Agreement,
in the event:
A. Any Acquiring Person or any Associate or Affiliate of
any Acquiring person, at any time after the date of this
Agreement, directly or indirectly, (1) shall merge into the
Company or otherwise combine with the Company and the Company
shall be the continuing or surviving corporation of such
merger or combination and the Common Shares of the Company
shall remain outstanding and not be changed into or exchanged
for stock or other securities of any other Person or the
Company or cash or any other property, (2) shall, in one or
more transactions, other than the exercise of Rights or in
connection with the exercise or conversion of securities
exchangeable or convertible into capital stock of the Company
or any of its Subsidiaries, transfer any assets to the
Company or any of its Subsidiaries in exchange (in whole or
in part) for shares of any class of capital stock of the
Company or any of its Subsidiaries or for securities
exercisable for or convertible into shares of any class of
capital stock of the Company or any of its Subsidiaries or
otherwise obtain from the Company or any of its Subsidiaries,
with or without consideration, any additional shares of any
class of capital stock of the Company or any of its
Subsidiaries or securities exercisable for or convertible
into shares of any class of capital stock of the Company or
any of its Subsidiaries (other than as part of a pro rata
distribution to all holders of such shares of any class of
capital stock of the Company or any of its Subsidiaries), (3)
shall sell, purchase, lease, exchange, mortgage, pledge,
transfer or otherwise dispose (in one or more transactions),
to, from, with or of, as the case may be, the Company or any
of its Subsidiaries, assets (including securities) on terms
and conditions less favorable to the Company than the Company
would be able to obtain in arm's-length negotiation with an
unaffiliated third party, (4) receive any compensation from
the Company or any of its Subsidiaries other than
compensation at rates in accordance with the Company's (or
its Subsidiaries') past practices, or (5) shall receive the
benefit, directly or indirectly (except proportionately as a
shareholder), of any loans, advances, guarantees, pledges or
other financial assistance or any tax credits or other tax
advantage provided by the Company or any of its Subsidiaries;
or
B. During such time as there is an Acquiring Person,
there shall be any reclassification of securities (including
any reverse stock split), or recapitalization of the Company,
or any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of
transactions involving the Company or any Subsidiaries of the
Company (whether or not with or into or otherwise involving
an Acquiring Person) which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate
share of the outstanding shares of any class of equity
securities or of securities exercisable for or convertible
into securities of the Company or any of its Subsidiaries
which is directly or indirectly owned by any Acquiring Person
or any Associate or Affiliate of any Acquiring Person; or
C. Any Person (other than the Company, any Related
Person) who or which, together with all Affiliates and
Associates of such Person, shall at any time after the date
of this Agreement, become the Beneficial Owner of 15% or more
of the Common Shares then outstanding (other than pursuant to
any transaction set forth in Section 13 hereof); provided,
however, that a Person shall not be deemed to have become the
Beneficial Owner of 15% or more of the Common Shares then
outstanding for the purposes of this Section ll (a) (ii) (C)
solely as a result of a reduction in the number of Common
Shares outstanding, unless subsequent to such reduction
outstanding, unless subsequent to such reduction such Person
or any Affiliate or Associate of such Person shall become the
beneficial Owner of any additional Common Shares; or
D. Any Person is declared to be an Adverse Person by the
Board of Directors, then, and in each such case, proper
provision shall be made so that each holder of a Right,
except as provided below, shall thereafter have a right to
receive, upon exercise thereof in accordance with the terms
of this Agreement, such number of Common Shares as shall
equal the result obtained by (x) multiplying the then current
Purchase Price by the number of Common Shares for which a
Right is then exercisable and dividing that product by (y)
50% of the current per share market price of the Common
Shares (determined pursuant to Section ll (d)) on the fifth
day after the earlier of the date of the occurrence or the
date of the first public announcement of any one of the
events listed above in this Section ll (a) (ii); provided,
however, that if the transaction that would otherwise give
rise to the foregoing adjustment is also subject to the
provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section ll (a) (ii). Notwithstanding the
foregoing, upon the occurrence of any of the events listed
above in this Section ll (a) (ii), any Rights that are or
were on or after the earlier of the Distribution Date or
Shares Acquisition Date beneficially owned by an Acquiring
Person (or any Associate or Affiliate of such Acquiring
Person) shall become void and any holder of such Rights shall
thereafter have no right to exercise such Rights under any
provision of this Agreement. The Company shall not enter into
any transaction of the kind listed in this Section ll (a)
(ii) 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 the transactions therein, would eliminate or
otherwise substantially diminish the benefits intended to be
afforded by the Rights. Any Right Certificate issued pursuant
to Section 3 hereof that represents Rights beneficially owned
by an Acquiring Person or any Associate or Affiliate thereof
and any Right Certificate issued at any time upon the
transfer of any Rights to an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate, and any Right
Certificate issued pursuant to Section 6, 7(d) or 22 thereof
or this Section 11 upon transfer, exchange, replacement or
adjustment of any other Right Certificate referred to in this
sentence, shall contain the following legend:
The Rights represented by this Right
Certificate were issued to a Person
who was an Acquiring Person or an
Affiliate or an Associate of an
Acquiring person (as such terms are
defined in the Rights Agreement). This
Right Certificate and the Rights
represented hereby may become void in
the circumstances specified in Section
ll (a) (ii) of the Rights Agreement;
provided that the Rights Agent shall not be under any
responsibility to ascertain the existence of facts that would
require the imposition of such legend but shall be required
to impose such legend only if instructed to do so by the
Company or if a holder fails to certify upon transfer or
exchange in the space provided on the Right Certificate that
such holder is not an Acquiring Person or an Affiliate or
Associate thereof.
(iii) In the event that there shall not be sufficient
treasury or authorized but unissued Common Shares to permit
the exercise in full of the Rights in accordance with Section
ll (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. However, if the Company is
unable to cause the authorization of additional Common Shares
within 90 calendar days after the occurrence of an event in
Section ll (a) (ii), then, notwithstanding anything in this
Agreement to the contrary, the Company shall determine the
excess of the value of the Common Shares issuable upon the
exercise of a Right over the Purchase Price (such excess
being hereinafter referred to as the ("Spread") and shall be
obligated to deliver, upon the surrender of such Right and
without requiring payment of the Purchase Price, Common
Shares (to the extent available) and cash (to the extent
permitted by applicable law and any agreements or instruments
to which the Company is a party in effect immediately prior
to the first occurrence of an event in Section ll (a) (ii))
in an amount equal to the Spread. To the extent that any
legal or contractual restrictions prevent the Company from
paying the full amount of cash payable in accordance with the
foregoing sentence, the Company shall pay to holders of the
Rights as to which such payments are payable all amounts
which are not then restricted on a pro rata basis and shall
continue to make payments on a pro rata basis as funds become
available until the full amount due to each such Right holder
has been paid.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders of
Common Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Common Shares or securities convertible into Common
Shares at a price per Common Share (or having a conversion
price per share, if a security convertible into Common
Shares) less than the then current per share market price of
the Common Shares (as defined in Section ll (d)) on such
record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
Common Shares outstanding on such record date plus the number
of Common Shares which the aggregate offering price of the
total number of Common 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 Common Shares outstanding on such record date
plus the number of additional Common Shares to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent. Common 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 or warrants are not so issued,
the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Common
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 Common Shares) or
subscription rights or warrants (excluding those referred to
in Section ll (b)), the Purchase Price to be in effect after
such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the then
current per share (market price of the Common Shares (as
defined in Section ll (d)) on such record date, less the fair
market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the
portion of the assets or evidences of indebtedness so to be
distributed or such subscription rights or warrants
applicable to one Common Share and the denominator of which
shall be such current per share market price of the Common
Shares. Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again
be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the
"current per share market price" of the Common Shares on any
date shall be deemed to be the average of the daily closing
prices per share of such Common Shares for the 30 consecutive
Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in
the event that the current per share market price of the
Common Shares is determined during a period following the
announcement by the issuer of such Common Shares of (A) a
dividend or distribution on such Common Shares payable in
such Common Shares or securities convertible into such Common
Shares, or (B) any subdivision, combination or
reclassification of such Common Shares, 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 Common Share equivalent. The closing price for each day
shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported
in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the Common Shares are not
then listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on which
the Common Shares are listed or admitted to trading or, if
the Common Shares are not listed or admitted to trading on
any national securities exchange, the last quoted price or if
not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in
use, or, if on any such date the Common Shares are not quoted
by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker
making a market in the Common Shares 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 Common Shares are listed or admitted to trading is
open for the transaction of business or, if the Common Shares
are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Shares are
not publicly held or so listed or traded, "current per share
market price" shall mean the fair value per share as
determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a
statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section
ll (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 ten-thousandth of a Common
Share or other share as the case may be. Notwithstanding the
first sentence of this Section ll(e), any adjustment
otherwise 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
Section ll (a), the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock
of the Company other than Common 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 Common Shares contained in
section ll (a) through (c), inclusive, and the provisions of
Sections 7, 9, 10 and 13 hereof with respect to the Common
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 Common Shares
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section ll (i), upon each adjustment
of the Purchase Price as a result of the calculations made in
Section ll (b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted the Purchase
Price, that number of Common Shares (calculated to the
nearest one ten-thousandth of a share) obtained by (i)
multiplying (x) the number of Common Shares covered by a
Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
Common Shares 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 Common
Shares for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that number
of Rights (calculated to the nearest one ten-thousandth)
obtained by dividing the Purchase Price in effect immediately
prior to adjustment of the Purchase Price by the Purchase
Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time,
the amount of the adjustment to be made. This record date may
be the date on which the Purchase Price is adjusted or any
day thereafter, but, if the Right Certificates have been
issued, shall be at least 10 days later than the date of the
public announcement. If Right Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this
Section ll (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 Common Shares 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 Common Shares which were
expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the Common 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 Common Shares at such adjusted Purchase Price.
(1) In any case in which this Section 11 shall
require that an adjustment in the Purchase Price be made
effective as of a record date for a specified event, the
Company may elect to defer until the occurrence of such event
the issuing to the holder of any Right exercised after such
record date of the Common Shares and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the Common 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 Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
of the Common Shares, issuance wholly for cash of any of the
Common Shares at less than the current market price, issuance
wholly for cash of Common Shares or securities which by their
terms are convertible into or exchangeable for Common Shares,
dividends on Common Shares payable in Common Shares or
issuance of rights, options or warrants referred to
hereinabove in Section ll(b), hereafter made by the Company
to holders of its Common Shares shall not be taxable to such
shareholders.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided
in Sections 11 and 13 hereof, the Company shall promptly (a)
prepare a certificate setting forth such adjustment, and a
brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent
for the Common Shares 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, (following the Shares Acquisition Date), (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 or consolidation and, in connection with such merger
or consolidation, 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 (including without limitation securities creating any
obligation on the part of the Company and/or any of its
Subsidiaries) aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to any other person other than 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 in accordance with the terms of this Agreement, such
number validly authorized and issued, fully paid,
nonassessable and freely tradable Common Shares of such other
Person (including the Company as successor thereto or as the
surviving corporation), free and clear of any liens,
encumbrances and other adverse claims and not subject to any
rights of call or first refusal, as shall be equal to the
result obtained by (x) multiplying the then current Purchase
Price by the number of Common Shares for which a Right is
then exercisable (without taking into account any adjustment
previously made pursuant to Section ll (a) (ii) hereof) and
dividing that product by (y) 50% of the current per share
market price of the Common Shares of such other Person
(determined pursuant to Section ll (d)) on the date of
consummation of such consolidation, merger, 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 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. For
purposes of this Section 13, "Issuer" shall mean (i) in the
case of any event described in Sections 13(a) or (b) above,
the Person that is the continuing, surviving, resulting or
acquiring Person (including the Company as the continuing or
surviving corporation of a transaction described in Section
13(b) above), and (ii) in the case of any event described in
Section 13(c) above, the Person that is the party receiving
the greatest portion of the assets or earning power
(including without limitation securities creating any
obligation on the part of the Company and/or any of its
Subsidiaries) transferred pursuant to such transaction or
transactions; provided, however, that, in any such case, (A)
if (1) no class of any equity security of such Person is, at
the time of such merger, consolidation or transaction and has
been continuously over the preceding 12-month period,
registered pursuant to Section 12 of the Exchange Act, and
(2) such Person is a Subsidiary, directly or indirectly, of
another Person, a class of equity security of which is and
has been so registered, the term "issuer" shall mean such
other Person; and (B) in case such Person as a Subsidiary,
directly or indirectly, of more than one Person, a class of
equity security of two or more of which are and have been so
registered, the term "Issuer" shall mean whichever of such
Persons is the issuer of the equity security having the
greatest aggregate market value. Notwithstanding the
foregoing, if the Issuer in any of the events listed above is
not a corporation or other legal entity having outstanding
equity securities, then, and in each such case, (i) if the
Issuer is directly or indirectly wholly owned by a
corporation or other legal entity having outstanding equity
securities, then all references to Common Shares of the
Issuer shall be deemed to be references to the Common Shares
of the Corporation or other legal entity having outstanding
equity securities which ultimately controls the Issuer, and
(ii) if there is no such corporation or other legal entity
having outstanding equity securities, (Y) proper provision
shall be made so that the Issuer shall create or otherwise
make available for purposes of the exercise of the Rights in
accordance with the terms of this Agreement, a type or types
of security or securities having a fair market value at least
equal to the economic value of the Common Shares which each
holder of a Right would have been entitled to receive if the
Issuer had been a corporation or other legal entity having
outstanding equity securities; and (Z) all other provisions
of this Agreement shall apply to the issuer of such
securities as if such securities were Common Shares. The
Company shall not consummate any such consolidation, merger,
sale or transfer unless prior thereto the Issuer shall have a
sufficient number of authorized Common Shares (or other
securities as contemplated above) which have not been issued
or reserved for issuance to permit the exercise in full of
the Rights in accordance with this Section 13 and unless
prior to such consummation the Company and such Issuer shall
have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in
this Section 13 and further providing that as soon as
practicable after the consummation of any such consolidation,
merger, sale or transfer, the Issuer will
(i) prepare and file a registration statement under
the Securities Act, with respect to the Rights and the
securities purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts to cause
such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the earlier of
the Expiration Date or the Redemption Date; and
(ii) 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 transaction,
would eliminate or otherwise 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 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 Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares. In lieu
of fractional Common Shares, 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
Common Share. For purposes of this Section 14 (b), the
current market value of a Common Share shall be the closing
price of a Common Share (as determined pursuant to Section ll
(d) hereof) for the Trading Day immediately prior to the date
of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights
or any fractional Common Shares upon exercise of a Right
(except as provided above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action
given to the Rights Agent under Section 18 hereof, are vested
in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the
registered holders of the 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;
(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, or at its office in New
York, New York, 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.
Section 17. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for
any purpose the holder of the Common Shares or any other
securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate,
as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or
to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
shareholders (except as provided in Section 24 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 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
reasonably believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by
the proper person or persons, or otherwise upon the advice of
counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. Any corporation into which the Rights Agent or
any successor Rights Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger
or consolidation to which the Rights Agent or any successor
Rights Agent shall be a party, or any corporation succeeding
to the corporate trust business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under
the provisions of Section 21 hereof. In case at the time 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 and effect provided in
the Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and
deliver Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name;
and in all such cases such Right Certificates shall have the
full force and effect 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
Chief Executive Officer, President or any Vice
President, the Treasurer or the Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to
the Company and any other person only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any responsi
bility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of
the validity or execution of any Right Certificate
(except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for
any change in the exercisability of the Rights
(including the Rights becoming void pursuant to Section
ll (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 or 23, 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
Common Shares to be issued pursuant to this Agreement or
any Right Certificate or as to whether any Common 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.
(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
Chief Executive Officer, President or 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. Any application by the Rights Agent
for written instructions from the Company may, at the
option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights
Agent under this Rights Agreement and the date on and/or
after which such action shall be taken or such omission
shall be effective. The Rights Agent shall not be
liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in
any such application on or after the date specified in
such application (which date shall not be less than five
Business Days after the date any such officer of the
Company actually receives such application, unless any
such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action
(or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in
response to such application specifying the action to be
taken or omitted.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the
Company or become pecuniarily interested in any
transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise
act as fully and freely as though it were not 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
duly appointed 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 by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. The
Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common 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
Indiana (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 or Indiana), in good
standing, having an office in the State of New York or
Indiana, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by federal or state authority and which either
(A) has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50 million, or (B)
is a member of a bank holding company system, which bank
holding company system has an aggregate combined capital and
surplus of at least $50 million, provided that such
corporation's separate capital and surplus shall at all times
be at least $10 million. After appointment, the successor
Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company
shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Shares,
and mail a notice thereof in writing to the registered
holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares). Failure to give any
notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may
be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of
the Rights to the contrary, the Company may, at its option,
issue new Right Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property
purchasable under the Right Certificates made in accordance
with the provisions of this Agreement.
Section 23. Redemption. (a) The Board of Directors of
the Company may, 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, adjusted proportionately 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").
(b) If, following the occurrence of a Shares
Acquisition Date and following the expiration of the right of
redemption hereunder but prior to the occurrence of an event
described in Sections A, B or C of section ll (a) (ii) or
Sections (i), (ii) or (iii) of Section 13 ("Triggering
Event") each of the following shall have occurred and remain
in effect: (i) a Person who is an Acquiring Person shall have
transferred or otherwise disposed of a number of Common
shares in a transaction, or series of transactions, which did
not result in the occurrence of any Triggering Event such
that such Person is thereafter a Beneficial Owner of 10% or
less of the outstanding Common Shares, (ii) there are no
other Persons, immediately following the occurrence of the
event described in clause (i), who are Acquiring Persons, and
(iii) the transfer or other disposition described in clause
(i) above was other than pursuant to a transaction, or series
of transactions, which directly or indirectly involved the
Company or any of its Subsidiaries, then the right of
redemption set forth in Section 23(a) shall be reinstated and
thereafter be subject to the provisions of this Section.
(c) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, 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. Within 10 days after the
action of the Board of Directors ordering the redemption of
the Rights, the Company shall give notice of such redemption
to the holders of the then outstanding Rights by mailing such
notice to all such holders at their last addresses as they
appear upon the registry books of the Rights Agent 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, and other than in connection with the purchase of Common
Shares prior to the Distribution Date. The Company may, at
its option, pay the Redemption Price in cash, Common Shares
(based upon the current per share market price of the Common
Shares (determined pursuant to Section ll(d) hereof) at the
time of redemption) or any other form of consideration deemed
appropriate by the Board of Directors.
Section 24. Notice of Certain Events. In case the
Company shall propose (a) to pay any dividend payable in
stock of any class to the holders of its Common Shares or to
make any other distribution to the holders of its Common
Shares (other than a regular quarterly cash dividend) or (b)
to offer to the holders of its Common Shares rights or
warrants to subscribe for or to purchase any additional
Common Shares or shares of stock of any class or any other
securities, rights or options, or (c) to effect any
reclassification of its Common Shares, or (d) to effect any
consolidation or merger into or with, or to effect any sale
or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or
more transactions, of 50% or more of the assets or earning
power of the Company and its Subsidiaries (taken as a whole)
to, any other Person, (e) to effect the liquidation,
dissolution or winding up of the Company, or (f) 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 (and, prior to the Distribution
Date, the Common Shares), in accordance with Section 25
hereof, a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and
the date of participation therein by the holders of the
Common 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 (a) or (b) above at least 20 days prior to the record
date for determining holders of the Common Shares for
purposes of such action, and in the case of any such other
action, at least 20 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, whichever shall be the
earlier.
In case any of the events set forth in Section ll (a)
(ii) of this Agreement shall occur, then, in any such case,
the Company shall as soon as practicable thereafter give to
each holder of a Right Certificate, in accordance with
Section 25 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the
event to holders of Rights under Section ll (a) (ii) hereof.
Section 25. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by
the holder of any Right Certificate to or on the Company
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Indiana Energy, Inc.
1630 North Meridian Street
Indianapolis, Indiana 46202
Attention: 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:
First Chicago Trust Company of New York
525 Washington Boulevard, Suite 4660
Jersey City, NJ 07310
Attention: Tenders & Exchange Administration
Notices or demands authorized by this Agreement to be given
or made by the Company or the Rights Agent to the holder of
any Right Certificate shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry
books of the Company.
Section 26. Exchange.
(a) The Board of Directors of the Company may, at its
option, at any time after any Person becomes an Acquiring
Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 11(a)(ii)
hereof) for 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 Corporation, 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 (a) of this Section 26 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 Common Shares for Rights will be effected
and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall
be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions
of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 26, the
Company, at its option, may substitute equivalent common
shares, as such term is defined in Section 11(h) hereof, for
Common Shares exchangeable for Rights, as appropriately
adjusted to reflect adjustments in the voting rights of the
Common Shares pursuant to the terms thereof, so that the
fraction of an equivalent common share delivered in lieu of
each Common Share shall have the same voting rights as one
Common Share.
(d) 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.
(e) The Company shall not be required to issue fractions
of Common Shares or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common
Shares, the Company shall pay to the registered holders of
the Right Certificates with regard to which such fractional
Common Shares would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a
whole Common Share. For the purposes of this paragraph (e),
the current market value of a whole Common Share shall be the
closing price of a Common Share (as determined pursuant to
Section 11(d) hereof) for the Trading Day immediately prior
to the date of exchange pursuant to this Section 26.
Section 27. Supplements and Amendments. The Company and
the Rights Agent may from time to time supplement or amend
this Agreement without the approval of any holders of Right
Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein,
or to make any other provisions in regard to matters or
questions arising hereunder, which the Company and the Rights
Agent may deem necessary or desirable, including but not
limited to extending the Final Expiration Date and, provided
that at the time of such amendment there is no Acquiring
Person, extending the period of time during which the Rights
may be redeemed, and which shall not adversely affect the
interests of the holders of Right Certificates.
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 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.
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 Indiana 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day
and year first above written.
INDIANA ENERGY, INC.
Attest:
By /s/Ronald E. Christian By /s/Lawrence A. Ferger
Ronald E. Christian Lawrence A. Ferger
Title: Secretary Chairman, Chief Executive Officer and
President
FIRST CHICAGO TRUST COMPANY OF NEW YORK
Attest:
By /s/Michael Kane By /s/Joseph D. Schmittler
Michael Kane Joseph D. Schmittler
Title: Assistant Vice President Title: Vice President
EXHIBIT A
(Form of Right Certificate)
Certificate No. R- ______________________ ___________________Rights
EXERCISABLE AFTER MAY 31, 2006, OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
(THE RIGHTS REPRESENTED BY THIS CERTIFICATE WERE ISSUED
TO A PERSON WHO WAS AN ACQUIRING PERSON OR AN ASSOCIATE
OR AFFILIATE OF AN ACQUIRING PERSON. THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION
ll (a) (ii) OF THE RIGHTS AGREEMENT.)*
The portion of the legend in brackets shall be
inserted only if applicable.
Right certificate
INDIANA ENERGY, INC.
This certifies that ______________________, or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of
the Rights Agreement dated as of July 30, 1986, as amended
and restated as of December 8, 1989, and as amended and
restated on May 31, 1996, (the "Rights Agreement") between
Indiana Energy, Inc., an Indiana corporation (the "Company"),
and First Chicago Trust Company of New York (or any
Successor Rights Agent under the Rights Agreement,
hereinafter referred to as 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 City time) on May 31, 2006, at the
principal office of the Rights Agent, one fully paid,
non-assessable share of the Common Stock (the "Common Stock")
of the Company, at a purchase price of $60.00 per share (the
"Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly
executed. The number of Rights evidenced by this Right
Certificate (and the number of shares of Common Stock which
may be purchased upon exercise thereof) set forth above, and
the Purchase Price per share set forth above, are the number
and Purchase Price as of May 31, 1996, based on the shares
of Common Stock outstanding on such date.
As provided in the Rights Agreement, the Purchase Price
and the number of shares of Common Stock which may be
purchased upon the exercise of the Rights evidenced by this
Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof, and to which
Rights Agreement reference is hereby made for a full
description of the rights, limitations of 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
above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal offices of the
Rights Agent may be exchanged for another Right Certificate
or Rights Certificates of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate
number of shares of Common Stock as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right
Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof another Right
Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per
Right. No fractional shares of Common Stock will be issued
upon the exercise of any Right or Rights evidenced hereby,
but in lieu thereof a cash payment will be made, as provided
in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the
holder of shares of Common Stock or of any other securities
of the Company which may at any time be issuable on the
exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights,
or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in
the Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of
___________________, _________.
ATTEST: INDIANA ENERGY, INC.
____________________________ By________________________________
By Secretary Title
Countersigned:
____________________________
By__________________________
Authorized Signature
(Form of Reverse Side of Right Certificate)
FORM or ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Right Certificates.)
FOR VALUE RECEIVED _________________________________________________
hereby sells, assigns and transfers unto _______________________________
________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint __________________________ Attorney, to transfer the
within Right Certificate on the books of the within-name
Company, with full power of substitution.
Dated: ___________________, 19___.
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment must
correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To INDIANA ENERGY, INC.:
The undersigned hereby irrevocably elects to exercise
______________________ Rights represented by this Right Certificate
to purchase the shares of Common Stock issuable upon the exercise
of such Rights and requests that certificates for such shares be
issued in the name of:
Please insert social security
or other identifying number of:
________________________________________________________________________
(Please print name and address)
________________________________________________________________________
If such number of Rights shall not be all the Rights
evidenced by this Right Certificate, a new Right Certificate
for the balance remaining of such Rights shall be registered
in the name of and delivered to:
Please insert social security
or other identifying number
________________________________________________________________________
(Please print name and address)
Dated:
______________________, 19______
____________________________________
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Right Certificate)
Signature Guaranteed:
EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On April 26, 1996, the Board of Directors of Indiana
Energy, Inc. (the "Company") authorized the amendment and
restatement of the Shareholder Rights Agreement relating to
the common share purchase rights (a "Right" or "Rights")
issued for each outstanding share of all common stock,
without par value (the "Common Shares"), of the Company. If
and when the Rights become exercisable, each Right will
entitle the registered holder to purchase from the Company
one Common Share at a purchase price of $60.00 (the "Purchase
Price"), although the price may be adjusted as described
below. The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement") between the
Company and First Chicago Trust Company of New York as Rights
Agent (the "Rights Agent").
TRADING AND DISTRIBUTION OF RIGHTS
Initially, shareholders will not receive a separate
certificate for the Rights. The Rights will be represented by
the outstanding Common Share certificates with a copy of this
Summary of Rights attached thereto and the Rights cannot be
bought, sold or otherwise traded separately from the Common
Shares. Certificates for Common Shares issued after the
initial Record Date carry a notation that indicates that
Rights are attached to the Common Shares and that the terms
of the Rights Agreement are incorporated therein.
Separate certificates representing the Rights will be
distributed as soon as practicable after the "Distribution
Date," which is the earliest to occur of:
(1) 10 calendar days following a public announcement
that a person or group of affiliated or associated persons
(an "Acquiring Person") has (a) acquired beneficial ownership
of 15% or more of the outstanding Common Shares or (b) become
the beneficial owner of an amount of the outstanding Common
Shares (but not less than 10%) which the Board of Directors
determines to be substantial and which ownership the Board of
Directors determines is intended or may be reasonably
anticipated, in general, to cause the Company to take actions
determined by the Board of Directors to be not in the
Company's best long-term interests (an "Adverse Person"), or
(2) 10 business days (or such later date as may be
determined by action of the Board of Directors prior to the
time any person or group becomes an Acquiring Person)
following the commencement or announcement of an intention to
make a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or
group of 15% or more of such outstanding Common Shares.
Until the Distribution Date (or earlier exchange,
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.
EXERCISABILITY AND EXPIRATION
The holders of the Rights are not required to take any
action until the Rights become exercisable. As described
above, the Rights are not exercisable until the Distribution
Date. Holders of the Rights will be notified that the Rights
have become exercisable when the Rights Agent mails the
Rights Certificates. The Rights will expire on May 31, 2006
(the "Final Expiration Date"), unless the Final Expiration
Date is extended or unless the Rights are earlier redeemed by
the Company, in each case, as described below.
ADJUSTMENTS
In order to protect the value of the Rights to the
holders, the Purchase Price payable and the number of Common
Shares or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time (1) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common
Shares, (2) upon the grant to holders of the Common Shares of
certain rights or warrants to subscribe for or purchase
Common Shares at a price, or securities convertible into
Common Shares with a conversion price less than the then
current market price of Common Shares, or (3) upon the
distribution to holders of the Common Shares of evidences of
indebtedness or assets (excluding regular periodic cash
dividends paid out of earnings or retained earnings or
dividends payable in Common Shares) or of subscription rights
or warrants, other than those referred to above.
These adjustments are called anti-dilution provisions
and are intended to ensure that a holder of Rights will not
be adversely affected by the occurrence of such events. With
certain exceptions, the Company is not required to adjust the
Purchase Price until cumulative adjustments require a change
of at least 1% in the Purchase Price. No fractional Common
Shares will be issued and in lieu thereof, an adjustment in
cash will be made based on the market price of the Common
Shares on the last trading day prior to the date of exercise.
FLIP-OVER EVENTS AND FLIP-IN EVENTS
In the event that (1) the Company is acquired in a
merger or other business combination transaction and the
Company is not the surviving corporation, or (2) any person
consolidates or merges with the Company and all or part of
the Company's Common Shares are exchanged for securities,
cash or property of any other person, or (3) 50% or more of
the Company's consolidated assets or earning power are sold
(collectively, "Flip-Over Events"), proper provision will be
made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of
such transaction will have a market value of two times the
exercise price of the Right. In the event that a person (1)
acquires 15% or more of the outstanding Common Shares (an
"Acquiring Person") or (2) is declared an Adverse Person by
the Board of Directors of the Company,(collectively, "Flip-In
Events"), proper provision shall be made so that each holder
of a Right, other than Rights beneficially owned by the
Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times
the exercise price of the Right.
EXCHANGE OPTION
At any time after a person becomes an Acquiring Person,
and prior to the acquisition by such Acquiring Person of 50%
or more of the outstanding Common Shares, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which have become void),
in whole or in part, at an exchange ratio of one Common Share
per Right (subject to adjustment).
REDEMPTION
At any time prior to the tenth calendar day following
the date of a public announcement that a person or group has
become an Acquiring Person, 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 and 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.
If the Board of Directors' ability to redeem the Rights
pursuant to the Rights Agreement has expired because a person
or group has become an Acquiring Person, but a Flip-Over
Event or certain Flip-In Events have not yet occurred, the
redemption right will be reinstated if the Acquiring Person
disposes of a sufficient number of the Company's Common
Shares so that such person then owns only 10% or less of the
outstanding Company's Common Shares and if certain other
conditions are met.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders
of the Rights, except that from and after such time as any
person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to
receive dividends.
A copy of the Rights Agreement is available from the
Company at no charge upon written request. 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 incorporated herein by this reference.
