SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ASTEC INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Tennessee
(State or other jurisdiction of incorporation)
62-0873631
(IRS Employer Identification No.)
4101 Jerome Avenue
Chattanooga, Tennessee 37407
(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
Series A Junior Participating NASDAQ
Preferred Stock Purchase Rights
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
Item 1. Description of Registrant's Securities to be Registered.
Effective December 22, 1995, the Board of Directors of Astec Industries, Inc.
(the "Company") declared a distribution of one right (a "Right") for each
outstanding share of Common Stock, par value $0.20 per share (the
"Common Stock"), to shareholders of record at the close of business on
January 2, 1996 and for each share
of Common Stock issued (including shares distributed from Treasury) by the
Company thereafter and prior to the Separation Time. Each Right entitles the
registered holder to purchase from the Company one one-hundredth of a share (a
"Unit") of Series A Participating Preferred Stock, par value $1.00 per share
(the "Preferred Stock"), at a purchase price of $36.00 per Unit (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a
Shareholder Protection Rights Agreement between the Company and The First
National Bank of Chicago, as Rights Agent, dated as of December 22, 1995 (the
"Rights Agreement").
Initially, the Rights will attach to all certificates representing shares of
outstanding Company Common Stock, and no separate Rights Certificates will be
distributed. The Rights will separate from the Common Stock and the Separation
Time will occur upon the earlier of (i) ten business days (unless otherwise
delayed by the Board) following public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has acquired, obtained
the right to acquire, or otherwise obtained beneficial ownership of 15% or
more of the then
outstanding shares of Common Stock, or (ii) ten business days (unless otherwise
delayed by the Board) following the commencement of a tender offer or exchange
offer that would result in the person or group beneficially owning 15% or more
of the then outstanding shares of Common Stock. An Acquiring Person does not
include (a) any person who is a beneficial owner of 15% or more of the Common
Stock on December 22, 1995 (the date of adoption of the Rights Agreement),
unless such person or group shall thereafter acquire beneficial ownership of
additional Common
Stock, (b) a person who acquires beneficial ownership of 15% or more of the
Common Stock without any intention to affect control of the Company and who
thereafter promptly divests sufficient shares so that such person ceases to be
the beneficial owner of 15% or more of the Common Stock, or (c) a person who is
or becomes a beneficial owner of 15% or more of the Common Stock as a result of
an option granted by the Company in connection with an agreement to acquire or
merge with the Company prior to a Flip-In Date.
Until the Separation Time, (i) the Rights will be evidenced by Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after January 2, 1996
(including shares distributed from Treasury) will contain a legend
incorporating the Rights Agreement by reference and (iii) the surrender for
transfer of any certificates representing outstanding Common Stock will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Separation Time and will expire at the
close of business on the tenth anniversary of the Rights Agreement unless
earlier terminated by the Company as described below.
As soon as practicable after the Separation Time, Rights Certificates will be
mailed to holders of record of Common Stock as of the close of business on the
date when the Separation Time occurs and, thereafter, the separate Rights
Certificates alone will represent the Rights.
If a Flip-In Date occurs ( i.e., the close of business ten business days
following announcement by the Company that a person has become an Acquiring
Person), and if the Company has not terminated the Rights as described below,
then the Rights entitle the holders thereof to acquire shares of Common Stock
(rather than Preferred Stock) having a value equal to twice the Right's
exercise price. Instead of issuing shares of Common Stock upon exercise of a
Right following a Flip-In Date, the Company may substitute a combination of
cash, property, a reduction in the exercise price or the Rights, Common Stock
or other securities with a value equal to the
Common Stock (or any combination of the above) which would otherwise be
issuable. In addition, at the option of the Board of Directors prior to the
time that any person becomes the beneficial owner of more than 50% of the
Common Stock, and rather than payment of the cash purchase price, each Right
may be exchanged for one share of Common Stock if a Flip-In Date occurs.
Notwithstanding any of the foregoing, all Rights that are, or (under certain
circumstances set forth in the Rights Agreement) were, beneficially owned by
any person on or after the date such person
becomes an Acquiring Person will be null and void.
Following the Flip-In Date, if the company is acquired in a merger or
consolidation where the Company does not survive or the Common Stock is changed
or exchanged, or 50% or more of the Company's assets or assets generating 50%
or more of the Company's operating income or cash flow is transferred in one or
more transactions to persons who at that time control the Company, then the
Rights entitle the holders thereof to acquire for the exercise price shares of
the acquiring party having a value equal to twice the Right's exercise price.
The exercise price payable and the number of Rights outstanding are subject
to adjustment from time to time to prevent dilution in the event of a stock
dividend, stock split or reverse stock split, or other recapitalization which
would change the number of shares of Common Stock outstanding.
At any time until the close of business on the Flip-In Date, the Board of
Directors may terminate the Rights without any payment to the holders thereof.
The Board of Directors may condition termination of the Rights upon the
occurrence of a specified future time or event.
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. While the distribution of the Rights will not be
taxable to shareholders or to the Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable.
Any provisions of the Rights Agreement may be amended at any time prior to
the close of business on the Flip-In Date without the approval of holders of
the Rights, and thereafter, the Rights Agreement may be amended without
approval of the Rights holders in any way which does not materially adversely
affect the interests of the Rights holders.
A total of 200,000 shares of Preferred Stock will be reserved for issuance
upon exercise of the Rights.
Each fractional share of Preferred Stock will receive dividends at a rate per
whole share equal to any dividends (except dividends payable in Common Stock)
paid
with respect to the Common Stock and, on a quarterly basis, an amount per whole
share equal to the excess of $9.00 over the aggregate dividends per whole
share of this Series during the immediately preceding three-month period.
In the event of liquidation, the holder of each fractional share of Preferred
Stock will receive a preferred liquidation payment equal to the greater of
$3,600 per whole share or the per share amount paid in respect of a share of
Common Stock.
Each Unit of Preferred Stock will have one vote, voting together with the
Common Stock.
In the event of any merger, consolidation, statutory share exchange or other
transaction in which shares of Common Stock are exchanged, each Unit of
Preferred Stock will be entitled to receive the per share amount paid in
respect of each share of Common Stock.
The rights of holders of the Preferred Stock to dividends, liquidation and
voting, and in the event of mergers, statutory share exchanges and
consolidations, are protected by customary antidilution provisions.
Because of the nature of the Preferred Stock's dividend, liquidation and voting
rights, the economic value of one Unit of Preferred Stock that may be acquired
upon the exercise of each Right should approximate the economic value of one
share of Common Stock.
The Rights may have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors of the Company (with, where
required by the Rights Agreement, the concurrence of a majority of the
continuing directors) unless the offer is conditioned on a substantial number
of Rights being acquired. However, the Rights should not interfere with any
merger, statutory share exchange or other business combination approved by a
majority of the directors since the Rights may be terminated by the Board of
Directors at any time on or prior to the close of business ten business days
after announcement by the Company that a person
has become an Acquiring Person. Thus, the Rights are intended to encourage
persons who may seek to acquire control of the Company to initiate such an
acquisition through negotiations with the Board of Directors. However, the
effect of the Rights may be to discourage a third party from making a partial
tender offer or
otherwise attempting to obtain a substantial equity position in the equity
securities of, or seeking to obtain control of, the Company. To the extent
any potential acquirors are deterred by the Rights, the Rights may have the
effect of preserving incumbent management in office.
A copy of the Rights Agreement is filed herewith as Exhibit 1 and is
incorporated herein by reference. The foregoing summary description of the
Rights does not purport to be complete and is qualified in its entirety by
reference to such exhibit.
Item 2. Exhibits.
1. Conformed copy of Shareholder Protection Rights Agreement, dated as of
December 22, 1995, between Astec Industries, Inc. and First Chicago Trust
Company of New York, which includes as Exhibit A thereto the Form of Right
Certificate.
2. Press release dated December 22, 1995.
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereto duly authorized.
ASTEC INDUSTRIES, INC.
/s/ J. Don Brock
Date: December 22, 1995 By:
J. Don Brock
President and Chairman of the Board
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
Exhibits TO REGISTRATION STATEMENT ON
FORM 8-A
Dated December 22, 1995
ASTEC INDUSTRIES, INC.
<PAGE>
INDEX TO EXHIBITS
1. Conformed copy of Shareholder Protection Rights Agreement, dated as of
December 22, 1995, between Astec Industries, Inc. and First Chicago Trust
Company of New York, which includes as Exhibit A thereto the Form of Right
Certificate.
2. Press release dated December 22, 1995.
<PAGE>
EXHIBIT 1
Shareholder Protection Rights Agreement
<PAGE>
SHAREHOLDER PROTECTION RIGHTS AGREEMENT THIS SHAREHOLDER PROTECTION RIGHTS
AGREEMENT (as amended from time to time, this
"Agreement"), is made and entered into as of December 22, 1995, between Astec
Industries, Inc., a Tennessee
corporation (the "Company"), and First Chicago Trust
Company of New York, as Rights Agent (the "Rights Agent",
which term shall include any successor Rights Agent
hereunder).
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company
has (a) authorized and declared a dividend of one right
("Right") in respect of each share of Common Stock (as
hereinafter defined) held of record as of the close of business
on January 2, 1996 (the "Record Time") and (b) as provided
in Section 2.4, authorized the issuance of one Right in respect
of each share of Common Stock issued after the Record Time
and prior to the Separation Time (as hereinafter defined) and,
to the extent provided in Section 5.3, each share of Common
Stock issued after the Separation Time;
WHEREAS, subject to Sections 3.1, 5.1 and 5.10,
each Right entitles the holder thereof, after the Separation
Time, to purchase securities of the Company (or, in certain
cases, of certain other entities) pursuant to the terms and
subject to the conditions set forth herein; and
WHEREAS, the Company desires to appoint the
Rights Agent to act on behalf of the Company, and the Rights
Agent is willing so to act, in connection with the issuance,
transfer, exchange and replacement of Rights Certificates (as
hereinafter defined), the exercise of Rights and other matters
referred to herein;
NOW THEREFORE, in consideration of the premises
and the respective agreements set forth herein, the parties
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is a
Beneficial Owner of 15% or more of the outstanding shares
of Common Stock; provided, however, that the term
"Acquiring Person" shall not include any Person (i) who is the
Beneficial owner of 15% or more of the outstanding shares of
Common Stock on the date of this Agreement or who shall
become the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock solely as a result of an
acquisition by the Company of shares of Common Stock,
until such time hereafter or thereafter as any of such Person
shall become the Beneficial Owner (other than by means of a
stock dividend or stock split) of any additional shares of
Common Stock, (ii) who is the Beneficial owner of 15%, or
more of the outstanding shares of Common Stock but who
acquired Beneficial Ownership of shares of Common Stock
without any plan or intention to seek or affect control of the
Company, if such Person promptly enters into an irrevocable
commitment promptly to divest, and thereafter promptly
divests (without exercising or retaining any power, including
voting power, with respect to such shares), sufficient shares
of Common Stock (or securities convertible into,
exchangeable into or exercisable for Common Stock) so that
such Person ceases to be the Beneficial owner of 15% or
more of the outstanding shares of Common Stock or (iii) who
Beneficially Owns shares of Common Stock consisting solely
of one or more of (A) shares of Common Stock Beneficially
Owned pursuant to the grant or exercise of an option granted
to such Person by the Company in connection with an
agreement to merge with, or acquire, the Company entered
into prior to a Flip-In Date, (B) shares of Common Stock (or
securities convertible into, exchangeable into or exercisable
for Common Stock), Beneficially Owned by such Person or
its Affiliates or Associates at the time of grant of such option
or (C) shares of Common Stock (or securities convertible
into, exchangeable into or exercisable for Common Stock)
acquired by Affiliates or Associates of such Person after the
time of such grant which, in the aggregate, amount to less
than 1% of the outstanding shares of Common Stock. In
addition, the Company, any wholly owned Subsidiary of the
Company and any employee stock ownership or other
employee benefit plan of the Company or a wholly owned
Subsidiary of the Company shall not be an Acquiring Person.
"Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the
Securities Exchange Act of 1934, as such Rule is in effect on
the date of this Agreement.
A Person shall be deemed the "Beneficial Owner", and
to have "Beneficial Ownership" of, and to "Beneficially
Own", any securities as to which such Person or any of such
Person's Affiliates or Associates is or may be deemed to be
the beneficial owner of pursuant to Rule 13d-3 and 13d-5
under the Securities Exchange Act, as such Rules are in effect
on the date of this Agreement as well as any securities as to
which such Person or any of such Person's Affiliates or
Associates has the right to become Beneficial Owner
(whether such right is exercisable immediately or only after
the passage of time or the occurrence of conditions) pursuant
to any agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial
Owner", or to have "Beneficial Ownership" of, or to
"Beneficially Own", any security (i) solely because such
security has been tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's Affiliates
or Associates until such tendered security is accepted for
payment or exchange or (ii) solely because such Person or
any of such Person's Affiliates or Associates has or shares the
power to vote or direct the voting of such security pursuant
to a revocable proxy given in response to a public proxy or
consent solicitation made to more than ten holders of shares
of a class of stock of the Company registered under Section
12 of the Securities Exchange Act of 1934 and pursuant to,
and in accordance with, the applicable rules and regulations
under the Securities Exchange Act of 1934, except if such
power (or the arrangements relating thereto) is then
reportable under Item 6 of Schedule 13D under the Securities
Exchange Act of 1934 (or any similar provision of a
comparable or successor report). Notwithstanding the
foregoing, no officer or director of the Company shall be
deemed to Beneficially Own any securities of any other
Person by virtue of any actions such officer or director takes
in such capacity. For purposes of this Agreement, in
determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the
Beneficial Owner, all shares as to which such Person is
deemed the Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
Chattanooga, Tennessee are generally authorized or obligated
by law or executive order to close.
"Close of business" on any given date shall mean 5:00
p.m. Chattanooga, Tennessee time on such date (or, if such
date is not a Business Day, 5:00 p.m. Chattanooga,
Tennessee time on the next succeeding Business Day).
"Common Stock" shall mean the shares of Common
Stock, par value $.20 per share, of the Company.
"Exchange Time" shall mean the time at which the
right to exercise the Rights shall terminate pursuant to
Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price
at which a holder may purchase the securities issuable upon
exercise of one whole Right. Until adjustment thereof in
accordance with the terms hereof, the Exercise Price shall
equal $36.00.
"Expiration Time" shall mean the earliest of (i) the
Exchange Time, (ii) the Termination Time, (iii) December 22,
2005 and (iv) upon the merger of the Company into another
corporation pursuant to an agreement entered into prior to a
Flip-In Date.
"Flip-In Date" shall mean the tenth business day after
any Stock Acquisition Date or such earlier or later date as the
Board of Directors of the Company may from time to time fix
by resolution adopted prior to the Flip-In Date that would
otherwise have occurred.
"Flip-Over Entity" for purposes of Section 3.2, shall
mean (i) in the case of a Flip-Over Transaction or Event
described in clause (i) of the definition thereof, the Person
issuing any securities into which shares of Common Stock are
being converted or exchanged and, if no such securities are
being issued, the other party to such Flip-Over Transaction or
Event and (ii) in the case of a Flip-Over Transaction or Event
referred to in clause (ii) of the definition thereof, the Person
receiving the greatest portion of the assets or earning power
being transferred in such Flip-Over Transaction or Event,
provided in all cases if such Person is a subsidiary of a
corporation, the parent corporation shall be the Flip-Over
Entity.
"Flip-Over Stock" shall mean the capital stock (or
similar equity interest) with the greatest voting power in
respect of the election of directors (or other persons similarly
responsible for direction of the business and affairs) of the
Flip-Over Entity.
"Flip-Over Transaction or Event" shall mean a
transaction or series of transactions after a Flip-In Date in
which, directly or indirectly, (i) the Company shall
consolidate or merge or participate in a share exchange with
any other Person if, at the time of the consolidation, merger
or share exchange or at the time the Company enters into any
agreement with respect to any such consolidation, merger or
share exchange, the Acquiring Person Controls the Board of
Directors of the Company and either (A) any term of or
arrangement concerning the treatment of shares of capital
stock in such consolidation, merger or share exchange
relating to the Acquiring Person is not identical to the terms
and arrangements relating to other holders of the Common
Stock or (B) the Person with whom the transaction or series
of transactions occurs is the Acquiring Person or an Affiliate
or Associate of the Acquiring Person or (ii) the Company
shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer) assets (A)
aggregating more than 50% of the assets (measured by either
book value or fair market value) or (B) generating more than
50% of the operating income or cash flow, of the Company
and its Subsidiaries (taken as a whole) to any Person (other
than the Company or one or more of its wholly owned
Subsidiaries) or to two or more such Persons which are
Affiliates or Associates or otherwise acting in concert, if, at
the time of the entry by the Company (or any such
Subsidiary) into an agreement with respect to such sale or
transfer of assets, the Acquiring Person Controls the Board of
Directors of the Company. An Acquiring Person shall be
deemed to Control the Company's Board of Directors when,
following a Flip-In Date, the persons who were directors of
the Company before the Flip-In Date shall cease to constitute
a majority of the Company's Board of Directors.
"Market Price" per share of any securities on any date
shall mean the average of the daily closing prices per share of
such securities (determined as described below) on each of
the 20 consecutive Trading Days through and including the
Trading Day immediately preceding such date; provided,
however, that if an event of a type analogous to any of the
events described in Section 2.4 hereof shall have caused the
closing prices used to determine the Market Price on any
Trading Days during such period of 20 Trading Days not to
be fully comparable with the closing price on such date, each
such closing price so used shall be appropriately adjusted in
order to make it fully comparable with the closing price on
such date. The closing price per share of any securities on
any date shall be the last reported sale price, regular way, or,
in case no such sale takes place or is quoted on such date, the
average of the closing bid and asked prices, regular way, for
each share of such securities, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New
York Stock Exchange, Inc. or, if the securities are not listed
or admitted to trading on the New York Stock Exchange,
Inc., as reported in the principal consolidated transaction
reporting system with respect to securities listed on the
principal national securities exchange on which the securities
are listed or admitted to trading or, if the securities are not
listed or admitted to trading on any national securities
exchange, as reported by the National Association of
Securities Dealers, Inc. Nasdaq National Market System or
such other system then in use, or, if on any such date the
securities are not listed or admitted to trading on any national
securities exchange or 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 securities
selected by the Board of Directors of the Company; provided,
however, that if on any such date the securities are not listed
or admitted to trading on a national securities exchange or
traded in the over-the-counter market, the closing price per
share of such securities on such date shall mean the fair value
per share of securities on such date as determined in good
faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking
firm, and set forth in a certificate delivered to the Rights
Agent.
"Person" shall mean any individual, firm, partnership,
association, group (as such term is used in Rule 13d-5 under
the Securities Exchange Act of 1934, as such Rule is in effect
on the date of this Agreement), corporation or other entity.
"Preferred Stock" shall mean the Series A
Participating Preferred Stock, par value $1.00 per share, of
the Company created by Articles of Amendment in
substantially the form set forth in Exhibit B hereto
appropriately completed.
"Separation Time" shall mean the close of business on
the earlier of (i) the tenth business day (or such later date as
the Board of Directors of the Company may from time to
time fix by resolution adopted prior to the Separation Time
that would otherwise have occurred) after the date on which
any Person commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an
Acquiring Person and (ii) the Flip-In Date; provided, that if
the foregoing results in the Separation Time being prior to the
Record Time, the Separation Time shall be the Record Time
and provided further, that if any tender or exchange offer
referred to in clause (i) of this paragraph is canceled,
terminated or otherwise withdrawn prior to the Separation
Time without the purchase of any shares of Common Stock
pursuant thereto, such offer shall be deemed, for purposes of
this paragraph, never to have been made.
"Stock Acquisition Date" shall mean the first date of
public announcement by the Company (by any means) that an
Acquiring Person has become such.
"Subsidiary" of any specified Person shall mean any
corporation or other entity of which a majority of the voting
power of the equity securities or a majority of the equity
interest is Beneficially Owned, directly or indirectly, by such
Person.
"Termination Time" shall mean the time at which the
right to exercise the Rights shall terminate pursuant to
Section 5.1 hereof.
"Trading Day," when used with respect to any
securities, shall mean a day on which the New York Stock
Exchange, Inc. is open for the transaction of business or, if
such securities are not listed or admitted to trading on the
New York Stock Exchange, Inc., a day on which the
principal national securities exchange on which such
securities are listed or admitted to trading is open for the
transaction of business or, if such securities are not listed or
admitted to trading on any national securities exchange, a
Business Day.
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. As soon as practicable after
the Record Time, the Company will mail a letter summarizing
the terms of the Rights to each holder of record of Common
Stock as of the Record Time, at such holder's address as
shown by the records of the Company.
2.2 Legend on Common Stock Certificates.
Certificates for the Common Stock issued after the Record
Time but prior to the Separation Time shall evidence one
Right for each share of Common Stock represented thereby
and shall have impressed on, printed on, written on or
otherwise affixed to them the following legend:
"Until the Separation Time (as defined in the
Rights Agreement referred to below), this
certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement, dated as of December 22,
1995 (as such may be amended from time to
time, the "Rights Agreement"), between Astec
Industries, Inc. (the "Company") and First
Chicago Trust Company of New York, as
Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of
which is on file at the principal executive
offices of the Company. Under certain
circumstances, as set forth in the Rights
Agreement, such Rights may be terminated,
may become exercisable for securities or
assets of the Company or of another entity,
may be exchanged for shares of Common
Stock or other securities or assets of the
Company, may expire, may become void (if
they are "Beneficially Owned" by an
"Acquiring Person" or an Affiliate or
Associate thereof, as such terms are defined in
the Rights Agreement, or by any transferee of
any of the foregoing) or may be evidenced by
separate certificates and may no longer be
evidenced by this certificate. The Company
will mail or arrange for the mailing of a copy
of the Rights Agreement to the holder of this
certificate without charge promptly after the
receipt of a written request therefor."
Certificates representing shares of Common Stock that are
issued and outstanding at the Record Time shall evidence one
Right for each share of Common Stock evidenced thereby
notwithstanding the absence of the foregoing legend.
2.3 Exercise of Rights; Separation of Rights. (a)
Subject to Sections 3.1, 5.1 and 5.10 and subject to
adjustment as herein set forth, each Right will entitle the
holder thereof, after the Separation Time and prior to the
Expiration Time, to purchase, for the Exercise Price, one
one-hundredth of a share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be
exercised and (ii) each Right will be evidenced by the
certificate for the associated share of Common Stock
(together, in the case of certificates issued prior to the Record
Time, with the letter or notice mailed to the record holder
thereof pursuant to Section 2.1) and will be transferable only
together with, and will be transferred by a transfer (whether
with or without such letter or notice) of, such associated
share.
(c) Subject to this Section 2.3 and to Sections 3.1,
5.1 and 5.10, after the Separation Time and prior to the
Expiration Time, the Rights (i) may be exercised and (ii) may
be transferred independent of shares of Common Stock.
Promptly following the Separation Time, the Rights Agent
will mail to each holder of record of Common Stock as of the
Separation Time (other than any Person whose Rights have
become void pursuant to Section 3.1(b)), at such holder's
address as shown by the records of the Company (the
Company hereby agreeing to furnish copies of such records
to the Rights Agent for this purpose), (x) a certificate (a
"Rights Certificate") in substantially the form of Exhibit A
hereto appropriately completed, representing the number of
Rights held by such holder at the Separation Time and having
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 law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any national
securities exchange or quotation system on which the Rights
may from time to time be listed or traded, or to conform to
usage, and (y) a disclosure statement describing the Rights.
(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may
be exercised on any Business Day after the Separation Time
and prior to the Expiration Time by submitting to the Rights
Agent the Rights Certificate evidencing such Rights with an
Election to Exercise (an "Election to Exercise" substantially
in the form attached to the Rights Certificate duly completed,
accompanied by payment in cash, or by certified or official
bank check or money order payable to the order of the
Company, of a sum equal to the Exercise Price multiplied by
the number of Rights being exercised and a sum sufficient to
cover any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of
Rights Certificates or the issuance or delivery of certificates
for shares or depository receipts (or both) in a name other
than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an
Election to Exercise accompanied by payment as set forth in
Section 2.3(d), and subject to Sections 3.1, 5.1 and 5.10, The
Rights Agent will thereupon promptly (i)(A) requisition from
a transfer agent stock certificates evidencing such number of
shares or other securities to be purchased (the Company
hereby irrevocably authorizing its transfer agents to comply
with all such requisitions) and (B) if the Company elects
pursuant to Section 5.5 not to issue certificates representing
fractional shares, requisition from the depository selected by
the Company depository receipts representing the fractional
shares to be purchased or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in
accordance with Section 5.5 and (ii) after receipt of such
certificates, depository receipts and/or cash, deliver the same
to or upon the order of the registered holder of such Rights
Certificate, registered (in the case of certificates or depository
receipts) in such name or names as may be designated by such
holder.
(f) In case the holder of any Rights shall exercise less
than all the Rights evidenced by such holder's Rights
Certificate, a new Rights Certificate evidencing the Rights
remaining unexercised will be issued by the Rights Agent to
such holder or to such holder's duly authorized assigns.
(g) The Company covenants and agrees that it will (i)
take all such action as may be necessary to ensure that all
shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment
of the Exercise Price), be duly and validly authorized,
executed, issued and delivered and fully paid and
nonassessable; (ii) take all such action as may be necessary to
comply with any applicable requirements of the Securities Act
of 1933 or the Securities Exchange Act of 1934, and the rules
and regulations thereunder, and any other applicable law, rule
or regulation, in connection with the issuance of any shares
upon exercise of Rights; and (iii) pay when due and payable
any and all federal and state transfer taxes and charges which
may be payable in respect of the original issuance or delivery
of the Rights Certificates or of any shares issued upon the
exercise of Rights, provided that the Company shall not be
required to pay any transfer tax or charge which may be
payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of
certificates for shares in a name other than that of the holder
of the Rights being transferred or exercised.
2.4 Adjustments to Exercise Price; Number of Rights.
(a) In the event the Company shall at any time after the
Record Time and prior to the Separation Time (i) declare or
pay a dividend on Common Stock payable in Common Stock,
(ii) subdivide the outstanding Common Stock or (iii) combine
the outstanding Common Stock into a smaller number of
shares of Common Stock, (x) the Exercise Price in effect
after such adjustment will be equal to the Exercise Price in
effect immediately prior to such adjustment divided by the
number of shares of Common Stock (the "Expansion Factor")
that a holder of one share of Common Stock immediately
prior to such dividend, subdivision or combination would
hold thereafter as a result thereof and (y) each Right held
prior to such adjustment will become that number of Rights
equal to the Expansion Factor, and the adjusted number of
Rights will be deemed to be distributed among the shares of
Common Stock with respect to which the original Rights
were associated (if they remain outstanding) and the shares
issued in respect of such dividend, subdivision or
combination, so that each such share of Common Stock will
have exactly one Right associated with it. Each adjustment
made pursuant to this paragraph shall be made as of the
payment or effective date for the applicable dividend,
subdivision or combination.
In the event the Company shall at any time after the
Record Time and prior to the Separation Time issue any
shares of Common Stock otherwise than in a transaction
referred to in the preceding paragraph, each such share of
Common Stock so issued shall automatically have one new
Right associated with it, which Right shall be evidenced by
the certificate representing such share. To the extent
provided in Section 5.3, Rights shall be issued by the
Company in respect of shares of Common Stock that are
issued or sold by the Company after the Separation Time.
(b) In the event the Company shall at any time after
the Record Time and prior to the Separation Time issue or
distribute any securities or assets in respect of, in lieu of or in
exchange for Common Stock (other than pursuant to a
regular periodic cash dividend or a dividend paid solely in
Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction involving a
merger, consolidation or share exchange), or otherwise, the
Company shall make such adjustments, if any, in the Exercise
Price, number of Rights and/or securities or other property
purchasable upon exercise of Rights as the Board of
Directors of the Company, in its sole discretion, may deem to
be appropriate under the circumstances in order to adequately
protect the interests of the holders of Rights generally, and
the Company and the Rights Agent shall amend this
Agreement as necessary to provide for such adjustments.
(c) Each adjustment to the Exercise Price made
pursuant to this Section 2.4 shall be calculated to the nearest
cent. Whenever an adjustment to the Exercise Price is made
pursuant to this Section 2.4, the Company shall (i) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment and (ii)
promptly file with the Rights Agent and with each transfer
agent for the Common Stock a copy of such certificate.
Rights certificates shall represent the securities
purchasable under the terms of this Agreement, including any
adjustment or change in the securities purchasable upon
exercise of the Rights, even though such certificates may
continue to express the securities purchasable at the time of
issuance of the initial Rights Certificates.
2.5 Date on Which Exercise is Effective. Each person
in whose name any certificate for shares is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares represented thereby
on the date upon which the Rights Certificate evidencing such
Rights was duly surrendered and payment of the Exercise
Price for such Rights (and any applicable taxes and other
governmental charges payable by the exercising holder
hereunder) was made; provided, however, that if the date of
such surrender and payment is a date upon which the stock
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 stock transfer books of the
Company are open.
2.6 Execution, Authentication, Delivery and Dating of
Rights Certificates. (a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or
one of its Assistant Secretaries. The signature of any of these
officers on the Rights Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile
signatures of individuals who were at any time the proper
officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and
delivery of such Rights Certificates.
Promptly after the Separation Time, the Company will
notify the Rights Agent of such Separation Time and will
deliver Rights Certificates executed by the Company to the
Rights Agent for countersignature, and, subject to Section
3.1(b), the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights
pursuant to Section 2.3(c) hereof. No Rights Certificate shall
be valid for any purpose unless manually countersigned by the
Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and
Exchange. (a) After the Separation Time, the Company will
cause to be kept a register (the "Rights Register") in which,
subject to such reasonable regulations as it may prescribe, the
Company will provide for the registration and transfer of
Rights. The Rights Agent is hereby appointed "Rights
Registrar" for the purpose of maintaining the Rights Register
for the Company and registering Rights and transfers of
Rights after the Separation Time as herein provided. In the
event that the Rights Agent shall cease to be the Rights
Registrar, the Rights Agent will have the right to examine the
Rights Register at all reasonable times after the Separation
Time.
After the Separation Time and prior to the Expiration
Time, upon surrender for registration of transfer or exchange
of any Rights Certificate, and subject to the provisions of
Section 2.7(c) and (d), the Company will execute and the
Rights Agent will countersign and deliver, in the name of the
holder or the designated transferee or transferees, as required
pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights
as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b),
all Rights issued upon any registration of transfer or exchange
of Rights Certificates shall be the valid obligations of the
Company, and such Rights shall be entitled to the same
benefits under this Agreement as the Rights surrendered upon
such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for
registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form
satisfactory to the Company or the Rights Agent, as the case
may be, duly executed by the holder thereof or such holder's
attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.7,
the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be
imposed in relation thereto.
(d) The Company shall not be required to register the
transfer or exchange of any Rights after such Rights have
become void under Section 3.1(b), been exchanged under
Section 3.1(c) or been terminated under Section 5.1.
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates. (a) If any mutilated Rights Certificate is
surrendered to the Rights Agent prior to the Expiration Time,
then, subject to Sections 3.1(b), 3.1(c) and 5.1, the Company
shall execute and the Rights Agent shall countersign and
deliver in exchange therefor a new Rights Certificate
evidencing the same number of Rights as did the Rights
Certificate so surrendered.
(b) If there shall be delivered to the Company and the
Rights Agent prior to the Expiration Time (i) evidence to
their satisfaction of the destruction, loss or theft of any Rights
Certificate and (ii) such security or indemnity as may be
required by them to save each of them and any of their agents
harmless, then, subject to Sections 3.1(b), 3.1(c) and 5.1 and
in the absence of notice to the Company or the Rights Agent
that such Rights Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request
the Rights Agent shall countersign and deliver, in lieu of any
such destroyed, lost or stolen Rights Certificate, a new Rights
Certificate evidencing the same number of Rights as did the
Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate under this Section 2.8, the Company may require
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of
the Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to
this Section 2.8 in lieu of any destroyed, lost or stolen Rights
Certificate shall evidence an original additional contractual
obligation of the Company, whether or not the destroyed, lost
or stolen Rights Certificate shall be at any time enforceable by
anyone, and, subject to Section 3.1(b), shall be entitled to all
the benefits of this Agreement equally and proportionately
with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due
presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate)
for registration of transfer, the Company, the Rights Agent
and any agent of the Company or the Rights Agent may deem
and treat the person in whose name such Rights Certificate
(or, prior to the Separation Time, such Common Stock
certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby for all purposes whatsoever,
and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary. As used in this
Agreement, unless the context otherwise requires, the term
"holder" of any Rights shall mean the registered holder of
such Rights (or, prior to the Separation Time, the associated
shares of Common Stock).
2.10 Delivery and Cancellation of Certificates.
All Rights Certificates surrendered upon exercise or for
registration of transfer or exchange shall, if surrendered to
any person other than the Rights Agent, be delivered to the
Rights Agent and, in any case, shall be promptly canceled by
the Rights Agent. The Company may at any time deliver to
the Rights Agent for cancellation any Rights Certificates
previously countersigned and delivered hereunder which the
Company may have acquired in any manner whatsoever, and
all Rights Certificates so delivered shall be promptly canceled
by the Rights Agent. No Rights Certificates shall be
countersigned in lieu of or in exchange for any Rights
Certificates canceled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent
shall return all canceled Rights Certificates to the Company.
2.11 Agreement of Rights Holders. Every holder
of Rights by accepting the same consents and agrees with the
Company and the Rights Agent and with every other holder
of Rights that:
(a) prior to the Separation Time, each Right will be
transferable only together with, and will be transferred by a
transfer of, the associated share of Common Stock;
(b) after the Separation Time, the Rights Certificates
will be transferable only on the Rights Register as provided
herein;
(c) prior to due presentment of a Rights Certificate
(or, prior to the Separation Time, the associated Common
Stock certificate) for registration of transfer, the Company,
the Rights Agent and any agent of the Company or the Rights
Agent may deem and treat the person in whose name the
Rights Certificate (or, prior to the Separation Time, the
associated Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby
for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will,
under the circumstances set forth in Section 3.1(b), become
void; and
(e) this Agreement may be supplemented or amended
from time to time pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. (a) In the event that prior to the
Expiration Time a Flip-In Date shall occur, except as
provided in this Section 3.1, each Right shall constitute the
right to purchase from the Company, upon exercise thereof in
accordance with the terms hereof (but subject to Section
5.10), that number of shares of Common Stock having an
aggregate Market Price on the Stock Acquisition Date equal
to twice the Exercise Price for an amount in cash equal to the
Exercise Price (such right to be appropriately adjusted in
order to protect the interests of the holders of Rights
generally in the event that on or after such Stock Acquisition
Date an event of a type analogous to any of the events
described in Section 2.4(a) or (b) shall have occurred with
respect to the Common Stock).
(b) Notwithstanding the foregoing, any Rights that
are or were Beneficially Owned on or after the Stock
Acquisition Date by an Acquiring Person or an Affiliate or
Associate thereof or by any transferee, direct or indirect, of
any of the foregoing shall become void and any holder of
such Rights (including transferees) shall thereafter have no
right to exercise or transfer such Rights under any provision
of this Agreement. If any Rights Certificate is presented for
assignment or exercise and the Person presenting the same
will not complete the certification set forth at the end of the
form of assignment or notice of election to exercise and
provide such additional evidence of the identity of the
Beneficial Owner and its Affiliates and Associates (or former
Beneficial owners and their Affiliates and Associates) as the
Company shall reasonably request, then the Company shall be
entitled conclusively to deem the Beneficial owner thereof to
be an Acquiring Person or an Affiliate or Associate thereof or
a transferee of any of the foregoing and accordingly will deem
the Rights evidenced thereby to be void and not transferable
or exercisable.
(c) The Board of Directors of the Company may, at
its option, at any time after a Flip-In Date and prior to the
time that an Acquiring Person becomes the Beneficial owner
of more than 50% of the outstanding shares of Common
stock, elect to exchange all (but not less than all) the then
outstanding Rights (which shall not include Rights that have
become void pursuant to the provisions of Section 3.1(b)) for
shares of Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted in order to
protect the interests of holders of Rights generally in the
event that after the Separation Time an event of a type
analogous to any of the events described in Section 2.4(a) or
(b) shall have occurred with respect to the Common Stock
(such exchange ratio, as adjusted from time to time, being
hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of
Directors of the Company electing to exchange the Rights,
without any further action and without any notice, the right to
exercise the Rights will terminate and each Right (other than
Rights that have become void pursuant to Section 3.1(b)) will
thereafter represent only the right to receive a number of
shares of Common Stock equal to the Exchange Ratio.
Promptly after the action of the Board of Directors electing
to exchange the Rights, the Company shall give notice thereof
(specifying the steps to be taken to receive shares of
Common Stock in exchange for Rights) to the Rights Agent
and the holders of the Rights (other than Rights that have
become void pursuant to Section 3.1(b)) outstanding
immediately prior thereto by mailing such notice in
accordance with Section 5.9.
Each Person in whose name any certificate for shares
is issued upon the exchange of Rights pursuant to this Section
3.1(c) or Section 3.1(d) shall for all purposes be deemed to
have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of any applicable taxes and other
governmental charges payable by the holder was made;
provided, however, that if the date of such surrender and
payment is a date upon which the stock 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 stock transfer books of the Company are open.
(d) Whenever the Company shall become obligated
under Section 3.1(a) or (c) to issue shares of Common Stock
upon exercise of or in exchange for Rights, the Company, at
its option, may substitute therefor shares of Preferred Stock,
at a ratio of one one-hundredth of a share of Preferred Stock
for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient
treasury shares or authorized but unissued shares of Common
Stock or Preferred Stock of the Company to permit the
exercise or exchange in full of the Rights in accordance with
Section 3.1(a) or (c), the Company shall either (i) call a
meeting of shareholders seeking approval to cause sufficient
additional shares to be authorized (provided that if such
approval is not obtained the Company will take the action
specified in clause (ii) of this sentence) or (ii) take such action
as shall be necessary to ensure and provide, to the extent
permitted by applicable law and any agreements or
instruments in effect on the Stock Acquisition Date to which
it is a party, that each Right shall thereafter constitute the
right to receive, (x) at the Company's option, either (A) in
return for the Exercise Price, debt or equity securities or
other assets (or a combination thereof) having a fair value
equal to twice the Exercise Price, or (B) without payment of
consideration (except as otherwise required by applicable
law), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the Exercise
Price, or (y) if the Board of Directors of the Company elects
to exchange the Rights in accordance with Section 3.1(c),
debt or equity securities or other assets (or a combination
thereof) having a fair value equal to the product of the
Market Price of a share of Common Stock on the Flip-In
Date times the Exchange Ratio in effect on the Flip-In Date,
where in any case set forth in (x) or (y) above the fair value
of such debt or equity securities or other assets shall be as
determined in good faith by the Board of Directors of the
Company, after consultation with a nationally recognized
investment banking firm.
3.2 Flip-over. (a) Prior to the Expiration Time, the
Company shall not enter into any agreement with respect to,
consummate or permit to occur any Flip-Over Transaction or
Event unless and until it shall have entered into a
supplemental agreement with the Flip-Over Entity, for the
benefit of the holders of the Rights, providing that, upon
consummation or occurrence of the Flip-Over Transaction or
Event (i) each Right shall thereafter constitute the right to
purchase from the Flip-Over Entity, upon exercise thereof in
accordance with the terms hereof, that number of shares of
Flip-Over Stock of the Flip-Over Entity having an aggregate
Market Price on the date of consummation or occurrence of
such Flip-Over Transaction or Event equal to twice the
Exercise Price for an amount in cash equal to the Exercise
Price (such right to be appropriately adjusted in order to
protect the interests of the holders of Rights generally in the
event that after such date of consummation or occurrence an
event of a type analogous to any of the events described in
Section 2.4(a) or (b) shall have occurred with respect to the
Flip-Over Stock) and (ii) the Flip-Over Entity shall thereafter
be liable for, and shall assume, by virtue of such Flip-Over
Transaction or Event and such supplemental agreement, all
the obligations and duties of the Company pursuant to this
Agreement. The provisions of this Section 3.2 shall apply to
successive Flip-Over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights
will be terminated pursuant to Section 5.1 hereof in
connection therewith, the Company shall not enter into any
agreement with respect to, consummate or permit to occur
any Flip-Over Transaction or Event if at the time thereof
there are any rights, warrants or securities outstanding or any
other arrangements, agreements or instruments that would
eliminate or otherwise diminish in any material respect the
benefits intended to be afforded by this Rights Agreement to
the holders of Rights upon consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 General. (a) The Company hereby appoints the
Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company agrees to
pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and other disbursements incurred in the
administration and execution of this Agreement and the
exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and
to hold it harmless against, any loss, liability, or expense,
incurred without negligence, bad faith or willful misconduct
on the part of the Rights Agent, for anything done or omitted
to be done by the Rights Agent in connection with the
acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of
liability.
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered
or omitted by it in connection with its administration of this
Agreement in reliance upon any certificate for securities
purchasable upon exercise of Rights, Rights Certificate,
certificate 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.
4.2 Merger or Consolidation or Change of Name of
Rights Agent. (a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation resulting
from any merger or consolidation to which the Rights Agent
or any successor Rights Agent is a party, or any corporation
succeeding to the shareholder services business of the Rights
Agent or any successor Rights Agent, will 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 4.4 hereof. In case at the time such
successor Rights Agent succeeds to the agency created by
this Agreement any of the Rights Certificates have been
countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates have not been countersigned, any successor
Rights Agent may countersign such Rights 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
Rights Certificates will have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
is changed and at such time any of the Rights Certificates
shall have been countersigned but not delivered, the Rights
Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case
at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name;
and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this
Agreement.
4.3 Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this
Agreement upon the following terms and conditions, by all of
which the Company and the holders of Rights Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion
of such counsel will 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 deems 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 a person believed by the Rights Agent to
be the Chairman of the Board, the President or any Vice
President and by the Treasurer or any Assistant Treasurer or
the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate will 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 will be liable hereunder only for
its own negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the certificates for securities purchasable
upon exercise of Rights or the Rights Certificates (except its
countersignature thereof) or be required to verify the same,
but all such statements and recitals are and will be deemed to
have been made by the Company only.
(e) The Rights Agent will not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due
authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any
certificate for securities purchasable upon exercise of Rights
or Rights Certificate (except its countersignature thereof);
nor will it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or in
any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 3.1(b) hereof) or any
adjustment required under the provisions of Section 2.4, 3.1
or 3.2 hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment
(except with respect to the exercise of Rights after receipt of
the certificate contemplated by Section 2.4 describing any
such adjustment); nor will it by any act hereunder be deemed
to make any representation or warranty as to the
authorization or reservation of any securities purchasable
upon exercise of Rights or any Rights or as to whether any
securities purchasable upon exercise of Rights will, when
issued, be duly and validly authorized, executed, issued and
delivered and 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 person believed
by the Rights Agent to be the Chairman of the Board, the
President or any Vice President or the Secretary or any
Assistant Secretary or the Treasurer or any Assistant
Treasurer of the Company, and to apply to such persons 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 person.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal
in Common Stock, Rights or other securities of the Company
or become pecuniarily interested in any transaction in which
the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as
though it were not Rights Agent under this Agreement.
Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys or
agents, and the Rights Agent will 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.
4.4 Change of Rights Agent. The Rights Agent may
resign and be discharged from its duties under this Agreement
upon 90 days notice (or such lesser notice as is acceptable to
the Company) in writing mailed to the Company and to each
transfer agent of Common Stock by registered or certified
mail, and to the holders of the Rights in accordance with
Section 5.9. The Company may remove the Rights Agent
upon 30 days notice in writing, mailed to the Rights Agent
and to each transfer agent of the Common Stock by
registered or certified mail, and to the holders of the Rights in
accordance with Section 5.9. If the Rights Agent should
resign or be removed or otherwise become incapable of
acting, the Company will appoint a successor to the Rights
Agent. If the Company fails to make such appointment
within a period of 30 days after 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 any Rights (which holder shall, with such notice, submit
such holder's Rights Certificate for inspection by the
Company), then the holder of any Rights may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of
the United States or of the State of Georgia or any other
State of the United States, in good standing, which is
authorized under such laws to exercise the powers of the
Rights Agent contemplated by this Agreement 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 $50,000,000 or (b)
an affiliate of a corporation described in the immediately
preceding clause (a). After appointment, the successor
Rights Agent will be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the predecessor
Rights Agent shall deliver and transfer to the successor
Rights Agent any property at the time held by it hereunder,
and execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Not later than the
effective date of any such appointment, the Company will file
notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a
notice thereof in writing to the holders of the Rights. Failure
to give any notice provided for in this Section 4.4, 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.
ARTICLE V
MISCELLANEOUS
5.1 Termination. (a) The Board of Directors of the
Company may, at its option, at any time prior to the close of
business on the Flip-In Date, elect to terminate the Rights
without any payment to any holder thereof.
(b) Immediately upon the action of the Board of
Directors of the Company electing to terminate the Rights
(or, if the resolution of the Board of Directors electing to
terminate the Rights states that the termination will not be
effective until the occurrence of a specified future time or
event, upon the occurrence of such future time or event),
without any further action and without any notice, the right to
exercise the Rights will terminate and each Right will
thereafter be null and void.
5.2 Expiration. The Rights and this Agreement shall
expire at the Expiration Time and no Person shall have any
rights pursuant to this Agreement or any Right after the
Expiration Time, except, if the Rights are exchanged, as
provided in Section 3.1 hereof.
5.3 Issuance of New Rights Certificate.
Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its option,
issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any
adjustment or change in the number or kind or class of shares
of stock purchasable upon exercise of Rights made in
accordance with the provisions of this Agreement. In
addition, in connection with the issuance or sale of shares of
Common Stock by the Company following the Separation
Time and prior to the Expiration Time pursuant to the terms
of securities convertible or redeemable into shares of
Common Stock or to options, in each case issued or granted
prior to, and outstanding at, the Separation Time, the
Company shall issue to the holders of such shares of
Common Stock, Rights Certificates representing the
appropriate number of Rights in connection with the issuance
or sale of such shares of Common Stock; provided, however,
in each case, (i) no such Rights Certificate shall be issued, if,
and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or to the
Person to whom such Rights Certificates would be issued, (ii)
no such Rights Certificates shall be issued if, and to the extent
that, appropriate adjustment shall have otherwise been made
in lieu of the issuance thereof, and (iii) the Company shall
have no obligation to distribute Rights Certificates to any
Acquiring Person or Affiliate or Associate of an Acquiring
Person or any transferee of any of the foregoing.
5.4 Supplements and Amendments. The Company
and the Rights Agent may from time to time supplement or
amend this Agreement without the approval of any holders of
Rights (i) prior to the close of business on the Flip-In Date, in
any respect and (ii) after the close of business on the Flip-In
Date, to make any changes that the Company may deem
necessary or desirable and which shall not materially
adversely affect the interests of the holders of Rights
generally or in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be
inconsistent with any other provisions herein or otherwise
defective. The Rights Agent will duly execute and deliver
any supplement or amendment hereto requested by the
company which satisfies the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to
issue certificates representing fractional shares upon exercise
of Rights, the Company shall, in lieu thereof, in the sole
discretion of the Board of Directors, either (a) evidence such
fractional shares by depository receipts issued pursuant to an
appropriate agreement between the Company and a
depository selected by it, providing that each holder of a
depository receipt shall have all of the rights, privileges and
preferences to which such holder would be entitled as a
beneficial owner of such fractional share, or (b) sell such
shares on behalf of the holders of Right and pay to the
registered holder of such Rights the appropriate fraction of
price per share received upon such sale.
5.6 Rights of Action. Subject to the terms of this
Agreement (including Section 3.1(b)), rights of action in
respect of this Agreement, other than rights of action vested
solely in the Rights Agent, are vested in the respective
holders of the Rights; and any holder of any Rights, without
the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such
holder's own benefit and the benefit of other holders of
Rights, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise
such holder Rights in the manner provided in such holder's
Rights Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any
breach of this Agreement and 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.
5.7 Holder of Rights Not Deemed a Shareholder. No
holder, as such, of any Rights shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of shares
or any other securities which may at any time be issuable on
the exercise of such Rights, nor shall anything contained
herein or in any Rights Certificate be construed to confer
upon the holder of any Rights, as such, any of the rights of a
shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in Section 5.8 hereof), or to receive dividends or
subscription rights, or otherwise, until such Rights shall have
been exercised or exchanged in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the
Company shall propose after the Separation Time and prior
to the Expiration Time (i) to effect or permit occurrence of
any Flip-Over Transaction or Event or (ii) 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, in accordance with Section 5.9 hereof, a notice of such
proposed action, which shall specify the date on which such
Flip-Over Transaction or Event, liquidation, dissolution, or
winding up is to take place, and such notice shall be so given
at least 20 Business Days prior to the date of the taking of
such proposed action.
5.9 Notices. Notices or demands authorized or
required by this Agreement to be given or made by the Rights
Agent or by the holder of any Rights to or on the Company
shall be sufficiently given or made if delivered or sent by first-
class mail, postage prepaid, addressed (until another address
is filed in writing with the Rights Agent) as follows:
Astec Industries, Inc.
P.O. Box 72787
4101 Jerome Avenue
Chattanooga, Tennessee 37407
Attention: Secretary
Any notice or demand authorized or required by this
Agreement to be given or made by the Company or by the
holder of any Rights to or on the Rights Agent shall be
sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
First Chicago Trust Company of New York
525 Washington Blvd.
Suite 4660
Jersey City, New Jersey 07310
Attention: Tenders and Exchanges Administration
Notices or demands authorized or required by this
Agreement to be given or made by the Company or the
Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed to such holder at the address
of such holder as it appears upon the registry books of the
Rights Agent or, prior to the Separation Time, on the registry
books of the transfer agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
5.10 Suspension of Exercisability. To the extent
that the Company determines in good faith that some action
will or need be taken pursuant to Section 3.1 or to comply
with federal or state securities laws, the Company may
suspend the exercisability of the Rights for ninety (90) days
and any additional period that may be reasonable in order to
take such action or comply with such laws. In the event of
any such suspension, the Company shall issue as promptly as
practicable a public announcement stating that the
exercisability or exchangeability of the Rights has been
temporarily suspended. Notice thereof pursuant to Section
5.9 shall not be required.
Failure to give a notice pursuant to the provisions of
this Agreement shall not affect the validity of any action taken
hereunder.
5.11 Costs of Enforcement. The Company
agrees that if the Company or any other Person the securities
of which are purchasable upon exercise of Rights fails to
fulfill any of its obligations pursuant to this Agreement, then
the Company or such Person will reimburse the holder of any
Rights for the costs and expenses (including legal fees)
incurred by such holder in actions to enforce such holder's
rights pursuant to any Rights or this Agreement.
5.12 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.
5.13 Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the holders of the
Rights any legal or equitable right, remedy or claim under this
Agreement and this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
holders of the Rights.
5.14 Determination and Actions by the Board of
Directors, etc. The Board of Directors of the Company shall
have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be
necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power
to (i) interpret the provisions of this Agreement and (ii) make
all determinations deemed necessary or advisable for the
administration of this Agreement. All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to
the foregoing) which are done or made by the Board in good
faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all
other parties, and (y) not subject the Board of Directors of
the Company to any liability to the holders of the Rights.
5.15 Descriptive Headings. Descriptive headings
appear herein for convenience only and shall not control or
affect the meaning or construction of any of the provisions
hereof.
5.16 Governing Law. THIS AGREEMENT
AND EACH RIGHT ISSUED HEREUNDER SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF TENNESSEE 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.
5.17 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.
5.18 Severability. If any term or provision hereof
or the application thereof to any circumstance shall, in any
jurisdiction and to any extent, be invalid or unenforceable,
such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability
without invalidating or rendering unenforceable the remaining
terms and provisions hereof or the application of such term or
provision to circumstances other than those as to which it is
held invalid or unenforceable.
[Signatures on next page]
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed as of the date first
above written.
ASTEC INDUSTRIES,
INC.
By: /s/ J. Don Brock
Chairman of the Board
FIRST CHICAGO TRUST COMPANY OF NEW YORK
By: /s/
Name:
Title:
<PAGE>
EXHIBIT 2
Press Release
<PAGE>
Press Release
Chattanooga, Tennessee. December 22, 1995. Astec
Industries, Inc. (Nasdaq National Market Symbol - ASTE)
today announced that its Board of Directors has adopted a
shareholder protection rights agreement designed to enhance
the ability of all shareholders to realize the long-term value of
their investment in the Company. The rights plan was not
adopted in response to any specific effort to acquire control
of the Company and the Company is not aware of any such
effort.
The rights plan provides that one preferred stock
purchase right will be distributed as a dividend on each
outstanding share of common stock of the Company held of
record as of the close of business on January 2, 1996.
Dr. J. Don Brock, Chairman of the Board of the
Company, stated: "The rights plan does not prevent a
takeover, but it is designed to protect shareholders' interests
by encouraging anyone seeking control of the Company to
negotiate with the Board of Directors." A spokesman also
noted that such plans have been adopted by more than 1,400
public corporations in recent years. The Board's action came
after consulting with legal and other advisors.
Each right will entitle holders of a share of common
stock to purchase one one-hundredth of a new series of
participating preferred stock of the Company at an exercise
price of $36.00. Each such fractional share of preferred stock
is equivalent in voting power to one share of Company
common stock and would be paid dividends equal to the
dividends paid on each share of common stock. The rights
will be exercisable only if a person or group acquires
beneficial ownership of 15% or more of the Company's
common stock, or announces a tender or exchange offer upon
consummation of which, such person or group would
beneficially own 15% or more of the common shares of the
Company. The rights are not triggered by present beneficial
holders of 15% or more of the common stock unless they
subsequently increase their beneficial holdings.
If a person or group becomes a beneficial owner of
15% or more of the Company's common shares, then each
right not owned by the person or group entitles its holder to
purchase shares of Company common stock at the right's then
current exercise price (or in certain circumstances as
determined by the Company, a combination of cash, property,
common shares or other securities), having a value of twice
the right's exercise price of $36.00. (For example, at a
market price of $12.00 per share, each right would entitle its
holder to purchase approximately six shares of Company
common stock.) For purposes of determining the value of
the participating preferred stock, each one one-hundredth of a
share will be considered to be equivalent in value to one share
of Company common stock.
In addition, if the Company is involved in a merger or
business combination transaction with another person in
which the Company is not the surviving corporation, each
right that has not previously been exercised will entitle its
holder to purchase, at the right's then-current exercise price,
common shares of such other person having a value of twice
the right's exercise price.
The Company may terminate the rights, without
payment to the holders, at any time until the close of business
on the tenth business day following an announcement by the
Company that a person or group has become the beneficial
owner of 15% or more of the Company's common stock.
Details of the shareholder protection rights agreement
are outlined in a letter which will be mailed to all shareholders
of record at the close of business on January 2, 1996.
Astec Industries, Inc. manufactures asphalt mixing
plants, paving equipment, heat transfer equipment, aggregate
crushing equipment, excavating and trenching equipment,
asphalt recycling equipment, and soil remediation equipment.
