SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
KLLM TRANSPORT SERVICES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 64-0412551
(State of incorporation or organization) (IRS Employer Identification
No.)
3475 Lakeland Drive, Jackson, MS 39288
(Address of principal executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF
THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
N/A N/A
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(I), please check the following box [ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with
the effectiveness of a concurrent registration statement under
the Securities Act of 1933 pursuant to General Instruction
A.(c)(2), please check the following box [ ]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF
THE ACT
PREFERRED STOCK PURCHASE RIGHTS
(Title of Class)
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE
REGISTERED.
On February 13, 1997, the Board of Directors of KLLM
Transport Services, Inc. (the "Corporation") declared a
dividend of one preferred stock purchase right (the "Right") for each
outstanding share of common stock, par value $1.00 per
share (the "Common Shares"), of the Corporation. The dividend is
payable on February 24, 1997 (the "Record Date") to the
stockholders of record on that date. Each Right entitles
the registered holder to purchase from the Corporation one one-
hundredth of a share of Participating Preferred Stock, par
value $.01 per share (the "Preferred Shares"), of the Corporation,
at a price of $41.00 per one one-hundredth of a Preferred Share
(the "Exercise Price"), subject to adjustment. The description
and terms of the Rights are set forth in the Stockholder
Protection Rights Agreement, as the same may be amended from time to
time (the "Rights Agreement") dated as of February 13, 1997
between the Corporation and KeyCorp Shareholder Services, Inc., as
Rights Agent (the "Rights Agent").
Separation Time
Until the date on which certain events take place
(the "Separation Time"), the Rights will be evidenced by, with
respect to any Common Share certificate outstanding on the Record
Date, such Common Share and a Summary of Rights mailed to each
holder of record on the Record Date. The term "Separation Time"
means the close of business on the earlier of (a) the tenth
business day (or such earlier or later date as may be determined by
the Board of Directors of the Corporation) following a public
announcement by the Corporation that a person or group of
affiliated or associated persons has acquired beneficial
ownership of 20% or more of the outstanding Common Shares
(collectively, an "Acquiring Person") (the "Flip-in
Trigger") or (b) the tenth business day (or such later date as may be
determined by the Board of Directors of the Corporation)
after the date on which any person (or group of affiliated or
associated persons) commences a tender or exchange offer the
consummation of which would result in the beneficial
ownership by such person of 20% or more of such outstanding Common
Shares.
Transfer of Rights and Certificates
The Rights Agreement provides that, until the
Separation Time, the Rights will be transferred with and only with the
Common Shares. Until the Separation Time (or the earlier
redemption or expiration of the Rights), new Common Share
certificates issued after the Record Date upon transfer or
new issuance of Common Shares will contain a notation
incorporating the Rights Agreement by reference. Until the Separation
Time (or the earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such
notation, will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificate. As soon
as practicable following the Separation Time, separate
certificates evidencing the Rights (the "Right Certificates") will be
mailed to holders of record of the Common Shares as of the close of
business on the Separation Time, and such separate Right
Certificates alone will evidence the Rights.
Exercise Period
The Rights are not exercisable until the Separation
Time. After the Separation Time and prior to the Expiration Time,
each Right (unless previously redeemed) will entitle the holder
to purchase, for the Exercise Price, one one-hundredth of a
share of the Preferred Shares having the rights described below. The
Rights will expire on the Expiration Time, unless the
Expiration Time is extended, or the Rights are earlier redeemed by the
Corporation. The term "Expiration Time" is defined in the
Rights Agreement and generally means February 13, 2007, unless the
Rights are sooner exchanged or redeemed, or the date of
consummation of a merger of the Corporation approved by the
Board prior to a Flip-in Trigger.
Adjustments
The Exercise Price payable, and the number of
outstanding Rights and the number of one one-hundredth interests in
Preferred Shares issuable upon exercise of each Right, are subject to
adjustment in the event of a stock split of the Common
Shares or a stock dividend on the Common Shares payable in Common
Shares or subdivisions, consolidations or combinations of the Common
Shares occurring, in any such case, prior to the Separation Time.
If prior to the Separation Time, the Corporation distributes
securities or assets in exchange for Common Shares (other
than regular cash dividends or a dividend paid solely in Common
Shares) whether by dividend, reclassification or otherwise,
the Corporation shall make such adjustments, if any, in the
Exercise Price, number of Rights and otherwise as the Board of
Directors deems appropriate.
If the Corporation elects not to issue fractional Preferred
Shares, the Corporation may (i) evidence such fractional
shares by depositary receipts or (ii) sell such shares and
pay the registered holder the appropriate fraction of price
per share received upon sale.
Preferred Shares
Interests in Preferred Shares purchasable upon exercise of the
Rights will not be redeemable and will not be convertible into any other
class of capital stock. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment of $10.25 per share but will be
entitled to an aggregate dividend of 100 times the dividend declared per
Common Share. In the event of a liquidation, the holders of the interests
in Preferred Shares will be entitled to a minimum preferential liquidation
payment of $4,100.00 per Preferred Share but will be entitled to an aggregate
payment of 100 times the payment made per Common Share. Each Preferred share
will have 100 votes, voting together with the Common Shares. Finally, in the
event of any merger, consolidation or other transaction in which Common Shares
are exchanged, each Preferred Share will be entitled to receive 100 times the
amount received per Common Share. These rights are protected by customary
antidilution provisions. Because of the nature of the Preferred Shares'
dividend, liquidation and voting rights, the value of the
one one-hundredth interest in a Preferred Share purchasable upon exercise
of each Right should approximate the value of one Common Share. If the
Corporation elects not to issue fractional Preferred Shares, the Corporation
may (i) evidence such fractional shares by depositary receipts or (ii) sell
such shares and pay the registered holder the appropriate fraction of price
per share received upon sale.
Exercise of Rights for Common Stock
Upon the occurrence of a Flip-in Trigger, Rights owned by
the Acquiring Person or any affiliate or associate thereof or
any transferee thereof will automatically become void and,
subject to the Exchange Option summarized below, each other Right will
automatically become a right to buy, for the Exercise Price,
that number of Common Shares or, at the option of the Board of
Directors, Preferred Shares designed to have economic and
voting terms similar to the Common Shares, in either case, having a
market value of twice the Exercise Price. If any person or
group acquires beneficial ownership of 20% or more of the
outstanding Common Shares without any intent to acquire or affect
control of the Corporation, that acquisition will not result in a
Flip-in Trigger if such acquiror immediately enters into an
irrevocable commitment to promptly divest, and thereafter promptly
divests, sufficient Common Shares so that such 20% or greater
beneficial ownership ceases. After a Flip-in Trigger occurs, the
Corporation may not consolidate or merge with, or sell 50%
or more of its assets or earning power to, any person, if the
Corporation's Board of Directors is controlled by the
Acquiring Person, unless proper provision is made so that each Right
would thereafter become a right to buy, for the Exercise Price,
that number of shares of common stock of such other person having
a market value of twice the Exercise Price.
Optional Exchange of Rights
At any time after a Flip-in Trigger occurs and prior to the time
a person or group of persons become the beneficial owner of more than 50%
of the outstanding Common Shares, the Board of Directors of the Corporation
may elect to exchange all of the outstanding Rights (other than Rights owned
by such person or group which have become void), for shares of Common Shares
at an exchange ratio (subject to adjustment) of one Common Share per Right
(the "Exchange Option"). Also at its option, the Board may substitute
interests in Preferred Shares (or shares of a class or series of the
Corporation's preferred stock having equivalent rights, preferences and
privileges) for Common Shares exchangeable for Rights at an initial rate
(subject to adjustment) of one one-hundredth interest in a Preferred Share
(or equivalent preferred share) for each Common Share.
Redemption of Rights
At any time prior to a Flip-in Trigger, the Board of
Directors of the Corporation may redeem the Rights in whole,
but not in part, at a price of $.01 per Right (the "Redemption
Price"). Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate, and the only
right of the holders of Rights will be to receive the Redemption
Price.
Amendments
The Corporation and the Rights Agent may amend the
Rights Agreement in any respect prior to the occurrence of a
Flip-in Trigger. Thereafter, the Corporation and the Rights Agent
may amend the Rights Agreement in any respect which shall not
materially adversely affect the interests of holders of
Rights generally or to cure an ambiguity or to correct or
supplement any provision which may be inconsistent with any other provision
or otherwise defective.
Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Corporation,
including, without limitation, the right to vote or to
receive dividends.
Documents and Effect of This Summary
A copy of the Rights Agreement specifying the terms
of the Rights (including as Exhibit B the Form of the Rights
Certificate) is filed as an exhibit to this Registration
Statement and is incorporated herein by reference. This
summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights
Agreement.
Amendment to Form 8-A
This Form 8-A/A amends and restates the Form 8-A dated February 14,
1997, filed with the Securities Exchange Commission on February 19, 1997, by the
Corporation.
ITEM 2. EXHIBITS.
The following exhibits are filed as a part of this
Registration Statement:
EXHIBIT NO. DESCRIPTION
99.1 Stockholder Protection Rights Agreement,
dated as of February 13, 1997, between KLLM Transport
Services, Inc. and KeyCorp Shareholder Services, Inc.,
as Rights Agent
99.2 Form of Rights Certificate (included as
Exhibit A to the Stockholder Protection Rights Agreement
filed herein as Exhibit 99. 1)
99.3 Certificate of Designations and Terms of
Participating Preferred Stock (included as Exhibit B to
the Stockholder Protection Rights Agreement filed herein as
Exhibit 99.1)
99.4 Press Release, dated February 13, 1997
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
KLLM TRANSPORT SERVICES,INC.
<TABLE>
<S> <C>
By:s/James Leon Young
Secretary
Dated February 24, 1997
</TABLE>
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
February 13, 1997
between
KLLM TRANSPORT SERVICES, INC.
and
KeyCorp Shareholder Services, Inc.,
as Rights Agent
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
Page
Article I
CERTAIN DEFINITIONS
<TABLE>
<S> <C> <C>
Section 1.1 Certain Definitions 2
Article II
THE RIGHTS
Section 2.1 Summary of Rights 8
Section 2.2 Legend on Common Stock
Certificates 8
Section 2.3 Exercise of Rights;
Separation of Rights 9
Section 2.4 Adjustments to Exercise Price; Number of
Rights 12
Section 2.5 Date on Which Exercise is Effective 13
Section 2.6 Execution, Authentication, Delivery and
Dating of Rights Certificates 14
Section 2.7 Registration, Registration of Transfer and
Exchange 14
Section 2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates 15
Section 2.9 Persons Deemed Owners 16
Section 2.10 Delivery and Cancellation of Certificates 17
Section 2.11 Agreement of Rights Holders 17
Article III
ADJUSTMENTS TO THE RIGHTS IN THE EVENT OF
CERTAIN TRANSACTIONS
Section 3.1 Flip-in 18
Section 3.2 Flip-over 21
Article IV
THE RIGHTS AGENT
Section 4.1 General 22
Section 4.2 Merger or Consolidation or Change of Name of
Rights Agent 22
Section 4.3 Duties of Rights Agent 23
Section 4.4 Change of Rights Agent 26
Article V
MISCELLANEOUS
Section 5.1 Redemption 27
Section 5.2 Expiration 28
Section 5.3 Issuance of New Rights Certificates 28
Section 5.4 Supplements and Amendments 29
Section 5.5 Fractional Shares 29
Section 5.6 Rights of Action 29
Section 5.7 Holder of Rights Not Deemed a Stockholder 30
Section 5.8 Notice of Proposed Actions 30
Section 5.9 Notices 31
Section 5.10 Suspension of Exercisability 31
Section 5.11 Costs of Enforcement 32
Section 5.12 Successors 32
Section 5.13 Benefits of this Agreement 32
Section 5.14 Determination and Actions by the Board of
Directors, etc 32
Section 5.15 Descriptive Headings 33
Section 5.16 Governing Law 33
Section 5.17 Counterparts 33
Section 5.18 Severability 33
</TABLE>
EXHIBITS
<TABLE>
<S> <C>
Exhibit A Form of Rights Certificate (Together with Form of
Election to Exercise)
Exhibit B Form of Certificate of Designation and Terms of
Participating Preferred Stock
</TABLE>
<PAGE>
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
STOCKHOLDER PROTECTION RIGHTS AGREEMENT (as amended
from time to time, this "Agreement"), dated as of February 13, 1997,
between KLLM Transport Services, Inc., a Delaware
corporation (the "Company"), and KeyCorp Shareholder
Services, Inc., an Ohio corporation, as Rights Agent (the
"Rights Agent", which term shall include any successor
Rights Agent hereunder).
WITNESSETH:
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
February 24, 1997 (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 20% 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 20% or more of the outstanding shares of Common Stock on
the date of this Agreement or who shall become the
Beneficial Owner of 20% 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 Persons 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 20% 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, 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 20% 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 at a time
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). 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 Jackson,
Mississippi 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.
Jackson, Mississippi time on such date (or, if such date is
not a Business Day, 5:00 p.m. Jackson, Mississippi time on
the next succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock, par
value $1.00 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 $ 41.00.
"Expiration Time" shall mean the earliest of (i) the
Exchange Time, (ii) the Redemption Time, (iii) the close of
business on the tenth-year anniversary of the Record Time,
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. Automated Quotation 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 of Participating
Preferred Stock, par value $0.01 per share, of the Company
created by a Certificate of Designation and Terms in
substantially the form set forth in Exhibit B hereto
appropriately completed.
"Redemption Price" shall mean an amount equal to one cent,
$0.01.
"Redemption Time" shall mean the time at which the right to
exercise the Rights shall terminate pursuant to Section 5.1
hereof.
"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
cancelled, 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.
"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 February 13,
1997 (as such may be amended from time to time, the "Rights
Agreement"), between KLLM Transport Services, Inc. (the
"Company") and KeyCorp Shareholder Services, Inc., 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 redeemed, 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 or a Subsidiary 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 depositary
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
depositary selected by the Company depositary 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, depositary
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 depositary
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.
(d) 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 redeemed or 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 cancelled 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 cancelled
by the Rights Agent. No Rights Certificates shall be
countersigned in lieu of or in exchange for any Rights
Certificates cancelled as provided in this Section 2.10,
except as expressly permitted by this Agreement. The Rights
Agent shall return all cancelled 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 stockholders 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
redeemed 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 stockholder, 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 corporation
organized and doing business under the laws of the United
States or of the State of Delaware 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. 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 Redemption. (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 redeem all (but not
less than all) of the then outstanding Rights at the
Redemption Price and the Company, at its option, may pay the
Redemption Price either in cash or shares of Common Stock or
other securities of the Company deemed by the Board of
Directors, in the exercise of its sole discretion, to be at
least equivalent in value to the Redemption Price.
(b) Immediately upon the action of the Board of Directors
of the Company electing to redeem the Rights (or, if the
resolution of the Board of Directors electing to redeem the
Rights states that the redemption 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 represent only the right to receive the
Redemption Price in cash or securities, as determined by the
Board of Directors. Promptly after the Rights are redeemed,
the Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding Rights
by mailing such notice in accordance with Section 5.9.
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 or redeemed, as
provided in Section 3.1 or 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding
any of the provisions of this Agreement or of the Rights to
the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment
or change in the 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 Redemption Time or 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 or
redemption of Rights, the Company shall, in lieu thereof, in
the sole discretion of the Board of Directors, either (a)
evidence such fractional shares by depositary receipts
issued pursuant to an appropriate agreement between the
Company and a depositary selected by it, providing that each
holder of a depositary 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's 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 Stockholder. 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 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 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:
KLLM Transport Services, Inc.
3475 Lakeland Drive
Jackson, Mississippi 39288
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:
KeyCorp Shareholder Services, Inc.
127 Public Square
15th Floor
Cleveland, Ohio 44114
Attention: Corporate Trust Manager
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; but 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 DELAWARE 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above
written.
KLLM TRANSPORT SERVICES, INC.
<TABLE>
<S> <C>
By: /s/ Steven K. Bevilaqua
Name: Steven K. Beviliqua
Title: President and Chief Executive Officer
KeyCorp Shareholder Services, Inc.
By: /s/ Debra A. Kindred
Name: Debra A. Kindred
Title: Assistant Vice President
</TABLE>
[Form of Rights Certificate]
Certificate No. W- ______Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY
EXCHANGE, AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN
THE RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF
ANY OF THE FOREGOING WILL BE VOID.
Rights Certificate
KLLM TRANSPORT SERVICES, INC.
This certifies that ______________________ , or registered
assigns, is the registered holder of the number of Rights
set forth above, each of which entitles the registered
holder thereof, subject to the terms, provisions and
conditions of the Stockholder Protection Rights Agreement,
dated as of February 13, 1997 (as amended from time to time,
the "Rights Agreement"), between KLLM Transport Services,
Inc., a Delaware corporation (the "Company"), and KeyCorp
Shareholder Services, Inc., an Ohio corporation, as Rights
Agent (the "Rights Agent", which term shall include any
successor Rights Agent under the Rights Agreement), to
purchase from the Company at any time after the Separation
Time (as such term is defined in the Rights Agreement) and
prior to the close of business on February 13, 2007, one
one-hundredth of a fully paid share of Participating
Preferred Stock, par value $0.01 per share (the "Preferred
Stock"), of the Company (subject to adjustment as provided
in the Rights Agreement) at the Exercise Price referred to
below, upon presentation and surrender of this Rights
Certificate with the Form of Election to Exercise duly
executed at the principal office of the Rights Agent in
_____________. The Exercise Price shall initially be $
41.00 per Right and shall be subject to adjustment in
certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement,
the Rights evidenced hereby may entitle the registered
holder thereof to purchase securities of an entity other
than the Company or securities or assets of the Company
other than Preferred Stock, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which
terms, provisions and conditions are hereby incorporated
herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights
Certificates. Copies of the Rights Agreement are on file at
the principal office of the Company and are available
without cost upon written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights
Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like
tenor evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Rights
Certificate or Rights Certificates surrendered. If this
Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon
surrender hereof, another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each
Right evidenced by this Certificate may be (a) redeemed by
the Company under certain circumstances, at its option, at a
redemption price of $0.01 per Right or (b) exchanged by the
Company under certain circumstances, at its option, for one
share of Common Stock or one one-hundredth of a share of
Preferred Stock per Right (or, in certain cases, other
securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of any securities 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 Rights
evidenced by this Rights Certificate shall have been
exercised or exchanged as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the
Rights Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Date:
<TABLE>
<S> <C>
ATTEST: KLLM TRANSPORT SERVICES, INC.
____________________ By ________________________
Secretary
Countersigned:
KeyCorp Shareholder Services, Inc.
By____________________________
Authorized Signature
</TABLE>
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ___________________ hereby sells,
assigns and transfers unto ________________ (Please print name
and address of transferee) this Rights Certificate, together
with all right, title and interest therein, and does hereby
irrevocably constitute and appoint_____________________ Attorney,
to transfer the within Rights Certificate on the books of
the within-named Company, with full power of substitution.
Dated: , 19_
Signature Guaranteed:
____________________
Signature
(Signature must correspond to name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever)
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.
- - ------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the
Rights evidenced by this Rights Certificate are not, and, to
the knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
Signature
- - ------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported assignment, the
Company will deem the Beneficial Owner of the Rights
evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of
the foregoing and accordingly will deem the Rights evidenced
by such Rights Certificate to be void and not transferable
or exercisable.
<PAGE>
(To be attached to each Rights Certificate)
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: KLLM TRANSPORT SERVICES, INC.
The undersigned hereby irrevocably elects to exercise___________
whole Rights represented by the attached Rights
Certificate to purchase the shares of Participating
Preferred Stock issuable upon the exercise of such Rights
and requests that certificates for such shares be issued in
the name of:
Address:
Social Security or Other Taxpayer
Identification Number:
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Address:
Social Security or Other Taxpayer
Identification Number:
Dated: 19___
Signature Guaranteed:
__________________________
Signature
(Signature must correspond to name as written upon the
face of the attached Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever)
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.
- - ----------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all
holders of Rights and shares of Common Stock, that the
Rights evidenced by the attached Rights Certificate are not,
and, to the knowledge of the undersigned, have never been,
Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
Signature
- - ------------------------------------------------------------
NOTICE
In the event the certification set forth above is not
completed in connection with a purported exercise, the
Company will deem the Beneficial Owner of the Rights
evidenced by the attached Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement) or a transferee of any of
the foregoing and accordingly will deem the Rights evidenced
by such Rights Certificate to be void and not transferable
or exercisable.
EXHIBIT 99.3
FORM OF CERTIFICATE OF DESIGNATION AND
TERMS OF PARTICIPATING PREFERRED STOCK
OF KLLM TRANSPORT SERVICES, INC., INC.
Pursuant to Section 151 of the General
Corporation Law of the State of Delaware
We, the undersigned, and
________________ , the , and
, respectively, of KLLM Transport Services, Inc., a Delaware
corporation (the "Corporation"), do hereby certify as
follows:
Pursuant to authority granted by [Article (FOURTH) of the
Restated Certificate of Incorporation of the Corporation],
as amended, and in accordance with the provisions of Section
151 of the General Corporation Law of the State of Delaware,
the Board of Directors of the Corporation has adopted the
following resolutions fixing the designation and certain
terms, powers, preferences and other rights of a new series
of the Corporation's Preferred Stock, par value $0.01 per
share, and certain qualifications, limitations and
restrictions thereon:
RESOLVED, that there is hereby established a series of
Preferred Stock, par value $0.01 per share, of the
Corporation, and the designation and certain terms, powers,
preferences and other rights of the shares of such series,
and certain qualifications, limitations and restrictions
thereon, are hereby fixed as follows:
(i) The distinctive serial designation of this series shall
be "Participating Preferred Stock" (hereinafter called "this
Series"). Each share of this Series shall be identical in
all respects with the other shares of this Series except as
to the dates from and after which dividends thereon shall be
cumulative.
(ii) The number of shares in this Series shall initially
be , which number may from time to time be increased
or decreased (but not below the number then outstanding) by
the Board of Directors. Shares of this Series purchased by
the Corporation shall be cancelled and shall revert to
authorized but unissued shares of Preferred Stock
undesignated as to series. Shares of this Series may be
issued in fractional shares, which fractional shares shall
entitle the holder, in proportion to such holder's
fractional share, to all rights of a holder of a whole share
of this Series.
(iii) The holders of full or fractional shares of this
Series shall be entitled to receive, when and as declared by
the Board of Directors, but only out of funds legally
available therefor, dividends, (A) on each date that
dividends or other distributions (other than dividends or
distributions payable in Common Stock of the Corporation)
are payable on or in respect of Common Stock comprising part
of the Reference Package (as defined below), in an amount
per whole share of this Series equal to the aggregate amount
of dividends or other distributions (other than dividends or
distributions-payable in Common Stock of the Corporation)
that would be payable on such date to a holder of the
Reference Package and (B) on the last day of March, June,
September and December in each year, in an amount per whole
share of this Series equal to the excess (if any) of $
over the aggregate dividends paid per whole share of this
Series during the three month period ending on such last
day. Each such dividend shall be paid to the holders of
record of shares of this Series on the date, not exceeding
sixty days preceding such dividend or distribution payment
date, fixed for the purpose by the Board of Directors in
advance of payment of each particular dividend or
distribution. Dividends on each full and each fractional
share of this Series shall be cumulative from the date such
full or fractional share is originally issued; provided that
any such full or fractional share originally issued after a
dividend record date and on or prior to the dividend payment
date to which such record date relates shall not be entitled
to receive the dividend payable on such dividend payment
date or any amount in respect of the period from such
original issuance to such dividend payment date.
The term "Reference Package" shall initially mean 100 shares
of Common Stock, par value $0.01 per share ("Common Stock"),
of the Corporation. In the event the Corporation shall at
any time after the close of business on
19___ (A) declare or pay a dividend on any Common Stock
payable in Common Stock, (B) subdivide any Common Stock or
(C) combine any Common Stock into a smaller number of
shares, then and in each such case the Reference Package
after such event shall be the Common Stock that a holder of
the Reference Package immediately prior to such event would
hold thereafter as a result thereof.
Holders of shares of this Series shall not be entitled to
any dividends, whether payable in cash, property or stock,
in excess of full cumulative dividends, as herein provided
on this Series.
So long as any shares of this Series are outstanding, no
dividend (other than a dividend in Common Stock or in any
other stock ranking junior to this Series as to dividends
and upon liquidation) shall be declared or paid or set aside
for payment or other distribution declared or made upon the
Common Stock or upon any other stock ranking junior to this
Series as to dividends or upon liquidation, nor shall any
Common Stock nor any other stock of the Corporation ranking
junior to or on a parity with this Series as to dividends or
upon liquidation be redeemed, purchased or otherwise
acquired for any consideration (or any moneys be paid to or
made available for a sinking fund for the redemption of any
shares of any such stock) by the Corporation (except by
conversion into or exchange for stock of the Corporation
ranking junior to this Series as to dividends and upon
liquidation), unless, in each case, the full cumulative
dividends (including the dividend to be due upon payment of
such dividend, distribution, redemption, purchase or other
acquisition) on all outstanding shares of this Series shall
have been, or shall contemporaneously be, paid.
(iv) In the event of any merger, consolidation,
reclassification or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case the shares of this Series shall at the same time
be similarly exchanged or changed in an amount per whole
share equal to the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the
case may be, that a holder of the Reference Package would be
entitled to receive as a result of such transaction.
(v) In the event of any liquidation, dissolution or winding
up of the affairs of the Corporation, whether voluntary or
involuntary, the holders of full and fractional shares of
this Series shall be entitled, before any distribution or
payment is made on any date to the holders of the Common
Stock or any other stock of the Corporation ranking junior
to this Series upon liquidation, to be paid in full an
amount per whole share of this Series equal to the greater
of (A) $ or (B) the aggregate amount distributed or
to be distributed prior to such date in connection with such
liquidation, dissolution or winding up to a holder of the
Reference Package (such greater amount being hereinafter
referred to as the "Liquidation Preference"), together with
accrued dividends to such distribution or payment date,
whether or not earned or declared. If such payment shall
have been made in full to all holders of shares of this
Series, the holders of shares of this Series as such shall
have no right or claim to any of the remaining assets of the
Corporation.
In the event the assets of the Corporation available for
distribution to the holders of shares of this Series upon
any liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, shall be
insufficient to pay in full all amounts to which such
holders are entitled pursuant to the first paragraph of this
Section (v), no such distribution shall be made on account
of any shares of any other class or series of Preferred
Stock ranking on a parity with the shares of this Series
upon such liquidation, dissolution or winding up unless
proportionate distributive amounts shall be paid on account
of the shares of this Series, ratably in proportion to the
full distributable amounts for which holders of all such
parity shares are respectively entitled upon such
liquidation, dissolution or winding up.
Upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of this series then
outstanding shall be entitled to be paid out of assets of
the Corporation available for distribution to its
stockholders all amounts to which such holders are entitled
pursuant to the first paragraph of this Section (v) before
any payment shall be made to the holders of Common Stock or
any other stock of the Corporation ranking junior upon
liquidation to this Series.
For the purposes of this Section (v), the consolidation or
merger of, or binding share exchange by, the Corporation
with any other corporation shall not be deemed to constitute
a liquidation, dissolution or winding up of the Corporation.
(vi) The shares of this Series shall not be redeemable.
(vii) In addition to any other vote or consent of
stockholders required by law or by the Restated Certificate
of Incorporation, as amended, of the Corporation, each whole
share of this Series shall, on any matter, vote as a class
with any other capital stock comprising part of the
Reference Package and voting on such matter and shall have
the number of votes thereon that a holder of the Reference
Package would have.
IN WITNESS WHEREOF, the undersigned have signed and attested
this certificate on the _______ day _____________, of 199__.
Attest:
Insert an amount equal to 1/4 of 1% of the Exercise
Price divided by the number of shares of Preferred Stock
purchasable upon exercise of one Right (i.e., a guaranteed
1% dividend). Where a Right is exercisable for one one
hundredth of a share, this simplifies to one fourth the
Exercise Price.
For a certificate of designation relating to shares to
be issued pursuant to Section 2.3 of the Rights Agreement,
insert the Separation Time. For a certificate of
designation relating to shares to be issued pursuant to
Section 2 3.1(d) of the Rights Agreement, insert the Flip-in
Date.
Insert an amount equal to 100 times the Exercise Price
in effect as of the Separation Time.
PRESS RELEASE
KLLM TRANSPORT SERVICES, INC.
ADOPTS STOCKHOLDER RIGHTS PLAN
JACKSON, Miss. (February 13, 1997) - KLLM Transport
Services, Inc. (NNM:KLLM) announced that its Board of
Directors adopted a Stockholder Rights Plan at its regular
meeting today. The Plan is designed to enable KLLM and its
Board to enhance value so that all stockholder can realize
the long term value of their investment in KLLM. The Plan
is also intended to protect KLLM stockholders in the event
an attempt is made to acquire control of KLLM through
certain coercive or unfair tactics.
Steven K. Bevilaqua, President and Chief Executive
Officer, state, "Over 1,700 companies have adopted
stockholder rights plans, and the Board believes it is an
appropriate action for KLLM. We are not currently in any
discussions with other parties regarding the sale of KLLM.
Our focus is on enhancing long-term value for our
stockholders".
The Plan provides for a distribution of a Purchase
Right on February 24, 1997, to each stockholder of record of
KLLM's common stock on February 24, 1997. Generally, these
Rights to purchase preferred shares will be exercisable if a
person or group acquires 20% or more of KLLM's common stock
or announces a tender offer. Each Right entitles the holder
(other than the person or group acquiring 20% or more),
after the Rights become exercisable, to acquire KLLM common
stock having a market value of two times the exercise price
of the Right or securities of the acquiring entity having a
market value of two times the exercise price.
KLLM Transport Services, Inc. is an irregular-route
truckload carrier that specializes in temperature-
controlled, long-haul freight, regional freight and
dedicated services, as well as the Vernon Sawyer division,
which specializes in dry truckload carriage.
