SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A-1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PIONEER HI-BRED INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
IOWA 42-0470520
(State of incorporation or organization) (IRS Employer
Identification No.)
700 Capital Square, 400 Locust Street, 50309
Des Moines, Iowa
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Share Purchase Rights
(Title of class)
(Title of class)
<PAGE> 1
Item 1. Description of Securities to be Registered.
On December 13, 1994, the Board of Directors of Pioneer Hi-Bred
International, Inc. (the "Company") amended the Company's
Shareholder Rights Plan (the "Plan") to (i) increase the Purchase
Price to $100 and (ii) remove a provision which allowed certain
bidders to request the Company to hold a special meeting of
shareholders to consider a resolution to accept the bidder's
proposal and redeem all Outstanding Rights in connection therewith.
Prior to adoption of the foregoing amendments, the Purchase Price
of the Rights had been reduced from the initial Purchase Price of
$100 to $33.33 as a result of a three for one stock split effected
in 1992. The Redemption Price of the Rights, which was reduced from
$.01 to one-third of a cent as a result of such split, was not
changed by the foregoing amendments. The Rights Agreement, as
amended and restated, is attached hereto as Exhibit 1.
Item 2. Exhibits.
1. Rights Agreement, dated as of April 6, 1989 and amended
and restated as of December 13, 1994, between Pioneer Hi-Bred
International, Inc. and The First National Bank of Boston, as Rights
Agent, which includes, as Exhibit A thereto, the Form of Right
Certificate and as Exhibit B thereto, the Summary of Rights.
Pursuant to the Rights Agreement, Right Certificates will not be
mailed until ten days after the Shares Acquisition Date (as defined
in the Rights Agreement) or ten days after a person commences or
announces its intention to commence a tender or exchange offer if,
upon consummation thereof, such person would become an Acquiring
Person (as defined in the Rights Agreement).
<PAGE> 2
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this regis-
tration statement to be signed on its behalf by the undersigned,
thereto duly authorized.
Pioneer Hi-Bred International, Inc.
By:
Jerry L. Chicoine
Senior Vice President, Chief
Financial Officer and Secretary
Date: January ___, 1995
<PAGE> 3
EXHIBIT INDEX
Exhibit Description
Page
1 Rights Agreement, dated as of April 6, 1989, and amended
and restated as of December 13, 1994, between Pioneer
Hi-Bred International, Inc. and The First National Bank of
Boston, as Rights Agent, which includes, as Exhibit A
thereto, the Form of Right Certificate, and, as Exhibit B
thereto, the form of Summary of Rights. Pursuant to the
Rights Agreement, Right Certificates will not be mailed
until ten days after the Shares Acquisition Date (as defined
in the Rights Agreements) or 10 days after a person
announces or commences a tender or exchange offer upon
consummation thereof, such person would become an Acquiring
Person (as defined in the Rights Agreement).
<PAGE> 4
PIONEER HI-BRED INTERNATIONAL, INC.
and
THE FIRST NATIONAL BANK OF BOSTON
Rights Agent
Rights Agreement
Dated as of April 6, 1989 and Amended and Restated as of
December 13, 1994
<PAGE> 5
TABLE OF CONTENTS
Page
Section 1. Certain Definitions........................... 1
Section 2. Appointment of Rights Agent................... 3
Section 3. Issue of Right Certificates................... 4
Section 4. Form of Right Certificate..................... 5
Section 5. Countersignature and Registration............. 6
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates................... 6
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights................................. 7
Section 8. Cancellation and Destruction of Right
Certificates................................... 8
Section 9. Availability of common Shares.................. 8
Section 10. Common Shares Record Date...................... 9
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights............................ 9
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares...................................... 16
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power........................ 16
Section 14. Fractional Rights and Fractional Shares........ 18
Section 15. Rights of Action............................... 19
Section 16. Agreement of Right Holders..................... 19
Section 17. Right Certificate Holder Not Deemed a
Stockholder.................................... 19
Section 18. Concerning the Rights Agent.................... 20
Section 19. Merger or Consolidation or Change of Name of
Rights Agent................................... 20
Section 20. Duties of Rights Agent......................... 21
<PAGE> 6
Section 21. Change of Rights Agent......... ................ 23
Section 22. Issuance of New Right Certificates.............. 24
Section 23. Redemption...................................... 24
Section 24. Exchange........................................ 25
Section 25. Notice of Certain Events........................ 26
Section 26. Notices......................................... 27
Section 27. Supplements and Amendments...................... 28
Section 28. Successors...................................... 28
Section 29. Benefits of This Agreement...................... 28
Section 30. Severability.................................... 28
Section 31. Governing Law................................... 28
Section 32. Counterparts.................................... 29
Section 33. Descriptive Headings............................ 29
Exhibit A - Form of Right Certificate
Exhibit B - Summary of Rights
<PAGE> 7
RIGHTS AGREEMENT
Agreement, dated as of April 6, 1989 and amended and restated as of
December 13, 1994, between Pioneer Hi-Bred International, Inc., an
Iowa corporation (the "Company"), and The First National Bank of
Boston, a national banking association (the "Rights Agent").
On April 6, 1989, the Board of Directors of the Company
authorized and declared a dividend of one common share purchase
right (a "Right") for each Common Share (as hereinafter defined) of
the Company outstanding as of the close of business on April 6, 1989
(the "Record Date"), each Right representing the right to purchase
one Common Share, upon certain terms and subject to certain
conditions, and further authorized and directed on such date the
issuance of one Right with respect to each Common Share that shall
become outstanding between the Record Date and the earliest of the
Distribution Date, the Redemption Date and the Final Expiration Date
(as such terms are hereinafter defined).
On December 13, 1994, the Board of Directors of the Company
amended this Agreement to (i) increase the purchase price to $100
and (ii) remove a provision which allowed certain bidders to request
the Company to hold a special meeting of shareholders to consider a
resolution to accept the bidder's proposal and redeem all
Outstanding Rights in connection therewith.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter defined)
of 20% or more of the Common Shares of the Company then outstanding,
but shall not include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company or any entity
holding Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an Acquiring
Person as the result of an acquisition of Common Shares by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 20% or more of the Common Shares of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 20% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become the
Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an Acquiring Person.
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), as in effect on the date of this
Agreement.
(c) A person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or indirectly;
<PAGE> 8
(ii) which such Person or any of such Person's Affiliates
or Associates has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other
than customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities), or upon the exercise of conversion
rights, exchange rights, rights (other than these Rights),
warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the Beneficial owner of, or to
beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under the
Exchange Act and (2) is not also then reportable on Schedule
13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and
between underwriters and selling group members with respect to
a bona fide public offering of securities) for the purpose of
acquiring, holding, voting (except to the extent contemplated
by the proviso to Section l(c)(ii)(B)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of Beneficial
ownership to the contrary, the phrase "then outstanding,"
when used with reference to a Person's Beneficial Ownership
of securities of the Company, shall mean the number of such
securities then issued and outstanding together with the
number of such securities not then actually issued and
outstanding which such Person would be deemed to own
beneficially hereunder.
(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in Boston 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., Boston time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., Boston time, on
the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company
shall mean the shares of common stock, par value $1 per share, of
the Company. "Common Shares" when used with reference to any Person
other than the Company shall mean the capital stock (or equity
interest) with the greatest voting power of such other Person or, if
such other Person is a Subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned Person.
(g) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(h) "Equivalent Security" shall have the meaning set forth in
Section 11 hereof.
<PAGE> 9
(i) "Final Expiration Date" shall have the meaning set forth
in Section 7 hereof.
(j) "Person" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or
otherwise) of such entity.
(k) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(l) "Shares Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that an
Acquiring Person has become such.
(m) "Subsidiary" of any Person shall mean any corporation or
other entity of which a majority of the voting power of the voting
equity securities or equity interest is owned, directly or
indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall prior to the Distribution Date also be the holders of the
Common Shares) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The Company
may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Shares Acquisition Date or
(ii) the tenth business day (or such later date as may be determined
by action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by
any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the
Company or any entity holding Common Shares for or pursuant to the
terms of any such plan) of, or of the first public announcement of
the intention of any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan) to commence, a tender or
exchange offer the consummation of which would result in any Person
becoming the Beneficial Owner of Common Shares aggregating 20% or
more of the then outstanding Common Shares (including any such date
which is after the date of this Agreement and prior to the issuance
of the Rights; the earlier of such dates being herein referred to as
the "Distribution Date"), (x) the Rights will be evidenced (subject
to the provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof (which
certificates also shall be deemed to be Right Certificates) and not
be separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the
transfer of Common Shares. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign and the Company will send or cause to be sent
(and the Rights Agent will, if requested, send) by first-class,
insured, postage-prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the
address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit A hereto (a "Right
Certificate"), evidencing one Right for each Common Share so held.
As of the Distribution Date, the Rights will be evidenced solely by
such Right Certificates.
<PAGE> 10
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights, in substantially
the form of Exhibit B hereto (the "Summary of Rights"), by first-
class, postage-prepaid mail, to each
record holder of Common Shares as of the close of business on the
Record Date, at the address of such holder shown on the records of
the Company. With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates registered in the
names of the holders thereof together with a copy of the Summary of
Rights attached thereto. Until the Distribution Date (or the
earlier of the Redemption Date and the Final Expiration Date), the
surrender for transfer of any certificate for Common Shares
outstanding on the Record Date, with or without a copy of the
Summary of Rights attached thereto, also shall constitute the
transfer of the Rights associated with the Common Shares represented
thereby.
(c) Certificates for Common Shares which become outstanding
(including, without limitation, reacquired Common Shares referred to
in the last sentence of this paragraph (c)) after the Record Date
but prior to the earliest of the Distribution Date, the Redemption
Date and the Final Expiration Date shall have impressed on, printed
on, written on or otherwise affixed to them a legend in
substantially the following form:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights
Agreement between Pioneer Hi-Bred International, Inc.
and The First National Bank of Boston (the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at
the principal executive offices of Pioneer Hi-Bred
International, Inc. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be
evidenced by this certificate. Pioneer Hi-Bred
International, Inc. will mail to the holder of this
certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. As
described in the Rights Agreement, Rights issued to any
Person who becomes an Acquiring Person (as defined in
the Rights Agreement) shall become null and void.
With respect to such certificates containing the foregoing legend,
until the Distribution Date, the Rights associated with the Common
Shares represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such
certificate also shall constitute the transfer of the Rights
associated with the Common Shares represented thereby. In the event
that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights
associated with such Common Shares shall be deemed cancelled and
retired so that the Company shall not be entitled to exercise any
Rights associated with the Common Shares which are no longer
outstanding.
Section 4. Form of Right Certificate. The Right Certificates
(and the forms of election to purchase Common Shares and of
assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit A hereto and may have such marks
of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any applicable law or with any rule
or regulation made pursuant thereto or with any rule or regulation
of any stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Section 22 hereof, the Right Certificates shall entitle the holders
thereof to purchase such number of Common Shares as shall be set
forth therein at the price per Common Share set forth therein (the
"Purchase Price"), but the number of such Common Shares and the
Purchase Price shall be subject to adjustment as provided herein.
<PAGE> 11
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its Chief Executive Officer, its President,
any of its Vice Presidents, or its Treasurer, either manually or by
facsimile signature, and shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile
signature. The Right Certificates shall be manually countersigned
by the Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such officer
of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates,
nevertheless, may be countersigned by the Rights Agent and issued
and delivered by the Company with the same force and effect as
though the person who signed such Right Certificate had not ceased
to be such officer of the Company; and any Right Certificate may be
signed on behalf of the Company by any person who, at the actual
date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at
the date of the execution of this Rights Agreement any such person
was not such an officer.
Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its office designated for such purpose, books
for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates and the date
of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of Section 14 hereof, at
any time after the close of business on the Distribution Date, and
at or prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right Certificate
or Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii) hereof or
that have been exchanged pursuant to Section 24 hereof) may be
transferred, split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered holder
to purchase a like number of Common Shares (and/or Equivalent
Securities) as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any Right
Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred, split up,
combined or exchanged at the principal office of the Rights Agent.
Thereupon the Rights Agent shall countersign and deliver to the
person entitled thereto a Right Certificate or Right Certificates,
as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer, split up,
combination or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to
them, and, at the Company's request, reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto,
and upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to
the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
<PAGE> 12
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election
to purchase and certificate on the reverse side thereof duly
executed, to the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the Purchase
Price for each Common Share and/or Equivalent Security as to which
the Rights are exercised, at or prior to the earliest of (i) the
close of business on April 6, 1999 (the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in
Section 23 hereof (the "Redemption Date"), or (iii) the time at
which such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each Common Share and/or Equivalent
Security pursuant to the exercise of a Right shall initially be
$100, shall be subject to adjustment from time to time as provided
in Sections 11 and 13 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check,
cashier's check or money order payable to the order of the Company,
the Rights Agent shall thereupon promptly (i) requisition from any
transfer agent of the Common Shares certificates for the number of
Common Shares and/or Equivalent Securities to be purchased and the
Company hereby irrevocably authorizes its transfer agent to comply
with all such requests, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such holder
and (iv) when appropriate, after receipt, deliver such cash to or
upon the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14 hereof.
Section 8. Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to
the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to
the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall,
at the written request of the Company, destroy such cancelled Right
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
<PAGE> 13
Section 9. Availability of Common Shares. The Company covenants
and agrees that it will take all such action as may be necessary to
ensure that all Common Shares and/or Equivalent Securities delivered
upon exercise of Rights shall, at the time of delivery of the
certificates for such Common Shares and/or Equivalent Securities
(subject to payment of the Purchase Price), by duly and validly
authorized and issued and fully paid and nonassessable shares.
The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and
charges which may be payable in respect of the issuance or delivery
of the Right Certificates or of any Common Shares and/or Equivalent
Securities upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Right Certificates to a
person other than, or the issuance or delivery of certificates or
depository receipts for the Common Shares in a name other than that
of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or to deliver any certificates
of Common Shares and/or Equivalent Securities upon the exercise of
any Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's
reasonable satisfaction that no such tax is due.
Section 10. Common Shares Record Date. Each person in whose
name any certificate for Common Shares is issued upon the exercise
of Rights shall for all purposes be deemed to have become the holder
of record of the Common Shares and/or Equivalent Securities
represented thereby on, and such certificate shall be dated, the
date upon which the Right Certificate evidencing such Rights was
duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common
Shares transfer books of the Company are closed, such person shall
be deemed to have become the record holder of such shares on, and
such certificate shall be dated, the next succeeding Business Day on
which the Common Shares transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the holder of
a Right Certificate shall not be entitled to any rights of a holder
of Common Shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, 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 of Shares or
Number of Rights. The Purchase Price, the number of Common Shares
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section
11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on the
Common Shares payable in Common Shares, (B) subdivide the
outstanding Common Shares, (C) combine the outstanding Common
Shares into a smaller number of Common Shares or (D) issue any
shares of its capital stock in a reclassification of the
Common Shares (including any such reclassification in
connection with a consolidation or merger in which the Company
is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price
in effect at the time of the record date for such dividend or
of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital
stock issuable on such date, shall be proportionately adjusted
so that the holder of any Right exercised after such time
shall be entitled to receive the
<PAGE> 14
aggregate number and kind of shares of capital stock which, if
such Right had been exercised immediately prior to such date
and at a time when the Common Shares transfer books of the
Company were open, he would have owned upon such exercise and
been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable
upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement, in the
event (A) any Person shall become an Acquiring Person or (B)
during such time as there is an Acquiring Person, there shall
be any reclassification of securities (including any reverse
stock split), or recapitalization or reorganization of the
Company or other transaction or series of transactions
involving the Company which has the effect, directly or
indirectly, of increasing by more than 1% the proportionate
share of the outstanding shares of any class of equity
securities of the Company or any of its Subsidiaries
beneficially owned by any Acquiring Person or any Affiliate or
Associate thereof, each holder of a Right shall thereafter
have a right to receive, upon exercise thereof at a price
equal to the then current Purchase Price multiplied by the
number of Common Shares for which a Right is then exercisable,
in accordance with the terms of this Agreement, such number of
Common Shares of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by
the number of Common Shares for which a Right is then
exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Shares
(determined pursuant to Section 11(d) hereof) on the date of
the occurrence of the earlier of the events described in
clauses (A) and (B) above. Subject to Section 23(b) of this
Agreement, in the event that any Person shall become an
Acquiring Person and the Rights shall then be outstanding, the
Company shall not take any action which would eliminate or
diminish the benefits intended to be afforded by the Rights.
From and after the occurrence of the earlier of the events
described in clauses (A) and (B) above, any Rights that are or
were acquired or beneficially owned by any Acquiring Person
(or any Associate or Affiliate of such Acquiring Person) shall
be void and any holder of such Rights shall thereafter have no
right to exercise such Rights under any provision of this
Agreement. No Right Certificate shall be issued pursuant to
Section 3 that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof whose
Rights would be void pursuant to the preceding sentence; no
Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Associate
or Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate whose Rights would be void
pursuant to the preceding sentence; and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the preceding
sentence shall be cancelled.
(iii) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), and the
Rights become so exercisable, notwithstanding any other
provision of this Agreement, to the extent necessary and
permitted by applicable law and any agreements in effect on
the date hereof to which the Company is a party, each Right
shall thereafter represent the right to receive, upon exercise
thereof at the then current Purchase Price in accordance with
the terms of this Agreement, a number of shares, or
<PAGE> 15
units of shares, of (x) Common Shares (up to the maximum
number of shares of Common Shares which may permissibly be
issued using the allocation procedure specified in the second
sentence of Section 11(k)) and (y) additional debt or equity
securities of the Company, including, but not limited to
preferred stock, where the Board of Directors of the Company
shall have deemed such additional securities, other than the
shares of Common Shares, to have at least the same economic
value as the Common Shares (an "Equivalent Security");
provided, however, if there are unavailable sufficient shares
(or fractions of shares) of Common Shares and/or Equivalent
Securities, then the Company shall, to the extent permitted by
applicable law and any agreements to which it is a party, take
all such action as may be necessary to authorize additional
shares of Common Shares or Equivalent Securities for issuance
upon exercise of the Rights, including the calling of a
meeting of shareholders; and provided, further, that the
Company shall issue no Equivalent Securities upon exercise of
the Rights until the Company has first issued all authorized
and unreserved shares of Common Shares.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common
Shares entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Common Shares
or securities convertible into Common Shares at a price per Common
Share (or having a conversion price per share, if a security
convertible into Common Shares) less than the then current per share
market price of the Common Shares (as defined in Section 11(d)) on
such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of Common Shares outstanding
on such record date plus the number of Common Shares which the
aggregate offering price of the total number of Common Shares so to
be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
current market price and the denominator of which shall be the
number of Common Shares outstanding on such record date plus the
number of additional Common Shares to be offered for subscription or
purchase (or into which the convertible securities so to be offered
are initially convertible); provided, however, that in no event
shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of
the Company issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in
a statement filed with the Rights Agent. Common Shares owned by or
held for the account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment shall be
made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making
of a distribution to all holders of the Common Shares (including any
such distributions made in connection with a consolidation or merger
in which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly
cash dividend or a dividend payable in Common Shares) or
subscriptions 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 then current per share market price
of the Common Shares on such record date, less the
<PAGE> 16
fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in
a statement filed with the Rights Agent) of the portion of the
assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Common Share and
the denominator of which shall be such current per share market
price of the Common Shares; provided, however, that in no event
shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of
the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made,
the Purchase Price shall again be adjusted to be the Purchase Price
which would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation hereunder, the current
per share market price" of the Common Shares on any date shall be
deemed to be the average of the daily closing prices per share of
such Common Shares for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current per share market price
of the Common Shares is determined during a period following the
announcement by the issuer of such Common Shares of (A) a dividend
or distribution on such Common Shares payable in shares of such
Common Shares or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Common Shares
and prior to the expiration of 30 Trading Days after the ex-dividend
date for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each such
case, the current per share market price shall be appropriately
adjusted to reflect the current market price per Common Share. 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 on the principal national
securities exchange on which the Common Shares are listed or
admitted to trading or, if the Common Shares are not listed or
admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or, if
on any such date the Common Shares are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Common Shares selected by the Board of Directors of the Company.
The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Shares are listed
or admitted to trading is open for the transaction of business or,
if the Common Shares are not listed or admitted to trading on any
national securities exchange, a Business Day. If the Common Shares
are not publicly held or so listed or traded, "current per share
market price" shall mean the fair value per share as determined in
good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall
be made to the nearest cent or to the nearest one ten-thousandth of
a share 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 years from the date
of the transaction which requires such adjustment or (ii) the date
of the expiration of the right to exercise any Rights.
<PAGE> 17
(f) If as a result of an adjustment made pursuant to Section
11(a) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any Equivalent Securities so receivable
upon exercise of any Right shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Common Shares contained in
Section 11(a) through (c), inclusive, and the provisions of Sections
7, 9, 10 and 13 with respect to the Common Shares shall apply on
like terms to any such equivalent Securities.
(g) All Rights originally issued by the Company subsequent to
any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number of
Common Shares and/or Equivalent Securities 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 Common Shares (calculated to
the nearest one ten-thousandth of a share) obtained by (i)
multiplying (x) the number of shares covered by a Right immediately
prior to this adjustment by (y) the Purchase Price and (ii) dividing
the product so obtained by the Purchase Price in effect immediately
after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights, in
substitution for any adjustment in the number of Common Shares
and/or Equivalent Securities purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of Common
Shares and/or Equivalent Securities for which a Right was
exercisable immediately prior to such adjustment. Each Right held
of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest one ten-
thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date
for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right Certificates have
been issued, upon each adjustment of the number of Rights pursuant
to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Right Certificates
held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein and shall be registered in the names of
the holders of record of Right Certificates on the record date
specified in the public announcement.
<PAGE> 18
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of Common Shares issuable upon the exercise of
the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of Common
Shares which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the
Common Shares and/or Equivalent Securities issuable upon exercise of
the Rights, the Company shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable
Common Shares and/or Equivalent Securities at such adjusted Purchase
Price. If upon any exercise of the Rights, a holder is to receive a
combination of Common Stock and Equivalent Securities, a portion of
the consideration paid upon such exercise, equal to at least the
then par value of a share of common stock of the Company, or the
then par value of a share of the Equivalent Security, if applicable,
shall be allocated as the payment for each share of Common Shares or
Equivalent Security of the Company so received.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record
date for a specified event, the Company may elect to defer until the
occurrence of such event the issuing to the holder of any Right
exercised after such record date of the Common Shares and/or
Equivalent Securities of the Company, if any, issuable upon such
exercise over and above the Common Shares and/or Equivalent
Securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that it
in its sole discretion shall determine to be advisable in order that
any consolidation or subdivision of the Common Shares, issuance
wholly for cash of any Common Shares at less than the current market
price, issuance wholly for cash of Common Shares or securities which
by their terms are convertible into or exchangeable for Common
Shares, dividends on Common Shares payable in Common Shares, or
issuance of rights, options or warrants referred to hereinabove in
Section 11(b), hereafter made by the Company to holders of its
Common Shares shall not be taxable to such stockholders.
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. Whenever an adjustment is made as provided in Sections
11 and 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement of
the facts accounting for such adjustment, (b) file with the Rights
Agent and with each transfer agent for the Common Shares a copy of
such certificate, and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25 hereof.
The Rights Agent shall not be deemed to have knowledge of any such
adjustment unless and until it shall have received such certificate.
<PAGE> 19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. In the event, directly or indirectly, (a) the
Company shall consolidate with, or merge with and into, any other
Person, (b) any Person shall consolidate with the Company, or merge
with and into the Company and the Company shall be the continuing or
surviving corporation of such merger and, in connection with such
merger, all or part of the Common Shares shall be changed into or
exchanged for stock or other securities of any other Person (or the
Company) or cash or any other property, or (c) the Company shall
sell or otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any Person
other than the Company or one or more of its Subsidiaries, then, and
in each such case, proper provision shall be made so that (i) each
holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a
price equal to the then current Purchase Price multiplied by the
number of Common Shares for which a Right is then exercisable, in
accordance with the terms of this Agreement, such number of Common
Shares of such other Person (including the Company as successor
thereto or as the surviving corporation) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the
number of Common Shares for which a Right is then exercisable and
dividing that product by (B) 50% of the then current per share
market price of the Common Shares of such other Person (determined
pursuant to Section 11(d) hereof) on the date of consummation of
such consolidation, merger, sale or transfer; (ii) the issuer of
such Common Shares shall thereafter be liable for, and shall assume,
by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
issuer; and (iv) such issuer shall take such steps in connection
with such consummation as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the Common Shares thereafter
deliverable upon the exercise of the Rights. The Company shall not
consummate any such consolidation, merger, sale or transfer unless
prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing.
The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction
there are any rights, warrants, instruments or securities
outstanding or any agreements or arrangements which, as a result of
the consummation of such transaction, would eliminate or
substantially diminish the benefits intended to be afforded by the
Rights. The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that there is a transaction pursuant to which more than
one Person receives the assets or earning power of the Company as
described in (c) of the first sentence of this Section 13, the
provisions of this Section 13 shall apply to the Person receiving
the greatest portion of the assets or earning power transferred
pursuant to such transaction; provided, however, that in any such
case if, (1) the Common Shares of such Person is not at such time
and has not been continuously over the preceding 12-month period
registered under Section 12 of the Exchange Act, and such Person is
a direct or indirect subsidiary or Affiliate of another Person, the
provisions of this Section 13 shall apply to such other Person; (2)
such Person is a direct or indirect Subsidiary or Affiliate of more
than one Person, the Common Shares of two or more of which are and
have been so registered, the provisions of this Section 13 shall
apply to whichever of such Persons is the issuer of the Common
Shares having the greatest aggregate market value; and (3) such
Person is owned, directly or indirectly, by a joint venture formed
by two or more Persons that are not owned, directly or indirectly,
by the same Person, the rules set forth in (1) and (2) above shall
apply to each of the chains of ownership having an interest in such
joint venture as if such party were a Subsidiary of both or all of
such joint venturers and the principal parties in each such chain
shall bear the obligations set forth in this Section 13 in the same
ratio as their direct or indirect interests in such Person bear to
the total of such interests.
<PAGE> 20
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid to
the registered holders of the Right Certificates with regard to
which such fractional Rights would otherwise be issuable, an amount
in cash equal to the same fraction of the current market value of a
whole Right. For the purposes of this section 14(a), the current
market value of a whole Right shall be the closing price of the
Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The
closing price for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported on the principal consolidated transaction reporting system
with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to
trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system
then in use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the
Rights selected by the Board of Directors of the Company. If on any
such date no such market maker is making a market in the Rights, the
fair value of the Rights on such date as determined in good faith by
the Board Of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Common Shares and/or equivalent securities upon exercise of the
Rights or to distribute certificates which evidence fractional
Common Shares and/or Equivalent Securities. In lieu of fractional
Common Shares and/or Equivalent Securities, the Company shall pay to
the registered holders of Right Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the same
fraction of the current market value of one Common Share or
Equivalent Security. For the purposes of this Section 14(b), the
current market value of a Common Share and/or Equivalent Security
shall be the closing price of a Common Share (as determined pursuant
to the second sentence of Section 11(d)(i) hereof) for the Trading
Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right (except as provided
above).
Section 15. Rights of Action. All rights of action in respect
of this Agreement, excepting the rights of action given to the
Rights Agent under Sections 18 and 20 hereof, are vested in the
respective registered holders of the Right Certificates (and, prior
to the Distribution Date, the registered holders of the Common
Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the
consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in his own behalf and for his own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in
the manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders
of Rights would not have an adequate remedy at law for any breach of
this Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to,
this Agreement.
<PAGE> 21
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the Company
and the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificates) is
registered as the absolute owner thereof and the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on
the Right Certificates or the associated Common Shares certificate
made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Right Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of
the Common Shares or any other securities of the Company which may
at any time be issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to
give or withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting stockholders (except
as provided in Section 25 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. The Company agrees
to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties hereunder.
The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of
the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses
of defending against any claim of liability arising therefrom
directly or indirectly. The indemnity provided herein shall survive
the expiration of the Rights and the termination of this Agreement.
The Rights Agent shall be protected and shall incur no liability
for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance
upon any Right Certificate or certificate for the Common Shares or
for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed
and, where necessary, verified or acknowledged, by the proper person
or persons, or otherwise upon the advice of counsel as set forth in
Section 20 hereof.
<PAGE> 22
Section 19. Merger or Consolidation or Change of Name of Rights
Agent. Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or
any corporation resulting from any merger or consolidation to which
the Rights Agent or any successor Rights Agent shall be a party, or
any corporation succeeding to the stock transfer or corporate trust
business of the Rights Agent or any successor Rights Agent, shall be
the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of
any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement
any of the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates
either in the name of the predecessor Rights Agent or in the name of
the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates
so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in
its changed name; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in
this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties an obligations imposed by this Agreement upon
the following terms and conditions, by all of which the Company and
the holders of Right Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel (who may
be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith
and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that
any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by any one of the Chairman of the Board, the
Chief Executive Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to
the Rights Agent for any action taken or suffered in good faith by
it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company
and any other Person only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this
Agreement or Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the
Company only.
<PAGE> 23
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate;
nor shall it be responsible for any change in the exercisability of
the Rights (including the Rights becoming void pursuant to Section
11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in
Section 3, 11, 13, 23 or 24, or the ascertaining of the existence of
facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates
after receipt of the certificate described in Section 12 hereof that
such change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Common Shares and/or Equivalent
Securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Common Shares and/or Equivalent
Securities will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Secretary
or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall
not be liable for any action taken or suffered by it in good faith
in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by
the Rights Agent for written instructions from the Company may, at
the option of the Rights Agent, set forth in writing any action
proposed to be taken or omitted by the Rights Agent under this
Agreement and the date on and/or after which such action shall be
taken or such omission shall be effective. The Rights Agent shall
not be liable for any action taken by, or omission of, the Rights
Agent in accordance with a proposal included in such application on
or after the date specified in such application (which date shall
not be less than five Business Days after the date any officer of
the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date) unless,
prior to taking any such action (or the effective date in the case
of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action
to be taken or omitted.
(h) The Rights Agent and any 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.
<PAGE> 24
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Agreement upon 30 days' notice in writing mailed to the
Company and to each transfer agent of the Common Shares by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case
may be, and to each transfer agent of the Common Shares by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of 30
days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such
a court, shall be (1) a corporation organized and doing business
under the laws of the United States or of the State of New York or
the Commonwealth of Massachusetts (or of any other state of the
United States so long as such corporation is authorized to do
business as a banking institution in the State of New York or the
Commonwealth of Massachusetts), in good standing, having an office
in the State of New York or the Commonwealth of Massachusetts, which
is authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at
least $50 million; or (2) an Affiliate of a corporation described in
(1) above. 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 this purpose. Not later than
the effective date of any such appointment the Company shall file
notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares, and mail a notice thereof in
writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21, however,
or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be approved
by its Board of Directors to reflect any adjustment or change in the
Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made
in accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Rights may be redeemed by action
of the Board of Directors pursuant to paragraph (b) of this Section
23 and shall not be redeemed in any other manner.
<PAGE> 25
(b) The Board of Directors of the Company may, at its option,
at any time prior to such time as any Person becomes an Acquiring
Person or at any time prior to the Distribution Date, redeem all but
not less than all the then outstanding Rights at a redemption price
of one-third of a cent per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). The redemption of the
Rights by the Board of Directors may be made effective at such time,
on such basis and with such conditions as the Board of Directors in
its sole discretion may establish.
(c) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to
paragraph (b) of this Section 23 and without any further action and
without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect
the validity of such redemption. Within 10 days after such action of
the Board of Directors ordering the redemption of the Rights
pursuant to paragraph (b) or the effectiveness of the redemption of
the Rights pursuant to paragraph (c), as the case may be, the
Company shall mail a notice of redemption to all the holders of the
then outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent for the Common
Shares. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made. Neither the
Company nor any of its Affiliates or Associates may redeem, acquire
or purchase for value any Rights at any time in any manner other
than that specifically set forth in this Section 23 or in Section 24
hereof, and other than in connection with the purchase of Common
Shares prior to the Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then outstanding and
exercisable Rights (which shall not include Rights that have become
void pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Shares and/or Equivalent Securities at an exchange ratio of
one Common Share and/or Equivalent Security per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any such Subsidiary, or any entity
holding Common Shares for or pursuant to the terms of any such
plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial owner of 50% or more of the Common Shares
then outstanding.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the exchange of any Rights pursuant to
subsection (a) of this Section 24 and without any further action and
without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of Common Shares and/or Equivalent
Securities equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give
public notice of any such exchange;
<PAGE> 26
provided, however, that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange. The Company
promptly shall mail a notice of any such exchange to all of the
holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will
state the method by which the exchange of the Common Shares and/or
Equivalent Securities for Rights will be effected and, in the event
of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based on
the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each
holder of Rights.
(c) In the event that there shall not be sufficient Common
Shares and/or Equivalent Securities issued but not outstanding or
authorized but unissued to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company shall
take all such action as may be necessary to authorize additional
Common Shares and/or Equivalent Securities for issuance upon
exchange of the Rights.
(d) The Company shall not be required to issue fractions of
Common Shares or Equivalent Securities or to distribute certificates
which evidence fractional Common Shares or Equivalent Securities.
In lieu of such fractional Common Shares or Equivalent Securities,
the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional Common Shares or
Equivalent Securities would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a whole
Common Share or Equivalent Security, as applicable. For the
purposes of this paragraph (d), the current market value of a whole
Common Share shall be the closing price of a Common Share (as
determined pursuant to the second sentence of Section 11(d) hereof)
for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of
any class to the holders of its Common Shares or to make any other
distribution to the holders of its Common Shares (other than a
regular quarterly cash dividend), (ii) to offer to the holders of
its Common Shares rights or warrants to subscribe for or to purchase
any additional Common Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any
reclassification of its Common Shares (other than a reclassification
involving only the subdivision of outstanding Common Shares), (iv)
to effect any consolidation or merger into or with, or to effect any
sale or other transfer (or to permit one or more of its Subsidiaries
to effect any sale or other transfer), in one or more transactions,
of 50% or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, (v) to effect
the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the
purposes of such stock dividend, or distribution of rights or
warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is
to take place and the date of participation therein by the holders
of the Common Shares, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least 10 days prior to the record date for
determining holders of the Common Shares for purposes of such
action, and in the case of any such other action, at least 10 days
prior to the date of the taking of such proposed action or the date
of participation therein by the holders of the Common Shares
whichever shall be the earlier.
<PAGE> 27
(b) In case any of the events set forth in Section 11(a)(ii)
hereof shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in accordance
with Section 26 hereof, a notice of the occurrence of such event,
which notice shall describe such event and the consequences of such
event to holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder
of any Right Certificate to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights
Agent) as follows:
Pioneer Hi-Bred International, Inc.
700 Capital Square
400 Locust Street
Des Moines, Iowa 50309
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or
by the holder of any Right Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
The First National Bank of Boston
P.O. Box 1865
Boston, Massachusetts 02105
Attention: Shareholders Services Division
Notices or demands authorized by this Agreement to be given or made
by the Company or the Rights Agent to the holder of any Right
Certificate shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. The Company may from
time to time supplement or amend this Agreement without the approval
of any holders of Right Certificates in order to cure any ambiguity,
to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, or to
make any other provisions with respect to the Rights which the
Company may deem necessary or desirable, any such supplement or
amendment to be evidenced by a writing signed by the Company and the
Rights Agent; provided, however, that from and after such time as
any Person becomes an Acquiring Person, this Agreement shall not be
amended in any manner which would adversely affect the interests of
the holders of Rights. Without limiting the foregoing, the Company
may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the thresholds set
forth in Sections 1(a) and 3(a) hereof from 20% to not less than the
greater of (i) any percentage greater than the largest percentage of
the outstanding Common Shares then known by the Company to be
beneficially owned by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan) and (ii) 10%.
Upon receipt of a certificate from an appropriate officer of the
Company stating that the proposed supplement or amendment is
consistent with this Section 27, the Rights Agent shall sign such
supplement or amendment.
<PAGE> 28
Section 28. Successors. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
Section 29. Benefits of This Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent and the registered holders
of the Right Certificates (and, prior to the Distribution Date, the
Common Shares) any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right
certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Iowa and for all purposes shall be
governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within
such State.
Section 32. Counterparts. This Agreement may be executed in
any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts
shall together constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any
of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first
above written.
Attest: PIONEER HI-BRED INTERNATIONAL,
INC.
By____________________________ By:___________________________
Jerry L. Chicoine Thomas N. Urban
Secretary President
Attest: THE FIRST NATIONAL BANK OF BOSTON
as Rights Agent
By____________________________ By:__________________________
<PAGE> 29
EXHIBIT A
Form of Right Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER APRIL 6, 1999 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT
TO REDEMPTION AT ONE-THIRD OF A CENT PER RIGHT AND TO
EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
PIONEER HI-BRED INTERNATIONAL, 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 April
6, 1989 (the "Rights Agreement"), between Pioneer Hi-Bred
International, Inc., an Iowa corporation (the "Company"), and The
First National Bank of Boston, a national banking association (the
"Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
and prior to 5:00 P.M., Boston time, on April 6, 1999 at the office
of the Rights Agent designated for such purpose, or at the office of
its successor as Rights Agent, one fully paid nonassessable share of
Common Stock par value $1 per share (the "Common Shares"), of the
Company, at a purchase price of $100 per Common Share (the "Purchase
Price"), upon presentation and surrender of this Right Certificate
with the Form of Election to Purchase duly executed. In certain
instances more fully described in the Rights Agreement, the Company
may issue an Equivalent Security in lieu of Common Shares upon
exercise of the Rights by the Right Holders. The number of Rights
evidenced by this Right Certificate (and the number of Common Shares
which may be purchased upon exercise hereof) set forth above, and
the Purchase Price set forth above, are the number and Purchase
Prices as of _______________, 19___, based on the Common Shares as
constituted at such date. As provided in the Rights Agreement, the
Purchase Price and the number of Common Shares and/or Equivalent
Securities which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the
principal executive offices of the Company.
<PAGE> 30
This Right Certificate, with or without other Right Certificates,
upon surrender at the office of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of Common Shares and/or
Equivalent Securities as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates for
the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at
a redemption price of one-third of a cent per Right or (ii) may be
exchanged in whole or in part for Common Shares or Equivalent
Securities.
No fractional Common Shares and/or Equivalent Securities will
be issued upon the exercise of any Right or Rights evidenced hereby,
but in lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose
the holder of Common Shares 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 Right Certificate shall have
been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company. Dated as of _______________, 19___.
ATTEST: PIONEER HI-BRED INTERNATIONAL, INC.
______________________________ By:___________________________
Countersigned:
THE FIRST NATIONAL BANK OF BOSTON,
as Rights Agent
By:___________________________
Authorized Signature
<PAGE> 31
Form Of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________________ hereby
sells, assigns and transfers unto _______________________________
_________________________________________________________________
(Please print name and address of transferee)
_________________________________________________________________
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
________________________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: _______________, 19___
______________________________
Signature
<PAGE> 32
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association
of Securities Dealers, Inc. or a commercial bank or trust company
having an office or correspondent in the United States.
CERTIFICATE
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
______________________________
Signature
<PAGE> 33
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To: PIONEER HI-BRED INTERNATIONAL, INC.
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the Common Shares
(or equivalent securities pursuant to the Rights Agreement) issuable
upon the exercise of such Rights and requests that certificates for
such Common Shares (or equivalent securities) be issued in the name
of:
Please insert social security
or other identifying number
______________________________
(Please print name and address)
______________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
Dated: ______________, 19__ ______________________________
(Please print name and address)
______________________________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association
of Securities Dealers, Inc. or a commercial bank or trust company
having an office or correspondent in the United States.
<PAGE> 34
Form of Reverse Side of Right Certificate - continued
CERTIFICATE
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
______________________________
Signature
NOTICE
The signature in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of this
Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be,
is not completed, the Company and the Rights Agent will deem the
beneficial owner of the Rights evidenced by this Right Certificate
to be an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) and such Assignment or Election to
Purchase will not be honored.
<PAGE> 35
EXHIBIT B
SUMMARY OF RIGHTS
On April 6, 1989 the Board of Directors of Pioneer Hi-Bred
International, Inc. (the "Company") adopted a Shareholder Rights
Plan (the "Plan"). In connection with the adoption of the Plan, the
Board declared a dividend distribution of one Right for each
outstanding share of common stock (the "Common Stock") of the
Company to shareholders of record at the close of business on April
6, 1989 (the "Record Date").
On December 13, 1994, the Board amended the Plan to (i)
increase the purchase price to $100 (the "Purchase Price") and (ii)
remove a provision which allowed certain bidders to request the
Company to hold a special meeting of shareholders to consider a
resolution to accept the bidder's proposal and redeem all
outstanding Rights in connection therewith. Prior to adoption of
the foregoing amendments, the purchase price of the Rights had been
reduced from the initial purchase price of $100 to $33.33 as a
result of a three for one stock split effected in 1992.
Each Right, when exercisable, entitles the registered holder
to purchase from the Company one or more shares of the Company's
Common Stock (or in some instances an equivalent security equal in
value to a share of Common Stock) at the Purchase Price of $100 per
Right. The Purchase Price payable and the number of shares of
Common Stock or other securities or property issuable upon exercise
of the Rights are subject to adjustment from time to time to prevent
dilution. The description and terms of the Rights are set forth in
a Rights Agreement (the "Rights Agreement") between the Company and
The First National Bank of Boston, as Rights Agent.
Initially, the Rights are not exercisable. They will trade
with, and cannot be separated from, the outstanding shares of Common
Stock. The Rights will be evidenced, with respect to any shares of
Common Stock outstanding as of the Record Date, by the Common Stock
certificates together with this Summary of Rights. No certificates
evidencing the Rights will be distributed at this time. New Common
Stock certificates issued after the Record Date upon transfer or new
issuance of Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Rights become exercisable
(or are earlier redeemed or expire), the surrender for transfer of
any certificates for Common Stock outstanding as of the Record Date
(with or without this Summary of Rights attached) also will
constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
The Rights become exercisable (i) 10 days following a public
announcement that a "Person" (as defined in the Rights Agreement) or
group of affiliated or associated Persons, with the exception of
certain Company-related entities, has acquired or obtained the right
to acquire beneficial ownership of 20% or more of the Common Stock
of the Company (an "Acquiring Person") or (ii) 10 business days
(unless such date is extended by the Board of Directors) following
the commencement of (or a public announcement of an intention to
make) a tender offer or exchange offer which would result in any
Person or group of related Persons acquiring beneficial ownership of
20% or more of the Common Stock of the Company (the earlier of such
dates being called the "Distribution Date"). As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Right Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the
Distribution Date, and the separate Right Certificates alone will
evidence the Rights.
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The Rights will expire on the earlier of (i) April 6, 1999, or
(ii) redemption by the Company as described below.
When the Rights first become exercisable, a holder will be
entitled to buy from the Company one share of Common Stock (or an
equivalent security) for $100. If the Company is involved in a
merger or other business combination at any time after the Rights
become exercisable, the Rights will entitle a holder to buy a number
of shares of common stock of the acquiring company having a market
value of twice the exercise price of each Right. For example, if at
the time of the business combination the acquiring company's stock
has a per share value of $50, the holder of each Right would be
entitled to receive four (4) shares of the acquiring company's
common stock at a price of $100, i.e., at a 50% discount.
If any person or group acquires 20% or more of the Company's
Common Stock, the Rights will entitle a holder (other than such
person or any member of such group) to buy a number of additional
shares of the Common Stock (or in some instances, an equivalent
security) of the Company having a market value of twice the exercise
price of each Right. Thus, if, for example, a person or group were
to acquire 25% of the Company's stock, and such stock were to have a
market value per share equal to $25, the holder of each Right (other
than such person or any member of such group) would be entitled to
receive eight (8) shares of Common Stock of the Company for $100.
The Rights may be redeemed by the Company at a price of one-
third of a cent per Right (the "Redemption Price") (i) at any time
before a Person becomes an Acquiring Person, or (ii) at any time
before the Distribution Date.
Immediately upon redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders
of Rights will be to receive the Redemption Price. In addition,
subject to applicable law, the Board of Directors, at its option,
may at any time following the acquisition by a Person of beneficial
ownership of 20% or more (but less than 50%) of the Company's Common
Stock, redeem all or part of the then outstanding and exercisable
Rights (except for Rights which have become void in any respect) by
exchanging for such Rights shares of Common Stock or other
equivalent securities, in each case equivalent to one share of
Common Stock per Right.
The terms of the Rights Agreement may be amended by the Board
of Directors of the Company without the consent of the holders of
the Rights, including an amendment to lower the threshold for
exercisability of the Rights from 20% to not less than the greater
of (i) any percentage greater than the largest percentage of the
outstanding Common Stock then known to the Company to be
beneficially owned by any person or group of affiliated or
associated persons or (ii) 10%, except that from and after such time
as any person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. The Company
believes that the distribution of the Rights is not a taxable event
for the Company or its shareholders under Federal income tax laws.
In addition, the Company believes that the distribution of Right
Certificates upon the Rights becoming exercisable will not result in
any tax.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a Registration
Statement on Form 8-A, as amended. A copy of the Rights Agreement
is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement,
which is incorporated herein by reference.
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(..continued)
