SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
INFORMIX CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State of incorporation or organization)
94-3011736
(I.R.S. Employer Identification No.)
4100 Bohannon Drive
Menlo Park, California 94025
(Address of principal executive offices)
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1),
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(b) of the Act:
Title of each class to be so registered
None
Name of each exchange on which each class is to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
COMMON STOCK PURCHASE RIGHTS
(Title of class)
(Title of class)
This Amendment No. 3 amends and supplements the Registration
Statement on Form 8-A (the "Form 8-A") of Informix Corporation, a
Delaware corporation (the "Company"), filed with the Securities and
Exchange Commission on September 18, 1991, and as subsequently amended
May 27, 1992 and August 11, 1995. All capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Form 8-A,
as amended.
Item 1. Description of Securities to Be Registered.
Item 1 is hereby amended to read in its entirety as follows:
On September 19, 1991, the Company filed a Registration Statement
on Form 8-A (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission") for the purpose of registering
Preferred Share Purchase Rights issuable in accordance with the terms of
the Preferred Shares Rights Agreement (the "Original Rights Agreement")
between the Company and The First National Bank of Boston, as rights
agent. On May 27, 1992 and August 11, 1995, the Company filed Forms 8-
A/A to reflect the fact that the Company and The First National Bank of
Boston had amended the Original Rights Agreement, as originally executed
(the "Prior Rights Agreement"). Pursuant to the Original Rights
Agreement, as amended through the Prior Rights Agreement, the Company's
Board of Directors had declared a dividend of one right (the "Right") to
purchase one-thousandth share of the Company's Series A Participating
Preferred Stock ("Series A Preferred") for each share of Common Stock,
$0.01 par value ("Common Shares"), of the Company issued and outstanding
on November 20, 1991 (the "Record Date"), and one Right for each Common
Share issued after the Record Date. Each Right entitled the registered
holder to purchase from the Company one one-thousandth share of Series A
Preferred Stock at an exercise price as set forth in the Prior Rights
Agreement.
On August 12, 1997, the Company and BankBoston, N.A., as successor
rights agent, entered into the First Amended and Restated Rights
Agreement (the "Amended Rights Agreement"), which supersedes the Prior
Rights Agreement as originally executed. The terms of the Amended
Rights Agreement are substantially similar to those of the Prior Rights
Agreement, except that each Right is now exercisable, following the
Distribution Date and until the occurrence of certain specified events,
for one Common Share at an exercise price of $60.00.
The following summary of the principal terms of the Amended Rights
Agreement is a general description only and is subject to the detailed
terms and conditions of the Amended Rights Agreement. A copy of the
Amended Rights Agreement is attached as Exhibit 5 to this Registration
Statement and is incorporated herein by reference.
Rights Evidenced by Common Share Certificates
The Rights will not be exercisable until the Distribution Date
(defined below). Certificates for the Rights ("Rights Certificates")
will not be sent to stockholders, and the Rights will attach to and
trade only together with the Common Shares. Accordingly, Common Share
certificates outstanding on the Record Date will evidence the Rights
related thereto, and Common Share certificates issued after the Record
Date will contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender or transfer of any certificates
for Common Shares, outstanding as of the Record Date, even without
notation or a copy of the Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common
Shares represented by such certificate.
Distribution Date
The Rights will separate from the Common Shares, Rights
Certificates will be issued, and the Rights will become exercisable upon
the earlier of: (i) 10 days (or such later date as may be determined by
a majority of the Board of Directors, excluding directors affiliated
with the Acquiring Person, as defined below (the "Continuing Directors")
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the
right to acquire, beneficial ownership of 20% or more of the outstanding
Common Shares, or (ii) 10 business days (or such later date as may be
determined by a majority of the Continuing Directors) following the
commencement of, or announcement of an intention to make, a tender offer
or exchange offer the consummation of which would result in beneficial
ownership by a person or group of 20% or more of the outstanding Common
Shares. The earlier of such dates is referred to as the "Distribution
Date."
Issuance of Rights Certificates; Expiration of Rights
As soon as practicable following the Distribution Date, separate
Rights Certificates will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date, and such
separate Rights Certificates alone will evidence the Rights from and
after the Distribution Date. All Common Shares issued prior to the
Distribution Date will be issued with Rights. Common Shares issued
after the Distribution Date may be issued with Rights if such shares are
issued (i) upon the conversion of outstanding convertible debentures or
any other convertible securities issued after adoption of the Rights
Agreement or (ii) pursuant to the exercise of stock options or under
employee benefit plans or arrangements unless such issuance would result
in (or create a risk that) such options, plans or arrangements would not
qualify for otherwise available special tax treatment. Except as
otherwise determined by the Board of Directors, no other Common Shares
issued after the Distribution Date will be issued with Rights. The
Rights will expire on the earliest of (i) July 25, 2005 (the "Final
Expiration Date"), (ii) redemption or exchange of the Rights as
described below, or (iii) consummation of an acquisition of the Company
satisfying certain conditions by a person who acquired shares pursuant
to a Permitted Offer as described below.
Initial Exercise of the Rights
Following the Distribution Date, and until one of the further
events described below, holders of the Rights will be entitled to
receive one Common Share upon exercise and the payment of $60.00 per
Right (the "Purchase Price"). In the event that the Company does not
have sufficient Common Shares available for all Rights to be exercised,
or the Board decides that such action is necessary and not contrary to
the interests of the Rights holders, the Company may instead substitute
cash, assets or other securities for the Common Shares for which the
Rights would have been exercisable under this provision or as described
below.
Right to Buy Company Common Shares
Unless the Rights are earlier redeemed, in the event that an
Acquiring Person becomes the beneficial owner of 20% or more of the
Company's Common Shares then outstanding (other than pursuant to a
Permitted Offer), then proper provision will be made so that each holder
of a Right which has not theretofore been exercised (other than Rights
beneficially owned by the Acquiring Person, which will thereafter be
void) will thereafter have the right to receive, upon exercise, Common
Shares having a value equal to two times the Purchase Price. Rights are
not exercisable following the occurrence of an event as described above
until such time as the Rights are no longer redeemable by the Company as
set forth below.
Right to Buy Acquiring Company Stock
Similarly, unless the Rights are earlier redeemed, in the event
that, after the Shares Acquisition Date (as defined below), (i) the
Company is acquired in a merger or other business combination
transaction, or (ii) 50% or more of the Company's consolidated assets or
earning power are sold (other than in transactions in the ordinary
course of business), proper provision must be made so that each holder
of a Right which has not theretofore been exercised (other than Rights
beneficially owned by the Acquiring Person, which will thereafter be
void) will thereafter have the right to receive, upon exercise, shares
of common stock of the acquiring company having a value equal to two
times the Purchase Price (unless the transaction satisfies certain
conditions and is consummated with a person who acquired shares pursuant
to a Permitted Offer, in which case the Rights will expire).
Permitted Offer
A Permitted Offer means a tender offer for all outstanding Common
Shares that has been determined by a majority of the Continuing
Directors to be adequate and otherwise in the best interests of the
Company and its stockholders. Where the Board of Directors has
determined that a tender offer constitutes a Permitted Offer, the Rights
will not become exercisable to purchase Common Shares or shares of the
acquiring company (as the case may be) at the discounted price described
above.
Exchange Provision
At any time after the acquisition by an Acquiring Person of 20% or
more of the Company's outstanding Common Shares and prior to the
acquisition by such Acquiring Person of 50% or more of the Company's
outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by the Acquiring Person),
in whole or in part, at an exchange ratio of one Common Share per Right.
Adjustments to Prevent Dilution
The Purchase Price payable, the number of Rights, and the number of
Common Shares or other securities or property issuable upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution as set forth in the Rights Agreement. With certain exceptions,
no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price.
Cash Paid Instead of Issuing Fractional Shares
No fractional portion less than integral multiples of one Common
Share will be issued upon exercise of a Right and in lieu thereof, an
adjustment in cash will be made based on the market price of the Common
Shares on the last trading date prior to the date of exercise.
Redemption
At any time on or prior to the close of business on the earlier of
(i) the 10th day following the acquisition by an Acquiring Person (the
"Share Acquisition Date") or such later date as may be determined by a
majority of the Continuing Directors and publicly announced by the
Company, or (ii) the Final Expiration Date of the Rights, the Company
may redeem the Rights in whole, but not in part, at a price of $0.01 per
Right.
No Stockholders' Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, will have
no rights as stockholder of the Company (other than any rights resulting
from such holder's ownership of Common Shares), including, without
limitation, the right to vote or to receive dividends.
Amendment of Rights Agreement
The provisions of the Rights Agreement may be supplemented or
amended by the Board of Directors in any manner prior to the close of
business on the Distribution Date without the approval of the Rights
holders. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board in order to cure any ambiguity,
defect or inconsistency, to make changes which do not adversely affect
the interests of holders of Rights (excluding the interests of any
Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to adjust the
time period governing redemption shall be made at such time as the
Rights are not redeemable.
Certain Anti-Takeover Effects
The Rights approved by the Board are designed to protect and
maximize the value of the outstanding equity interests in the Company in
the event of an unsolicited attempt by an acquiror to take over the
Company, in a manner or on terms not approved by the Board of Directors.
Takeover attempts frequently include coercive tactics to deprive the
Company's Board of Directors and its stockholders of any real
opportunity to determine the destiny of the Company. The Rights have
been declared by the Board in order to deter such tactics, including a
gradual accumulation of shares in the open market of a 20% or greater
position to be followed by a merger or a partial or two-tier tender
offer that does not treat all stockholders equally. These tactics
unfairly pressure stockholders, squeeze them out of their investment
without giving them any real choice, and deprive them of the full value
of their shares.
The Rights are not intended to prevent a takeover of the Company
and will not do so. The Rights may be redeemed by the Company at $0.01
per Right within ten days (or such later date as may be determined by a
majority of the Board of Directors, excluding directors affiliated with
the acquiror) after the accumulation of 20% or more of the Company's
shares by a single acquiror or group. Accordingly, the Rights should
not interfere with any merger or business combination approved by the
Board of Directors.
Issuance of the Rights does not in any way weaken the financial
strength of the Company or interfere with its business plans. The
issuance of the Rights has no dilutive effect, will not affect reported
earnings per share, should not be taxable to the Company or to its
stockholders, and will not change the way in which the Company's shares
are presently traded. The Company's Board of Directors believes that
the Rights represent a sound and reasonable means of addressing the
complex issues of corporate policy created by the current takeover
environment.
However, the Rights may have the effect of rendering more difficult
or discouraging an acquisition of the Company deemed undesirable by the
Board of Directors. The Rights may cause substantial dilution to a
person or group that attempts to acquire the Company on terms or in a
manner not approved by the Company's Board of Directors, except pursuant
to an offer conditioned upon the negation, purchase or redemption of the
Rights.
Item 2. Exhibits.
Item 2 is hereby amended to read in its entirety as follows:
5. First Amended and Restated Rights Agreement, dated as
of August 12, 1997 between Informix Corporation and BankBoston N.A.,
including the form of Rights Certificate attached thereto as Exhibit A.
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934 the Registrant has duly caused this amendment to be
signed on its behalf by the undersigned, thereunto duly authorized.
Date: September 2, 1997 INFORMIX CORPORATION
By: /s/ David H. Stanley
Title: Vice President, Legal and
Corporate Services, General
Counsel and Secretary
EXHIBIT INDEX
Exhibit
No. Exhibit
5 Amended and Restated Rights Agreement, dated as of August 12, 1997
between Informix Corporation and BankBoston, N.A., including the
form of Rights Certificate attached thereto as Exhibit A.
INFORMIX CORPORATION
AND
BANKBOSTON, N.A.
Rights Agent
FIRST AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of August 12, 1997
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 6
Section 3. Issuance of Rights Certificates 6
Section 4. Form of Rights Certificates. 7
Section 5. Countersignature and Registration 8
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates 9
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights 9
Section 8. Cancellation and Destruction of Rights Certificates 11
Section 9. Reservation and Availability of Common Shares. 11
Section 10. Common Shares Record Date 13
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights 13
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares 19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 19
Section 14. Fractional Rights and Fractional Shares 22
Section 15. Rights of Action 23
Section 16. Agreement of Rights Holders 23
Section 17. Rights Certificate Holder Not Deemed a Stockholder 23
Section 18. Concerning the Rights Agent 24
Section 19. Merger or Consolidation or Change of Name of Rights
Agent 24
Section 20. Duties of Rights Agent 25
Section 21. Change of Rights Agent 27
Section 22. Issuance of New Rights Certificates. 27
Section 23. Redemption 28
Section 24. Exchange 29
Section 25. Notice of Certain Events 30
Section 26. Notices 31
Section 27. Supplements and Amendments 31
Section 28. Successors 32
Section 29. Determinations and Actions by the Board of Directors,
etc. 32
Section 30. Benefits of this Agreement 32
Section 31. Severability 33
Section 32. Governing Law 33
Section 33. Counterparts 33
Section 34. Descriptive Headings 33
EXHIBITS
Exhibit A Form of Rights Certificates
</TABLE>
AMENDED AND RESTATED RIGHTS AGREEMENT
This First Amended and Restated Rights Agreement (the "Agreement")
is made effective as of August 12, 1997 between Informix Corporation, a
Delaware corporation (the "Company"), and BankBoston, N.A. (the "Rights
Agent").
WHEREAS, the Company and the Rights Agent are parties to that
certain Preferred Shares Rights Agreement dated as of September 17, 1991
(the "Prior Agreement");
WHEREAS, on September 17, 1991 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company authorized and declared a
dividend of one Preferred Share Purchase Right (a "Right") for each
Common Share (as hereinafter defined) of the Company outstanding as of
the Close of Business (as hereinafter defined) on September 17, 1991
(the "Record Date"), each Right representing the right to purchase one-
thousandth of a share of Series A Participating Preferred Stock (as such
number may be adjusted pursuant to the provisions of the Prior
Agreement), having the rights, preferences, and privileges set forth in
the form of Certificate of Designation of Rights, Preferences, and
Privileges attached as Exhibit A to the Prior Agreement (the
"Certificate") upon the terms and subject to the conditions therein set
forth, and further authorized and directed the issuance of one Right (as
such number may be adjusted pursuant to the provisions of the Prior
Agreement) with respect to each Common Share that should become
outstanding between the Record Date and the earlier of the Distribution
Date and the Expiration Date (as such terms are therein defined), and in
certain circumstances after the Distribution Date.
WHEREAS, the Board of Directors has rescinded the designation of
the Series A Participating Preferred Stock as set forth in the
Certificate and has determined to amend and restate the Prior Agreement
such that each outstanding Right shall become a right to acquire one
share of the Company's Common Stock (as such number may be adjusted
pursuant to the provisions of this Agreement).
WHEREAS, the Company has determined that, pursuant to Section 27 of
the Prior Agreement, the Prior Agreement may be amended and restated as
set forth herein without the approval of the holders of the Rights (as
hereinafter defined);
NOW, THEREFORE, in consideration of the promises and the mutual
agreements herein set forth, the parties hereby amended and restate the
Prior Agreement as follows:
Section 1. Certain Definitions. For purposes of this Agreement,
the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 20% or more of the Common Shares then outstanding,
but shall not include the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan. Notwithstanding the foregoing, no Person shall
be deemed to be an "Acquiring Person" (i) as the result of an
acquisition of Common Shares by the Company which, by reducing the
number of shares outstanding, increases the proportionate number of
shares beneficially owned by such Person to 20% or more of the Common
Shares of the Company then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of the Common
Shares of the Company then outstanding by reason of share purchases by
the Company and shall, after such share purchases by the Company, become
the Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person," or (ii) if
the Board of Directors of the Company determines in good faith that a
Person who would otherwise be an "Acquiring Person," as defined pursuant
to the foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable a
sufficient number of Common Shares so that such Person would no longer
be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this paragraph (a); and provided further that no Fletcher
Party (as defined below) shall be deemed an "Acquiring Person" as a
result of its being the Beneficial Owner of any securities (any such
securities, "Fletcher Securities") issued or issuable pursuant to the
Subscription Agreement (including the exhibits that are a part thereof,
and in particular including any Common Shares which have been or may be
issued upon conversion of shares of preferred stock issued thereunder)
dated August 12, 1997 between the Company and Fletcher. A "Fletcher
Party" shall include (i) Fletcher International Limited, a company
organized under the laws of the Cayman Islands ("Fletcher"), Fletcher
Asset Management, Inc., Polaris Fund, L.P., and The Fletcher Fund, L.P.,
(ii) any Affiliate of Fletcher, (iii) any creditor of Fletcher who
acquires Fletcher Securities upon the exercise of creditor rights in
connection with a bona fide credit arrangement, and (iv) any other
person who acquires Fletcher Securities provided that such person has
stated or intends to state in a timely fashion in a filing pursuant to
Regulation 13D-G under the Securities Exchange Act of 1934, as amended,
or any successor provision thereto, that such person has acquired such
securities in the ordinary course of business and not with the purpose
or effect of changing or influencing control of Informix, nor in
connection with or as a participant in any transaction having such
purpose or effect, including any transaction subject to Rule 13d-3(b).
(b) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or indirectly, for
purposes of Section 13(d) of the Exchange Act and Rule 13d-3 thereunder
(or any comparable or successor law or regulation);
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities), or
upon the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed pursuant to this Section 1(c)(ii)(A)
the Beneficial Owner of, or to beneficially own, (1) securities tendered
pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, or (2)
securities which a Person or any of such Person's Affiliates or
Associates may be deemed to have the right to acquire pursuant to any
merger or other acquisition agreement between the Company and such
Person (or one or more of its Affiliates or Associates) if such
agreement has been approved by a majority of the Continuing Directors of
the Company at a time when Continuing Directors are in office and prior
to there being an Acquiring Person; or (B) the right to vote pursuant to
any agreement, arrangement or understanding; provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security under this Section 1(c)(ii)(B) if the agreement,
arrangement or understanding to vote such security (1) arises solely
from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations of the Exchange Act and (2)
is not also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate thereof)
with which such Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding (whether or not in
writing) (other than customary agreements with and between underwriters
and selling group members with respect to a bona fide public offering of
securities) for the purpose of acquiring, holding, voting (except to the
extent contemplated by the proviso to Section 1(c)(ii)(B)) or disposing
of any securities of the Company; provided, however, that in no case
shall an officer or director of the Company be deemed (x) the Beneficial
Owner of any securities beneficially owned by another officer or
director of the Company solely by reason of actions undertaken by such
persons in their capacity as officers or directors of the Company or (y)
the Beneficial Owner of securities held of record by the trustee of any
employee benefit plan of the Company or any Subsidiary of the Company
for the benefit of any employee of the Company or any Subsidiary of the
Company, other than the officer or director, by reason of any influence
that such officer or director may have over the voting of the securities
held in the plan.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in California
are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00
p.m., Boston time, on such date; provided, however, that if such date is
not a Business Day it shall mean 5:00 p.m., California time, on the next
succeeding Business Day.
(f) "Common Shares," when used with reference to the
Company, shall mean the shares of Common Stock of the Company, $.01 par
value. "Common Shares" when used with reference to any Person other
than the Company shall mean the capital stock (or equity interest) with
the greatest voting power of such other Person or, if such other Person
is a Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
(g) "Continuing Director" shall mean (i) any member of the
Board of Directors of the Company, while a member of the Board, who is
not an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative of an Acquiring Person or of any such
Affiliate or Associate, and who was a member of the Board prior to the
date of this Agreement, or (ii) any Person who subsequently becomes a
member of the Board, while a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person,
or a representative of an Acquiring Person or of any such Affiliate or
Associate, if such Person's nomination for election or election to the
Board is recommended or approved by a majority of the Continuing
Directors.
(h) "Distribution Date" shall mean the earlier of (i) the
Close of Business on the tenth day (or such later date as may be
determined by action of a majority of Continuing Directors then in
office) after the Shares Acquisition Date (or, if the tenth day after
the Shares Acquisition Date occurs before the Record Date, the Close of
Business on the Record Date) or (ii) the Close of Business on the tenth
day (or such later date as may be determined by action of a majority of
Continuing Directors then in office) after the date that a tender or
exchange offer by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to the terms of any such
plan) is first published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act,
if, assuming the successful consummation thereof, such Person would be
the Beneficial Owner of 20% or more of the shares of Common Stock then
outstanding.
(i) "Equivalent Shares" shall mean preferred shares and
any other class or series of capital stock of the Company which is
entitled to participate in dividends and other distributions, including
distributions upon the liquidation, dissolution or winding up of the
Company, on a proportional basis with the Common Shares. In calculating
the number of any class or series of Equivalent Shares for purposes of
Section 11 of this Agreement, the number of shares, or fractions of a
share, of such class or series of capital stock that is entitled to the
same dividend or distribution as a whole Common Share shall be deemed to
be one share.
(j) "Expiration Date" shall mean the earliest of (i) the
Close of Business on the Final Expiration Date, (ii) the Redemption
Date, (iii) the time at which the Continuing Directors order the
exchange of the Rights as provided in Section 24 hereof or (iv) the
consummation of a transaction contemplated by Section 13(d) hereof.
(k) "Final Expiration Date" shall mean July 25, 2005.
(l) "Permitted Offer" shall mean a tender offer for all
outstanding Common Shares made in the manner prescribed by Section 14(d)
of the Exchange Act and the rules and regulations promulgated
thereunder; provided, however, that such tender offer occurs at a time
when Continuing Directors are in office and a majority of the Continuing
Directors then in office has determined that the offer is both adequate
and otherwise in the best interests of the Company and its stockholders
(taking into account all factors that such Continuing Directors deem
relevant, including, without limitation, prices that could reasonably be
achieved if the Company or its assets were sold on an orderly basis
designed to realize maximum value).
(m) "Person" shall mean any individual, firm, corporation
or other entity, and shall include any successor (by merger or
otherwise) of such entity.
(n) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(o) "Record Date" shall have the meaning set forth in the
recitals at the beginning of this Agreement.
(p) "Redemption Date" shall mean the time at which the
Board of Directors of the Company orders redemption of the Rights as
provided in Section 23 hereof.
(q) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(r) "Rights Dividend Declaration Date" shall have the
meaning set forth in the recitals at the beginning of this Agreement.
(s) "Section 13 Event" shall mean any event described in
clause (i), (ii) or (iii) of Section 13(a) hereof.
(t) "Shares Acquisition Date" shall mean the first date of
public announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring Person that an
Acquiring Person has become such; provided, however, if such person is
determined not to have become an Acquiring Person pursuant to Section
1(a)(ii) hereof, then no Shares Acquisition Date shall be deemed to have
occurred.
(u) "Subsidiary" of any Person shall mean any corporation
or other entity of which an amount of voting securities sufficient to
elect a majority of the directors or Persons having similar authority of
such corporation or other entity is beneficially owned, directly or
indirectly, by such Person, or any corporation or other entity otherwise
controlled by such Person.
(v) "Total Exercise Price" shall have the meaning set
forth in Section 4(a) hereof.
(w) "Trading Day" shall have the meaning set forth in
Section 11(d) hereof.
(x) A "Triggering Event" shall be deemed to have occurred
upon any Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any Subsidiary of the
Company, or any entity holding Common Shares for or pursuant to the
terms of any such plan), together with all Affiliates and Associates of
such Person, becoming an Acquiring Person.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common Shares) in
accordance with the terms and conditions hereof, and the Rights Agent
hereby accepts such appointment. The Company may from time to time
appoint such co-Rights Agents as it may deem necessary or desirable,
upon ten (10) days' prior written notice to the Rights Agent. The
Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such co-Rights Agent..
Section 3. Issuance of Rights Certificates.
(a) Until the Distribution Date, (i) the Rights will be
evidenced (subject to the provisions of Sections 3(b) and 3(c) hereof)
by the certificates for Common Shares registered in the names of the
holders thereof (which certificates shall also be deemed to be Rights
Certificates) and not by separate Rights Certificates and (ii) the right
to receive Rights Certificates will be transferable only in connection
with the transfer of Common Shares. Until the earlier of the
Distribution Date or the Expiration Date, the surrender for transfer of
such certificates for Common Shares shall also constitute the surrender
for transfer of the Rights associated with the Common Shares represented
thereby. As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights Agent will, if
requested, send) by first-class, postage-prepaid mail, to each record
holder of Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the Company,
a Rights Certificate, in substantially the form of Exhibit A hereto (a
"Rights Certificate"), evidencing one Right for each Common Share so
held, subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per Common Share has been made
pursuant to Section 11(a)(i) or Section 11(i) hereof, then at the time
of distribution of the Rights Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates and may be transferred by
the transfer of the Rights Certificates as permitted hereby, separately
and apart from any transfer of one or more Common Shares, and the
holders of such Rights Certificates as listed in the records of the
Company or any transfer agent or registrar for the Rights shall be the
record holders thereof.
(b) Unless the Board of Directors by resolution adopted at
or before the time of the issuance (including pursuant to the exercise
of rights under the Company's benefit plans) of any Common Shares
specifies to the contrary, Rights shall be issued in respect of all
Common Shares that are issued after the Record Date but prior to the
earlier of the Distribution Date or the Expiration Date or, in certain
circumstances provided in Section 22 hereof, after the Distribution
Date. Certificates representing such Common Shares shall also be deemed
to be certificates for Rights, and shall bear the following legend;
provided, however, that such certificates issued after the Record Date
and prior to approximately December 31, 1997 shall bear such legend upon
transfer or replacement only, and otherwise shall retain the legend
currently thereon referring to the Prior Agreement:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in an Amended and Restated Rights
Agreement between Informix Corporation and BankBoston, N.A. as the
Rights Agent, dated as of August 12, 1997, and as thereafter
amended (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at
the principal executive offices of Informix Corporation. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. BankBoston, N.A. will
mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request
therefor. Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the foregoing legend, until
the earlier of (i) the Distribution Date or (ii) the Expiration Date,
the Rights associated with the Common Shares represented by such
certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented
thereby. In the event that the Company purchases or acquires any Common
Shares after the Record Date but prior to the Distribution Date, any
Rights associated with such Common Shares shall be deemed canceled and
retired so that the Company shall not be entitled to exercise any Rights
associated with the Common Shares which are no longer outstanding.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to
purchase Common Shares and of assignment to be printed on the reverse
thereof) shall be substantially in the form of Exhibit A hereto and may
have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date (or in the case of
Rights issued with respect to Common Shares issued by the Company after
the Record Date, as of the date of issuance of such Common Shares) and
on their face shall entitle the holders thereof to purchase such number
of Common Shares as shall be set forth therein at the price set forth
therein (such exercise price per one Common Share being hereinafter
referred to as the "Purchase Price" and the aggregate exercise price of
all Common Shares issuable upon exercise of one Right being hereinafter
referred to as the "Total Exercise Price"), but the number and type of
securities purchasable upon the exercise of each Right and the Purchase
Price shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a)
or Section 22 hereof that represents Rights beneficially owned by: (i)
an Acquiring Person or any Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring
Person becomes such or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests
in such Acquiring Person or to any Person with whom such Acquiring
Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect avoidance of
Section 7(e) hereof, and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this sentence,
shall contain (to the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement). Accordingly, this
Rights Certificate and the Rights represented hereby may become
null and void in the circumstances specified in Section 7(e) of the
Rights Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive Officer,
its President or any Vice President, either manually or by facsimile
signature, and by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature, and shall have
affixed thereto the Company's seal (if any) or a facsimile thereof. The
Rights Certificates shall be manually countersigned by the Rights Agent
and shall not be valid for any purpose unless countersigned. In case
any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the
Company, such Rights Certificates, nevertheless, may be countersigned by
the Rights Agent and issued and delivered by the Company with the same
force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company; and any
Rights Certificate may be signed on behalf of the Company by any person
who, at the actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this Agreement any
such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its office designated for such purposes,
books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the number of Rights
evidenced on its face by each of the Rights Certificates and the date of
each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 7(e), 14 and 24
hereof, at any time after the Close of Business on the Distribution
Date, and at or prior to the Close of Business on the Expiration Date,
any Rights Certificate or Rights Certificates may be transferred, split
up, combined or exchanged for another Rights Certificate or Rights
Certificates, entitling the registered holder to purchase a like number
of Common Shares (or, following a Triggering Event, other securities,
cash or other assets, as the case may be) as the Rights Certificate or
Rights Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Rights Certificates shall make such
request in writing delivered to the Rights Agent, and shall surrender
the Rights Certificate or Rights Certificates to be transferred, split
up, combined or exchanged at the office of the Rights Agent designated
for such purpose. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of
any such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof
as the Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Sections 7(e), 14 and 24 hereof, countersign and
deliver to the person entitled thereto a Rights Certificate or Rights
Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split up,
combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft, destruction
or mutilation of a Rights Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them,
and, at the Company's request, reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate
if mutilated, the Company will make and deliver a new Rights Certificate
of like tenor to the Rights Agent for delivery to the registered holder
in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
(a) Subject to Section 7(e) hereof, the registered holder
of any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the Purchase Price
for each Common Share as to which the Rights are exercised, at or prior
to the Expiration Date.
(b) The Purchase Price for each Common Share issuable
pursuant to the exercise of a Right shall initially be $60.00, shall be
subject to adjustment from time to time as provided in Sections 11 and
13 hereof and shall be payable in lawful money of the United States of
America in accordance with paragraph (c) below. Anything in this
Agreement to the contrary notwithstanding, in the event that at any time
after the date of this Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common Shares
payable in Common Shares or (ii) effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or otherwise
than by payment of dividends in Common Shares) into a greater or lesser
number of Common Shares, then in any such case, each Common Share
outstanding following such subdivision, combination or consolidation
shall continue to have a Right associated therewith and the Purchase
Price following any such event shall be proportionately adjusted to
equal the result obtained by multiplying the Purchase Price immediately
prior to such event by a fraction, the numerator of which shall be the
total number of Common Shares outstanding immediately prior to the
occurrence of the event and the denominator of which shall be the total
number of Common Shares outstanding immediately following the occurrence
of such event. The adjustment provided for in the preceding sentence
shall be made successively whenever such a dividend is declared or paid
or such a subdivision, combination or consolidation is effected.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the Purchase Price for the number of Common
Shares (or other securities or property, as the case may be) to be
purchased and an amount equal to any applicable transfer tax required to
be paid by the holder of such Rights Certificate in accordance with
Section 9 hereof in cash, or by certified check or cashier's check
payable to the order of the Company, the Rights Agent shall, subject to
Section 20(k) hereof, thereupon promptly (i) (A) requisition from any
transfer agent of the Common Shares (or make available, if the Rights
Agent is the transfer agent for the Common Shares) a certificate or
certificates for the number of Common Shares to be purchased and the
Company hereby irrevocably authorizes its transfer agent to comply with
all such requests or (B) if the Company shall have elected to deposit
the total number of Common Shares issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the depositary agent
of depositary receipts representing such number of Common Shares as are
to be purchased (in which case certificates for the Common Shares
represented by such receipts shall be deposited by the transfer agent
with the depositary agent) and the Company hereby directs the depositary
agent to comply with such request, (ii) when appropriate, requisition
from the Company the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same to
be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt
thereof, deliver such cash to or upon the order of the registered holder
of such Rights Certificate. The payment of the Purchase Price (as such
amount may be reduced (including to zero) pursuant to Section 11(a)(iv)
hereof) may be made in cash or by certified bank check or bank draft
payable to the order of the Rights Agent for the benefit of the Company.
In the event that the Company is obligated to issue other securities of
the Company, pay cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all arrangements necessary
so that such other securities, cash and/or other property are available
for distribution by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced thereby, a
new Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Rights Certificate or to his or her duly
authorized assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Triggering Event or a
Section 13 Event, any Rights beneficially owned by (i) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes
such (a "Post Transferee"), (iii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity interests
in such Acquiring Person or to any Person with whom the Acquiring Person
has any continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of the
Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section
7(e) (a "Prior Transferee") or (iv) any subsequent transferee receiving
transferred Rights from a Post Transferee or a Prior Transferee, either
directly or through one or more intermediate transferees, shall become
null and void without any further action, and no holder of such Rights
shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall
use all reasonable efforts to insure compliance with the provisions of
this Section 7(e) and Section 4(b) hereof but shall have no liability to
any holder of Rights Certificates or to any other Person as a result of
its failure to make any determinations with respect to an Acquiring
Person or any of such Acquiring Person's Affiliates, Associates or
transferees hereunder.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed and signed the
certificate contained in the form of election to purchase set forth on
the reverse side of the Rights Certificate surrendered for such exercise
and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company
or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights
Agent, shall be canceled by it, and no Rights Certificates shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights Agent
shall deliver all canceled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such canceled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Common Shares.
(a) The Company covenants and agrees that it will use its
best efforts to cause to be reserved and kept available out of and to
the extent of its authorized and unissued shares of Common Stock not
reserved for another purpose (and, following the occurrence of a
Triggering Event, out of its authorized and unissued shares of Common
Stock and/or other securities), the number of Common Shares (and,
following the occurrence of the Triggering Event, Common Stock and/or
other securities) that will be sufficient to permit the exercise in full
of all outstanding Rights.
(b) If the Company shall hereafter list any of its Common
Shares on a national securities exchange, then so long as the Common
Shares (and, following the occurrence of a Triggering Event, Common
Shares and/or other securities) issuable and deliverable upon exercise
of the Rights may be listed on such exchange, the Company shall use its
best efforts to cause, from and after such time as the Rights become
exercisable (but only to the extent that it is reasonably likely that
the Rights will be exercised), all shares reserved for such issuance to
be listed on such exchange upon official notice of issuance upon such
exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable following the earliest date after the first
occurrence of a Triggering Event in which the consideration to be
delivered by the Company upon exercise of the Rights has been determined
in accordance with Section 11(a)(iv) hereof, or as soon as is required
by law following the Distribution Date, as the case may be, a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable after
such filing, and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of
the Securities Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities and (B) the date of
expiration of the Rights. The Company may temporarily suspend, for a
period not to exceed ninety (90) days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the exercisability of
the Rights in order to prepare and file such registration statement and
permit it to become effective. Upon any such suspension, the Company
shall issue a public announcement stating, and notify the Rights Agent,
that the exercisability of the Rights has been temporarily suspended, as
well as a public announcement and notification to the Rights Agent at
such time as the suspension is no longer in effect. The Company will
also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states
in connection with the exercisability of the Rights. Notwithstanding
any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction, unless the requisite qualification in
such jurisdiction shall have been obtained, or an exemption therefrom
shall be available, and until a registration statement has been declared
effective.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Common Shares
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such Common Shares (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the original issuance or
delivery of the Rights Certificates or of any Common Shares upon the
exercise of Rights. The Company shall not, however, be required to pay
any transfer tax which may be payable in respect of any transfer or
delivery of Rights Certificates to a person other than, or the issuance
or delivery of certificates or depositary receipts for the Common Shares
in a name other than that of, the registered holder of the Rights
Certificate evidencing Rights surrendered for exercise or to issue or to
deliver any certificates or depositary receipts for Common Shares upon
the exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Common Shares Record Date. Each person in whose name any
certificate for a number of Common Shares is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of
record of Common 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 the Purchase Price
multiplied by the number of Common Shares with respect to which the
Rights have been exercised (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a
date upon which the Common Shares transfer books of the Company are
closed, such person shall be deemed to have become the record holder of
such shares on, and such certificate shall be dated, the next succeeding
Business Day on which the Common Shares transfer books of the Company
are open.
Section 11. Adjustment of Purchase Price, Number of Shares or Number of
Rights. The Purchase Price, the number and kind of shares or other
property covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on the Common
Shares payable in Common Shares, (B) subdivide the outstanding Common
Shares, (C) combine the outstanding Common Shares (by reverse stock
split or otherwise) into a smaller number of Common Shares, or (D) issue
any shares of its capital stock in a reclassification of the Common
Shares (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), then, in each such event, except as otherwise
provided in this Section 11 and Section 7(e) hereof, the Purchase Price
in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and
the number and kind of shares of capital stock issuable on such date,
shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate
number and kind of shares of capital stock which, if such Right had been
exercised immediately prior to such date and at a time when the Common
Shares transfer book of the Company were open, such holder would have
owned upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification; provided,
however, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares
of capital stock of the Company issuable upon exercise of such Right.
If an event occurs which would require an adjustment under both this
Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided
for in this Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 of this Agreement, in the
event a Triggering Event shall have occurred, then promptly following
such Triggering Event, proper provision shall be made so that each
holder of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive for each Right, upon exercise
thereof in accordance with the terms of this Agreement and payment of
the then-current Total Exercise Price, such number of Common Shares of
the Company as shall equal the result obtained by multiplying the then-
current Purchase Price by the then number of Common Shares for which a
Right was exercisable (or would have been exercisable if the
Distribution Date had occurred) immediately prior to the first
occurrence of a Triggering Event, and dividing that product by 50% of
the current per share market price (determined pursuant to Section 11(d)
hereof) for Common Shares on the date of occurrence of the Triggering
Event (such number of shares being hereinafter referred to as the
"Adjustment Shares").
(iii) The right to buy Common Shares of the Company
pursuant to Section 11(a)(ii) hereof shall not arise as a result of any
Person becoming an Acquiring Person through a purchase of Common Shares
pursuant to a Permitted Offer.
(iv) In lieu of issuing Common Shares in accordance
with Section 11(a)(ii) hereof, the Company may, if the Board of
Directors determines that such action is necessary or appropriate and
not contrary to the interest of holders of Rights (and, in the event
that the number of Common Shares which are authorized by the Company's
Certificate of Incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the Rights, or if any
necessary regulatory approval for such issuance has not been obtained by
the Company, the Company shall): (A) determine the excess of (1) the
value of the Common Shares issuable upon the exercise of a Right (the
"Current Value") over (2) the Purchase Price (such excess, the "Spread")
and (B) with respect to each Right, make adequate provision to
substitute for such Common Shares, upon exercise of the Rights
(including, without limitation, full payment of the Purchase Price), (1)
cash, (2) a reduction in the Purchase Price, (3) other equity securities
of the Company (including, without limitation, shares or units of shares
of any series of preferred stock which the Board of Directors of the
Company has deemed to have the same value as Common Shares (such shares
or units of shares of preferred stock are herein called "common stock
equivalents")), except to the extent that the Company has not obtained
any necessary stockholder or regulatory approval for such issuance, (4)
debt securities of the Company, except to the extent that the Company
has not obtained any necessary stockholder or regulatory approval for
such issuance, (5) other assets or (6) any combination of the foregoing,
having an aggregate value equal to the Current Value, where such
aggregate value has been determined by the Board of Directors of the
Company based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors of the Company;
provided, however, if the Company shall not have made adequate provision
to deliver value pursuant to clause (B) above within thirty (30) days
following the later of (x) the first occurrence of a Triggering Event
and (y) the date on which the Company's right of redemption pursuant to
Section 23(a) expires (the later of (x) and (y) being referred to herein
as the "Section 11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of a Right and
without requiring payment of the Purchase Price, Common Shares (to the
extent available), except to the extent that the Company has not
obtained any necessary stockholder or regulatory approval for such
issuance, and then, if necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If the Board of Directors of the
Company shall determine in good faith that it is likely that sufficient
additional Common Shares could be authorized for issuance upon exercise
in full of the Rights or that any necessary regulatory approval for such
issuance will be obtained, the thirty (30) day period set forth above
may be extended to the extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order that the Company
may seek stockholder approval for the authorization of such additional
shares or take action to obtain such regulatory approval (such period,
as it may be extended, the "Substitution Period"). To the extent that
the Company determines that some action need be taken pursuant to the
first and/or second sentences of this Section 11(a)(iv), the Company (x)
shall provide, subject to Section 7(e) hereof, that such action shall
apply uniformly to all outstanding Rights and (y) may suspend the
exercisability of the Rights until the expiration of the Substitution
Period in order to seek any authorization of additional shares, to take
any action to obtain any required regulatory approval and/or to decide
the appropriate form of distribution to be made pursuant to such first
sentence and to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended, as well
as a public announcement at such time as the suspension is no longer in
effect. For purposes of this Section 11(a)(iv), the value of the Common
Shares shall be the current per share market price (as determined
pursuant to Section 11(d) hereof) of the Common Shares on the Section
11(a)(ii) Trigger Date and the value of any "common stock equivalent"
shall be deemed to have the same value as the Common Shares on such
date.
(b) In case the Company shall, at any time after the date
of this Agreement, fix a record date for the issuance of rights, options
or warrants to all holders of Common Shares or of any class or series of
Equivalent Shares entitling such holders (for a period expiring within
forty-five (45) calendar days after such record date) to subscribe for
or purchase Common Shares or Equivalent Shares or securities convertible
into Common Shares or Equivalent Shares at a price per share (or having
a conversion price per share, if a security convertible into Common
Shares or Equivalent Shares) less than the then current per share market
price of the Common Shares or Equivalent Shares (as defined in Section
11(d)) on such record date, then, in each such case, the Purchase Price
to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of
Common Shares and Equivalent Shares (if any) outstanding on such record
date, plus the number of Common Shares or Equivalent Shares, as the case
may be, which the aggregate offering price of the total number of Common
Shares or Equivalent Shares, as the case may be, so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market
price, and the denominator of which shall be the number of Common Shares
and Equivalent Shares (if any) outstanding on such record date, plus the
number of additional Common Shares or Equivalent Shares, as the case may
be, to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible). In
case such subscription price may be paid in a consideration part or all
of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the Rights
Agent and the holders of the Rights. Common Shares and Equivalent
Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is
fixed, and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall, at any time after the date
of this Agreement, fix a record date for the making of a distribution to
all holders of the Common Shares or of any class or series of Equivalent
Shares (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets (other
than a regular quarterly cash dividend, if any, or a dividend payable in
Common Shares) or subscription rights, options or warrants (excluding
those referred to in Section 11(b)), then, in each such case, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior
to such record date by a fraction, the numerator of which shall be the
current per share market price (as determined pursuant to Section 11(d)
hereof) of a Common Share or an Equivalent Share on such record date,
less the fair market value (as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the cash,
assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a Common Share or
Equivalent Share, as the case may be, and the denominator of which shall
be such current per share market price (as determined pursuant to
Section 11(d) hereof) of a Common Share or Equivalent Share on such
record date. Such adjustments shall be made successively whenever such
a record date is fixed, and in the event that such distribution is not
so made, the Purchase Price shall be adjusted to be the Purchase Price
which would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other
than computations made pursuant to Section 11(a)(iv) hereof, the
"current per share market price" of any security (a "Security" for the
purpose of this Section 11(d)) on any date shall be deemed to be the
average of the daily closing prices per share of such Security for the
thirty (30) consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iv) hereof, the "current per
share market price" of any Security on any date shall be deemed to be
the average of the daily closing prices per share of such Security for
the ten (10) consecutive Trading Days immediately prior to such date;
provided, however, that in the event that the current per share market
price of the Security is determined during a period following the
announcement by the issuer of such Security of (i) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares or (ii) any subdivision,
combination or reclassification of such Security, and prior to the
expiration of the requisite thirty (30) Trading Day or ten (10) Trading
Day period, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share
market price shall be appropriately adjusted to reflect the current
market price per share equivalent of such Security. The closing price
for each day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the
Security is not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal
national securities exchange on which the Security is listed or admitted
to trading or, if the Security is not listed or admitted to trading on
any national securities exchange, the last sale price or, if such last
sale price is not reported, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the Nasdaq
National Market ("Nasdaq") or such other system then in use, or, if on
any such date the Security is not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Security selected by
the Board of Directors of the Company. If on any such date no market
maker is making a market in the Common Shares, the fair value of such
shares on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term "Trading Day" shall
mean a day on which the principal national securities exchange on which
the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or admitted to
trading on any national securities exchange, a Business Day. If the
Common Shares are not publicly held or so listed or traded, "current per
share market price" shall mean the fair value per share as determined in
good faith by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent and shall
be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; provided, however, that any adjustments which by reason
of this Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent or
to the nearest ten-thousandth of a Common Share or other share, as the
case may be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than
the earlier of (i) three (3) years from the date of the transaction
which requires such adjustment or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a) or 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock
other than Common Shares, thereafter the number of such other shares so
receivable upon exercise of any Right and if required, the Purchase
Price thereof, shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Shares contained in Sections
11(a), (b), (c), (e), (h), (i), (j), (k), (l) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 with respect to the Common
Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall evidence
the right to purchase, at the adjusted Purchase Price, the number of
Common Shares purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i), upon each adjustment of the Purchase Price
as a result of the calculations made in Section 11(b), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase
Price, that number of Common Shares (calculated to the nearest one ten-
thousandth of a share) obtained by (i) multiplying (x) the number of
Common Shares covered by a Right immediately prior to this adjustment,
by (y) the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price as a result of the calculations made in
Section 11(b) to adjust the number of Rights, in substitution for any
adjustment in the number of Common Shares purchasable upon the exercise
of a Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of Common Shares
for which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the nearest
ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase
Price in effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued, shall be
at least ten (10) days later than the date of the public announcement.
If Rights Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates held
by such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Rights Certificates evidencing
all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Common Shares issuable upon the exercise
of the Rights, the Rights Certificates theretofore and thereafter issued
may continue to express the Purchase Price per Common Share and the
number of Common Shares which were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the par or stated value, if
any, of the number of Common Shares issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may
validly and legally issue as fully paid and nonassessable shares such
number of Common Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer until
the occurrence of such event the issuing to the holder of any Right
exercised after such record date of the number of Common Shares and
other capital stock or securities of the Company, if any, issuable upon
such exercise over and above the number of Common Shares and other
capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such
adjustment; provided, however, that the Company shall deliver to such
holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares (fractional or
otherwise) upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, prior to the Distribution Date, the Company shall be
entitled to make such reductions in the Purchase Price, in addition to
those adjustments expressly required by this Section 11, as and to the
extent that it in its sole discretion shall determine to be advisable in
order that any (i) consolidation or subdivision of the Common Shares,
(ii) issuance wholly for cash of any Common Shares at less than the
current market price, (iii) issuance wholly for cash of Common Shares or
securities which by their terms are convertible into or exchangeable for
Common Shares, (iv) stock dividends or (v) issuance of rights, options
or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Common Shares shall not be taxable to such
stockholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, effect or permit to occur any
Triggering Event or Section 13 Event, if (i) at the time or immediately
after such Triggering Event or Section 13 Event there are any rights,
warrants or other instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (ii) prior to,
simultaneously with or immediately after such Section 13 Event, the
stockholders of the Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(b) hereof shall have
received a distribution of Rights previously owned by such Person or any
of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Sections 23, 24
or 27 hereof, take (or permit to be taken) any action if at the time
such action is taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits intended to
be afforded by the Rights.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 and 13 hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent
for the Common Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Rights Certificate in accordance
with Section 26 hereof. Notwithstanding the foregoing sentence, the
failure of the Company to make such certification or give such notice
shall not affect the validity of such adjustment or the force or effect
of the requirement for such adjustment. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment
contained therein and shall not be deemed to have knowledge of such
adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Shares Acquisition
Date, directly or indirectly:
(i) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the Company in a
transaction the principal purpose of which is to change the state of
incorporation of the Company or which complies with Section 11(o)
hereof);
(ii) any Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(o) hereof) shall
consolidate with the Company, or merge with and into the Company and the
Company shall be the continuing or surviving corporation of such
consolidation or merger; or
(iii) the Company shall sell or otherwise transfer
(or one or more of its Subsidiaries shall sell or otherwise transfer),
in one or more transactions, assets or earning power aggregating 50% or
more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Company or one or more of its wholly owned Subsidiaries in one or more
transactions, each of which complies with Section 11(o) hereof),
then, and in each such case, proper provision shall
be made so that
(A) each holder of a Right (except as otherwise
provided herein) shall thereafter have the right to receive, upon the
exercise thereof in accordance with the terms of this Agreement, such
number of validly authorized and issued, fully paid and nonassessable
Common Shares of the Principal Party (as hereinafter defined), free of
any liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the number of Common Shares for which a
Right was exercisable immediately prior to the first occurrence of a
Section 13 Event (or, if a Triggering Event has occurred prior to the
first occurrence of a Section 13 Event, multiplying the number of such
Common Shares for which a Right was exercisable immediately prior to the
first occurrence of a Triggering Event by the Purchase Price in effect
immediately prior to such first occurrence) and (2) dividing that
product (which, following the first occurrence of a Section 13 Event,
shall be referred to as the "Total Exercise Price" for each Right and
for all purposes of this Agreement) by 50% of the current per share
market price (determined pursuant to Section 11(d) hereof) of the Common
Shares of such Principal Party on the date of consummation of such
Section 13 Event;
(B) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all
the obligations and duties of the Company pursuant to this Agreement;
(C) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being specifically intended
that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13 Event;
(D) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number
of its Common Shares) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in
relation to its Common Shares thereafter deliverable upon the exercise
of the Rights.
(b) "Principal Party" shall mean, in the case of any
transaction described in clause (i), (ii) or (iii) of Section 13(a), the
Person or Acquiring Person referred to therein (or such Person's or
Acquiring Person's successor, including, if applicable, the Company, if
it is the surviving corporation), provided, however, that in any such
case, (i) if such Person is a direct or indirect Subsidiary of another
Person, "Principal Party" shall refer to such other Person and (ii) in
case such Person is a Subsidiary, directly or indirectly, of more than
one Person, "Principal Party" shall refer to whichever of such Persons
is the issuer of the Common Shares having the greatest aggregate value,
and provided, further, that for purposes of transactions described in
clause (iii) hereof, "Principal Party" shall refer to that Person
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions.
(c) If, for any reason, the Rights cannot be exercised for
Common Shares of such Principal Party as provided in Section 13(a), then
each holder of Rights shall have the right to exchange its Rights for
cash from such Principal Party in an amount equal to the number of
Common Shares that it would otherwise be entitled to purchase times 50%
of the current per share market price, as determined pursuant to Section
11(d) hereof, of such Common Shares of such Principal Party. If, for
any reason, the foregoing formulation cannot be applied to determine the
cash amount into which the Rights are exchangeable, then the Board of
Directors, based upon the advice of one or more nationally recognized
investment banking firms, and based upon the total value of the Company,
shall determine such amount reasonably and with good faith to the
holders of Rights. Any such determination shall be final and binding on
the Rights Agent.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a transaction described
in clauses (i) and (ii) of Section 13(a) if: (i) such transaction is
consummated with a Person or Persons who acquired Common Shares pursuant
to a Permitted Offer (or a wholly-owned Subsidiary of any such Person or
Persons); (ii) the price per share of Common Shares offered in such
transaction is not less than the price per share of Common Shares paid
to all holders of Common Shares whose shares were purchased pursuant to
such Permitted Offer; and (iii) the form of consideration being offered
to the remaining holders of Common Shares pursuant to such transaction
is the same form as the form of consideration paid pursuant to such
Permitted Offer. Upon consummation of any such transaction contemplated
by this Section 13(d), all Rights hereunder shall expire.
(e) The Company shall not consummate any Section 13 Event
unless the Principal Party shall have a sufficient number of authorized
Common Shares that have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and such issuer shall
have executed and delivered to the Rights Agent a supplemental agreement
confirming that such Principal Party shall, upon consummation of such
Section 13 Event, assume this Agreement in accordance with Sections
13(a) and (b) hereof, that all rights of first refusal or preemptive
rights in respect of the issuance of Common Shares of such Principal
Party upon exercise of outstanding Rights have been waived, that there
are no rights, warrants, instruments or securities outstanding or any
agreements or arrangements which, as a result of the consummation of
such transaction, would eliminate or substantially diminish the benefits
intended to be afforded by the Rights and that such transaction shall
not result in a default by such Principal Party under this Agreement,
and further providing that, as soon as practicable after the date of
such Section 13 Event, such Principal Party will:
(i) prepare and file a registration statement under
the Securities Act with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, use its
best efforts to cause such registration statement to become effective as
soon as practicable after such filing and use its best efforts to cause
such registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Securities Act) until the
Expiration Date, and similarly comply with applicable state securities
laws;
(ii) use its best efforts to list (or continue the
listing of) the Rights and the securities purchasable upon exercise of
the Rights on a national securities exchange or to meet the eligibility
requirements for quotation on Nasdaq; and
(iii) deliver to holders of the Rights historical
financial statements for such Principal Party which comply in all
respects with the requirements for registration on Form 10 (or any
successor form) under the Exchange Act.
In the event that at any time after the occurrence
of a Triggering Event some or all of the Rights shall not have been
exercised at the time of a transaction described in this Section 13, the
Rights which have not theretofore been exercised shall thereafter be
exercisable in the manner described in Section 13(a) (without taking
into account any prior adjustment required by Section 11(a)(ii)).
(f) The provisions of this Section 13 shall similarly
apply to successive mergers or consolidations or sales or other
transfers.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions
of Rights or to distribute Rights Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid to the
registered holders of the Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in cash equal
to the same fraction of the current market value of a whole Right. For
the purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have
been otherwise issuable, as determined pursuant to the second sentence
of Section 11(d) hereof.
(b) The Company shall not be required to issue fractions
of Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional Common Shares. In lieu of
fractional Common Shares, the Company shall pay to the registered
holders of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the
current market value of a Common Share. For purposes of this Section
14(b), the current market value of a Common Share shall be the closing
price of a Common Share (as determined pursuant to the second sentence
of Section 11(d) hereof) for the Trading Day immediately prior to the
date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his or her right to receive any fractional Rights or
any fractional shares upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent
under Section 18 hereof, are vested in the respective registered holders
of the Rights Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of
any Rights Certificate (or, prior to the Distribution Date, of the
Common Shares), without the consent of the Rights Agent or of the holder
of any other Rights Certificate (or, prior to the Distribution Date, of
the Common Shares), may, in his or her own behalf and for his or her own
benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect
of, his or her right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and in
this Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged that
the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and 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.
Section 16. Agreement of Rights Holders. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and certificates
fully executed; and
(c) subject to Sections 6(a) and 7(f) hereof, the Company
and the Rights Agent may deem and treat the person in whose name the
Rights Certificate (or, prior to the Distribution Date, the associated
Common Shares certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Rights Certificates or the associated Common
Shares certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary.
Section 17. Rights Certificate Holder Not Deemed a Stockholder. No
holder, as such, of any Rights Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of the Common
Shares or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights Certificate, as such, any of the
rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to receive
dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and 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 gross negligence, bad faith
or willful misconduct on the part of the Rights Agent, for anything done
or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by
it in connection with, its administration of this Agreement in reliance
upon any Rights Certificate or certificate for the Common Shares or for
other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, direction,
consent, certificate, statement or other paper or document believed by
it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper Person or Persons, or otherwise
upon the advice of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the corporate trust
business of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the name
of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Rights Certificates shall have the
full force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the written advice or opinion
of such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such written advice or opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person and the determination of "current per share market
price") be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed
by any one of the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer, the
Secretary or any Assistant Secretary of the Company and delivered to the
Rights Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own gross negligence, bad
faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this Agreement
or in the Rights Certificates (except its countersignature thereof) or
be required to verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights Agent) or
in respect of the validity or execution of any Rights Certificate
(except its countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor shall it be responsible for
any change in the exercisability of the Rights or any adjustment in the
terms of the Rights (including the manner, method or amount thereof)
provided for in Sections 3, 11, 13, 23 or 24, or the ascertaining of the
existence of facts that would require any such change or adjustment
(except with respect to the exercise of Rights evidenced by Rights
Certificates after receipt by the Rights Agent of a certificate
furnished pursuant to Section 12 describing such change or adjustment);
nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any Common Shares
to be issued pursuant to this Agreement or any Rights Certificate or as
to whether any Common Shares will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed, acknowledged
and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the provisions of this
Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Chief Financial Officer,
the Secretary or any Assistant Secretary of the Company, and to apply to
such officers for advice or instructions in connection with its duties,
and it shall not be liable for any action taken or suffered by it in
good faith in accordance with instructions of any such officer or for
any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the
Company may, at the option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights Agent under this
Agreement and the date on and/or after which such action shall be taken
or such omission shall be effective. The Rights Agent shall not be
liable for any action taken by, or omission of, the Rights Agent in
accordance with a proposal included in any such application on or after
the date specified in such application (which date shall not be less
than five (5) Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking any
such action (or the effective date in the case of an omission), the
Rights Agent shall have received written instructions in response to
such application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in any of
the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and
freely as though it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Rights
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss to
the Company resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and continued
employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder or
in the exercise of its rights if there shall be reasonable grounds for
believing that repayment of such funds or adequate indemnification
against such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate attached
to the form of assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an affirmative
response to clause 1 and/or 2 thereof, the Rights Agent shall not take
any further action with respect to such requested exercise or transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon thirty (30) days' notice in writing mailed to the Company
and to each transfer agent of the Common Shares by registered or
certified mail, and to the holders of the Rights Certificates by first-
class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares by registered or certified mail, and
to the holders of the Rights Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the Rights
Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after giving notice of such removal or after
it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his or her Rights
Certificate for inspection by the Company), then the registered holder
of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall
be a corporation organized and doing business under the laws of the
United States or of any state of the United States, in good standing,
which is authorized under such laws to exercise corporate trust or
stockholder services powers and is subject to supervision or examination
by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least
$50 million. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it hereunder,
and execute and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Not later than the effective date of any
such appointment, the Company shall file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Common
Shares, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights to the contrary,
the Company may, at its option, issue new Rights Certificates evidencing
Rights in such form as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and the number or
kind or class of shares or other securities or property purchasable
under the Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance or sale of
Common Shares following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company (a) shall, with
respect to Common Shares so issued or sold pursuant to the exercise of
stock options or under any employee plan or arrangement or upon the
exercise, conversion or exchange of any convertible subordinated
debentures of the Company outstanding at the date hereof or upon the
exercise, conversion or exchange of securities hereinafter issued by the
Company and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued and this sentence shall be null and void ab
initio if, and to the extent that, such issuance or this sentence would
create a significant risk of or result in material adverse tax
consequences to the Company or the Person to whom such Rights
Certificate would be issued or would create a significant risk of or
result in such options' or employee plans' or arrangements' failing to
qualify for otherwise available special tax treatment and (ii) no such
Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
Section 23. Redemption.
(a) The Company may, at its option and with the approval
of the Board of Directors, at any time prior to the Close of Business on
the earlier of (i) the tenth day following the Shares Acquisition Date
or such later date as may be determined by action of a majority of
Continuing Directors then in office and publicly announced by the
Company or (ii) the Final Expiration Date, redeem all but not less than
all the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption
price being herein referred to as the "Redemption Price") and the
Company may, at its option, pay the Redemption Price either in Common
Shares (based on the current per share market price thereof (as
determined pursuant to Section 11(d) hereof) at the time of redemption)
or cash (with such cash amount payable to each holder of Rights to be
rounded up to the nearest whole cent on a holder-by-holder basis);
provided, however, if the Board of Directors of the Company authorizes
redemption of the Rights on or after the time a Person becomes an
Acquiring Person, then there must be Continuing Directors then in office
and such authorization shall require the concurrence of a majority of
such Continuing Directors.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the redemption of the Rights, evidence of which
shall have been filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall
be to receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within ten (10) days after the action of
the Board of Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such notice to all
such holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption
Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any
time in any manner other than that specifically set forth in this
Section 23 or in Section 24 hereof, and other than in connection with
the purchase of Common Shares prior to the Distribution Date.
Section 24. Exchange.
(a) Subject to applicable laws, rules and regulations, and
subject to subsection (c) below, the Company may, at its option, by
majority vote of the Board of Directors and a majority vote of the
Continuing Directors, at any time after the occurrence of a Triggering
Event, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to
the provisions of Section 7(e) hereof) for Common Shares at an exchange
ratio of one (1) Common Share per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter referred to
as the "Ratio of Exchange"). Notwithstanding the foregoing, the
Continuing Directors shall not be empowered to effect such exchange at
any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding Common Shares for or pursuant to the
terms of any such plan), together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of 50% or more of the Common
Shares then outstanding.
(b) Immediately upon the action of the Continuing
Directors ordering the exchange of any Rights pursuant to subsection (a)
of this Section 24 and without any further action and without any
notice, the right to exercise such Rights shall terminate and the only
right thereafter of a holder of such Rights shall be to receive that
number of Common Shares equal to the number of such Rights held by such
holder multiplied by the Ratio of Exchange. The Company shall give
public notice of any such exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Shares for Rights will be
effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights which have become
void pursuant to the provisions of Section 7(e) hereof) held by each
holder of Rights.
(c) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with Section 24(a),
the Company shall either take such action as may be necessary to
authorize additional Common Shares for issuance upon exchange of the
Rights or alternatively, at the option of a majority of the Board of
Directors, with respect to each Right (i) pay cash in an amount equal to
the current value (as hereinafter defined), in lieu of issuing Common
Shares in exchange therefor, or (ii) issue debt or equity securities or
a combination thereof, having a value equal to the Current Value of the
Common Shares (as hereinafter defined) exchangeable for each such Right,
where the value of such securities shall be determined by a nationally
recognized investment banking firm selected by the Board of Directors by
majority vote of the Board of Directors, or (iii) deliver any
combination of cash, property, Common Shares and/or other securities
having a value equal to the Current Value in exchange for each Right.
For purposes of this Section 24(c) only, "Current Value" shall mean the
product of the current per share market price of Common Shares
(determined pursuant to Section 11(d) on the date of the occurrence of
the event described above in subparagraph (a)) multiplied by the number
of Common Shares for which the Right otherwise would be exchangeable if
there were sufficient shares available. To the extent that the Company
determines that some action need be taken pursuant to clauses (i), (ii)
or (iii) of this Section 24(c), the Board of Directors may temporarily
suspend the exercisability of the Rights for a period of up to sixty
(60) days following the date on which the event described in Section
24(a) shall have occurred, in order to seek any authorization of
additional Common Shares and/or to decide the appropriate form of
distribution to be made pursuant to the above provision and to determine
the value thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended.
(d) The Company shall not be required to issue fractions
of Common Shares or to distribute certificates which evidence fractional
Common Shares. In lieu of such fractional Common Shares, there shall be
paid to the registered holders of the Rights Certificates with regard to
which such fractional Common Shares would otherwise be issuable, an
amount in cash equal to the same fraction of the current per share
market value of a whole Common Share (as determined pursuant to the
second sentence of Section 11(d) hereof).
(e) The Company may, at its option, by majority vote of
the Board of Directors, at any time before any Person has become an
Acquiring Person, exchange all or part of the then outstanding Rights
for rights of substantially equivalent value, as determined reasonably
and with good faith by the Board of Directors, based upon the advice of
one or more nationally recognized investment banking firms.
(f) Immediately upon the action of the Board of Directors
ordering the exchange of any Rights pursuant to subsection (e) of this
Section 24 and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right
thereafter of a holder of such Rights shall be to receive that number of
rights in exchange therefor as has been determined by the Board of
Directors in accordance with subsection (e) above. The Company shall
give public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company shall mail a notice of any such
exchange to all of the holders of such Rights at their last addresses as
they appear upon the registry books of the transfer agent for the Common
Shares of the Company. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the
exchange of the Rights will be effected.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose to effect or permit
to occur any Triggering Event or Section 13 Event, the Company shall
give notice thereof to each holder of Rights in accordance with Section
26 hereof at least twenty (20) days prior to the occurrence of such
Triggering Event or Section 13 Event.
(b) In case any Triggering Event or Section 13 Event shall
occur, then, in any such case, the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate, in accordance
with Section 26 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders of
Rights under Sections 11(a)(ii) and 13 hereof.
Section 26. Notices. Notices or demands authorized by this Agreement
to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as follows:
Informix Corporation
4100 Bohannon Drive
Menlo Park, California 94025
Attention: General Counsel
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by
the holder of any Rights Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the
Company) as follows:
BankBoston, N.A.
435 Tasso Street
Suite 250
Palo Alto, California 94301
Attention: Jeff Anderson
Notices or demands authorized by this Agreement to be given or made by
the Company or the Rights Agent to the holder of any Rights Certificate
shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.
Section 27. Supplements and Amendments. Prior to the Distribution
Date, the Company may supplement or amend this Agreement in any respect
without the approval of any holders of Rights and the Rights Agent
shall, if the Company so directs, execute such supplement or amendment.
From and after the Distribution Date, the Company and the Rights Agent
may from time to time supplement or amend this Agreement without the
approval of any holders of Rights in order to (i) cure any ambiguity,
(ii) correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions herein, (iii)
shorten or lengthen any time period hereunder (which lengthening or
shortening, following the first occurrence of an event set forth in
clauses (i) and (ii) of the proviso to Section 23(a) hereof, shall be
effective only if there are Continuing Directors and shall require the
concurrence of a majority of such Continuing Directors) or (iv) to
change or supplement the provisions hereunder in any manner that the
Company may deem necessary or desirable and that shall not adversely
affect the interests of the holders of Rights (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person); provided,
this Agreement may not be supplemented or amended to lengthen, pursuant
to clause (iii) of this sentence, (A) a time period relating to when the
Rights may be redeemed at such time as the Rights are not then
redeemable or (B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the rights of, and/or
the benefits to, the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Company that states that
the proposed supplement or amendment is in compliance with the terms of
this Section 27, the Rights Agent shall execute such supplement or
amendment. Prior to the Distribution Date, the interests of the holders
of Rights shall be deemed coincident with the interests of the holders
of Common Shares.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of
Common Shares outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding Common
Shares of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act. The Board of Directors of
the Company (and, where specifically provided for herein, the Continuing
Directors) shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically
granted to the Board, or the Company (or, where specifically provided
for herein, the Continuing Directors), or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable
for the administration of this Agreement (including a determination to
redeem or not redeem the Rights or to amend the Agreement). All such
actions, calculations, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board (or, where specifically
provided for herein, by the Continuing Directors) in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights Agent,
the holders of the Rights Certificates and all other parties and (y) not
subject the Board or the Continuing Directors to any liability to the
holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, the Common Shares) any legal or
equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the Rights Certificates
(and, prior to the Distribution Date, the Common Shares).
Section 31. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or
authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect
the purpose or effect of this Agreement, the right of redemption set
forth in Section 23 hereof shall be reinstated and shall not expire
until the close of business on the tenth day following the date of such
determination by the Board of Directors.
Section 32. Governing Law. This Agreement and each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such State
applicable to contracts to be made and performed entirely within such
State.
Section 33. Counterparts. This Agreement may be executed in any number
of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the
provisions hereof.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
INFORMIX CORPORATION
By: /s/ Robert J. Finocchio
Name: Robert J. Finocchio, Jr.
Title: Chairman, President and Chief Executive Officer
BANKBOSTON, N.A.
By: /s/ Geoffrey D. Anderson
Name:Geoffrey D. Anderson
Title:Director
[Signature Page]
[Informix Corporation Amended and Restated Rights Agreement]
EXHIBIT A
Form of Rights Certificate
Certificate No. R-
_____ Rights
NOT EXERCISABLE AFTER SEPTEMBER 16, 2001 OR EARLIER IF TERMINATED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED
BY THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON
WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY
MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e)
OF SUCH RIGHTS AGREEMENT.]*
*The portion of the legend in brackets shall be inserted only if
applicable and shall replace the sentence immediately preceding it.
Rights Certificate
This certifies that ______________________, or registered
assigns, is the registered owner of the number of Rights set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Rights Agreement
dated as of August 12, 1997 (the "Rights Agreement"), between Informix
Corporation, a Delaware corporation (the "Company"), and BankBoston,
N.A. (the "Rights Agent") to purchase from the Company at any time
after the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 p.m., California time, on , at the office
of the Rights Agent designated for such purpose, or at the office of its
successor as Rights Agent, one fully paid and nonassessable share of
Common Stock, par value $.01 per share, (the "Common Shares"), of the
Company, at a purchase price of $60.00 per Common Share (the "Purchase
Price"), upon presentation and surrender of this Rights Certificate with
the Form of Election to Purchase and related Certificate duly executed.
The number of Rights evidenced by this Rights Certificate (and the
number of Common Shares which may be purchased upon exercise hereof) set
forth above are the number and Purchase Price as of August 12, 1997,
based on the Common Shares as constituted at such date. As provided in
the Rights Agreement, the Purchase Price and the number and kind of
Common Shares or other securities which may be purchased upon the
exercise of the Rights evidenced by this Rights Certificate are subject
to modification and adjustment upon the happening of certain events.
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 by reference and made a part hereof.
Reference is made to the Rights Agreement for a full description of the
rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the principal executive offices of the Company
and the above-mentioned office of the Rights Agent.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Rights Certificate (i) may be redeemed by the Company, at its
option, at a redemption price of $.01 per Right or (ii) may be exchanged
by the Company in whole or in part for Common Shares, substantially
equivalent rights or other consideration as determined by the Company.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate amount of securities as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered shall have
entitled such holder to purchase. If this Rights Certificate shall be
exercised in part, the holder shall be entitled to receive upon
surrender hereof another Rights Certificate or Rights Certificates for
the number of whole Rights not exercised.
No fractional portion of a Common Share will be issued upon the exercise
of any Right or Rights evidenced hereby but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the
Common Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal. Dated as of ___________, ____.
ATTEST: INFORMIX CORPORATION
By:
Secretary President
Countersigned:
BANKBOSTON, N.A.
By:
Authorized Signature
(Form of Reverse Side of Rights Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED _____________________________________
hereby sells, assigns and transfers unto _________________________
__________________________________________________________________
(Please print name and address of transferee)
__________________________________________________________________
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
__________________________ Attorney, to transfer the within Rights
Certificate on the books of the within-named Company, with full power of
substitution.
Dated: ____________________________, ____
________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
CERTIFICATE REGARDING TRANSFER
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was an
Acquiring Person, or an Affiliate or Associate of any such Person (as
such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of any such Person.
Dated: _______________________, _____
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having
an office or correspondent in the United States.
(Form of Reverse Side of Rights Certificate--continued)
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate)
To:
The undersigned hereby irrevocably elects to exercise
_________________________________ Rights represented by this Rights
Certificate to purchase the number of Common Shares issuable upon the
exercise of such Rights and requests that certificates for such number
of Common Shares issued in the name of:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance remaining
of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
Dated: ____________________________ , ____
________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having
an office or correspondent in the United States.
CERTIFICATE REGARDING EXERCISE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any such
Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this
Rights Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of any such Person.
Dated: _______________________, _____
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having
an office or correspondent in the United States.
(Form of Reverse Side of Rights Certificate--continued)
NOTICE
The signature in the foregoing Forms of Assignment and
Election must conform to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
