SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
FAMILY STEAK HOUSES OF FLORIDA, INC.
(Exact name of registrant as specified in its charter)
Florida 59-2597349
(State of Incorporation or organization) (I.R.S. Employer Identification No.)
2113 Florida Boulevard
Neptune Beach, Florida 32266
(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Junior
Participating Preferred Stock
(Title of Class)
The total number of pages is__________
The Exhibit Index is located on Page 5
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On March 18, 1997, the Board of Directors of Family Steak Houses of
Florida, Inc. (the "Company") declared a distribution of one Right for each
outstanding share of common stock (the "Common Stock") of the Company. The
description and terms of the Rights are set forth in a Rights Agreement between
the Company and ChaseMellon Shareholder Services, Inc., as Rights Agent (the
"Rights Agreement"). The following description does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement which is
attached as an exhibit and incorporated by reference. The distribution is to be
made as of March 19, 1997 (the "Record Date") to the shareholders of record on
that date. In addition, one Right will automatically attach to each share of
Common Stock issued between the Record Date and the Distribution Date (as
hereinafter defined). If the Rights become exercisable, each Right will entitle
the registered holder to purchase from the Company one one-hundredth of a share
of Junior Participating Preferred Stock (the "Preferred Stock") at a price of
$5.00 (the "Purchase Price"), subject to adjustment.
Initially, the Rights are not exercisable and are attached to and trade
with all outstanding shares of Common Stock outstanding as of, and issued
subsequent to, the Record Date. The Rights will separate from the Common Stock
and will become exercisable upon the earliest of (i) the close of business on
the tenth (10th) calendar day following the first public announcement that a
person or group of affiliated or associated persons has acquired beneficial
ownership of fifteen percent (15%) or more of the outstanding shares of Common
Stock (an "Acquiring Person") (the date of such announcement being referred to
as the "Stock Acquisition Date"), or the Record Date if the Stock Acquisition
Date occurs before the Record Date, (ii) the close of business on the tenth
(10th) business day (or such other day as the Board of Directors may determine)
after the date that a tender or exchange offer is first published, or sent or
given if upon consummation a person or group would become the beneficial owner
of fifteen percent (15%) or more of the outstanding shares of Common Stock (or
fifteen percent (15%) or more of the total voting power), or (iii) the close of
business on the tenth (10th) business day after a determination by the Board of
Directors that any person is an "Adverse Person" (the earliest of such dates
being herein referred to as the "Distribution Date").
The Board of Directors may declare a person to be an Adverse Person after a
determination that such person, alone or together with its affiliates and
associates, has become the beneficial owner of ten percent (10%) or more of the
outstanding shares of Common Stock or of voting securities representing ten
percent (10%) or more of the total voting power, and a determination by the
Board of Directors, after reasonable inquiry and investigation, that (i) such
beneficial ownership by such person is intended to cause the Company to
repurchase the Common Stock beneficially owned by such person or to cause
pressure on the Company to take action or enter into a transaction or series of
transactions which would provide such person with short-term financial gain
under circumstances where the Board of Directors 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 transaction or series of transactions
at that time, or (ii) such beneficial ownership is causing, or is reasonably
likely to cause, a material adverse impact on the business or prospects of the
Company (including, but not limited to, impairment of relationships with
customers, impairment of the Company's ability to maintain its competitive
position, impairment
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of the Company's capital position, impairment of the Company's ability to meet
the convenience and needs of the communities it serves, or impairment of the
Company's business reputation or ability to deal with government agencies) to
the detriment of the Company's shareholders.
Until the Distribution Date (or earlier redemption, exchange or expiration
of the Rights), (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after the Record Date,
but before the Distribution Date, will contain a notation incorporating the
Rights Agreement by reference, and (iii) the transfer of any certificates of
Common Stock will also constitute the transfer of the Rights associated with the
Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on March 17, 2007 (the "Expiration Date"), unless
previously redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, the Rights Agent will
mail Rights Certificates to holders of record of Common Stock as of the close of
business on the Distribution Date and, thereafter, the Rights will be evidenced
solely by such Rights Certificates. Rights shall be issued only on shares of
Common Stock issued prior to the earlier of the Distribution Date or the
Expiration Date.
In the event that a Stock Acquisition Date occurs (except pursuant to
certain business combinations described below or an offer for all outstanding
shares of FSH Common Stock and all other voting securities which the independent
and disinterested directors of FSH determine to be fair to and otherwise in the
best interests of FSH and its shareholders) or the Board of Directors determines
that a person is an Adverse Person, proper provision will be made so that each
holder of a Right (other than an Acquiring Person, an Adverse Person or their
associates or affiliates, or their transferee in certain circumstances, whose
Rights shall become null and void) will thereafter have the right to receive
upon exercise, in lieu of shares of Preferred Stock, that number of shares of
Common Stock obtained by (x) multiplying the Purchase Price by the number of
shares of Preferred Stock for which the Right was exercisable (y) divided by
half of the lowest closing price per share of the Common Stock on any trading
day in the twelve (12) months immediately prior to the Stock Acquisition Date or
determination that a person is an Adverse Person.
The Company may temporarily suspend, for no more than ninety (90) days, the
exercisability of the Rights in order to prepare and file a registration
statement as required by the Securities Act of 1933, as amended, with respect to
the securities purchasable upon exercise of the Rights and to permit such
registration statement to become effective.
In the event that, at any time following the Stock Acquisition Date (i) the
Company consolidates with, or merges with and into, any other person, and the
Company is not the
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continuing or surviving corporation, (ii) any person consolidates with the
Company, or mergers with and into the Company and the Company is the continuing
or surviving corporation of such merger and, in connection with such merger, all
or part of the shares of Common Stock are changed into or exchanged for stock or
other securities of any other person or cash or any other property, or (iii) the
Company sells or otherwise transfers in one transaction or series of related
transactions assets or earning power of the Company or its subsidiaries (taken
as a whole) to any person or persons, each holder of a Right shall thereafter
have the right to receive, upon exercise, common stock of the Principal Party
(as defined in the Rights Agreement) to the transaction having a market value
equal to two times the Purchase Price of the Right. The Principal Party shall
thereafter be liable for and shall assume all obligations and duties of the
Company pursuant to the Rights Agreement. Rights that are or were beneficially
owned by an Acquiring Person or an Adverse Person may (under certain
circumstances specified in the Rights Agreement) become null and void.
The Rights may be redeemed in whole, but not in part, at a price of $0.001
per Right, as such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction (the "Redemption Price"), by the
Board of Directors only until the earliest of (i) the close of business on the
tenth (10th) calendar day after the date on which a person is declared to be an
Adverse Person, (ii) the close of business on the tenth (10th) calendar day
after the Stock Acquisition Date, or (iii) the Expiration Date. Immediately upon
the action of the Board of Directors ordering redemption of the Rights, the
right to exercise the Rights will terminate and thereafter the only right of the
holders of Rights will be to receive the redemption price.
At any time after the Stock Acquisition Date occurs or the Board of
Directors determines that a person is an Adverse Person, subject to certain
exceptions, the Board of Directors may, at its option, exchange all or any part
of the then outstanding and exercisable Rights for shares of Common Stock or
equivalent equity security at an exchange ratio of one share of Common Stock or
equivalent equity security per Right.
The Purchase Price payable, and the number of shares of Preferred Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution that would result from
certain forms of distributions to holders of such Preferred Stock. With certain
exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least one percent (1%) of the Purchase
Price.
The Company is not obligated to issue fractions of Rights except prior to
the Distribution Date in certain circumstances nor to distribute Right
Certificates which evidence fractional Rights. The Company is not obligated to
issue fractions of Preferred Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred Stock. If the Company
elects not to issue fractional shares of Preferred Stock, an adjustment in cash
will be made in lieu thereof based on the fair market value of the Preferred
Stock on the last trading date prior the date of exercise.
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Any of the provisions of the Rights Agreement, other than the Redemption
Price, the Expiration Date, the Purchase Price or the number of shares of
Preferred Stock for which a Right is exercisable, may be amended by the Board of
Directors of the Company at any time prior to the Distribution Date.
After the Distribution Date, the Board of Directors may, subject to certain
limitations set forth in the Rights Agreement, amend the Rights Agreement only
to cure any ambiguity, defect or inconsistency, to shorten or lengthen any time
period, or to make changes that the Company deems necessary and desirable and
that do not adversely affect the interests of Rights holders (excluding the
interests of an Acquiring Person, an Adverse Person, or their associates or
affiliates).
Until a Right is exercised, the holder will have no rights as a shareholder
of the Company (beyond those as a holder of Common Stock), including the right
to vote or to receive dividends. While the distributions of the Rights will not
be taxable to shareholders or the Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for shares of the Common Stock, other securities of the Company,
other consideration or for common stock of an acquiring company.
Preferred Stock purchased upon exercise of the Rights will be entitled to
dividends of 100 times the dividends, per share, declared on the Common Stock
(or any subdivision thereof). In the event of liquidation, holders of Preferred
Stock will be entitled to a minimum preferential liquidating distribution of
$10.00 per share, and after holders of the Common Stock have received
distributions per share equal to $1.00, will be entitled to an additional
ratable distribution from the remaining assets in an amount equal to 10 times
the distribution made per share of Common Stock. The Preferred Stock shall have
no voting rights; provided, however, that if at the time of any annual meeting
of shareholders for the election of directors a default in six (6) consecutive
dividends on such Preferred Stock exists, then the number of directors shall be
increased by two (2) and all holders of Preferred Stock with dividends in
arrears shall have the right to vote as a single class, excluding common
stockholders, to elect two (2) such new directors. Directors so elected shall
hold office for their full terms unless removed by the holders of Preferred
Stock. When the directors' term of office ends and a default in Preferred Stock
dividends no longer exists, the number of directors constituting the Board shall
be reduced by two (2).
The form of Certificate of Designation for the Preferred Stock and the
Right Certificate are attached as Exhibits A and B, respectively, to the Rights
Agreement (which is included as Exhibit 1 to this Form 8-A).
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ITEM 2. EXHIBITS.
Exhibit 1 - Shareholder Rights Agreement, dated March 18, 1997, between
Family Steak Houses of Florida, Inc. and ChaseMellon Shareholder
Services, Inc., as Rights Agent (including the form of Certificate
of Designation for Junior Participating Preferred Stock and the
form of Rights Certificate).
Exhibit 2 - Summary of Rights to be sent to shareholders of Family Steak
Houses of Florida, Inc.
Exhibit 3 - Articles of Incorporation of Family Steak Houses of Florida, Inc.,
as amended
Exhibit 4 - Amended and Restated Bylaws of Family Steak Houses of Florida,
Inc.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Act of 1934,
the registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
Dated: March 19,1997
FLORIDA STEAK HOUSES OF FLORIDA, INC.
By:/s/ Lewis E. Christman
-------------------------
Lewis E. Christman, President
and Chief Executive Officer
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EXHIBIT INDEX
Exhibit Index
Exhibit No. Name of Item Sequential Page No.
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1 Shareholder Rights Agreement, dated March 18,
1997, between Family Steak Houses of Florida, Inc.
and ChaseMellon Shareholder Services, Inc., as
Rights Agent (including form of Certificate of
Designation for Junior Participating Preferred
Stock and for Rights)
2 Summary of Rights to be sent to shareholders of
Family Steak Houses of Florida, Inc.
3 Articles of Incorporation Incorporated by reference to Houses
of Family Steak of Florida, Inc., as amended
Exhibit 3.01, 3.03 and 3.04 to the
Corporation's Registration
Statement on Form S-1, Registration
Statement No. 33-1887
4 Amended and Restated Bylaws of Family Steak Houses
of Florida, Inc.
EXHIBIT 1
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of March 18, 1997 (the "Agreement"), between
FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation (the "Company"), and
CHASEMELLON SHAREHOLDER SERVICES, INC., a Delaware corporation (the "Rights
Agent").
W I T N E S S E T H:
WHEREAS, on March 18, 1997 (the "Rights Dividend Declaration Date"), the
Board of Directors of the Company authorized and declared a dividend
distribution of one Right for each share of the Company's common stock, par
value $.01 per share (the "Common Stock"), outstanding at the close of business
on March 19, 1997 (the "Record Date"), and has authorized the issuance of one
Right (as such number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for each share of Common Stock of the Company issued
between the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date, each Right initially representing
the right to purchase one one-hundredth of a share of Preferred Stock (a "Unit")
having the rights, powers and preferences set forth in the form of Certificate
of Designation attached hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
WHEREAS, the Board of Directors of the Company has considered whether
approval of this Agreement and the distribution of the Rights is in the best
interests of the Company and all other pertinent factors; and
WHEREAS, the Board of Directors of the Company has concluded that approval
of this Agreement and the distribution of the Rights is in the best interests of
the Company because the existence of the Rights will help (i) reduce the risk of
coercive two-tiered, front-end loaded or partial offers that may not offer fair
value to all shareholders, (ii) mitigate against market accumulators who through
open market and/or private purchases may achieve a position of substantial
influence or control without paying to selling or remaining shareholders a fair
control premium, (iii) deter market accumulators who are simply interested in
putting the Company into "play", (iv) restrict self-dealing by a substantial
shareholder, and (v) preserve the Board of Directors' bargaining power and
flexibility to deal with third party acquirors and to otherwise seek to maximize
values for all shareholders.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
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Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of (i) 15% or more of the shares of Common Stock or (ii) Voting
Securities representing 15% or more of the Total Voting Power, but shall
not include the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan.
(b) "Adverse Person" shall mean any Person declared to be an Adverse
Person by a majority of the members of the Board of Directors who are not
officers of the Company, upon a determination by such directors that the
criteria set forth in Section 11(a)(ii)(B) apply to such Person.
(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 and in effect on the
date of this Agreement.
(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, directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement
or understanding (whether or not in writing) or upon the
exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," (A) securities tendered pursuant to a
tender offer or exchange offer made by such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or (B)
securities issuable upon exercise of Rights at any time
prior to the occurrence of a Trigger- ing Event, or (C)
securities issuable upon exercise of Rights from and after
the occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person's Affiliates
or Associates prior to the Distribution Date or pursuant to
Section 3(a) or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of
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the General Rules and Regulations under the Exchange Act),
including, without limitation, pursuant to any agreement,
arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response
to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act, and
(B) is not also then reportable by such Person on Schedule
13D under the Exchange Act (or any comparable or successor
report); or
(iii)which are beneficially owned, directly or indirectly, by any
other Person (or any Affiliate or Associate thereof) with
which such Person (or any of such Person's Affiliates or
Associates) has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this
paragraph (d)) or disposing of any Voting Securities of the
Company;
provided, however, that nothing in this paragraph (d) shall cause a person
engaged in business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own", any securities acquired through such
person's participation in good faith in a firm commitment underwriting
until the expiration of forty days after the date of such acquisition.
(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 or Florida 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 time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next succeeding
Business Day.
(g) "Common Stock" shall mean the common stock, par value $.01 per
share, of the Company, except that Common Stock when used with reference to
any Person other than the Company shall mean the capital stock of such
Person with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of such
Person.
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(h) "Common stock equivalents" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(i) "Current market price" shall have the meaning set forth in Section
11(d)(i) hereof.
(j) "Current Value" shall have the meaning set forth in Section
11(a)(iii) hereof.
(k) "Distribution Date" shall have the meaning set forth in Section
3(a) hereof.
(l) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(m) "Executive Officer" shall mean any employee of the Company meeting
the definition of "officer" pursuant to Rule 16a-1(f) of the General Rules
and Regulations under the Exchange Act or designated as an executive
officer by resolution of the Company's Board of Directors.
(n) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(o) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(p) "Person" shall mean any individual, firm, corporation,
partnership, trust or other entity.
(q) "Preferred Stock" shall mean shares of Preferred Stock, $.01 par
value, of the Company.
(r) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(s) "Purchase Price" shall have the meaning set forth in Section 4(a)
hereof.
(t) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(u) "Rights" shall have the meaning set forth in the WHEREAS clause at
the beginning of this Agreement.
(v) "Rights Certificates" shall have the meaning set forth in Section
3(a) hereof.
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(w) "Section 11(a)(ii) Event" shall mean any event described in
clauses (A) or (B) of Section 11(a)(ii) hereof.
(x) "Section 11(a)(ii) Trigger Date" shall have the meaning set forth
in Section 11(a)(iii) hereof.
(y) "Section 13 Event" shall mean any event described in clauses (x),
(y) or (z) of Section 13(a) hereof.
(z) "Spread" shall have the meaning set forth in Section 11(a)(iii)
hereof.
(aa) "Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) under the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
(bb) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of Voting Securities sufficient to elect at
least a majority of the directors of such corporation is beneficially
owned, directly or indirectly, by such Person, or otherwise controlled by
such Person.
(cc) "Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
(dd) "Total Voting Power" on any given date shall mean the total
number of votes eligible to be cast in a general election of directors of
the Company.
(ee) "Trading Day" shall have the meaning set forth in Section
11(d)(i) hereof.
(ff) "Triggering Event" shall mean any Section 11(a)(ii) Event or
Section 13 Event.
(gg) "Unit" shall mean one one-hundredth of a share of Preferred
Stock, subject to adjustment as provided herein.
(hh) "Voting Securities" shall mean any class or classes of capital
stock of the Company entitled to vote generally in the election of
directors.
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 Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
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appointment. The Company may from time to time appoint such Co-Rights Agents as
it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earliest of (i) the Close of Business on the tenth (10th) day
after the Stock Acquisition Date (or, if the tenth (10th) day after the Stock
Acquisition Date occurs before the Record Date, the Close of Business on the
Record Date), (ii) the Close of Business on the tenth (10th) Business Day (or
such later date as may be determined by the Board of Directors of the Company,
in its sole discretion) after the date that a tender offer or exchange offer by
any Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any Person
or entity organized, appointed or established by the Company for or pursuant to
the terms of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act, if upon consummation thereof, such Person would be the Beneficial Owner of
(x) 15% or more of the shares of Common Stock then outstanding or (y) Voting
Securities representing 15% or more of the Total Voting Power, or (iii) the
Close of Business on the tenth (10th) Business Day after a majority of the
members of the Board of Directors who are not officers of the Company determine,
pursuant to the criteria set forth in Section 11(a)(ii)(B) hereof, that a Person
is an Adverse Person (the earliest of (i), (ii) or (iii) 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 the
Common Stock registered in the names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be certificates for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). As soon as practicable after
the Distribution Date, the Rights Agent will send by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock as of the Close
of Business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates, in substantially the
form of Exhibit B hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock so held, subject to adjustment as provided herein. In
the event that an adjustment in the number of Rights per share of Common Stock
has been made pursuant to Section 11(p) hereof, at the time of distribution of
the Rights Certificates, the Company shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the Distribution Date,
the Rights will be evidenced solely by such Rights Certificates.
(b) As promptly as practicable following the Record Date, the Company will
send a copy of a Summary of Rights, in substantially the form attached hereto as
Exhibit C (the "Summary of Rights"), by first-class, postage prepaid mail, to
each record holder of the Common Stock as of the Close of Business on the Record
Date, at the address of such holder shown on the records of the Company. With
respect to certificates for the Common Stock outstanding as
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of the Record Date, until the Distribution Date, the Rights will be evidenced by
such certificates for the Common Stock and the registered holders of the Common
Stock shall also be the registered holders of the associated Rights. Until the
earlier of the Distribution Date or the Expiration Date (as such term is defined
in Section 7 hereof), the transfer of any certificates representing shares of
Common Stock in respect of which Rights have been issued shall also constitute
the transfer of the Rights associated with such shares of Common Stock.
(c) Rights shall be issued in respect of all shares of Common Stock which
are issued (whether originally issued or from the Company's treasury) after the
Record Date but prior to the earlier of the Distribution Date or the Expiration
Date. Certificates representing such shares of Common Stock shall also be deemed
to be certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between Family Steak Houses of
Florida, Inc. (the "Company") and ChaseMellon Shareholder Services, Inc.
(the "Rights Agent") dated as of March 18, 1997 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate. The Company or the Rights Agent will mail to the holder of
this certificate a copy of the Rights Agreement, as in effect on the date
of mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Rights Agreement,
Rights issued to, or held by, any Person who is, was or becomes an
Acquiring Person, an Adverse Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), whether currently held
by or on behalf of such Person or by any subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing legend, until
the earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the transfer
of any of such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase and of
assignment to be printed on the reverse thereof) shall each be substantially in
the form set forth in Exhibit B 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
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applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Rights Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall entitle the holders thereof
to purchase such number of Units as shall be set forth therein at the price set
forth therein (such exercise price per share, the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of each Right and
the Purchase Price thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section 22
hereof that represents Rights beneficially owned by: (i) an Acquiring Person or
an Adverse Person or any Associate or Affiliate of an Acquiring Person or an
Adverse Person, (ii) a transferee of an Acquiring Person or an Adverse Person
(or of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person or Adverse Person becomes such, or (iii) a transferee of an
Acquiring Person or an Adverse Person (or of any such Associate or Affiliate)
who becomes a transferee prior to or concurrently with the Acquiring Person or
Adverse Person becoming such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the Acquiring Person or Adverse
Person to holders of equity interests in such Acquiring Person or Adverse Person
or to any Person with whom such Acquiring Person or Adverse Person has any
continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred to
in this sentence, shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person, an Adverse Person or an
Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the Rights represented
hereby have become null and void in the circumstances and with the effect
specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its President, or any Vice Chairman or Executive
Officer, or the Chief Financial Officer of the Company either manually or by
facsimile signature, and shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Corporate Secretary or an
Assistant Corporate Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned manually by the Rights
Agent and shall not be valid for any purpose unless so countersigned. In case
any officer of the Company who shall have signed any of the Rights Certificates
shall cease to be such officer of the Company
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before countersignature by the Rights Agent and issuance and delivery by the
Company, such Rights 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 Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its principal office or offices designated as the appropriate place
for surrender of Rights Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e), Section 14 and
Section 24 hereof, at any time after the Close of Business on the Distribution
Date, and at or prior to the Close of Business on the Expiration Date, any
Rights Certificate or Certificates may be transferred, split up, combined or
exchanged for other Rights Certificate or Certificates, entitling the registered
holder to purchase a like number of Units (or, following a Triggering Event,
Common Stock, other securities, cash or other assets, as the case may be) as the
Rights Certificate or Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Rights Certificate or
Certificates shall make such request in writing delivered to the Rights Agent,
and shall surrender the Rights Certificate or Certificates to be transferred,
split up, combined or exchanged at the principal office or offices of the Rights
Agent designated for such purpose. Neither the Rights Agent nor the Company
shall be obligated to take any action whatsoever with respect to the transfer of
any such surrendered Rights Certificate until the registered holder shall have
completed and signed the certificate contained in the form of assignment on the
reverse side of such Rights Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 4(b), Section 7(e) and
Section 14 hereof, countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights 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 Rights Certificates.
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(b) Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and reimbursement to the Company and
the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new Rights Certificate of like
tenor to the Rights Agent for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the restrictions or
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to Purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate Purchase Price with respect to
the total number of shares (or other securities, cash or other assets, as the
case may be) as to which such surrendered Rights are then exercisable, at or
prior to the earliest of (i) the Close of Business on March 17, 2007 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the earlier of (i) and (ii) being herein referred to as the
"Expiration Date") or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each Unit pursuant to the exercise of a Right
shall initially be $5.00, and shall be subject to adjustment from time to time
as provided in Sections 11 and 13(a) hereof and shall be payable in accordance
with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable Rights,
with the form of election to purchase and the certificate on the reverse side
thereof duly executed, accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per Unit (or other shares, securities, cash or
other assets, as the case may be) to be purchased as set forth below and an
amount equal to any applicable transfer tax, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Preferred Stock (or make available, if the Rights Agent
is the transfer agent for such shares) certificates for the total number of
shares of Preferred Stock to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares of Preferred
Stock issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such
number of shares of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company will
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direct the depositary agent to comply with such request, (ii) requisition from
the Company the amount of cash, if any, to be paid in lieu of fractional shares
in accordance with Section 14 hereof, (iii) after receipt of such certificates
or depositary receipts, cause the same to be delivered to or upon the order of
the registered holder of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after receipt thereof,
deliver such cash, if any, to or upon the order of the registered holder of such
Rights Certificate. The payment of the Purchase Price (as such amount may be
reduced pursuant to Section 11(a)(iii) hereof) shall be made in cash or by
certified bank check or bank draft payable to the order of the Company. In the
event that the Company is obligated to issue other securities (including Common
Stock) of the Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary so that
such other securities, cash and/or other property are available for distribution
by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Rights Certificate shall exercise
less than all the Rights evidenced thereby, a new Rights Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to, or upon the order of, the registered holder of
such Rights Certificate, registered in such name or names as may be designated
by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially
owned by (i) an Acquiring Person, an Adverse Person or an Associate or Affiliate
of an Acquiring Person or an Adverse Person, (ii) a direct or indirect
transferee of an Acquiring Person or an Adverse Person (or of any such Associate
or Affiliate) who becomes a transferee after the Acquiring Person or Adverse
Person becomes such, or (iii) a direct or indirect transferee of an Acquiring
Person or an Adverse Person (or of any such Associate or Affiliate) who becomes
a transferee prior to or concurrently with the Acquiring Person or Adverse
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person or Adverse Person
to holders of equity interests in such Acquiring Person or Adverse Person or to
any Person with whom the Acquiring Person or Adverse Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or (B)
a transfer which the Board of Directors of the Company has determined is part of
a plan, arrangement or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and void without any
further action and no holder of such Rights shall have any rights whatsoever
with respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) and Section 4(b) hereof are complied with, but
shall have no liability to any holder of Rights Certificates or other Person as
a result of its failure to make any determinations with respect to an Acquiring
Person or Adverse Person or any of their respective Affiliates, Associates or
transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither the
Rights Agent nor the Company shall be obligated to undertake any action with
respect to a
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registered holder upon the occurrence of any purported exercise as set forth in
this Section 7 unless such registered holder shall have (i) completed and signed
the certificate contained in the form of election to purchase set forth on the
reverse side of the Rights Certificate surrendered for such exercise, and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All Rights
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or 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 Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement, including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and, following the occurrence
of a Triggering Event, Common Stock and/or other securities) issuable and
deliverable upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for such
issuance to be listed on such exchange upon official notice of issuance upon
such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the first occurrence of a Section 11(a)(ii) Event, or, if
applicable, as soon as practicable following the earliest date after the first
occurrence of a Section 11(a)(ii) Event on which the consideration to be
delivered by the Company upon exercise of the Rights has been determined in
accordance with Section 11(a)(iii) hereof, a registration statement on an
appropriate form under the Securities Act of 1933 (the "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 Act) until the earlier
of (A) the date as of which the
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Rights are no longer exercisable for such securities, and (B) the Expiration
Date of the Rights. The Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or "blue sky" laws of the
various states in connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed ninety (90) days
after the date set forth in clause (i) of the first sentence of this Section
9(c), the exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration statement is required
following the Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as a registration statement has
been declared effective. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained, the
exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Preferred Stock (and, following
the occurrence of a Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and nonassessable.
(e) 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 Rights Certificates and of
any certificates for a number of shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be) 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 Rights Certificates to a
Person other than, or the issuance or delivery of a number of shares of
Preferred Stock (or Common Stock and/or other securities, as the case may be) in
respect of a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to issue or deliver
any certificates for a number of shares of Preferred Stock (or Common Stock
and/or other securities, as the case may be, in a name other than that of the
registered holder upon the exercise of any Rights until such tax shall have been
paid (any such tax being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in whose name any
certificate for a number of shares of Preferred Stock (or Common Stock and/or
other securities, as the case may be) is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock and/or other securities,
as the case may be) represented thereby on, and such certificate shall be dated,
the date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of
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the Purchase Price (and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the
Preferred Stock (or Common Stock and/or other securities, as the case may be)
transfer books of the Company are open. Prior to the exercise of the Rights
evidenced thereby, the holder of a Rights Certificate shall not be entitled to
any rights of a stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote,
to receive dividends or other distributions or to exercise any preemptive
rights, and shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. The Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of this
Agreement (A) declare a dividend on the Preferred Stock payable
in shares of Preferred Stock, (B) subdivide the outstanding
Preferred Stock, (C) combine the outstanding Preferred Stock into
a smaller number of shares, or (D) issue any shares of its
capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this
Section 11(a) and Section 7(e) hereof, the Purchase Price in
effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Preferred
Stock or capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to receive,
upon payment of the Purchase Price then in effect, the aggregate
number and kind of shares of Preferred Stock or capital stock, as
the case may be, which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred
Stock 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 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and
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shall be made prior to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement, in the event:
(A) any Person shall at any time after the Rights Dividend
Declaration Date become an Acquiring Person, unless the
event causing such Person to become an Acquiring Person (I)
is a transaction set forth in Sections 13(a) hereof, or (II)
is an acquisition of shares of Common Stock and/or Voting
Securities pursuant to a tender offer or an exchange offer
for all outstanding shares of Common Stock and Voting
Securities at a price and on terms determined by at least a
majority of the members of the Board of Directors who are
not officers of the Company and who are not representatives,
nominees, Affiliates or Associates of an Ac- quiring Person
or an Adverse Person, after receiving advice from one or
more investment banking firms, to be (x) at a price which is
fair to stockholders (taking into account all factors which
the Board of Directors deems relevant including, without
limitation, prices which could reasonably be achieved if the
Company or its assets were sold on an orderly basis designed
to realize maximum value) and (y) otherwise in the best
interests of the Company and its stockholders; or
(B) a majority of the members of the Board of Directors who are
not officers of the Company shall declare any Person to be
an Adverse Person, upon a determination that such Person,
alone or together with its Affiliates and Associates, has,
at any time after the Rights Dividend Declaration Date,
become the Beneficial owner of (I) at least 10% of the
shares of Common Stock then outstanding or (II) Voting
Securities representing at least 10% of the Total Voting
Power, and a determination, after reasonable inquiry and
investigation, including consultation with such persons as
such members of the Board of Directors shall deem
appropriate, that (a) such Beneficial Ownership by such
Person is intended to cause the Company to repurchase the
Common Stock and/or Voting Securities beneficially owned by
such Person or to cause pressure on the Company to take
action or enter into a transaction or series of transactions
intended to provide such Person with short-term financial
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<PAGE>
gain under circumstances where the Board of Directors
determine that the best long-term interests of the Company
and its stockholders would not be served by taking such
action or entering into such transaction or series of
transactions at that time or (b) such Beneficial Ownership
is causing or reasonably likely to cause a material adverse
impact on the business or prospects of the Company
(including, but not limited to, impairment of the Company's
relationships with customers, impairment of the Company's
ability to maintain its competitive position, impairment of
the Company's capital position, impairment of the Company's
ability to meet the convenience and needs of the communities
it serves, or impairment of the Company's business
reputation or ability to deal with governmental agencies) to
the detriment of the Company's stockholders;
then, promptly following the first occurrence of a Section
11(a)(ii) Event, proper provision shall be made so that each
holder of a Right (except as provided below and in Section
7(e) hereof) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a
number of shares of Preferred Stock, such number of shares
of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price
by the then number of shares of Preferred Stock for which a
Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and (y) dividing
that product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by 50% of the
lowest closing price (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) per share of Common
Stock on any Trading Day (as defined in Section 11(d)(i)
hereof) occurring within the twelve month period immediately
preceding the date of such first occurrence (such number of
shares, the "Adjustment Shares").
(iii)In the event that (A) the number of shares of Common Stock
which are authorized by the Company's Articles of
Incorporation but not outstanding or reserved for issuance
for purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this
Section 11(a), or (B) the quotient (the "Quotient") obtained
by dividing the Purchase Price by the number of
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Adjustment Shares issuable upon exercise of a Right is less
than the then par value per share of Common Stock, the
Company shall, to the extent permitted by applicable law and
regulation: (I) determine the excess of (1) the value of the
Adjustment Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price (such excess,
the "Spread"), and (II) with respect to each Right, make
adequate provision to substitute for the Adjustment Shares,
upon payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) Common Stock or other
equity securities of the Company (including, without
limitation, shares, or units of shares, of preferred stock
which the Board of Directors of the Company has deemed to
have the same value as shares of Common Stock (such shares
of preferred stock, "common stock equivalents"), (4) debt
securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value
equal to the Current Value, where such aggregate value has
been determined by the Board of Directors of the Company
based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors of the
Company; provided, however, if the Company shall not have
made adequate provision to deliver value pursuant to clause
(II) above within thirty (30) days following the later of
(x) the first occurrence of a Section 11(a)(ii) Event and
(y) the date on which the Company's right of redemption
pursuant to Section 23(a) expires (the later of (x) and (y)
being referred to herein as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring
payment of the Purchase Price, shares of Common Stock (to
the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors of the Company shall
determine in good faith that it is likely that (a)
sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the Rights
or (b) a reduction in the par value per share of Common
Stock to an amount that is equal to or less than the
Quotient could be authorized, the thirty (30) day period set
forth above may be extended to the extent necessary, but not
more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek shareholder
approval for the authorization of such additional shares or
for the reduction of such par value, as the case may be
(such period, as it may be extended, the "Substitution
Period"). To the extent that the Company determines that
some action need be taken pursuant to the first and/or
second sentences
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of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 7(e) hereof, that such action shall apply
uniformly to all outstanding Rights, and (y) may suspend the
exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of
additional shares or reduction in par value and/or to decide
the appropriate form of distribution to be made pursuant to
such first sentence and to determine the value thereof. In
the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect. For purposes of this Section 11(a)(iii), the value
of the Common Stock shall be the current market price (as
determined pursuant to Section 11(d) hereof) per share of
the Common Stock on the Section 11(a)(ii) Trigger Date and
the value of any "common stock equivalent" shall be deemed
to have the same value as the Common Stock on such date.
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Stock entitling them to
subscribe for or purchase (for a period expiring within forty-five (45) calendar
days after such record date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred Stock ("equivalent
preferred stock")) or securities convertible into Preferred Stock or equivalent
preferred stock at a price per share of Preferred Stock or per share of
equivalent preferred stock (or having a conversion price per share, if a
security convertible into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to Section 11(d) hereof)
per share of Preferred Stock on such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred Stock outstanding
on such record date, plus the number of shares of Preferred Stock which the
aggregate offering price of the total number of shares of Preferred Stock and/or
equivalent preferred stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such current market price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record date, plus the number of
additional shares of Preferred Stock and/or equivalent preferred stock 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 by delivery of consideration part or all of which may 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 and shall be binding on the Rights
Agent and the holders of the Rights. Shares of Preferred Stock owned by or held
for the account of the Company shall not be deemed outstanding for the purpose
of any such computation. Such adjustment shall be made successively whenever
such a record date is
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<PAGE>
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 a distribution to all
holders of Preferred Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Preferred Stock, but including any dividend
payable in stock other than Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on such record date, less the
fair market value (as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which shall be such current
market price (as determined pursuant to Section 11(d) hereof) per share of
Preferred Stock. Such adjustments shall be made successively whenever such a
record date is fixed, and in the event that such distribution is not so made,
the Purchase Price shall be adjusted to be the Purchase Price which would have
been in effect if such record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the
"current market price" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the thirty (30) consecutive
Trading Days (as such term is hereinafter defined) immediately
prior to such date, and for purposes of computations made
pursuant to Section 11(a)(iii) hereof, the "current market price"
per share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common
Stock for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event that
the current market price per share of the Common Stock is
determined during a period following the announcement by the
issuer of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other
than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and the ex-dividend date
for such dividend or distribution, or the record date for such
subdivision, combination or reclassification
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<PAGE>
shall not have occurred prior to the commencement of the
requisite thirty (30) Trading Day or ten (10) Trading Day period,
as set forth above, then, and in each such case, the "current
market price" shall be properly adjusted to take into account
ex-dividend trading. 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 shares of Common Stock 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 shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over the counter
market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System ("NASDAQ") or such other
system then in use, or, if on any such date the shares of Common
Stock 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 Stock selected by the
Board of Directors of the Company. If on any such date no market
maker is making a market in the Common Stock, the fair value of
such shares on such date as determined in good faith by the Board
of Directors of the Company shall be used. The term "Trading Day"
shall mean a day on which the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of business or,
if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a Business Day. If
the Common Stock is not publicly held or not so listed or traded,
"current market price" per share shall mean the fair value per
share as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for
all purposes.
(ii) For the purpose of any computation hereunder, the "current market
price" per share of Preferred Stock shall be determined in the
same manner as set forth above for the Common Stock in clause (i)
of this Section 11(d) (other than the last sentence thereof). If
the
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<PAGE>
current market price per share of Preferred Stock cannot be
determined in the manner provided above or if the Preferred Stock
is not publicly held or listed or traded in a manner described in
clause (i) of this Section 11(d), the "current market price" per
share of Preferred Stock shall be conclusively deemed to be an
amount equal to 100 (as such number may be appropriately adjusted
for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring
after the date of this Agreement) multiplied by the current
market price per share of the Common Stock. If neither the Common
Stock nor the Preferred Stock is publicly held or so listed or
traded, "Current market price" per share of the Preferred Stock
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 and
shall be conclusive for all purposes. For all purposes of this
Agreement, the "current market price" of a Unit shall be equal to
the "current market price" of one share of Preferred Stock
divided by 100.
(e) Anything herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the Purchase Price;
provided, however, that any adjustments which by reason of this Section 11(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share of Common Stock
or other share or one-millionth of a share of Preferred Stock, as the case may
be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (i) three
(3) years from the date of the transaction which mandates such adjustment, or
(ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Preferred Stock,
thereafter the number of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (i), (k) and (m), and the provisions of Sections 7, 9,
10, 13 and 14 hereof with respect to the Preferred Stock shall apply on like
terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Units purchasable from
time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
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<PAGE>
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of shares Preferred Stock
(calculated to the nearest one-millionth) obtained by (i) multiplying (x) the
number of shares covered by a Right immediately prior to this adjustment, by (y)
the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in lieu of any adjustment in the
number of Units purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be exercisable
for the number of Units 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 Rights
Certificates have been issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights 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 Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by the
Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and counter-signed in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of shares of Preferred Stock issuable upon the exercise of the Rights,
the Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per Unit and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then stated value, if any, of the number of shares of
Preferred Stock
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<PAGE>
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 such number
of shares of Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
the number of shares of Preferred Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise over and above the number of
shares of Preferred Stock and other capital stock or securities of the Company,
if any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such reductions in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith judgment the Board of
Directors of the Company shall determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for
cash of any shares of Preferred Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Preferred Stock or securities which
by their terms are convertible into or exchangeable for shares of Preferred
Stock, (iv) stock dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell or transfer), in one
transaction, or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), if (x) at the time of or immediately after
such consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the shareholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned by
such Person or any of its Affiliates and Associates.
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<PAGE>
(o) The Company covenants and agrees that, after the Distribution Date, it
will not, except as permitted by Section 27 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a dividend on the
outstanding shares of Common Stock payable in shares of Common Stack, (ii)
subdivide the outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of shares, the number
of Rights associated with each share of Common Stock then outstanding, or issued
or delivered thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the numerator of
which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 and Section 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights Certificate (or, if prior to
the Distribution Date, to each holder of a certificate representing shares of
Common Stock) in accordance with Section 26 hereof. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained.
Section 13. Consolidation, Merger or Sale of Transfer of Assets or Earning
Power.
(a) In the event that, following the Stock Acquisition Date, directly or
indirectly, (x) the Company shall consolidate with, or merge with and into, any
other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger, (y) any Person (other
than a Subsidiary of the Company in a transaction which complies with Section
11(o) hereof) shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such consolidation or merger,
all or part of the outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more than
50% of the assets or earning
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<PAGE>
power of the Company and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof), then, and in
each such case (except as may be contemplated by Section 13(d) hereof), proper
provision shall be made so that: (i) each holder of a Right, except as provided
in Section 7(e) hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance with the terms
of this Agreement, such number of validly authorized and issued, fully paid,
non-assessable and freely tradeable shares of Common Stock of the Principal
Party (as such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as shall be equal
to the result obtained by (1) multiplying the then current Purchase Price by the
number of shares of Preferred Stock for which a Right is exercisable immediately
prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii)
Event has occurred prior to the first occurrence of a Section 13 Event,
multiplying the number of such shares for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii) Event by the
Purchase Price in effect immediately prior to such first occurrence), and
dividing that product (which, following the first occurrence of a Section 13
Event, shall be referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by (2) 50% of the current market price (determined
pursuant to Section 11(d)(i) hereof) per share of the Common Stock of such
Principal Party on the date of consummation of such Section 13 Event; (ii) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant to
this Agreement; (iii) the term "Company" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply only to such Principal Party following the first
occurrence of a Section 13 Event; (iv) such Principal Party shall take such
steps (including, but not limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and (v) the provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean (i) in the case of any transaction
described in clause (x) or (y) of the first sentence of Section 13(a), the
Person that is the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation and if no securities
are so issued, the Person that is the other party to such merger or
consolidation and (ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to such
transaction or transactions; provided, however, that in any such case, (1) if
the Common Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so
registered, "Principal Party" shall refer to such other Person; and (2) in case
such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to
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<PAGE>
whichever of such Persons is the issuer of the Common Stock having the greatest
aggregate market value.
(c) The Company shall not consummate any such consolidation, merger, sale
or transfer unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets mentioned in paragraph (a) of this
Section 13, the Principal Party will
(i) prepare and file a registration statement under the Act, with
respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical financial statements
for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10
under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13 Event
shall occur at any time after the occurrence of a Section 11(a)(ii) Event, the
Rights which have not theretofore been exercised shall thereafter become
exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the contrary, Section 13
shall not be applicable to a transaction described in subparagraphs (x) and (y)
of Section 13(a) if (i) such transaction is consummated with a Person or Persons
who acquired shares of Common Stock pursuant to a tender offer or exchange offer
for all outstanding shares of Common Stock at a price and on terms determined to
be in accordance with the provisions of clause (II) of Section 11(a)(ii)(A)
hereof (or a wholly owned subsidiary of any such Person or Persons), (ii) the
price per share of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of shares of Common Stock
whose shares were purchased pursuant to such tender offer or exchange offer and
(iii) the form of consideration being offered to the remaining holders of shares
of Common Stock pursuant to such transaction is the same as the form of
consideration paid pursuant to such tender offer or exchange offer. Upon
consummation of any such transaction contemplated by this Section 13(d), all
Rights hereunder shall expire.
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<PAGE>
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights, except
prior to the Distribution Date as provided in Section 11(p) hereof, or to
distribute Rights Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the Rights
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 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 of the Rights 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 shares of
Preferred Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares of Preferred Stock (other than fractions which are
integral multiples of shares of Preferred Stock). In lieu of fractional shares
of Preferred Stock that are not integral multiples of shares of Preferred Stock,
the Company may pay to the registered holders of Rights 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 shares of Preferred Stock. For purposes
of this Section 14(b), the current market value of shares of Preferred Stock
shall be the closing price of a share of Preferred Stock (as determined pursuant
to Section 11(d)(ii) hereof) for the Trading Day immediately prior to the date
of such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall not
be required to issue fractions of shares of Common Stock upon exercise of the
Rights or to distribute certificates which evidence fractional shares of Common
Stock. In lieu of fractional shares of Common Stock, the Company may pay to the
registered holders of Rights 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 (1) share of Common Stock. For purposes of this Section
14(c), the current market value of one share of Common Stock shall be the
closing price of one share of
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<PAGE>
Common Stock (as determined pursuant to Section 11(d)(i) hereof) for the
Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Rights expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock), and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights Certificate in the manner provided
in such Rights 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 shall be entitled to specific performance
of the obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights 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 Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer
and with the appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company and
the Rights Agent may deem and treat the person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the
Rights evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7(e) hereof, shall be required to
be affected by any notice to the contrary; and
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(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Person as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation; provided, however,
the Company must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No holder,
as such, of any Rights Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of shares of Preferred
Stock or any other securities of the Company which may at any time be issuable
upon the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel fees and disbursements 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 provisions of this Section 18(a) shall survive
the termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no liability for or
in respect of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or document
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons.
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Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent shall be a party, or any corporation
succeeding to the 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, however, 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 Rights Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior name or in
its changed name; and in all such cases such Rights Certificates shall have the
full force provided in the Rights 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 Rights 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
(including, without limitation, the identity of any Acquiring Person and
the determination of "current market price") be proved or established by
the Company prior to taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the President, any Vice
Chairman or Executive Officer, the Chief Financial Officer, the Treasurer,
any Assistant Treasurer, the Corporate Secretary or any Assistant Corporate
Secretary of the
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Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Rights Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights 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 Rights Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such
adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such adjustment); nor shall
it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Common Stock or Preferred Stock
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge an(i
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President, any Vice Chairman or Executive
Officer, the Chief Financial Officer, the Corporate Secretary or any
Assistant Corporate Secretary of the Company, and to apply to such officers
for advice or instructions in connection with its duties, and it shall not
be liable for any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money, to the Company or otherwise act as fully and freely as though
it
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were not Rights Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct; provided, however, reasonable
care was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has
either not been completed or indicates an affirmative response to clause 1
and/or 2 thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting
with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the Company, and to each
transfer agent of the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders, if any, of the Rights Certificates by first
class mail. The Company may remove the Rights Agent or any successor Rights
Agent upon ten (10) days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified mail, and to the
holders of the Rights 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 ten (10) days after giving notice of
such removal, or within a period of thirty (30) days 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 Rights Certificate (who shall, with such
notice, submit his Rights Certificate for inspection by the Company), as the
case may be, then the Rights Agent or any registered holder of any Rights
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 any state of the United States so long
as such corporation is authorized under such laws to exercise corporate trust
powers and is subject to supervision or examination by federal or state
authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $100,000,000. After
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appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock and the
Preferred Stock, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights 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 Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection with the issuance
or sale of shares of Common Stock following the Distribution Date and prior to
the redemption or expiration of the Rights, the Company (a) shall, with respect
to shares of Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, granted or awarded on or
prior to the Distribution Date, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of Directors of the Company, issue
Rights Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its option, at any time
prior to the earlier of (i) the Close of Business on the tenth (10th) day
following the Stock Acquisition Date (or, if the Stock Acquisition Date shall
have occurred prior to the Record Date, the Close of Business on the tenth
(10th) day following the Record Date), (ii) the Close of Business on the tenth
(10th) day following a declaration by the Board of Directors of the Company that
a person is an Adverse Person, or (iii) the Final Expiration Date, redeem all
but not less than all the then outstanding Rights at a redemption price of $.001
per Right, as such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the
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<PAGE>
"Redemption Price"). Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event until such time as the Company's right of redemption
hereunder has expired. The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the "current market price", as defined
in Section 11(d)(i) hereof, of the Common Stock at the time of redemption) or
any other form of consideration deemed appropriate by the Board of Directors.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last address as it appears 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 Stock. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state the method
by which the payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any time
and from time to time after the first occurrence of a Section 11(a)(ii) Event,
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
7(e) hereof) for shares of Common Stock or common stock equivalents (as defined
in Section 11(a)(iii) hereof), or any combination thereof, at an exchange ratio
of one share of Common Stock, or such number of common stock equivalents or
units representing fractions thereof as would be deemed to have the same value
as one share of Common Stock, per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the "Exchange
Ratio").
(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
24 and without any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock and/or common
stock equivalents 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
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<PAGE>
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 shares of
Common Stock and/or common stock equivalents 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
7(e) hereof) held by each holder of Rights.
(c) In the event that the number of shares of Common Stock which are
authorized by the Company's Articles of Incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights are
not sufficient to permit an exchange of Rights as contemplated in accordance
with this Section 24, the Company may, at its option, take all such action as
may be necessary to authorize additional shares of Common Stock for issuance
upon exchange of the Rights.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, the Company
shall pay to the registered holders of Rights with regard to which such
fractional shares of Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the value of a whole share of Common Stock. For
purposes of this Section 24, the value of a whole share of Common Stock shall be
the closing price (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24, and the value of any common stock equivalent shall
be deemed to have the same value as the Common Stock on such date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the holders of Preferred
Stock (other than a regular quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares of
Preferred Stock or shares of stock of any class or any other securities, rights
or options, or (iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of outstanding
shares of Preferred Stock), or (iv) to effect any consolidation or merger into
or with any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one transaction or a series of related transactions, of
more than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each of which complies with
Section 11(o) hereof), or (v) to effect the liquidation, dissolution or winding
up of the Company, then, in each such case, the Company shall give to each
holder of a Rights Certificate, to the extent feasible
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and in accordance with Section 26 hereof, a notice of such proposed action,
which shall specify the record date for the purposes of such stock dividend,
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
shares of Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i), (ii) or (iii)
above at least twenty (20) days prior to the record date for determining holders
of the shares of Preferred Stock for purposes of such action, and in the case of
any such other action, at least twenty (20) days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
the shares of Preferred Stock whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then, (i) the Company
shall as soon as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26 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 11(a)(ii) hereof,
and (ii) all references in the preceding paragraph to Preferred Stock shall be
deemed thereafter to refer to Common Stock and/or, if appropriate, other
securities.
Section 26. Notices. Subject to the provisions of Section 21, Notices or
demands authorized by this Agreement to be given or made by the Rights Agent or
by the holder of any Rights 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:
ChaseMellon Shareholder Services, Inc.
11th Floor
111 Founders Plaza
East Hartford, CT 06108
Attention: Mitzi Brinkman
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
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:
Family Steak Houses of Florida, Inc.
2113 Florida Boulevard
Jacksonville, Florida 32256
Attention: Corporate Secretary
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made
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if sent by first-class mail, postage prepaid, addressed to such holder at the
address of such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the Distribution Date and
subject to the penultimate sentence of this Section 27, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend any provision
of this Agreement without the approval of any holders of certificates
representing shares of Common Stock. From and after the Distribution Date and
subject to the penultimate sentence of this Section 27, the Company and the
Rights Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights Certificates in order
(i) to cure any ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder, or (iv) to change or
supplement the provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the interests of the
holders of Rights Certificates (other than an Acquiring Person, an Adverse
Person or an Affiliate or Associate of any such Person); provided, this
Agreement may not be supplemented or amended to lengthen, pursuant to clause
(iii) of this sentence, (A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of Rights. Upon
the delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the terms
of this Section 27, the Rights Agent shall execute such supplement or amendment,
provided that such supplement or amendment does not adversely affect the rights
or obligations of the Rights Agent under Section 18 or Section 20 of this
Agreement. Notwithstanding anything contained in this Agreement to the contrary,
no supplement or amendment shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price, or the number of shares of Preferred
Stock for which a Right is exercisable. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
Section 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. Determinations and Actions by the Board of Directors, etc. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock and/or Voting Securities outstanding at any particular time,
including for purposes of determining the particular percentage of such
outstanding shares of Common Stock and/or Voting Securities of which any Person
is the Beneficial Owner, shall be made in accordance with the last sentence of
Rule 13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act
as in effect on the date hereof. The Board of Directors of the Company (or,
where specified in a Section of this Agreement, those members of the Board of
Directors other than certain members thereof specified in such Section) shall
have the exclusive power and authority to administer this
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Agreement and to exercise all rights and powers specifically granted to the
Board (or, where specified in a Section of this Agreement, those members of the
Board of Directors other than certain members thereof specified in such Section)
or to the Company, or as may be necessary or advisable in the administration of
this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including a determination to redeem or not redeem the Rights or to amend the
Agreement). All such actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (or, where specified in a Section
of this Agreement, those members of the Board of Directors other than certain
members thereof specified in such Section) in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights and all other parties, and (y) not subject the Board (or, where specified
in a Section of this Agreement, those members of the Board of Directors other
than certain members thereof specified in such Section) to any liability to the
holders of the Rights.
Section 30. 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 Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth (10th) day following the date of such determination by the Board of
Directors. Without limiting the foregoing, if any provision requiring that a
determination be made by less than the entire Board is held by a court of
competent jurisdiction or other authority to be invalid, void or unenforceable,
such determination shall then be made by the entire Board.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Florida and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
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Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ATTEST: FAMILY STEAK HOUSES OF FLORIDA,
INC.
By:______________________ By:________________________
Edward B. Alexander Lewis E. Christman, Jr.
Corporate Secretary Chief Executive Officer
ATTEST: CHASEMELLON SHAREHOLDER
SERVICES, INC.
By: _________________________ By:_________________________
Name: _________________________ Name:_______________________
Title: _________________________ Title:______________________
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EXHIBIT A
ARTICLES OF AMENDMENT
DESIGNATING THE
PREFERENCES, RIGHTS AND LIMITATIONS OF
JUNIOR PARTICIPATING PREFERRED STOCK
$0.01 PAR VALUE
OF
FAMILY STEAK HOUSES OF FLORIDA, INC.
Pursuant to Section 607.0602 of the
Florida Business Corporation Act
FAMILY STEAK HOUSES OF FLORIDA, INC., a corporation organized and existing
under the laws of the State of Florida (the "Corporation"), HEREBY CERTIFIES
that the following amendments were duly adopted by the Board of Directors of the
Corporation on March 18, 1997, pursuant to authority conferred upon the Board of
Directors by the provisions of the Articles of Incorporation of the Corporation.
(a) Designation. The designation of the series of Preferred Stock created
by this resolution shall be Junior Participating Preferred Stock (hereinafter
called "this Series") and the number of shares constituting this series is one
hundred twenty thousand (120,000).
(b) Dividends.
(1) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the
shares of this series with respect to dividends, the holders of shares of
this Series shall be entitled to receive, when and as declared by the Board
of Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on March 15, June 15, September 15 and December
15 of each year (each such date being referred to herein as a Quarterly
Dividend Payment Date after the first issuance of a share or fraction of a
share of this series, in an amount per share (rounded to he nearest cent)
equal to the greater of (A) $1.00 or (B) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per share amount
of all cash dividends, and 100 times the aggregate per share amount
(payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock, par value $0.01 per share, of the Corporation
(the "Common Stock") since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction of a share of this
Series. In the event the Corporation shall at any time after March 18, 1997
(the "Rights Declaration Date") (i)
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declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such
case the amount to which holders of shares of this Series were entitled
immediately prior to such event under clause (B) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(2) The Corporation shall declare a dividend or distribution on this
Series as provided in clause (A) of the preceding paragraph (1) immediately
after it declares a dividend or distribution on the Common Stock (other
than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the
next Quarterly Dividend Payment Date, a dividend of $1.00 per share on this
Series shall nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(3) Dividends shall begin to accrue and be cumulative on outstanding
shares of this Series from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of this Series unless the date
of issue of such shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of this Series entitled to
receive a quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the shares of this
Series in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of holders
of shares of this Series entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be no more than 30
days prior to the date fixed for the payment thereof.
(4) No full dividends shall be declared or paid or set apart for
payment on the Preferred Stock of any series ranking, as to dividends, on a
parity with or junior to this Series for any period unless full cumulative
dividends have been or contemporaneously are declared and a sum sufficient
for the payment thereof set apart for such payment on this Series for all
dividend payment periods terminating on or prior to the date of payment of
such full cumulative dividends. When dividends are not paid in full, as
aforesaid, upon the shares of this Series and any other Preferred Stock
ranking on a parity as to dividends with this Series, all dividends
declared upon shares of this Series and any other Preferred
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Stock ranking on a parity as to dividends with this Series shall be
declared pro rata so that the amount of dividends declared per share on
this Series and such other Preferred Stock shall in all cases bear to each
other the same ratio that accrued dividends per share on the shares of this
Series and such other Preferred Stock bear to each other. Holders of shares
of this Series shall not be entitled to any dividends, whether payable in
cash, property or stock, in excess of full cumulative dividends, as herein
provided, on this Series. No interest, or sum of money in lieu of interest,
shall be payable in respect of any dividend payment or payments on this
Series which may be in arrears.
(5) So long as any shares of this Series are outstanding, no dividend
(other than a dividend in Common Stock or in another stock ranking junior
to this Series as to dividends and upon liquidation and other than as
provided in paragraph (4) of this Section (b) shall be declared or paid or
set aside for payment or other distribution declared or made upon the
Common Stock, or upon any other stock ranking junior to or on a parity with
this Series as to dividends or upon liquidation, nor shall any Common
Stock, or any other stock of the Corporation ranking junior to or upon a
parity with this Series as to dividends or upon liquidation, be redeemed,
purchased or otherwise acquired for any consideration (or any moneys be
paid to or made available for a sinking fund for the redemption of any
shares of stock) by the Corporation (except by conversion into or exchange
for stock of the Corporation ranking junior to this Series as to dividends
and upon liquidation) unless, in each case, the full cumulative dividends
on all outstanding shares of this Series shall have been paid for all past
dividend payment periods.
(c) Redemption.
(1) The shares of this Series shall be redeemable only as expressly
provided in this Section (c). The Corporation, at its option, may redeem
shares of this Series, as a whole or in part, at any time or from time to
time, at a redemption price equal to, subject to the provisions for
adjustment thereinafter set forth, 100 times the "current per share market
price" of the Common Stock on the date of the mailing of the notice of
redemption, plus accrued and unpaid dividends to the date fixed for such
redemption. In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding Common Stock or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in each such case the amount to which holders of shares of this Series were
otherwise entitled immediately prior to such event under the preceding
sentence shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event. The "current per share market price" on any date shall be deemed to
be the average of the closing price per share of such Common Stock for the
30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date. The closing price for each day shall be the
last sale price,
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regular way, or, in case no such sale takes place on such day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Common Stock is not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if the Common Stock is
not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association for Securities Dealers, Inc. Automated Quotation System
("NASDAQ") or such other system then in use or, if on any such date the
Common Stock is not quoted by any such organization, the average of the
closing bid and asked price as furnished by a professional market maker
making a market in the Common Stock selected by the Board of Directors of
the Corporation. If on such date no such market maker is making a market in
the Common Stock, the fair value of the Common Stock on such date as
determined in good faith by the Board of Directors of the Corporation shall
be used. The term "Trading Day" shall mean the day on which the principal
national securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business or, if the
Common Stock is not listed or admitted to trading on any national
securities exchange, a Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the State of New York or Florida are not
authorized or obligated by law or executive order to close.
(2) In the event that fewer than all the outstanding shares of this
Series are to be redeemed, the number of shares to be redeemed shall be
determined by the Board of Directors and the shares to be redeemed shall be
determined by lot or pro rata as may be determined by the board of
Directors or by any other method which may be determined by the Board of
Directors in its sold discretion to be equitable.
(3) In the event the Corporation shall redeem shares of this Series,
notice for such redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
redemption date, to each holder of record of record of the shares to be
redeemed, at such holder's address as the same appears on the stock
register of the Corporation. Each such notice shall state: (i) the
redemption date (ii) the number of shares of this Series to be redeemed
and, (if fewer than all the shares held by such holder are to be redeemed,
the number of such shares to be redeemed from such holder; (iii) the
redemption price; (iv) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and (v)
that dividends on the shares to be redeemed will cease to accrue on the
close of business on such redemption date.
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(4) Notice having been mailed as aforesaid, from and after the
redemption date (unless default shall be made by the Corporation in
providing money for the payment for the redemption price) dividends on the
share of this Series so called for redemption shall cease to accrue, and
said shares shall no longer be deemed to be outstanding, and all rights of
the holders thereof as stockholders of the Corporation (except the right to
receive from the Corporation the redemption price) shall cease. Upon
surrender in accordance with said notice of the certificates for any shares
so redeemed (properly endorsed or assigned for transfer, if the Board of
Directors of the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation at the redemption
price aforesaid. In case fewer than all the shares represented by any such
certificate are redeemed, a new certificate shall be issued representing
the unredeemed shares without cost to the holder thereof.
(5) Any shares of this Series which shall at any time have been
redeemed shall, after such redemption, have the status of authorized but
unissued shares of Preferred Stock without designation as to series until
such shares are once more designated as part of a particular series by the
Board of Directors.
(6) Notwithstanding the foregoing provisions of this Section (c), if
any dividends on this Series are in arrears, no shares of this Series shall
be redeemed unless all outstanding shares of this Series are simultaneously
redeemed, and the Corporation shall not purchase or otherwise acquire any
shares of this Series; provided, however, that the foregoing shall not
prevent the purchase or acquisition of shares of this Series pursuant to a
purchase or exchange offer made on the same terms to holders of all
outstanding shares of this Series.
(d) Conversion or Exchange. The holders of shares of this Series shall not
have any rights to convert such shares into or exchange such shares for shares
of any other class or classes or of any other series of any class or classes of
capital stock of the Corporation.
(e) Voting. The shares of this Series shall not have any voting powers
either general or special, except that if at the time of any annual meeting of
stockholders for the election of directors a default in preference dividends on
this Series for six quarters shall exist, the number of directors constituting
the Board of Directors of the Corporation shall be increased by two, and the
holders of the Preferred Stock of all series with respect to which dividends are
in arrears and upon which comparable voting rights have been conferred (whether
or not the holders of such series of Preferred Stock would be entitled to vote
for the election for directors if such default in preference dividends did not
exist), shall have the right at such meeting, voting together as a single class
without regard to series, to the exclusion of the holders of Common Stock, to
elect two directors of the Corporation to fill such newly created directorships.
Such right shall continue until there are no dividends in arrears upon the
Preferred Stock. Each director elected by the holders of shares of Preferred
Stock (hereinafter called a "Preferred Director") shall continue to serve as
such director for the full term for which he shall have been elected,
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notwithstanding that prior to the end of such term a default in preference
dividends shall cease to exist. Any Preferred Director may be removed by, and
shall not be removed except by, the vote of the holders of record of the
outstanding shares of Preferred Stock voting together as a single class without
regard to series, at a meeting of the stockholders, or of the holders of shares
of Preferred Stock called for the purpose. So long as a default in any
preference dividends on the Preferred Stock shall exist, (A) any vacancy in the
office of a Preferred Director may be filled (except as provided in the
following clause (B)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (B) in the case of removal
of any Preferred Director, the vacancy may be filled by the vote of the holders
of the outstanding shares of Preferred Stock voting together as a single class
without regard to series, at the same meeting at which such removal shall be
voted. Each director appointed as aforesaid by the remaining Preferred Director
shall be deemed, for all purposes hereof, to be a Preferred Director. Whenever
the term of office of the Preferred Directors shall end and a default in
preference dividends shall no longer exist, the number of Directors constituting
the Board of Directors of the Corporation shall be reduced by two. For the
purposes hereof, a "default in preference dividends" on the Preferred Stock
shall be deemed to have occurred whenever the amount of accrued dividends upon
any series of the Preferred Stock shall be equivalent to six full quarter-yearly
dividends or more, and, having so occurred, such default shall be deemed to
exist thereafter until, but only until, all accrued dividends on all shares of
Preferred Stock of each and every series then outstanding shall have been paid
to the end of the last preceding quarterly dividend period.
(f) Liquidation Rights.
(1) Upon the dissolution, liquidation or winding up of the
Corporation, the holders of the shares of this Series shall be entitled to
receive out of the assets of the Corporation, before any payment or
distribution shall be made on the Common Stock, or on any other class of
stock ranking junior to the Preferred Stock upon liquidation, the amount of
$10 per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution (the "Liquidation Preference").
Following the payment of the full amount of the Liquidation
Preference, no additional distributions shall be made to the holders of
shares of this Series unless, prior thereto, the holders of shares of
Common Stock shall have received an amount per share (the "Common
Adjustment") equal to the quotient obtained by dividing (i) the Liquidation
Preference by (ii) 10 (as appropriately adjusted as set forth in paragraph
(2) below to reflect such events as stock splits, stock dividends and
recapitulations with respect to the Common Stock) (such number in clause
(ii), the "Adjustment Number"). Following the payment of the full amount of
the Liquidation Preference and Common Adjustment, in respect of all
outstanding shares of Junior Participating Preferred Stock and Common
Stock, holders of this Series and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the
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Adjustment Number to 1 with respect to such Junior Participating Preferred
Stock and Common Stock, on a per share basis, respectively.
(2) In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the Adjustment Number
in effect immediately prior to such Event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which
is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such event.
(3) The sale, conveyance, exchange or transfer (for cash,
shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Corporation shall be
deemed a voluntary dissolution, liquidation or winding up of the
Corporation for the purposes of this Section (f), but the merger or
consolidation of the Corporation into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation, shall not be deemed to be a dissolution, liquidation or
winding up, voluntarily or involuntarily, for the purposes of this
Section (f).
(4) After the payment to the holders of the shares of this
Series of the full preferential amounts provided for in this Section
(f), the holders of this Series as such shall have no right or claim to
any of the remaining assets of the Corporation.
(5) In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon any
dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (1) of
this Section (f), no such distribution shall be made on account of any
share of any other class or series of Preferred Stock ranking of a
parity with the shares of this Series upon such dissolution,
liquidation or winding up unless proportionate distributive amounts
shall be paid on account of the shares of this series, ratably, in
proportion to the full distributable amounts for which holders of all
such parity shares are respectively entitled upon such dissolution,
liquidation or winding up.
(g) Ranking. Unless otherwise provided in the Articles of Incorporation
or a Certificate of Designation relating to a subsequent series of Preferred
Stock of the Corporation, this Series shall rank junior to all other series of
the Corporation's Preferred Stock as to the payment of dividends and the
distribution of assets on liquidation, dissolution or winding up and senior to
the Common Stock.
IN WITNESS WHEREOF, FAMILY STEAK HOUSES OF FLORIDA, INC., has caused its
corporate seal to be hereunto affixed and this Certificate to be signed by its
President
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and Chief Executive Officer, Lewis E. Christman, Jr., and attested by its
Corporate Secretary, Michael J. Walters, this 19th day of March, 1997.
[Corporate Seal]
Attest: FAMILY STEAK HOUSES OF FLORIDA,
INC.
By:_________________________ By:_________________________________
Michael J. Walters Lewis E. Christman, Jr.
Corporate Secretary President and Chief Executive Officer
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EXHIBIT B
[Form of Rights Certificate]
Certificate No. R- ________________ Rights
NOT EXERCISABLE AFTER MARCH 17, 2007 OR AFTER EARLIER REDEMPTION
BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.001 PER RIGHT ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON, AN ADVERSE PERSON OR
AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON OR AN ADVERSE
PERSON (AS SUCH PERSON IS DEFINED IN THE RIGHTS AGREEMENT) AND
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
[THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON, AN ADVERSE PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON OR AN ADVERSE PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
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* The bracketed portion of the legend shall be inserted only if applicable
and shall replace the preceding sentence.
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FAMILY STEAK HOUSES OF FLORIDA, INC.
RIGHTS CERTIFICATE
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 March 18, 1997 (the "Rights
Agreement"), between FAMILY STEAK HOUSES OF FLORIDA, INC., a Florida corporation
(the "Company"), and CHASEMELLON SHAREHOLDER SERVICES, INC., a Delaware
corporation (the "Rights Agent"), to purchase from the Company at any time prior
to 5:00 P.M. on March 17, 2007 (the "Final Expiration Date") at the office or
offices of the Rights Agent designated for such purpose, or its successors as
Rights Agent, one one-hundredth of a fully paid, nonassessable share of Junior
Participating Preferred Stock (the "Preferred Stock") of the Company, at a
purchase price (the "Purchase Price") of $5.00 per one one-hundredth of a share
of Preferred Stock (such fraction, a "Unit"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and related
Certificate duly executed. The Purchase Price shall be paid in cash. The number
of Rights evidenced by this Rights Certificate (and the number of Units that may
be purchased upon exercise thereof) set forth above, and the Purchase Price per
Unit set forth above, are the number and Purchase Price as of March 19, 1997,
based on the shares of Preferred Stock as constituted at such date.
Except as otherwise provided in the Rights Agreement, upon the occurrence
of any Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are beneficially
owned by (i) an Acquiring Person, an Adverse Person or an Affiliate or Associate
of any such Acquiring Person or Adverse Person (as such terms are defined in the
Rights Agreement), (ii) a direct or indirect transferee of any Acquiring Person
or an Adverse Person (or of any Associate or Affiliate thereof) who becomes a
transferee after the Acquiring Person or Adverse Person becomes such, or (iii)
under certain circumstances specified in the Rights Agreement, a direct or
indirect transferee of a Acquiring Person or an Adverse Person who becomes a
transferee prior to or concurrently with the Acquiring Person or Adverse Person
becoming such, such Rights shall become null and void and no holder hereof shall
have any rights whatsoever with respect to such Rights.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Preferred Stock or other securities that may be purchased upon
the exercise of the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events, including a
Triggering Event (as defined in the Rights Agreement).
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provision 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 Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at
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the above-mentioned office of the Rights Agent and are also available upon
written request to the Company.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor or
date evidencing Rights entitling the holder to purchase a like aggregate number
of Units as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights 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 $0.001 per Right, (as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
March 19, 1997) at any time prior to the earlier of (i) the Close of Business on
the tenth (10th) day following the Stock Acquisition Date (or, if the Stock
Acquisition Date shall have occurred prior to the Record Date, the Close of
Business on the tenth (10th) day following the Record Date), (ii) a declaration
by the Board of Directors of the Company that a person is an Adverse Person, or
(iii) the Final Expiration Date.
No fractional shares of Preferred Stock will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of shares of Preferred Stock), but in lieu thereof a cash payment will
be made, as provided in the Rights Agreement.
No holder, as such, of this Rights Certificate shall be entitled to vote,
or receive dividends or be deemed for any purpose the holder of the number of
shares of Preferred Stock or of any other securities of the Company (including
Common Stock) which may at any time be issuable upon the exercise of the Rights
represented hereby, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or, to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Rights Certificate shall have been
exercised in accordance with the provisions of the Rights Agreement.
This Rights Certificate shall not be valid or countersigned by the Rights
Agent.
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WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of March 19, 1997.
[SEAL]
Attest: FAMILY STEAK HOUSES OF FLORIDA,
INC.
By:__________________________ By:______________________________________
Michael J. Walters Lewis E. Christman, Jr.
Corporate Secretary President and Chief Executive Officer
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, INC.
By:____________________________
Authorized Signature
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[Form of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer
the Rights Certificate.
FOR VALUE RECEIVED______________________________________________________________
hereby sells, assigns and transfers unto________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________
Attorney, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: _______________________
____________________________
Signature
SIGNATURE GUARANTEED:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person, an
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from any
person who is, was or subsequently became an Acquiring Person, an Adverse Person
or an Affiliate or Associate of an Acquiring Person or Adverse Person.
Dated:
Signature
SIGNATURE GUARANTEED:
NOTICE
The signatures to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alternation or enlargement or any change whatsoever.
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented by the
Rights Certificate.)
The undersigned hereby irrevocably elects to exercise ___________ Rights
represented by this Rights Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or Common Stock or such other
securities of the Company or of any other person that may be issuable upon the
exercise of the Rights) and requests that certificates for such shares be issued
in the name of an delivered to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated:
Signature
SIGNATURE GUARANTEED:
<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person, an
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any person who is, was or subsequently became an Acquiring Person, an Adverse
Person or an Affiliate or Associate of an Acquiring Person or Adverse Person.
Dated:
Signature
SIGNATURE GUARANTEED:
NOTICE
The signatures to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alternation or enlargement or any change whatsoever.
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EXHIBIT 2
SUMMARY OF KEY FEATURES
OF SHAREHOLDER RIGHTS PLAN
FAMILY STEAK HOUSES OF FLORIDA, INC.
On February 11, 1997, the Board of Directors of Family Steak Houses of
Florida, Inc. ("FSH") adopted a Shareholder Rights Plan, subject to the review
and approval of the rights agent, and set a tentative record date of May 1, 1997
for determining shareholders entitled to receive Rights under the such plan. On
March 18, 1997, the Board of Directors held a special meeting to consider the
tender offer by Bisco Industries, Inc. to purchase up to 2,600,000 shares of the
Company for $.90 per share. After extensive deliberation and consultation with
financial and legal advisors, the Board of Directors unanimously determined to
recommend that the shareholders reject the Bisco tender offer. In connection
with its recommendation against the tender offer, the FSH Board of Directors
determined to accelerate the record date to March 19, 1997 for determining the
shareholder eligible to receive Rights under the Rights Agreement dated as of
March 18, 1997 (the "Rights Agreement") between FSH and ChaseMellon Shareholder
Services, Inc., as rights agent (the "Rights Agent"). The following summarizes
key features of the Rights Agreement.
Description of the Rights
Each Right will initially entitle the registered holder to purchase from
FSH a unit consisting of one one-hundredth of a share (a "Unit") of Preferred
Stock at $5.00 per Unit, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights is contained in the Rights Agreement. As
long as the Rights are attached to the common stock of FSH ("FSH Common Stock")
and in certain other circumstances specified in the Rights Agreement, one Right
(as such number may be adjusted pursuant to the provisions of the Rights
Agreement) shall be deemed to be delivered with each share of FSH Common Stock
issued or transferred by FSH in the future.
Distribution of the Rights
Initially, the Rights are attached to all FSH Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the FSH Common Stock and a
"Distribution Date" will occur upon the earlier of the close of business on (i)
the tenth day following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired beneficial
ownership of 15% or more of the outstanding shares of FSH Common Stock or voting
securities representing 15% or more of the voting power of FSH (with respect to
the Bisco tender offer, the Board of Directors has extended the Distribution
Date for twenty business days from March 6, 1997), (ii) the tenth day or such
later date as determined by the Board of Directors after the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially owning
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<PAGE>
15% or more of such outstanding shares of FSH Common Stock or such voting power
of FSH then outstanding or (iii) the tenth day following the determination by a
majority of the members of FSH's Board of Directors who are not officers of FSH
that with respect to any person who, alone or with affiliates or associates, has
become the beneficial owner of 15% or more of the outstanding shares of FSH
Common Stock or voting power of FSH then outstanding, (a) such beneficial
ownership is intended to cause FSH to provide such person with short-term
financial gain by repurchasing his FSH Common Stock or voting power under
circumstances where such FSH directors determine that such repurchase would not
be in the best long-term interests of FSH or (b) such beneficial ownership is
causing or reasonably likely to cause a material adverse impact on the business
or certain business prospects or relationships of FSH. (Any person whose
beneficial ownership satisfies the conditions of (a) or (b) above is referred to
herein and in the Rights Agreement as an "Adverse Person").
Until the Distribution Date, the Rights will be transferred with and only
with FSH Common Stock certificates. FSH is not required to issue fractions of
shares of Preferred Stock or FSH Common Stock upon exercise of the Rights.
The Rights are not exercisable until after the Distribution Date and would
expire at the close of business on March 17, 2007 unless earlier redeemed by FSH
in accordance with the Rights Agreement.
As soon as practicable after the Distribution Date, the Rights Agent will
mail Right Certificates to holders of record of FSH Common Stock as of the close
of business on the Distribution Date and, thereafter, the Rights will be
evidenced solely by such Right Certificates. Rights shall be issued only on
shares of FSH Common Stock issued prior to the earlier of the Distribution Date
or March 17, 2007.
The Company may temporarily suspend, for no more than ninety (90) days, the
exercisability of the Rights in order to prepare and file a registration
statement as required by the Securities Act of 1933, as amended, with respect to
the securities purchasable upon exercise of the Rights and to permit such
registration statement to become effective.
Flip-in Event
In the event that (i) a person becomes the beneficial owner of 10% or more
of the then outstanding shares of FSH Common Stock or voting power (except
pursuant to certain business combinations described below or an offer for all
outstanding shares of FSH Common Stock and all other voting securities which the
independent and disinterested directors of FSH determine to be fair to and
otherwise in the best interests of FSH and its shareholders) or (ii) any person
is determined to be an Adverse Person (either (i) or (ii) being a "Flip-in
Event"), each holder of a Right (with the exception of an Adverse or Acquiring
Person) will thereafter have the right to receive, upon exercise, FSH Common
Stock having a value equal to two times the exercise
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<PAGE>
price of the Right. However, Rights are not exercisable following the occurrence
of a Flip-in Event until such time as the Rights are no longer redeemable by FSH
as set forth below.
In the event of certain business combinations involving FSH, each holder of
a Right may receive, upon exercise, common stock of the acquiring company having
a value equal to two times the exercise price of the Right. These certain
business combinations involving FSH and the Flip-in Events are referred to
together as the "Triggering Events."
Rights that are or were beneficially owned by an Acquiring Person or an
Adverse Person may (under certain circumstances specified in the Rights
Agreement) become null and void.
The Purchase Price payable, and the number of Units of Preferred Stock or
other securities or property issuable upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution that would result from certain
forms of distributions to holders of such Preferred Stock. With certain
exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least one percent (1%) of the Purchase
Price.
Redemption of the Rights
The Board of Directors may redeem all of the Rights at a price of $0.001
per Right, as such amount may be appropriately adjusted to reflect any stock
split, stock dividend or similar transaction, only until the earliest of (i) the
close of business on the tenth (10th) day following the date on which a person
is declared to be an Adverse Person, (ii) the close of business on the tenth
(10th) calendar day after the Stock Acquisition Date, or (iii) March 17, 2007.
Immediately upon the action of the Board of Directors ordering redemption of the
Rights, the right to exercise the Rights will terminate and thereafter the only
right of the holders of Rights will be to receive the redemption price. At any
time after the occurrence of a Flip-in Event, FSH's Board of Directors may
exchange the Rights (other than Rights owned by an Acquiring Person or an
Adverse Person) in whole or in part, at an exchange ratio of one share of FSH
Common Stock, or equivalent equity security, per Right.
Effect of Declaration of Rights
Until a Right is exercised, the holder thereof will have no additional
rights as a shareholder of FSH. While the distribution of the Rights will not be
taxable to shareholders of FSH or to FSH, shareholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for FSH Common Stock (or other consideration) or for common stock of
the acquiring company as set forth above, or are exchanged as provided in the
preceding paragraph.
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<PAGE>
Amendment of Rights Agreement
Other than those provisions relating to the Purchase Price, expiration date
of the plan, the number of shares of Preferred Stock for which a Right is
exercisable, and the redemption price, any of the provisions of the Rights
Agreement may be amended by FSH's Board of Directors prior to the Distribution
Date. After the Distribution Date, only certain limited provisions of the Rights
Agreement may be amended by the Board of Directors.
Anti-takeover Effects
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire FSH in a
manner defined as a Triggering Event unless the offer meets certain conditions.
The Rights, however, should not affect any offer for all outstanding shares of
FSH Common Stock and other voting securities deemed to be fair and otherwise in
FSH's best interests by FSH's Board of Directors or any merger or other business
combination approved by FSH's Board of Directors.
Availability of the Rights Agreement
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission (the "Commission") as an exhibit to FSH's Registration
Statement on Form 8-A dated March 19, 1997. Copies of the Form 8-A and its
exhibits are available for inspection at the Commission's principal office at
450 Fifth Street, N.W., Washington, D.C. 20549 and at its regional officers
located at Seven World Trade Center, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. The Commission maintains a
site on the World Wide Web and the reports, proxy statements and other
information filed by FSH may be accessed electronically on the Web at
http://www.sec.gov. A copy of the Rights Agreement is available free of charge
from FSH. This summary of terms does not purport to be complete and is qualified
in its entirety by reference to the Rights Agreement, which is incorporated
herein by reference.
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EXHIBIT 4
AMENDED AND RESTATED
BYLAWS
OF
FAMILY STEAK HOUSES OF FLORIDA, INC.
ARTICLE I
STOCK
Section 1.1 ISSUANCE OF CERTIFICATES.
(a) Certificates of stock of each of the classes provided for in the
Articles of Incorporation shall be issued in numerical order, and each
shareholder shall be entitled to a certificate, signed by the Chairman or the
President and the Secretary or an Assistant Secretary, certifying to the number
and class of shares owned by him. Where, however, such certificate is signed by
a transfer agent acting on behalf of this Corporation, the signature of any of
the above-named officers may be facsimile.
(b) In case any officer who has signed a certificate, or whose facsimile
signature has been used on a certificate, has ceased to be an officer before the
certificate has been delivered, such certificate may, nevertheless, be adopted
and issued and delivered by this Corporation as though the officer who signed
such certificate, or whose facsimile signature shall have been used thereon, had
not ceased to be such officer in this Corporation.
(c) Each certificate representing shares shall state upon the face thereof:
(i) the name of this Corporation; (ii) that this Corporation is organized under
the laws of Florida; (iii) the name of the person or persons to whom issued;
(iv) the number and class of shares, and the designation of the series, if any,
which such certificate represents; and (v) the par value of each share
represented by such certificate, or a statement that the shares are without par
value.
(d) Each certificate representing shares shall set forth or fairly
summarize upon the face or back of the certificate, or shall state that the
Corporation will furnish to any shareholder upon request and without charge a
full statement of: (i) the designations, preferences, limitations, and relative
rights of the shares of each class of series authorized to be issued; (ii) the
variations in the relative rights and preferences between the shares of each
series, insofar as the same have been fixed and determined; and (iii) the
authority of the Board of Directors to fix and determine the relative rights and
preferences of subsequent series.
<PAGE>
(e) Each certificate shall otherwise comply, in all respects, with the
requirements of law.
Section 1.2. REGISTERED HOLDERS.
Except as expressly provided by law, only registered shareholders shall be
entitled to be treated by this Corporation as the holders in fact of the shares
standing in their respective names, and this Corporation shall not be bound to
recognize any equitable or other claim to or interest in any share on the part
of any other person, whether or not it shall have express or other notice
thereof.
Section 1.3. TRANSFER.
This Corporation or its transfer agent shall register a stock certificate
presented to it for transfer if: (i) the certificate is properly endorsed by the
holder of record or his duly authorized attorney and accompanied by reasonable
assurance that such endorsement is genuine and effective; (ii) this Corporation
is not under, or has discharged, any duty to inquire into adverse claims to the
shares represented by such certificate; and (iii) applicable laws relating to
the collection of taxes have been complied with. Transfer of a stock certificate
shall be made only upon the transfer books of this Corporation, kept at the
offices of either this Corporation or the transfer agent designated to transfer
the class represented by such certificate. Before a new certificate is issued,
the old certificate shall be surrendered for cancellation.
Section 1.4. CLOSING OF TRANSFER BOOKS AND FIXING RECORD DATE.
(a) For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders or any adjournment thereof, or entitled to
receive payment of any dividend, or in order to make a determination of
shareholders for any other purpose, the Board of Directors may provide that the
stock transfer books shall be closed for a stated period not to exceed, in any
case, sixty days. If the stock transfer books shall be closed for the purpose of
determining shareholders entitled to notice of or to vote at a meeting of
shareholders, such books shall be closed for at least ten days immediately
preceding such meeting.
(b) In lieu of closing the stock transfer books, the Board of Directors may
fix in advance a date as the record date for any determination of shareholders,
such date to be, in any case, no more than sixty days and, in case of a meeting
of shareholders, not less than ten days prior to the date on which the
particular action requiring such determination of shareholders is to be taken;
provided, however, that if no record date is fixed for the determination of
shareholders entitled to deliver written consent to corporate action without a
meeting, when no prior action by the board of Directors is necessary, the record
date shall be the day on which the first signed written consent is delivered to
the Corporation.
(c) If the stock transfer books are not closed and no record date is fixed
for the determination of shareholders entitled to notice or to vote at a meeting
of shareholders, or
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shareholders entitled to receive payment of a dividend, the date on which notice
of the meeting is mailed or the date on which the resolution of the Board of
Directors declaring such dividend is adopted, as the case may be, shall be the
record date for such determination of shareholders.
(d) When a determination of shareholders entitled to vote at any meeting of
shareholders has been made as provided in this section, such determination shall
apply to any adjournment thereof, unless the Board of Directors fixes a new
record date for the adjourned meeting.
Section 1.5. RECORD OF SHAREHOLDERS HAVING VOTING RIGHTS.
The officer or agent having charge of the stock transfer books shall make,
at least ten days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting or any adjournment thereof, with
the address of, and the number and class and series, if any, of shares held by,
each. For a period of ten days prior to such meeting, the list shall be kept on
file at the registered office or principal place of business of this Corporation
or at the office of the transfer agent or registrar of this Corporation, and any
shareholder shall be entitled to inspect the list during usual business hours.
The list shall also be produced and kept open at the time and place of the
meeting and shall be subject to the inspection of any shareholder at any time
during the meeting. If the requirements of this section have not been
substantially complied with, the meeting, on demand of any shareholder in person
or by proxy, shall be adjourned until the requirements are complied with. If no
such demand is made, failure to comply with the requirements of this section
shall not affect the validity of any action taken at such meeting.
Section 1.6. LOST, STOLEN, OR DESTROYED CERTIFICATES.
This Corporation shall issue a new stock certificate in the place of any
certificate previously issued if the holder of record of the certificate: (i)
makes proof in affidavit form that it has been lost, destroyed, or wrongfully
taken; (ii) requests the issue of a new certificate before this Corporation has
notice that the certificate has been acquired by a purchaser for value in good
faith and without notice of any adverse claim; (iii) gives bond in such form as
this Corporation may direct, to indemnify this Corporation, the transfer agent,
and registrar against any claim that may be made on account of the alleged loss,
destruction, or theft of the certificate; and (iv) satisfies any other
reasonable requirements imposed by this Corporation.
ARTICLE II
SHAREHOLDER ACTION
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Section 2.1. PLACE.
The place of any meeting of the shareholders shall be the principal office
of this Corporation in the City of Jacksonville, Florida, or such other place
within or without the State of Florida as shall be determined by the Board of
Directors.
Section 2.2. ANNUAL MEETING.
The annual meeting of the shareholders of this Corporation, for the purpose
of electing directors to succeed those whose terms expire and for the
transaction of such other business as may properly come before the meeting,
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting.
Section 2.3. NOTICE.
(a) Written notice stating the place, day, and hour of the meeting and, in
the case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered, either personally or by United States mail, by or at
the direction of the Chairman or the Secretary, to each shareholder of record
entitled to vote at the meeting. Such notice shall be given not less than ten
nor more than sixty days before the annual meeting or any special meeting called
by the Chairman, President or the Board of Directors, and not less than twenty
nor more than ninety days after the receipt of a request from any other persons
entitled to call a special meeting of shareholders. If mailed, any notice
required by this section shall be deemed to be delivered when deposited in the
United States mail addressed to shareholder at his address as it appears on the
stock transfer books of this Corporation, with postage thereon prepaid.
(b) Whenever notice is required to be given to any shareholder, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be the equivalent to the
giving of such notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except when the person attends a meeting for
the express purpose of objecting, at the beginning of the meeting, to the
transaction of business because the
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meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the
shareholders need be specified in the written waiver of notice.
Section 2.4. PROXIES.
(a) Every shareholder entitled to vote at a meeting of shareholders or to
express consent or dissent without a meeting, or his duly authorized
attorney-in-fact, may authorize another person or persons to act for him by
proxy.
(b) Every proxy must be signed by the shareholder or his attorney-in-fact.
No proxy shall be valid after the expiration of eleven months from the date
thereof unless otherwise provided in the proxy. Every proxy shall be revocable
at the pleasure of the shareholder executing it, except as otherwise provided by
law.
Section 2.5. PRESIDING OFFICER AND CONDUCT OF MEETINGS.
The Chairman, or in his absence the President, a Vice Chairman or a
director, shall call meetings of the shareholders to order and shall act as
presiding officer of the meetings. If none of those persons is present at the
meeting, the presiding officer of the meeting shall be chosen by the vote of a
majority of the shares represented and entitled to vote at the meeting. The
Secretary or an assistant secretary of this Corporation, shall act as secretary
at all meetings of the shareholders, but if neither the Secretary nor an
assistant secretary of this Corporation shall be present at the meeting, the
presiding officer may appoint any other person to act as secretary of the
meeting.
The presiding officer of a meeting shall have broad discretion in
determining the order of business. The presiding officer's authority to conduct
the meeting shall include, but in no way shall be limited to, recognizing
shareholders entitled to speak, calling for necessary reports, stating questions
and putting them to a vote, calling for nominations, and announcing the results
of voting. The presiding officer shall also take such actions as are necessary
and appropriate to preserve order at the meeting. The rules of parliamentary
procedure need not be observed in the conduct of a shareholder's meeting.
Section 2.6. INSPECTORS OF ELECTION; INSPECTORS OF WRITTEN CONSENT.
(a) Inspectors of elections shall be appointed by the Board of Directors to
act at any meeting of shareholders at which any election is held. If inspectors
of election are not so appointed, the presiding officer of the meeting may, and
on the request of a shareholder or his proxy shall, make such
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appointment. The inspectors of elections shall: (i) determine the number of
shares outstanding, the voting rights with respect to each, the shares
represented at the meeting, the existence of a quorum and the authenticity,
validity, and effect of proxies; (ii) receive notes, ballots, consents, waivers,
or releases; (iii) hear and determine all challenges and questions arising in
connection with the vote; (iv) count and tabulate all votes, consents, waivers,
and releases; (v) determine and announce the results; and (vi) do such acts as
are proper to conduct the election or vote, with fairness to all shareholders.
No inspector, whether appointed by the Board of Directors or by the presiding
officer of the meeting, need be a shareholder.
(b) In the event of the delivery, in the manner provided by Florida
Statutes Section 607.0704, to the Corporation of the requisite written
shareholder consent or consents to take corporate action without a meeting
and/or any related revocation or revocations of such consents, the Corporation
shall engage independent inspectors of elections for the purpose of performing
promptly a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the Corporation that the consents delivered to
the Corporation in accordance with Florida Statutes Section 607.0704 represent
at least the minimum number of votes that would be necessary to take the
corporate action. Nothing contained in this Section 2.6(b) shall in any way be
construed to suggest or imply that the Board of Directors or any shareholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution, or defense of any litigation with respect thereto,
and the seeking of injunctive relief in such litigation).
Section 2.7. SHAREHOLDER QUORUM.
A majority of the shares entitled to vote, represented in person or by
proxy, shall constitute a quorum at a meeting of shareholders. When a specified
item of business is required to be voted upon by a class or series of stock, a
majority of the shares of such class or series shall constitute a quorum for the
transaction of such item of business by that class or series. If a quorum is
present, the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
shareholders, unless the vote of a greater number or voting by class is required
by law, the Articles of Incorporation, or these Bylaws. After a quorum has been
established at a meeting of shareholders, the subsequent withdrawal of
shareholders, so as to reduce the number of shares entitled to vote at the
meeting below the number required for a quorum shall not affect the validity of
any action taken at the meeting or any adjournment thereof.
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Section 2.8. ADJOURNMENT.
A majority of the shares represented and entitled to vote at any meeting of
shareholders may adjourn the meeting to another time and place whether or not a
quorum exists. When a meeting is adjourned to another time and place, it shall
not be necessary to give any notice of the adjourned meeting if the time and
place to which the meeting is adjourned are announced at the meeting at which
the adjournment is taken, and any business may be transacted at the adjourned
meeting that might have been transacted on the original date of the meeting. If,
however, after the adjournment, the Board of Directors fixes a new record date
for the adjourned meeting, a notice of the adjourned meeting shall be given, as
provided above in Section 2.4 of these Bylaws, to each shareholder of record on
the new record date entitled to vote at such meeting.
Section 2.9. VOTING OF SHARES.
(a) Voting at all meetings of shareholders may be viva voce, but any
qualified voter may demand a stock vote, whereupon such stock vote may be taken
by ballot, each of which shall state the name of the shareholder voting and the
number of shares voted by him, and if such ballot be cast by proxy, it shall
also state the name of such proxy.
(b) Each outstanding share represented in person or by proxy, regardless of
class, shall be entitled to one vote on each matter submitted to a vote at a
meeting of shareholders, except as may otherwise be provided by the Articles of
Incorporation or by resolution of the Board of Directors pursuant thereto.
(c) At each election of directors, every shareholder entitled to vote at
such election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected at
the time for whose election he has a right to vote. No cumulative voting shall
be permitted.
(d) If a proxy for the same shares confers authority upon two or more
persons and does not otherwise provide, a majority of them present at the
meeting, or if only one is present then that one, may exercise all the powers
conferred by the proxy; but if the proxy holders present at the meeting are
equally divided as to the right and manner of voting in any particular case, the
voting of such shares shall be pro-rated.
Section 2.10 NATURE OF BUSINESS.
At any meeting of shareholders, only such business shall be conducted as
shall have been brought before the meeting by or at the direction of the Board
of Directors or by any shareholder who complies with the procedures set forth in
this Section 2.10.
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No business may be transacted at any meeting of shareholders, other than
business that is either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors (or
any duly authorized committee thereof), (b) otherwise properly brought before
such meeting of shareholders by or at the direction of the Board of Directors
(or any duly authorized committee thereof) or (c) in the case of an Annual
Meeting of Shareholders, otherwise properly brought before such meeting by any
shareholder (i) who is a shareholder of record on the date of the giving of the
notice provided for in this Section 2.10 and on the record date for the
determination of shareholders entitled to vote at such Annual Meeting of
Shareholders and (ii) who complies with the notice procedures set forth in this
Section 2.10.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting of Shareholders by a shareholder, such
shareholder must have given timely notice thereof in proper written form to the
Secretary.
To be timely, a shareholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation not
less than sixty (60) days nor more than ninety (90) days prior to the
anniversary date of the immediately preceding Annual Meeting of Shareholders;
provided, however, that in the event that the Annual Meeting of Shareholders is
called for a date that is not within thirty (30) days before or after such
anniversary date, notice by the shareholder in order to be timely must be so
received not later than the close of business on the tenth (10th) day following
the day on which notice of the date of the Annual Meeting of Shareholders was
mailed or public disclosure of the date of the Annual Meeting of Shareholders
was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the Secretary must
set forth as to each matter such shareholder proposes to bring before the Annual
Meeting of Shareholders (i) a brief description of the business desired to be
brought before the Annual Meeting of Shareholders and the reasons for conducting
such business at the Annual Meeting of Shareholders, (ii) the name and record
address of such shareholder, (iii) the class or series and number of shares of
capital stock of the Corporation which are owned beneficially or of record by
such shareholder as of the record date for the meeting (if such date shall then
have been made publicly available and shall have occurred) and as of the date of
such notice, (iv) a description of all arrangements or understandings between
such shareholder and any other person or persons (including their names) in
connection with the proposal of such business by such shareholder and any
material interest of such shareholder in such business, (v) any other
information which would be required to be disclosed in a proxy statement or
other filings required to be made in connection with the solicitations of
proxies for the proposal pursuant to Section 14 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") and the rules and regulations
promulgated
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thereunder if such shareholder were engaged in such a solicitation, and (vi) a
representation that such shareholder intends to appear in person or by proxy at
the Annual Meeting of Shareholders to bring such business before the meeting.
No business shall be conducted at the Annual Meeting of Shareholders except
business brought before the Annual Meeting of Shareholders in accordance with
the procedures set forth in this Section 2.10, provided, however, that, once
business has been properly brought before the Annual Meeting of Shareholders in
accordance with such procedures, nothing in this Section 2.10 shall be deemed to
preclude discussion by any shareholder of any such business. If the Chairman of
an Annual Meeting of Shareholders determines that business was not properly
brought before the Annual Meeting of Shareholders in accordance with the
foregoing procedures, the Chairman shall declare to the meeting that the
business was not properly brought before the meeting and such business shall not
be transacted.
When a meeting is adjourned to another time or place, notice of the
adjourned meeting need not be given if the time and place thereof are announced
at the meeting at which the adjournment is taken, unless the adjournment is for
more than 30 days, or unless after the adjournment a new record date is fixed
for the adjourned meeting, in which case notice of the adjourned meeting shall
be given to each shareholder of record entitled to vote at the meeting. At the
adjourned meeting, any business may be transacted that might have been
transacted at the original meeting.
ARTICLE III
BOARD OF DIRECTORS
Section 3.1. AUTHORITY.
All corporate powers shall be exercised by or under the authority of, and
the business and affairs of this Corporation shall be managed under the
direction of, the Board of Directors. In addition to the powers and authorities
expressly conferred upon it by these Bylaws and the Articles of Incorporation,
the Board of Directors may exercise all such powers of this Corporation and do
all such lawful acts and things as are not by statute, the Articles of
Incorporation, or these Bylaws directed or required to be exercised or done by
the shareholders.
Section 3.2. NUMBER AND ELIGIBILITY.
The Corporation shall have no more than eight (8) directors and no less
than one (1) director, which number may be increased or decreased only by
amendment to these Bylaws duly adopted by the Board of Directors of the
Corporation.
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Section 3.3. CLASSIFICATION OF BOARD OF DIRECTORS.
The directors shall be divided into three classes: Class I, Class II, and
Class III. The number of directors included in each such class shall be as
nearly equal as may be possible. At the annual meeting of shareholders of the
Corporation held in 1997, Class I directors shall be initially elected for a
three-year term, Class II directors for a two-year term and Class III directors
for a one-year term; provided, however, that each such Class I, Class II or
Class III director shall hold office until his or her successor is elected and
qualified or until his or her earlier death, resignation or removal from office.
At each succeeding annual meeting of the shareholders of the Corporation,
commencing in 1998, the directors elected to succeed those directors whose terms
then expire shall belong to the same class as the directors they succeed and
shall hold office until the third succeeding annual meeting of shareholders or
until their earlier death, resignation or removal from office. Any increase or
decrease in the number of directors shall be apportioned by the Board of
Directors among the classes so that the number of directors included in each
such class shall continue to be as nearly equal as possible.
Section 3.4. VACANCIES.
Any vacancy occurring on the Board of Directors, including any vacancy
created by reason of an increase in the number of directors, may be filled only
by the affirmative vote of 80% of the directors then in office. A director
elected to fill a vacancy shall hold office until the next shareholders' meeting
at which directors of such class are elected.
Section 3.5. PLACE, TIME AND CALL OF MEETINGS.
The annual meeting of the Board of Directors shall be held at the same
place as the annual shareholders' meeting immediately following the annual
meeting of the shareholders. In addition, there shall be seven regular meetings
of the Board of Directors to be held at such time and at such place within or
without the State of Florida as the Board of Directors may from time to time
designate. Upon the request of any two directors or the President or upon his
own initiative, the Chairman may call a special meeting of the Board of
Directors to be held at such time and place, within or without the State of
Florida, and for such purpose as the notice of the meeting may designate.
Section 3.6. NOTICE OF MEETINGS.
(a) Written notice of the time and place of any regular meeting of the
Board of Directors shall be given to each director by personal delivery, mail,
telegram, or cablegram at least two days before the meeting. Written notice of
the time and place of any special meeting of the Board of Directors shall be
given to
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each director by personal delivery, mail, telegram or cablegram at least one day
before the meeting.
(b) Notice of any meeting of the Board of Directors need not be given to
any director who signs a written waiver of notice either before or after the
meeting. Attendance of a director at a meeting shall constitute a waiver of
notice of such meeting and waiver of any and all objections to the place of the
meeting, the time of the meeting, or the manner in which it has been called or
convened, except when a director states, at the beginning of the meeting, any
objection to the transaction of business because the meeting is not lawfully
called or convened.
(c) Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
Section 3.7. USE OF COMMUNICATION EQUIPMENT.
Members of the Board of Directors may participate in a meeting of the Board
by conference telephone or similar communication equipment by means of which all
persons participating in the meeting can hear each other at the same time.
Participation by such means shall constitute presence in person at a meeting.
Section 3.8. DIRECTOR QUORUM.
A majority of the number of directors holding office pursuant to these
Bylaws shall constitute a quorum for the transaction of business. The act of the
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
Section 3.9. ADJOURNMENT OF MEETINGS.
A majority of the directors present, whether or not a quorum exists, may
adjourn any meeting of the Board of Directors to another time and place. Notice
of any such adjourned meeting shall be given, as provided in Section 3.6 of
these Bylaws, to the directors who are not present at the time of the
adjournment and, unless the time and place of the adjourned meeting are
announced at the time of the adjournment, to the other directors.
Section 3.10. ACTION WITHOUT A MEETING.
Any action required to be taken at a meeting of the Board of Directors, or
any action which may be taken at a meeting of the directors or a committee
thereof, may be taken without a meeting if a consent in writing, setting forth
the action so to be taken signed by all of the directors or all the members of
the committee, as the case may be, is filed in the minutes of the
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proceedings of the board or of the committee. Such consent shall have the same
effect as a unanimous vote.
Section 3.11. COMPENSATION.
Directors are entitled to receive such fees and expenses for attendance at
meetings of the Board of Directors as may be fixed from time to time by the
Board. Directors shall also be entitled to receive compensation for services
rendered to the Corporation as officers or as members of any committee appointed
by the Board, or for service in any other capacity as may be provided from time
to time by the Board.
Section 3.12. CONFLICTS OF INTEREST.
(a) No contract or other transaction between this Corporation and one or
more of its directors, or any other Corporation, firm, association, or entity in
which one or more of the directors are directors or officers or are financially
interested, shall be either void or voidable because of such relationship or
interest, because such director or directors are present at the meeting of the
Board of Directors, or committee thereof, which authorizes, approves, or
ratifies such contract or transaction, or because his or their votes are counted
for such purpose, if: (i) the fact of such relationship or interest is disclosed
or known to the Board of Directors or committee which authorizes, approves, or
ratifies the contract or transaction by a vote or consent sufficient for the
purpose without counting the votes or consents of such interested directors;
(ii) the fact of such relationship or interest is disclosed or known to the
shareholders entitled to vote and they authorize, approve, or ratify such
contract or transaction by vote or written consent; or (iii) the contract or
transaction is fair and reasonable as to the Corporation at the time it is
authorized by the board, a committee, or the shareholders.
(b) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or a committee
thereof which authorizes, approves, or ratifies such contract or transaction.
Section 3.13. NOMINATION OF DIRECTORS.
Only persons who are nominated in accordance with the following procedures
shall be eligible for election as directors of the Corporation, except as may be
otherwise provided in the Certificate of Incorporation with respect to the right
of holders of preferred stock of the Corporation to nominate and elect a
specified number of directors in certain circumstances. Nominations of persons
for election to the Board of Directors may be made at any Annual Meeting of
Shareholders, or at any Special Meeting of Shareholders called for the purpose
of electing directors, (a) by or at the direction of the Board of Directors (or
any duly authorized committee thereof) or (b) by any shareholder of the
Corporation (i) who is a shareholder of record
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on the date of the giving of the notice provided for in this Section 3.13 and on
the record date for the determination of shareholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 3.13.
In addition to any other applicable requirements, for a nomination to be
made by a shareholder, such shareholder must have given timely notice thereof in
proper written form to the Secretary.
To be timely, a shareholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Corporation (a)
in the case of an Annual Meeting of Shareholders, not less than sixty (60) days
nor more than ninety (90) days prior to the anniversary date of the immediately
preceding Annual Meeting of Shareholders; provided, however, that in the event
that the Annual Meeting of Shareholders is called for a date that is not within
thirty (30) days before or after such anniversary date, notice by the
shareholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which notice of the
date of the Annual Meeting of Shareholders was mailed or public disclosure of
the date of the Annual Meeting was made, whichever first occurs; and (b) in the
case of a Special Meeting of Shareholders called for the purpose of electing
directors, not later than the close of business on the tenth (10th) day
following the day on which notice of the date of the Special Meeting of
Shareholders was mailed or public disclosure of the date of the Special Meeting
of Shareholders was made, whichever first occurs.
To be in proper written form, a shareholder's notice to the Secretary must
set forth (a) as to each person whom the shareholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Corporation
which are owned beneficially or of record by the person as of the record date
for the meeting (if such date shall have been made publicly available and shall
have occurred) and as of the date of such notice and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Exchange Act,
and the rules and regulations promulgated thereunder; and (b) as to the
shareholder giving the notice (i) the name and record address of such
shareholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such shareholder as
of the record date for the meeting (if such date shall have been made publicly
available and shall have occurred) and as of the date of such notice, (iii) a
description of all arrangements or understandings between such
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shareholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such
shareholder, (iv) a representation that such shareholder intends to appear in
person or by proxy at the meeting to nominate the persons named in its notice
and (v) any other information relating to such shareholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
3.13. If the Chairman of the meeting determines that a nomination was not made
in accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
ARTICLE IV
EXECUTIVE AND OTHER COMMITTEES
Section 4.1. EXECUTIVE COMMITTEE.
The Board of Directors may elect annually an Executive Committee,
consisting of the Chief Executive Officer who shall serve as Chairman of the
Executive Committee, as well as the Chairperson of each of the Board's standing
committees. When the Board of Directors is not in session, the Executive
Committee, if elected, shall have and may exercise all of the powers of the
Board of Directors, except as limited by the laws of the State of Florida.
Section 4.2. EXECUTIVE COMPENSATION COMMITTEE.
The Board of Directors may elect annually at least three of its members to
constitute an Executive Compensation Committee, which committee shall have such
responsibilities as may be assigned to it by the Board, including responsibility
for recommending to the Board the compensation arrangements for directors and
officers elected or appointed by the Board.
Section 4.3. OTHER COMMITTEES.
Other standing or temporary committees may be appointed from its own number
by the Board of Directors from time to time, and the Board of Directors may from
time to time invest such committees with such powers as it may see fit, except
as limited by law, subject to such conditions as may be prescribed by the Board.
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Section 4.4. ALTERNATE MEMBERS.
The Board of Directors may designate one or more directors as alternate
members of any committee of the Board, who may act in the place and stead of any
absent member or members at any meeting of such committee.
Section 4.5. CALL, NOTICE, PLACE, AND TIME OF MEETINGS.
Regular meetings of any committee of the Board may be held without call or
notice at such places and times as such committee from time to time may fix.
Special meetings of any committee of the Board may be called by the Chief
Executive Officer or any two members of the committee, upon notice as provided
for special meetings of the Board of Directors, at the place and time set forth
in such notice. Notice of such special meetings may be waived.
Section 4.6. COMMITTEE QUORUM.
A quorum at any meeting of a committee of the Board shall consist of a
majority of its members. A majority vote of the members in attendance at any
meeting shall, in the presence of a quorum, decide its action.
Section 4.7. MINUTES OF COMMITTEE MEETINGS.
All committees of the Board shall keep regular minutes of the transactions
of their meetings, shall cause them to be recorded in the books kept for that
purpose in the office of this Corporation, and shall report the same to the
Board of Directors at its next meeting.
ARTICLE V
OFFICERS
Section 5.1. OFFICERS.
The officers of this Corporation shall be a Chairman, a President and Chief
Executive Officer, one or more Vice Presidents, a Secretary, and a Treasurer,
each of whom shall be appointed by and serve at the pleasure of the Board of
Directors. The Chief Executive Officer is authorized to appoint such officers on
an interim basis, subject to ratification by the Board at its next meeting. Such
other officers and assistant officers and agents as may be deemed necessary or
appropriate may be appointed by the Board of Directors or such person or persons
as the Board may designate from time to time. The Chairman and President each
shall be a director, but no other officer need be a member of the Board of
Directors. Any two or more offices may be held by the same person. An outside
Director shall not serve as an officer. Any person who serves both as an officer
and a director of the Corporation shall be a salaried employee of the
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Corporation, devoting substantially all of his time to Corporation business.
Section 5.2. DUTIES.
(a) The Chairman shall preside at all meetings of the Board of Directors,
shall have general executive powers, and shall have such other duties as may be
assigned to him by the Board of Directors or provided by these Bylaws. In the
Chairman's absence, the President shall preside at meetings of the Board and
assume the other duties assigned to the Chairman. Except where, by law, the
signature of the President is required, the Chairman shall possess the same
power as the President to sign all certificates, contracts and other instruments
of the Corporation which may be authorized by the Board of Directors.
(b) The President shall be the Chief Executive Officer and shall have
general executive powers, and shall have such other duties as may be assigned to
him by the Board of Directors or provided by these Bylaws. He may sign or
countersign all certificates, contracts, and other instruments of this
Corporation as authorized by the Board of Directors. He shall make reports to
the Board of Directors and shareholders, and shall perform all such other duties
as are incident to his office or are properly required of him by the Board of
Directors.
(c) Each Vice President shall perform the duties delegated to him from time
to time by the Board of Directors or by the Chief Executive Officer.
(d) The Secretary shall issue notice for all meetings, shall keep minutes
of all meetings, shall have charge of the seal and the corporate books, and
shall make such reports and perform such other duties as are incident to his
office or are properly required of him by the Board of Directors or the Chief
Executive Officer.
(e) The Treasurer shall have custody of all monies and securities of this
Corporation and shall keep or cause to be kept regular books of account. He
shall disburse the funds of this Corporation in payment of the just demands
against this Corporation, or as may be ordered by the Chief Executive Officer or
the Board of Directors, taking proper vouchers for such disbursements. He shall
report the financial condition of this Corporation to the stockholders at the
annual meeting and shall render to the Chief Executive Officer and the Board of
Directors from time to time, as may be required of him, an account of all of his
transactions as Controller and of the financial condition of this Corporation.
He shall perform such other duties as are incident to his office or are properly
required of him by the Board of Directors or the Chief Executive Officer.
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Section 5.3. ABSENCE OR INABILITY.
In the case of absence or inability to act of any officer of this
Corporation and of any person herein authorized to act in his place, the Board
of Directors may from time to time delegate the powers or duties of such officer
to any other person whom it may select.
Section 5.4. VACANCIES.
Vacancies in any office arising from any cause may be filled by the Board
of Directors.
Section 5.5. COMPENSATION.
The salaries and other compensation of all officers of this Corporation
elected or appointed by the Board of Directors shall be fixed by the Board of
Directors or by a committee of Board members designated for that purpose by the
Board. Compensation of other employees and agents shall be fixed by or under the
authority of the Chief Executive Officer. No member of the Board of Directors
shall be disqualified from voting on compensation of officers by reason of the
fact that he is an officer as well as a director, except that his vote shall not
be counted in fixing his own compensation.
Section 5.6. REMOVAL.
Any officer elected or appointed by the Board of Directors may be removed
at any time, with or without cause, by the affirmative vote of a majority of the
Board of Directors.
Section 5.7. PERFORMANCE BONDS.
The Board of Directors, may, by resolution, require any and all of the
officers to give bonds to this Corporation, with sufficient surety or sureties,
conditioned for the faithful performance of the duties of their respective
offices, and to comply with such other duties as may from time to time be
required by the Board of Directors.
ARTICLE VI
DIVIDENDS AND FINANCES
Section 6.1. DIVIDENDS.
The Board of Directors of this Corporation may, from time to time, declare,
and this Corporation may pay, dividends as permitted by law on its shares in
cash, property, or its own shares, except when this Corporation is insolvent or
when the payment thereof would render this Corporation insolvent.
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Section 6.2. RESERVES.
Before making any distribution of profits there may be set aside out of the
net profits of this Corporation such sum or sums as the directors may from time
to time, in their absolute discretion, deem expedient, as a reserve fund to meet
contingencies, or for equalizing dividends, or for maintaining any property of
this Corporation, or for any other purpose, and any profits of any year not
distributed as dividends shall be deemed to have been thus set apart until
otherwise disposed of by the Board of Directors.
Section 6.3. DEPOSIT OF MONIES.
Monies of this Corporation shall be deposited in the name of this
Corporation in such banks or trust companies as the Board of Directors shall
designate, and shall be drawn out only by checks signed by persons designated by
resolution by the Board of Directors.
ARTICLE VII
BOOKS AND RECORDS
Section 7.1. BOOKS AND RECORDS.
(a) This Corporation shall keep correct and complete books and records of
accounts and shall keep minutes of the proceedings of its shareholders, Board of
Directors, and committees of directors.
(b) This Corporation shall keep at its registered office or principal place
of business, or at the office of its transfer agent or registrar, a record of
its shareholders, giving the names and addresses of all shareholders, and the
number, class, and series, if any, of the shares held by each.
(c) Any books, records, and minutes may be in written form or in any other
form capable of being converted into written form within a reasonable time.
Section 7.2. SHAREHOLDERS' INSPECTION RIGHTS.
Any person who shall have been a holder of record of one quarter of one
percent of the shares or of voting trust certificates therefor for at least six
months immediately preceding his demand or shall be the holder of record of, or
the holder of record of voting trust certificates for, at least five percent of
the outstanding shares of any class or series of this Corporation, upon written
demand stating the purpose thereof, shall have the right to examine, in person
or by agent or attorney, at any reasonable time or times and for any proper
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purpose, its relevant books and records of accounts, minutes, and records of
shareholders and to make extracts therefrom.
Section 7.3. FINANCIAL STATEMENTS.
(a) Unless modified by resolution of the shareholders not later than four
months after the close of each fiscal year, this Corporation shall prepare a
balance sheet showing in reasonable detail the financial condition of the
Corporation as of the close of its fiscal year, and a profit and loss statement
showing the results of the operations of the Corporation during its fiscal year.
(b) Upon the written request of any shareholder or holder of voting trust
certificates for shares of the Corporation, the Corporation shall mail to such
shareholder or holder of voting trust certificates a copy of its most recent
balance sheet and profit and loss statement.
(c) The balance sheets and profit and loss statement shall be filed in the
registered office of the Corporation in this state, shall be kept for at least
five years, and shall be subject to inspection during business hours by any
shareholder or holder of voting trust certificates, in person or by agent.
ARTICLE VIII
SEAL
The corporate seal of this Corporation shall consist of an impression
bearing the words and figures: "Family Steak Houses of Florida, Inc. - Florida
1985." Such seal as impressed upon the margin of these Bylaws is hereby adopted
as the corporate seal of this Corporation.
ARTICLE IX
VOTING OF SHARES OWNED BY CORPORATION
Section 9.1. BY THE CORPORATION.
Unless otherwise directed by the Board of Directors, the Chairman, and in
his absence the President, shall have full power and authority on behalf of this
Corporation to attend and to act and to vote at any meeting of the shareholders
of any Corporation of which this Corporation may hold stock, and at any such
meeting shall possess and may exercise all of the rights and powers incident to
the ownership of such stock, and which, as the owner thereof, this Corporation
might have possessed and exercised if present.
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Section 9.2. BY PROXY OR CONSENT.
Whenever, in the judgment of the Chief Executive Officer, it is desirable
for this Corporation to execute a proxy or give a shareholder's consent with
respect to any shares of stock issued by any other Corporation and owned by this
Corporation, such proxy or consent shall be executed in the name of this
Corporation by the Chief Executive Officer, Chief Financial Officer or Secretary
without necessity of any authorization by the Board of Directors. Any person or
persons designated in the manner above as the proxy or proxies of this
Corporation shall have full right, power, and authority to vote the shares of
stock issued by such other Corporation and owned by this Corporation in the same
manner and to the same extent as such shares might be voted by this Corporation.
Section 9.3. BY OTHER PERSONS.
The Board of Directors may confer similar powers upon any other person or
persons, in its discretion, from time to time.
ARTICLE X
AMENDMENT OF BYLAWS
Alteration, amendment, or repeal of these Bylaws may be made by a majority
vote of the Board of Directors at any regular or special meeting.
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