SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
________________
Transcisco Industries, Inc.
(Exact name of registrant as specified in its charter)
Delaware 94-2989345
(State of incorporation (I.R.S. employer
or organization) identification no.)
601 California Street, Suite 1301
San Francisco, California
(Address of principal executive offices)
94108
(zip code)
________________
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be registered to be registered
Preferred Stock Purchase Rights American Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE
REGISTERED.
On August 31, 1995, the Board of Directors of
Transcisco Industries, Inc. (the "Company") adopted a
Shareholder Rights Plan, providing that one Right will be
attached to each share of common stock, par value $0.01 per
share, of the Company (the "Common Stock"). The Rights will
be issued on September 20, 1995 and will entitle the
registered holder to purchase from the Company a unit (a
"Unit") consisting of one one-thousandth of a share of
Series A Junior Participating Preferred Stock, par value
$0.01 per share (the "Preferred Stock"), at a purchase price
of $12.00 per Unit (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set
forth in the Rights Agreement (the "Rights Agreement"),
dated as of September 5, 1995, between the Company and First
Interstate Bank of California, a California banking
corporation, as Rights Agent (the "Rights Agent").
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights certificate will be
distributed. The Rights will separate from the Common
Stock upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of
5% or more of the outstanding shares of Common Stock (the
"Stock Acquisition Date") or (ii) 10 business days
following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially
owning 5% or more of such outstanding shares of Common
Stock (the earlier of (i) and (ii), the "Distribution
Date"). Until the Distribution Date, (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 will
contain a notation incorporating the Rights Agreement by
reference and (iii) the surrender for transfer of any
certificates for Common Stock outstanding 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 September 20, 2005, unless earlier redeemed by the
Company, as described below. At no time will the Rights
have any voting power.
As soon as practicable after the Distribution
Date, Rights certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights
certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors of the
Company, only shares of Common Stock outstanding prior to
the Distribution Date will be issued with Rights.
In the event that an Acquiring Person other than
an Exempted Person (as defined below) becomes the
beneficial owner of 5% or more of the then outstanding
shares of Common Stock (unless such acquisition is made
pursuant to a tender or exchange offer for all outstanding
shares of the Company, at a price determined by a majority
of the independent directors of the Company who are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person to be fair and otherwise in the best
interest of the Company and its stockholders after
receiving advice from one or more investment banking firms
(a "Qualifying Offer")), each holder of a Right will
thereafter have the right to receive, upon exercise,
Common Stock (or, in certain circumstances, cash, property
or other securities of the Company) having a value equal
to ten times the Exercise Price of the Right. The
Exercise Price is the Purchase Price times the number of
shares of Common Stock associated with each Right
(initially, one). Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in
this paragraph (the "Flip-in Events"), all Rights that
are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any
Acquiring Person will be null and void. However, Rights
are not exercisable following the occurrence of any of the
Flip-in Events set forth above until such time as the
Rights are no longer redeemable by the Company, as set
forth below.
Any person who, together with all affiliates and
associates of such person, is (a) the beneficial owner of
Common Stock, options and/or warrants exercisable for
shares of Common Stock representing 5% or more of the
shares of Common Stock outstanding on the date the Board
authorizes the rights dividend (the "Rights Dividend
Declaration Date") or (b) is subject to a standstill
agreement approved by a majority of the independent
directors not affiliated or associated with an Acquiring
Person (an "Approved Standstill Agreement") and acquires
such securities without violating such Approved Standstill
Agreement, will be an "Exempted Person." However, any
such person will no longer be deemed to be an Exempted
Person and will be deemed to be an Acquiring Person if
such person, together with all affiliates and associates
of such person, becomes the beneficial owner, at any time
after the Rights Dividend Declaration Date, of additional
securities representing 1000 or more shares of Common
Stock, except if such additional securities are acquired
(x) in accordance with an Approved Standstill Agreement,
(y) pursuant to the exercise of options or warrants to
purchase Common Stock outstanding and beneficially owned
by such person as of the Rights Dividend Declaration Date
or as a result of an adjustment to the number of shares of
Common Stock for which such options or warrants are
exercisable pursuant to the terms thereof, or (z) as a
result of a stock split, stock dividend or the like. A
purchaser, assignee or transferee of the shares of Common
Stock (or options or warrants exercisable for Common
Stock) of an Exempted Person will not thereby become an
Exempted Person.
In the event that following the Stock
Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is
not the surviving corporation (other than a merger
consummated pursuant to a Qualifying Offer), (ii) the
Company engages in a merger or business combination
transaction in which the Company is the surviving
corporation and the Common Stock is changed or exchanged
or (iii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right
(except Rights which have previously been voided as set
forth above) shall thereafter have the right to receive,
upon exercise of the Right, common stock of the acquiring
company having a value equal to ten times the Exercise
Price of the Right.
The Purchase Price 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 (i) in the event of a
stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if holders
of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible
securities at less than the current market price of the
Preferred Stock or (iii) upon the distribution to holders
of the Preferred Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred
to above).
With certain exceptions, no adjustments in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until twenty days following the
Stock Acquisition Date, the Company may redeem the Rights
in whole, but not in part, at a price of $0.001 per Right.
Under certain circumstances, the decision to redeem shall
require the concurrence of a majority of the Continuing
Directors (as defined below). Immediately upon the action
of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of
the holders of Rights will be to receive the $0.001
redemption price.
The term "Continuing Director" means any member
of the Board of Directors of the Company who was a member
of the Board prior to the adoption of the Rights Plan and
any person who is subsequently elected to the Board if
such person is recommended or approved by a majority of
the Continuing Directors, but does not include an
Acquiring Person, or an affiliate or associate of an
Acquiring Person, or any representative of the foregoing
entities.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a stockholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to stockholders or to the
Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other
consideration) of the Company, as set forth above.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board of Directors (in certain circumstances, with the
concurrence of the Continuing Directors) in order to cure
any ambiguity, to make changes that do not adversely
affect the interests of holders of Rights (excluding the
interest of any Acquiring Person), or to shorten or
lengthen any time period under the Rights Agreement;
provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as
the Rights are not redeemable.
The Rights have certain anti-takeover effects.
The Rights will cause substantial dilution to a person or
group that attempts to acquire the Company in certain
circumstances. Accordingly, the existence of the Rights
may deter certain acquirors from making takeover proposals
or tender offers. The Rights, however, are not intended
to prevent a takeover but rather are designed to enhance
the ability of the Board of Directors to negotiate with a
potential acquiror on behalf of all of the stockholders.
The Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, which
includes as Exhibit B the Form of Rights Certificate, is
attached hereto as Exhibit 1 and is incorporated herein by
reference. The foregoing description of the Rights does
not purport to be complete and is qualified in its
entirety by reference to Exhibit 1 hereto.
ITEM 2. EXHIBITS.
1. Rights Agreement, dated as of September 5,
1995, between Transcisco Industries, Inc. and First
Interstate Bank of California, as Rights Agent, which
includes as Exhibit B thereto the Form of Rights
Certificate.
SIGNATURE
Pursuant to the requirements of Section 12 of
the Securities Exchange Act of 1934, the registrant has
duly caused this registration statement to be signed on
its behalf by the undersigned, thereto duly authorized.
TRANSCISCO INDUSTRIES, INC.
By: /s/ Gregory S. Saunders
__________________________
Name: Gregory S. Saunders
Title: Vice President and Controller
Date: September 15, 1995
EXHIBIT INDEX
Exhibit Description Page
1. Rights Agreement, dated as of 8
September 5, 1995, between
Transcisco Industries, Inc. and
First Interstate Bank of
California, as Rights Agent, which
includes as Exhibit B thereto the
Form of Rights Certificate.
TRANSCISCO INDUSTRIES, INC.
and
FIRST INTERSTATE BANK OF CALIFORNIA
as
Rights Agent
Rights Agreement
Dated as of September 5, 1995
Table of Contents
Section Page
1. Certain Definitions . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . 9
3. Issue of Rights Certificates . . . . . . . 10
4. Form of Rights Certificates . . . . . . . 14
5. Countersignature and Registration . . . . 16
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . 18
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . 20
8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . 25
9. Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . 26
10. Preferred Stock Record Date . . . . . . . 30
11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights . . . . 32
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 54
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 55
14. Fractional Rights and Fractional Shares . 61
15. Rights of Action . . . . . . . . . . . . . 64
16. Agreement of Rights Holders . . . . . . . 65
17. Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . 67
18. Concerning the Rights Agent . . . . . . . 68
19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 69
20. Duties of Rights Agent . . . . . . . . . . 71
21. Change of Rights Agent . . . . . . . . . . 76
22. Issuance of New Rights Certificates . . . 78
23. Redemption and Termination . . . . . . . . 80
24. Notice of Certain Events . . . . . . . . . 83
25. Notices . . . . . . . . . . . . . . . . . 85
26. Supplements and Amendments . . . . . . . . 86
27. Successors . . . . . . . . . . . . . . . . 88
28. Determinations and Actions by the Board of
Directors, etc. . . . . . . . . . . . . . 88
29. Benefits of this Agreement . . . . . . . . 90
30. Severability . . . . . . . . . . . . . . . 90
31. Governing Law . . . . . . . . . . . . . . 91
32. Counterparts . . . . . . . . . . . . . . . 92
33. Descriptive Headings . . . . . . . . . . . 92
Exhibit A -- Form of Certificate of Designation, Preferences
and Rights of Series A Junior Participating
Preferred Stock
Exhibit B -- Form of Rights Certificate
Exhibit C -- Detailed Summary of Rights to Purchase Series A
Junior Participating Preferred Stock
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 5,
1995 (the "Agreement"), between Transcisco Industries,
Inc., a Delaware corporation (the "Company"), and First
Interstate Bank of California, a California banking
corporation (the "Rights Agent"),
W I T N E S S E T H
WHEREAS, on August 31, 1995 (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 common stock,
par value $0.01 per share, of the Company (the "Common
Stock") outstanding at the close of business on September
20, 1995 (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 issued between the
Record Date (whether originally issued or delivered from
the Company's treasury) and the Distribution Date (as
defined in Section 3 hereof), each Right initially
representing the right to purchase one one-thousandth of
a share of Series A Junior Participating Preferred Stock
(the "Preferred Stock") of the Company having the rights,
powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights
attached hereto as Exhibit A, upon the terms and subject
to the conditions hereinafter set forth (the "Rights").
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the
parties hereby agree as follows:
Section 1. Certain Definitions. For purposes
of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 5% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company,
(iv) any Person organized, appointed or established by
the Company for or pursuant to the terms of any such
plan, or (iv) any Exempted Person.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934 as amended and in effect
on the date of this Agreement (the "Exchange Act").
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any of such
Person's Affiliates or Associates, 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 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, (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a
Triggering Event, (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, or (D) securities issued
or issuable pursuant to any employee benefit plan of the
Company or any Subsidiary of the Company or any
employment agreement, arrangement or other understanding
between the Company or any Subsidiary of the Company and
any person or any of such Person's Affiliates or
Associates; or
(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 the General Rules and Regulations under the
Exchange Act), including 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 (A)
an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or understanding:
(1) 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 (2) is not also then reportable by such
Person on Schedule 13D under the Exchange Act (or any
comparable or successor report), or (B) securities issued
or issuable pursuant to any employee benefit plan of the
Company or any Subsidiary of the Company or any
employment agreement, arrangement or other understanding
between the Company or any Subsidiary of the Company and
any person or any of such Person's Affiliates or
Associates; 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
(c)) or disposing of any voting securities of the
Company; provided, however, that nothing in this
paragraph (c) 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 (40) days after the date of such acquisition.
(d) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(e) "Close of business" on any given date
shall mean 5:00 P.M., New York City time, on such date;
provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(f) "Common Stock" shall have the meaning
set forth in the recital to this Agreement, 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.
(g) "Continuing Director" shall mean (i)
any member of the Board of Directors of the Company,
while such Person is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate, and was a
member of the Board prior to the date of this Agreement,
or (ii) any Person who subsequently becomes a member of
the Board, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative of
an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or
election to the Board is recommended or approved by a
majority of the Continuing Directors.
(h) "Exempted Person" shall mean any
Person who, together with all Affiliates and Associates
of such Person, is the Beneficial Owner of securities (as
disclosed in public filings with the Securities and
Exchange Commission on the Rights Dividend Declaration
Date), representing 5% or more of the shares of Common
Stock outstanding on the Rights Dividend Declaration Date
or (b) is subject to a standstill agreement approved by
the Continuing Directors (an "Approved Standstill
Agreement") and acquires such securities without
violating such Approved Standstill Agreement; provided,
however, that any such Person (i) shall no longer be
deemed to be an Exempted Person and shall be deemed an
Acquiring Person if such Person, together with all
Affiliates and Associates of such Person, becomes the
Beneficial Owner, at any time after the Rights Dividend
Declaration Date, of additional securities representing
1,000 or more shares of Common Stock, except (x) in
accordance with an Approved Standstill Agreement, (y)
pursuant to the exercise of options or warrants to
purchase Common Stock outstanding and beneficially owned
by such Person as of the Rights Dividend Declaration Date
or as a result of an adjustment to the number of shares
of Common Stock for which such options or warrants are
exercisable pursuant to the terms thereof, or (z) as a
result of a stock split, stock dividend or the like. A
purchaser, assignee or transferee of the shares of Common
Stock (or warrants or options exercisable for Common
Stock) of an Exempted Person shall not thereby become an
Exempted Person.
(i) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(j) "Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, par
value $0.01 per share, of the Company, and, to the extent
that there are not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized
to permit the full exercise of the Rights, any other
series of Preferred Stock, par value $0.01 per share, of
the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(k) "Section 11(a)(ii) Event" shall mean
any event described in Section 11(a)(ii) hereof.
(l) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(m) "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.
(n) "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.
(o) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
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
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 earlier of (i) the close of
business on the tenth day after the Stock Acquisition
Date (or, if the tenth day after the Stock Acquisition
Date occurs before the Record Date, the close of business
on the Record Date), or (ii) the close of business on the
tenth business day (or such later date as the Board of
Directors of the Company shall determine) after the date
that a tender 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 5% or more of the shares of Common Stock then
outstanding (the earlier of (i) and (ii) 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 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
Transcisco Industries, Inc. (the "Company") and
First Interstate Bank of California (the
"Rights Agent"), dated as of September 5, 1995
(the "Rights Agreement"), the terms of which
are hereby incorporated herein by reference and
a copy of which is on file at the principal
offices of the Rights Agent. 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 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 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 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 one one-thousandths of a share
of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per one
one-thousandth of a 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 any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
avoidance of 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 or
an Affiliate or Associate of an Acquiring
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.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or any Vice
President, 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
Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature, 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 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 shall 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) and Section 14
hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate
or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number
of one one-thousandths of a share of Preferred Stock (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.
(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 on 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 one one-thousandths of a share of Preferred Stock (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 earlier of (i) the close
of business on September 20, 2005, (the "Final Expiration
Date"), or (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").
(b) The Purchase Price for each one
one-thousandth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $12.00, 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 duly executed,
accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per one one-thousandth
of a share of Preferred Stock (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 one one-thousandths of a share 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 one one-thousandths of a share 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 shall 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. The Company
reserves the right to require prior to the occurrence of
a Triggering Event that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares
of Preferred Stock would be issued.
(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 or an
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person
has 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 its 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 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 cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled 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 cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof 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
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 under the Securities Act
of 1933 (the "Act") with respect to the securities
purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become
effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for
such securities, and (B) the date of the expiration of
the Rights. The Company will also take such action as
may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states
in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not
to exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this 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 one one-thousandths of a share 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 one one-thousandths of a share 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 one one-thousandths of a share 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 one
one-thousandths of a share 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 one
one-thousandths of a share 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 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 or she 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 shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) In the event any Person (other
than an Exempted Person, 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), alone or
together with its Affiliates and Associates, shall, at
any time after the Rights Dividend Declaration Date,
become the Beneficial Owner of 5% or more of the shares
of Common Stock then outstanding, unless the event
causing the 5% threshold to be crossed is a transaction
set forth in Section 13(a) hereof or is an acquisition of
shares of Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of Common Stock
at a price and on terms determined by at least a majority
of the members of the Board of Directors of the Company
who are not officers of the Company and who are not
representatives, nominees, Affiliates or Associates of an
Acquiring Person, after receiving advice from one or more
investment banking firms, to be (a) at a price which is
fair to stockholders (taking into account all factors
which such members of the Board deem 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 (b)
otherwise in the best interests of the Company and its
stockholders, then, promptly following the occurrence of
such 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 one one-thousandths of
a share 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 one one-thousandths of a
share 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 10% of the current
market price (determined pursuant to Section 11(d)
hereof) per share of Common Stock on the date of such
first occurrence (such number of shares, the "Adjustment
Shares").
(iii) In the event that the number
of shares of Common Stock which are authorized by the
Company's Amended and Restated Certificate 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), the Company
shall (A) determine the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current
Value"), and (B) with respect to each Right (subject to
Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the exercise
of a Right and 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, such as the Preferred Stock,
which the Board of Directors of the Company has deemed to
have essentially the same value or economic rights as
shares of Common Stock (such shares of preferred stock
being referred to as "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 (less the amount of any
reduction in the Purchase Price), where such aggregate
value has been determined by the Board based upon the
advice of a nationally recognized investment banking firm
selected by the Board; provided, however, that if the
Company shall not have made adequate provision to deliver
value pursuant to clause (B) 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.
For purposes of the preceding sentence, the term "Spread"
shall mean the excess of (i) the Current Value over (ii)
the Purchase Price. If the Board of Directors of the
Company determines in good faith that it is likely that
sufficient additional shares of Common Stock could be
authorized for issuance upon exercise in full of the
Rights, the thirty-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
(such thirty-day period, as it may be extended, is herein
called the "Substitution Period"). To the extent that
action is to be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company (1)
shall provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding Rights,
and (2) may suspend the exercisability of the Rights
until the expiration of the Substitution Period in order
to seek such shareholder approval for such authorization
of additional shares 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 each Adjustment Share shall be
the Current Market Price per share of the Common Stock on
the Section 11(a)(ii) Trigger Date and the per share or
per unit value of any Common Stock Equivalent shall be
deemed to equal the Current Market Price per share of the
Common Stock on such date.
(b) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of 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 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 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 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 American Stock Exchange or, if the shares
of Common Stock are not listed or admitted to trading on
the American 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
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, 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 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 1,000 (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 1,000.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase
Price; provided, however, that any adjustments which by
reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the
nearest ten-thousandth of a share of Common Stock or
other share or one-ten 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), (j), (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 one
one-thousandths of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
one one-thousandths of a share of Preferred Stock
(calculated to the nearest one-ten millionth) obtained by
(i) multiplying (x) the number of one one-thousandths of
a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of one one-thousandths of a share of Preferred
Stock 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 one
one-thousandths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one
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
countersigned 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 one one-
thousandths of a share 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 one one-thousandth of a share and
the number of one one-thousandths of a share 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 one
one-thousandths of a share of Preferred Stock issuable
upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
such number of one one-thousandths of a share 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 one
one-thousandths of a share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-thousandths of a share 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.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 26 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 Stock, (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 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 25 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 or
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 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 one one-thousandths of a share 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 one one-thousandths of a share 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) 10% 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-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
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) will 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 which
complies with the provisions of Section 11(a)(ii)(B)
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.
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 American Stock Exchange or, if the Rights are not
listed or admitted to trading on the American 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 (other than
fractions which are integral multiples of one
one-thousandth of a share 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 one
one-thousandth of a share of Preferred Stock). In lieu
of fractional shares of Preferred Stock that are not
integral multiples of one one-thousandth of a share 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 one
one-thousandth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-thousandth of a share of Preferred Stock shall
be one one-thousandth of 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 (1)
share of Common Stock shall be the closing price of one
(1) share of 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 or her
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 or her own behalf and for his
or her own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his
or her right to exercise the Rights evidenced by such
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
(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
one one-thousandths of a share of Preferred Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any
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 24 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.
(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.
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 or shareholder services 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 President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable
hereunder 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 and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with
its duties, and it shall not be liable for any action
taken or suffered 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 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 of 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 of the Rights Certificates by first-class
mail. The Company may, in its sole discretion, remove
the Rights Agent or any successor Rights Agent upon
thirty (30) days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and
to each transfer agent of the Common Stock 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
thirty (30) days after giving notice of such removal or
after it has been notified in writing of such resignation
or incapacity by the resigning or incapacitated Rights
Agent or by the holder of a Rights Certificate (who
shall, with such notice, submit his Rights Certificate
for inspection by the Company), then 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 the State of New York (or of
any other state of the United States so long as such
corporation is authorized to do business as a banking
institution in the State of New York), in good standing,
which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination
by federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and
surplus of at least $100,000,000. After appointment, the
successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property
at the time held by it hereunder, and execute and deliver
any further assurance, conveyance, act or deed necessary
for the purpose. Not later than the effective date of
any such appointment, the 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 as of 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 twentieth 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 twentieth day following the
Record Date), or (ii) the Final Expiration Date, redeem
all but not less than all the then outstanding Rights 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 the
date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"); provided,
however, if the Board of Directors of the Company
authorizes redemption of the Rights in either of the
circumstances set forth in clauses (i) and (ii) below,
then there must be Continuing Directors then in office
and such authorization shall require the concurrence of a
majority of such Continuing Directors: (i) such
authorization occurs on or after the time a Person
becomes an Acquiring Person, or (ii) such authorization
occurs on or after the date of a change (resulting from a
proxy or consent solicitation or an action by written
consent of stockholders, whether or not made pursuant to,
and in accordance with, the applicable provisions of the
General Rules and Regulations under the Exchange Act) in
a majority of the directors in office at the commencement
of such solicitation, or prior to such written consent,
if any Person who is a participant in such solicitation,
or who signed such consent, has stated (or, if upon the
commencement of such solicitation, a majority of the
Board of Directors of the Company has determined in good
faith) that such Person (or any of its Affiliates or
Associates) intends to take, or may consider taking, any
action which would result in such Person becoming an
Acquiring Person or which would cause the occurrence of a
Triggering Event unless, concurrent with such
solicitation, such Person (or one or more of its
Affiliates or Associates) is making a cash tender offer
pursuant to a Schedule 14D-1 (or any successor form)
filed with the Securities and Exchange Commission for all
outstanding shares of Common Stock not beneficially owned
by such Person (or by its Affiliates or Associates).
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. 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 and in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend,
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) or (ii)
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 of the events set forth
in Section 11(a)(ii) hereof shall occur, then, in any
such case, (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 25
hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event
to holders of Rights under Section 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 25. Notices. 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:
Transcisco Industries, Inc.
601 California Street
Suite 1301
San Francisco, California 94108
Attention: President
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:
First Interstate Bank of California
Corporate Trust Department
345 California Street, Eighth Floor
San Francisco, California 94104
Attention: Assistant Vice President
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 if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 26. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 26, 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 26, 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 (which lengthening or shortening,
following the first occurrence of an event set forth in
clauses (i) and (ii) of the first proviso to Section
23(a) hereof, shall be effective only if there are
Continuing Directors and shall require the concurrence of
a majority of such Continuing Directors), 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 or an Affiliate or Associate of an Acquiring
Person); provided, however, 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
26, the Rights Agent shall execute such supplement or
amendment. 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 one one-thousandths of a share 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 27. 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 28. 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 outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock 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. The Board of Directors of the Company
(with, where specifically provided for herein, the
concurrence of the Continuing Directors) shall have the
exclusive power and authority to administer this
Agreement and to exercise all rights and powers
specifically granted to the Board (with, where
specifically provided for herein, the concurrence of the
Continuing Directors) 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 (with, where specifically provided
for herein, the concurrence of the Continuing Directors)
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 the Continuing Directors to any liability to the
holders of the Rights.
Section 29. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and
the registered holders of the 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 30. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board of Directors of the Company determines 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 twentieth day following the date of such
determination by the Board of Directors. Without
limiting the foregoing, if any provision requiring a
majority of the Board of Directors of the Company to be
Continuing Directors to act is held by any court of
competent jurisdiction or other authority to be invalid,
void or unenforceable, such determination shall then be
made by the Board of Directors of the Company in
accordance with applicable law and the Company's Amended
and Restated Certificate of Incorporation and By-Laws.
Section 31. 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 Delaware 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.
Section 32. Counterparts. This Agreement may
be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: TRANSCISCO INDUSTRIES, INC.
By /s/ Gregory S. Saunders By /s/ Eugene M. Armstrong
Name: Gregory S. Saunders Name: Eugene M. Armstrong
Title: Assistant Secretary Title: Chairman
Attest: FIRST INTERSTATE BANK
OF CALIFORNIA
By /s/ Rose M. Ruelos By /s/ Joseph W. Thatcher
Name: Rose M. Ruelos Name: Joseph W. Thatcher
Title: Vice President Title: Assistant Vice President
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES
AND RIGHTS OF SERIES A JUNIOR
PARTICIPATING PREFERRED STOCK
of
TRANSCISCO INDUSTRIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
The undersigned officers of Transcisco
Industries, Inc., a corporation organized and existing
under the General Corporation Law of the State of
Delaware (the "Corporation"), in accordance with the
provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon
the Board of Directors by the Amended and Restated
Certificate of Incorporation of the Corporation, the
Board of Directors on August 31, 1995 adopted the
following resolution creating a series of 100,000 shares
of Preferred Stock designated as Series A Junior
Participating Preferred Stock:
RESOLVED, that pursuant to the authority
vested in the Board of Directors of this Corporation in
accordance with the provisions of its Amended and
Restated Certificate of Incorporation, a series of
Preferred Stock of the Corporation be and it hereby is
created, and that the designation and amount thereof and
the voting powers, preferences and relative,
participating, optional and other special rights of the
shares of such series, and the qualifications,
limitations or restrictions thereof are as follows:
Section 1. Designation and Amount. The
shares of such series shall be designated as "Series A
Junior Participating Preferred Stock" and the number of
shares constituting such series shall be 100,000.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the last
day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of
(a) $0.01 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 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 Series A Junior Participating Preferred Stock.
In the event the Corporation shall at any time after
August 31, 1995 (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 Series A Junior
Participating Preferred Stock 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.
(B) The Corporation shall declare a dividend
or distribution on the Series A Junior Participating
Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the
Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $0.01 per share on
the Series A Junior Participating Preferred Stock shall
nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue
of such shares of Series A Junior Participating
Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A
Junior Participating Preferred Stock entitled to receive
a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on
the shares of Series A Junior Participating Preferred
Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The
Board of Directors may fix a record date for the
determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon,
which record date shall be no more than thirty (30) days
prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of
shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a
vote of the stockholders of the Corporation. 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 number of votes per
share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying
such number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of shares
of Common Stock shall vote together as one class on all
matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If at any time dividends on any
Series A Junior Participating Preferred Stock shall
be in arrears in an amount equal to six (6)
quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period
(herein called a "default period") which shall
extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend
periods and for the current quarterly dividend
period on all shares of Series A Junior
Participating Preferred Stock then outstanding
shall have been declared and paid or set apart for
payment. During each default period, all holders
of Preferred Stock (including holders of the Series
A Junior Participating Preferred Stock) with
dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to
elect two (2) Directors.
(ii) During any default period, such
voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised
initially at a special meeting called pursuant to
subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at
annual meetings of stockholders, provided that such
voting right shall not be exercised unless the
holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in
person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the
exercise by the holders of Preferred Stock of such
voting right. At any meeting at which the holders
of Preferred Stock shall exercise such voting right
initially during an existing default period, they
shall have the right, voting as a class, to elect
Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an
annual meeting, to elect two (2) Directors. If the
number which may be so elected at any special
meeting does not amount to the required number, the
holders of the Preferred Stock shall have the right
to make such increase in the number of Directors as
shall be necessary to permit the election by them
of the required number. After the holders of the
Preferred Stock shall have exercised their right to
elect Directors in any default period and during
the continuance of such period, the number of
Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as
herein provided or pursuant to the rights of any
equity securities ranking senior to or pari passu
with the Series A Junior Participating Preferred
Stock.
(iii) Unless the holders of Preferred
Stock shall, during an existing default period,
have previously exercised their right to elect
Directors, the Board of Directors may order, or any
stockholder or stockholders owning in the aggregate
not less than ten percent (10%) of the total number
of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of
a special meeting of the holders of Preferred
Stock, which meeting shall thereupon be called by
the President, a Vice-President or the Secretary of
the Corporation. Notice of such meeting and of any
annual meeting at which holders of Preferred Stock
are entitled to vote pursuant to this Paragraph
(C)(iii) shall be given to each holder of record of
Preferred Stock by mailing a copy of such notice to
him or her at his or her last address as the same
appears on the books of the Corporation. Such
meeting shall be called for a time not earlier than
twenty (20) days and not later than sixty (60) days
after such order or request, or in default of the
calling of such meeting within sixty (60) days
after such order or request, such meeting may be
called on similar notice by any stockholder or
stockholders owning in the aggregate not less than
ten percent (10%) of the total number of shares of
Preferred Stock outstanding. Notwithstanding the
provisions of this Paragraph (C)(iii), no such
special meeting shall be called during the period
within sixty (60) days immediately preceding the
date fixed for the next annual meeting of the
stockholders.
(iv) In any default period, the holders
of Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be
entitled to elect the whole number of Directors
until the holders of Preferred Stock shall have
exercised their right to elect two (2) Directors
voting as a class, after the exercise of which
right (x) the Directors so elected by the holders
of Preferred Stock shall continue in office until
their successors shall have been elected by such
holders or until the expiration of the default
period, and (y) any vacancy in the Board of
Directors may (except as provided in Paragraph
(C)(ii) of this Section 3) be filled by vote of a
majority of the remaining Directors theretofore
elected by the holders of the class of stock which
elected the Director whose office shall have become
vacant. References in this Paragraph (C) to
Directors elected by the holders of a particular
class of stock shall include Directors elected by
such Directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of
Preferred Stock as a class to elect Directors shall
cease, (y) the term of any Directors elected by the
holders of Preferred Stock as a class shall
terminate, and (z) the number of Directors shall be
such number as may be provided for in the Amended
and Restated Certificate of Incorporation or
By-laws of the Corporation irrespective of any
increase made pursuant to the provisions of
Paragraph (C)(ii) of this Section 3 (such number
being subject, however, to change thereafter in any
manner provided by law or in the Amended and
Restated Certificate of Incorporation or By-laws of
the Corporation). Any vacancies in the Board of
Directors effected by the provisions of clauses (y)
and (z) in the preceding sentence may be filled by
a majority of the remaining Directors.
(D) Except as set forth herein, holders of
Series A Junior Participating Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in
Section 2 hereof are in arrears, thereafter and until
all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have
been paid in full, the Corporation shall not:
(i) declare or pay dividends on, make
any other distributions on, or redeem or purchase
or otherwise acquire for consideration any shares
of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make
any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock,
except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such
parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock,
provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as
to dividends or upon dissolution, liquidation or
winding up) to the Series A Junior Participating
Preferred Stock; or
(iv) purchase or otherwise acquire for
consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of
stock ranking on a parity (either as to dividends
or upon liquidation, dissolution or winding up)
with the Series A Junior Participating Preferred
Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by
the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors,
after consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and classes,
shall determine in good faith will result in fair
and equitable treatment among the respective series
or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
Paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or
Winding Up. (A) Upon any liquidation (voluntary or
otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock
unless, prior thereto, the holders of shares of Series A
Junior Participating Preferred Stock shall have received
an amount equal to $12,000 per share of Series A Junior
Participating Preferred Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the
payment of the full amount of the Series A Liquidation
Preference, no additional distributions shall be made to
the holders of shares of Series A Junior Participating
Preferred Stock 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 Series A Liquidation
Preference by (ii) 1,000 (as appropriately adjusted as
set forth in subparagraph (C) below to reflect such
events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock)
(such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Stock,
respectively, holders of Series A Junior Participating
Preferred Stock 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 Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation
preferences of all other series of Preferred Stock, if
any, which rank on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the
Series A Junior Participating Preferred Stock, then such
remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their
respective liquidation preferences. In the event,
however, that there are not sufficient assets available
to permit payment in full of the Common Adjustment, then
such remaining assets shall be distributed ratably to
the holders of Common Stock.
(C) 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.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed into
other stock or securities, cash and/or any other
property, then in any such case the shares of Series A
Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment
hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is
changed or exchanged. In the event the Corporation
shall at any time 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 set forth in the preceding sentence with
respect to the exchange or change of shares of Series A
Junior Participating Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of
Series A Junior Participating Preferred Stock shall not
be redeemable.
Section 9. Amendment. The Amended and
Restated Certificate of Incorporation of the Corporation
shall not be further amended in any manner which would
materially alter or change the powers, preferences or
special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without
the affirmative vote of the holders of a majority or
more of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a
class.
Section 10. Fractional Shares. Series A
Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate
in distributions and to have the benefit of all other
rights of holders of Series A Junior Participating
Preferred Stock.
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the foregoing
as true under the penalties of perjury this [__]th day
of September 1995.
TRANSCISCO INDUSTRIES, INC.
Name:
Title:
Attest:
Secretary
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 20, 2005 OR EARLIER IF
REDEEMED 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 (AS SUCH TERM 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 OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING 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.](1)
Rights Certificate
TRANSCISCO INDUSTRIES, INC.
This certifies that [ ], or
registered assigns, is the registered owner of the
number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of
September 5, 1995 (the "Rights Agreement"), between
Transcisco Industries, Inc., a Delaware corporation (the
"Company"), and First Interstate Bank of California, a
California banking corporation (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00 P.M.
(New York City time) on September 20, 2005 at the office
or offices of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one one-
thousandth of a fully paid, non-assessable share of
Series A Junior Participating Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price
of $12.00 per one one-thousandth of a share (the
"Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The
number of Rights evidenced by this Rights Certificate
(and the number of shares which may be purchased upon
exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and
Purchase Price as of September 20, 1995 based on the
Preferred Stock as constituted at such date. The
Company reserves the right to require prior to the
________________
1 The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
occurrence of a Triggering Event (as such term is
defined in the Rights Agreement) that a number of Rights
be exercised so that only whole shares of Preferred
Stock will be issued.
Upon the occurrence of a Section 11(a)(ii)
Event (as such term is defined in the Rights Agreement),
if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any Acquiring Person (as such
terms are defined in the Rights Agreement), (ii) a
transferee of any Acquiring Person, Associate or
Affiliate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a
person who, after such transfer, became an Acquiring
Person, or an Affiliate or Associate of an Acquiring
Person, such Rights shall become null and void and no
holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares of
Preferred Stock or other securities which 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 Triggering Events.
This Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby
made for a full description of the rights, limitations
of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the
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 the above-mentioned office of the Rights Agent
and are also available upon written request to the
Rights Agent.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal
office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and
date evidencing Rights entitling the holder to purchase
a like aggregate number of one one-thousandths of a
share of Preferred Stock 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 at any time prior to the
earlier of the close of business on (i) the twentieth
day following the Stock Acquisition Date (as such time
period may be extended pursuant to the Rights
Agreement), and (ii) the Final Expiration Date. In
addition, the Rights may be exchanged, in whole or in
part, for shares of the Common Stock, or shares of
preferred stock of the Company having essentially the
same value or economic rights as such shares.
Immediately upon the action of the Board of Directors of
the Company authorizing any such exchange, and without
any further action or any notice, the Rights (other than
Rights which are not subject to such exchange) will
terminate and the Rights will only enable holders to
receive the shares issuable upon such exchange. Under
certain circumstances set forth in the Rights Agreement,
the decision to redeem the Rights shall require the
concurrence of a majority of the Continuing Directors
(as such term is defined in the Rights Agreement).
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 one one-thousandth of a share of
Preferred Stock, which may, at the election of the
Company, be evidenced by depositary receipts), but in
lieu thereof a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred Stock or
of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any
of the rights of a 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 as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of ,
ATTEST: TRANSCISCO INDUSTRIES, INC.
____________________ By_______________________
Secretary Name:
Title:
Countersigned:
FIRST INTERSTATE BANK OF CALIFORNIA
By______________________
Authorized Signature
[Form of Reverse Side 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: ___________________, 19__
___________________________
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 or an
Affiliate or Associate of any Acquiring 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 or an Affiliate or Associate of an
Acquiring Person.
Dated: __________________, ____ ______________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon
the face of this Rights Certificate in every particular,
without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: TRANSCISCO INDUSTRIES, INC.:
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 such other
securities of the Company or of any other person which
may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in
the name of and 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:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any Acquiring 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 became an Acquiring
Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ___________, 19__ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature 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 alteration or enlargement or
any change whatsoever.
Exhibit C
DETAILED SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On August 31, 1995, the Board of Directors of
Transcisco Industries, Inc. (the "Company") adopted a
Shareholder Rights Plan, providing that one right (a
"Right") shall be attached to each share of common
stock, par value $0.01 per share, of the Company (the
"Common Stock"). Each Right entitles the registered
holder to purchase from the Company a unit (a "Unit")
consisting of one one-thousandth of a share of Series A
Junior Participating Preferred Stock, par value $0.01
per share (the "Preferred Stock"), at a Purchase Price
of $12.00 per Unit (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are
set forth in the Rights Agreement (the "Rights
Agreement"), dated as of September 5, 1995, between the
Company and First Interstate Bank of California, a
California banking corporation, as Rights Agent (the
"Rights Agent").
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights Certificate will be
distributed. The Rights will separate from the Common
Stock and a Distribution Date will occur upon the
earlier of (i) ten (10) days following a public
announcement that a person or group of affiliated or
associated persons, other than an Exempted Person (as
defined below), (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of
5% or more of the outstanding shares of Common Stock
(the "Stock Acquisition Date") or (ii) ten (10) business
days following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially owning 5% or more of such outstanding
shares of Common Stock. Until the Distribution Date,
(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 will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender
for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the
Rights associated with the Common Stock represented by
such certificate.
Any person who, together with all affiliates
and associates of such person, is (a) the beneficial
owner of Common Stock, options and/or warrants
exercisable for shares of Common Stock representing 5%
or more of the shares of Common Stock outstanding on the
date the Board of Directors authorizes the rights
dividend (the "Rights Dividend Declaration Date") or (b)
is subject to a standstill agreement approved by a
majority of the independent directors not affiliated or
associated with an Acquiring Person (an "Approved
Standstill Agreement") and acquires such securities
without violating such Approved Standstill Agreement,
will be an "Exempted Person." However, any such person
will no longer be deemed to be an Exempted Person and
will be deemed to be an Acquiring Person if such person,
together with all affiliates and associates of such
person, becomes the beneficial owner, at any time after
the Rights Dividend Declaration Date, of additional
securities representing 1000 or more shares of Common
Stock, except if such additional securities are acquired
(x) in accordance with an Approved Standstill Agreement,
(y) pursuant to the exercise of options or warrants to
purchase Common Stock outstanding and beneficially owned
by such person as of the Rights Dividend Declaration
Date or as a result of an adjustment to the number of
shares of Common Stock for which such options or
warrants are exercisable pursuant to the terms thereof,
or (z) as a result of a stock split, stock dividend or
the like. A purchaser, assignee or transferee of the
shares of Common Stock (or options or warrants
exercisable for Common Stock) of an Exempted Person will
not thereby become an Exempted Person.
The Rights are not exercisable until the
Distribution Date and will expire at the close of
business on September 20, 2005 unless earlier redeemed
by the Company as described below.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Stock as of the close of business
on the Distribution Date and, thereafter, the separate
Rights Certificates alone will represent the Rights.
Except as otherwise determined by the Board of
Directors, only shares of Common Stock prior to the
Distribution Date will be issued with Rights.
In the event that an Acquiring Person, other
than an Exempted Person, becomes the beneficial owner of
5% or more of the then outstanding shares of Common
Stock (unless such acquisition is made pursuant to a
tender or exchange offer for all outstanding shares of
the Company, at a price determined by a majority of the
independent directors of the Company who are not
representatives, nominees, Affiliates or Associates of
an Acquiring Person to be fair and otherwise in the best
interest of the Company and its stockholders), each
holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company), having a value equal to ten times the Exercise
Price of the Right. The Exercise Price is the Purchase
Price times the number of shares of Common Stock
associated with each Right (initially, one).
Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this
paragraph (the "Flip-In Events"), all Rights that are,
or (under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the Flip-
In Events set forth above until such time as the Rights
are no longer redeemable by the Company as set forth
below.
In the event that following the Stock
Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is
not the surviving corporation (other than a merger that
follows a tender offer determined to be fair to the
stockholders of the Company, as described in the
preceding paragraph); (ii) the Company engages in a
merger or business combination transaction in which the
Company is the surviving corporation and the Common
Stock is changed or exchanged; or (iii) 50% or more of
the Company's assets or earning power is sold or
transferred, each holder of a Right (except Rights which
have previously been voided as set forth above) shall
thereafter have the right to receive, upon exercise of
the Right, common stock of the acquiring company having
a value equal to ten times the Exercise Price of the
Right.
The Purchase Price 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 (i) in the event
of a stock dividend on, or a subdivision, combination or
reclassification of, the Preferred Stock, (ii) if
holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market
price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustments in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until twenty (20) days following
the Stock Acquisition Date, the Company may redeem the
Rights in whole, but not in part, at a price of $0.001
per Right. Under certain circumstances, the decision to
redeem shall require the concurrence of a majority of
the Continuing Directors (as defined below).
Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights
will be to receive the $0.001 redemption price.
The term "Continuing Director" means any
member of the Board of Directors of the Company who was
a member of the Board prior to the adoption of the
Rights Plan and any person who is subsequently elected
to the Board if such person is recommended or approved
by a majority of the Continuing Directors, but shall not
include an Acquiring Person, or an affiliate or
associate of an Acquiring Person, or any representative
of the foregoing entities.
Until a Right is exercised, the holder
thereof, as such, will have no rights as a stockholder
of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution
of the Rights will not be taxable to stockholders or to
the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event
that the Rights become exercisable for Common Stock (or
other consideration) of the Company as set forth above.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board (in certain circumstances, with the concurrence of
the Continuing Directors) in order to cure any
ambiguity, to make changes which do not adversely affect
the interests of holders of Rights (excluding the
interest of any Acquiring Person), or to shorten or
lengthen any time period under the Rights Agreement;
provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time
as the Rights are not redeemable.
A copy of the Rights Agreement is being filed
with the Securities and Exchange Commission as an
Exhibit to a Registration Statement on Form 8-A. A copy
of the Rights Agreement is available free of charge from
the Company. This Detailed Summary of Rights does not
purport to be complete and is qualified in its entirety
by reference to the Rights Agreement, which is
incorporated herein by reference.
