SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 of 15(d) of the
Securities and Exchange Act of 1934
Date of Report (Date of earliest event reported): September 5, 1995
IMMUCELL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-15507 01-0382980
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
56 Evergreen Drive, Portland, Maine 04103
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 207 878-2770
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events.
On September 5, 1995, the Board of Directors of ImmuCell Corporation (the
"Company") declared a dividend of one common share purchase right (a "Right")
for each of the then outstanding shares of Common Stock, par value $0.10 per
share, (the "Common Stock") of the Company. The dividend is payable on
September 19, 1995 (the "Record Date") to the stockholders of record on that
date. Each Right entitles the registered holder to purchase from the Company
one share of Common Stock of the Company at a price of $70.00 per share (the
"Purchase Price"), subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights Agreement") between
the Company and American Stock Transfer & Trust Co., as Rights Agent (the
"Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that, without the prior consent of the "Continuing Directors" (as such term
is defined in the Rights Agreement), a person or group of affiliated or
associated persons has acquired beneficial ownership of 15% or more of the
outstanding shares of Common Stock (such person being referred to as the
"Acquiring Person"), or (ii) 10 days (or such later date as may be determined
by action of the Board of Directors prior to such time as any Person becomes
an Acquiring Person) following the commencement of, or announcement of an
intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of 20% or more
of the outstanding shares of Common Stock (the earlier of such dates being
called the "Distribution Date"), the Rights will be evidenced, with respect
to any of the Common Stock certificates outstanding as of the Record Date, by
such Common Stock certificate with a copy of this Summary of Rights attached
thereto.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Stock certificates issued after the Record Date, upon transfer or new
issuance of Common Stock, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any certificates
for Common Stock, outstanding as of the Record Date, even without such
notification or a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on September 19, 2005 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed
by the Company, in each case as described below.
The Purchase Price payable, and the number of shares of Common Stock or
other securities or property issuable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, stock split, combination or
reclassification of, the Common Stock, (ii) upon the grant to holders of
Common Stock of certain rights, options or warrants to subscribe for or
<PAGE>
purchase shares of Common Stock at a price, or securities convertible into
shares of Common Stock with a conversion price, less than the then current
market price of the Common Stock or (iii) upon the distribution to holders of
the Common Stock of evidences of indebtedness, cash (excluding regular
quarterly or other periodic cash dividends paid out of the earnings or
retained earnings of the Company), assets, stock (other than dividends
payable in shares of Common Stock) or of subscription rights or warrants
(other than those referred to above).
In the event that, after the Distribution Date, the Company should
consolidate or merge with and into any other person and the Company is not
the surviving company, or, if the Company should be the surviving company,
all or part of the Company's Common Stock is changed or exchanged for
securities of any other person or if 50% or more of its consolidated assets
or earning power are sold, proper provision will be made so that each holder
of a Right will thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price, that number of shares of common
stock of the acquiring company which at the time of such transaction will
have a market value of two times the Purchase Price. In the event that any
person becomes an Acquiring Person, proper provision shall be made so that
each holder of a Right, other than Rights beneficially owned by the Acquiring
Person or any Affiliate or Associate of an Acquiring Person (which will
thereafter be void), will thereafter have the right to receive upon the
exercise thereof at the then current Purchase Price, that number of shares of
Common Stock having a market value of two times the Purchase Price; provided,
however, that Rights are not exercisable following the occurrence of such
event until such time as the Rights are no longer redeemable by the Company
as set forth below.
At any time after a person or group becomes an Acquiring Person and prior
to the acquisition by such person or group of 50% or more of the outstanding
Common Stock, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one share of Common Stock per Right
(subject to adjustment).
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. No fractional shares of Common Stock will be issued,
and in lieu thereof, an adjustment in cash may be made based on the market
price of the Common Stock on the last trading day prior to the date of
exercise.
At any time prior to the earlier of fourteen days following the date that
any person or group becomes an Acquiring Person, (subject to extension by the
Board of Directors of the Company), or the Final Expiration Date, the Board
of Directors of the Company may redeem the Rights in whole, but not in part,
at a price of $.005 per Right (the "Redemption Price"); provided, that if the
Board authorizes redemption of the Rights after the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person
has become such, there must be Continuing Directors then in office and a
majority of the Directors of the Board and a majority of the Continuing
Directors must approve such redemption. The redemption of the Rights may be
made effective at such time, on such basis and with such conditions as the
Board of Directors in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive the Redemption
Price.
<PAGE>
Prior to the Distribution Date, the terms of the Rights Agreement may be
amended by the Board of Directors of the Company without the consent of the
holders of the Rights or holders of the Common Stock. From and after the
Distribution Date, the terms of the Rights Agreement may be amended by the
Company without the consent of the holders of the Rights or holders of the
Common Stock in any manner which the Company may deem necessary or desirable
so long as such supplement or amendment does not adversely affect the
interest of Rights holders (other than the Acquiring Person or any Associate
or Affiliates), and provided that such supplement or amendment may not
lengthen the time period for redemption of the Rights if the Rights are not
then redeemable and provided that there must be Continuing Directors then in
office and that a majority of the Board and a majority of the Continuing
Directors must approve such amendment. The Company may at any time prior to
such time as a person or group of affiliated or associated persons becomes an
Acquiring Person lower the threshold for a person or group becoming an
Acquiring Person from 15% to not less than the greater of (i) any percentage
greater than the largest percentage of the outstanding shares of Common Stock
then known to the Company to be beneficially owned by any such person or
group of affiliated or associated persons and (ii) 10%. In no case shall any
amendment or supplement at any time decrease the Redemption Price or the
period of time remaining until the Final Expiration Date.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends.
A copy of the Rights Agreement between the Company and American Stock
Transfer & Trust Co., as Rights Agent, is attached hereto as an exhibit and
is incorporated herein by reference. The foregoing description of the Rights
is qualified in its entirety by reference to the Rights Agreement.
Item 7. Financial Statements and Exhibits.
Exhibit No. Exhibit
4.1 Rights Agreement dated as of September 5, 1995,
between the Company and American Stock Transfer &
Trust Co., as Rights Agent, which includes as
Exhibit A thereto the form of Right Certificate
(and forms of assignment and election to purchase
relating thereto) and as Exhibit B thereto the
Summary of Rights to Purchase Common Stock.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
IMMUCELL CORPORATION
Date: September 12, 1995 By: /s/ Michael F. Brigham
Name: Michael F. Brigham
Title: Chief Financial Officer and Treasurer
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
4.1 Rights Agreement dated as of September 5, 1995
between the Company and American Stock Transfer &
Trust Company, as Rights Agent, which includes as
Exhibit A thereto the Form of Right Certificate
(and forms of assignment and election to purchase
relating thereto) and as Exhibit B thereto the
Summary of Rights to Purchase Common Stock.
<PAGE>
EXHIBIT 4.1
IMMUCELL CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST CO.
Rights Agent
RIGHTS AGREEMENT
Dated as of September 5, 1995
<PAGE>
Table of Contents
Page
Section 1. Certain Definitions. . . . . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent. . . . . . . . . . . . 8
Section 3. Issue of Right Certificates. . . . . . . . . . . . 9
Section 4. Form of Right Certificates.. . . . . . . . . . . . 12
Section 5. Countersignature and Registration. . . . . . . . . 12
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. . . . . . . . . . . . . 14
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.. . . . . . . . . . . . . . . . . . 15
Section 8. Cancellation and Destruction of Right
Certificates.. . . . . . . . . . . . . . . . . . . 18
Section 9. Company Covenants Concerning Shares and Rights.. . 18
Section 10. Common Stock Record Date.. . . . . . . . . . . . . 23
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights. . . . . . . . . . . . . . . . 24
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares. . . . . . . . . . . . . . . . . . . . . 40
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earnings Power.. . . . . . . . . . . . . 41
Section 14. Fractional Rights and Fractional Shares. . . . . . 46
Section 15. Rights of Actions. . . . . . . . . . . . . . . . . 48
Section 16. Agreement of Right Holders.. . . . . . . . . . . . 49
Section 17. Right Certificate Holder Not Deemed a
Stockholder. . . . . . . . . . . . . . . . . . . . 50
Section 18. Concerning the Rights Agent. . . . . . . . . . . . 51
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.. . . . . . . . . . . . . . . . . . . 52
Section 20. Duties of Rights Agent.. . . . . . . . . . . . . . 53
Section 21. Change of Rights Agent.. . . . . . . . . . . . . . 58
Section 22. Issuance of New Right Certificates.. . . . . . . . 59
<PAGE>
Section 23. Redemption.. . . . . . . . . . . . . . . . . . . . 60
Section 24. Exchange.. . . . . . . . . . . . . . . . . . . . . 62
Section 25. Notice of Certain Events.. . . . . . . . . . . . . 65
Section 26. Notices. . . . . . . . . . . . . . . . . . . . . . 67
Section 27. Supplements and Amendments.. . . . . . . . . . . . 68
Section 28. Successors.. . . . . . . . . . . . . . . . . . . . 70
Section 29. Benefits of this Agreement.. . . . . . . . . . . . 70
Section 30. Severability.. . . . . . . . . . . . . . . . . . . 71
Section 31. Governing Law. . . . . . . . . . . . . . . . . . . 71
Section 32. Counterparts.. . . . . . . . . . . . . . . . . . . 71
Section 33. Descriptive Headings.. . . . . . . . . . . . . . . 71
Exhibit A - Form of Right Certificate
Exhibit B - Summary of Rights to Purchase Common Stock
<PAGE>
RIGHTS AGREEMENT
Agreement, dated as of September 5, 1995, between ImmuCell
Corporation, a Delaware corporation (the "Company"), and American
Stock Transfer & Trust Co., a New York corporation (the "Rights
Agent").
The Board of Directors of the Company (the "Board") has
authorized and declared a dividend of one share purchase right (a
"Right") for each share of Common Stock (as hereinafter defined)
of the Company outstanding on September 19, 1995 (the "Record
Date"), each Right representing the right to purchase one share
of Common Stock (as hereinafter defined), upon the terms and
subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect to
each share of Common Stock that shall become outstanding between
the Record Date and the earlier of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter defined)
of such Person, without the prior approval of a majority of the
"Continuing Directors" (as such term is hereinafter defined),
shall be the Beneficial Owner (as such term is hereinafter
defined) of 15% or more of the Common Stock of the Company then
outstanding, but shall not include the Company or any Related
Person (as such term is hereinafter defined). Notwithstanding
the foregoing, no Person shall become an "Acquiring Person" as
the result of an acquisition of Common Stock by the Company
which, by reducing the number of shares outstanding, increases
the proportionate number of shares beneficially owned by such
Person to 15% or more of the Common Stock of the Company then
outstanding; provided, however, that if a Person shall become the
Beneficial Owner of 15% or more of the Common Stock 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 Stock of the
Company, then such Person shall be deemed to be an "Acquiring
Person". Notwithstanding the foregoing, 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 shares of Common Stock so that
such Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this paragraph (a), then
such Person shall not be deemed to be an "Acquiring Person" for
any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective
<PAGE>
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations as in effect on the date of this Agreement
under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(c) A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement
or understanding (other than customary agreements with and
between underwriters and selling group members with respect
to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights
(other than these Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote
any security of the Company or of any Subsidiary of the
Company pursuant to any agreement, arrangement or
understanding; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding to
vote such security (1) arises solely from a revocable proxy
or consent given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring,
holding, voting (except to the extent permitted by Section
1(c)(ii)(B)) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, (1) the phrase "then outstanding,"
when used with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such
securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding which
such Person would be deemed to own beneficially hereunder and (2)
a Person engaged in business as an underwriter of securities
<PAGE>
shall not be deemed the Beneficial Owner of any securities
acquired through such Person's participation in good faith in an
underwriting syndicate pursuant to an agreement to which the
Company is a party until the expiration of 40 calendar days after
the date of such expiration or such later date as the Board may
determine in any specific case.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in the
State of Maine or the State of New York (or such other state in
which the principal office of the Rights Agent is located) 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., Eastern time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 p.m., Eastern time,
on the next succeeding Business Day.
(f) "Common Stock" when used with reference to the Company
shall mean the shares of common stock, par value $0.10 per share,
of the Company or any of the shares of the capital stock of the
Company into which such stock shall be reclassified or changed.
"Common Stock" 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 any member of the
Board while such person is a member of the Board who (i) is not
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person and (ii) either was (A) a member of the Board prior to the
Stock Acquisition Date (as such term is hereinafter defined) or
(B) nominated for his or her initial term of office by a majority
of the Continuing Directors in office at the time of such
nomination.
(h) "Distribution Date" shall mean the earlier of (i) the
tenth day after the Stock Acquisition Date or (ii) the tenth day
(or such later date as may be determined by action of the Board
prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement of, or the first public
announcement of the intent of any Person (other than the Company
or a Related Person) to commence, a tender or exchange offer (as
determined by reference to Rule 14d-2(a) under the Exchange Act)
the consummation of which would result in any Person or Persons
becoming the Beneficial Owner of Common Stock aggregating 20% or
more of the then outstanding shares of Common Stock (including
any such date which is after the date of this Agreement and prior
to the issuance of the Rights).
(i) "Final Expiration Date" shall mean the Close of
Business on September 19, 2005.
(j) "Person" shall mean any individual, partnership,
limited partnership, joint venture, syndicate, sole
proprietorship, company or corporation with or without share
capital, unincorporated association, trust, trustee, executor,
<PAGE>
administrator or other legal personal representative, regulatory
body or agency, government or governmental agency, authority or
entity however designated or constituted, and shall include any
successor (by merger or otherwise) of any of the foregoing.
(k) "Purchase Price" shall mean initially $70.00 per share
of Common Stock and shall be subject to adjustment from time to
time as provided in this Agreement.
(l) "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
(m) "Related Person" shall mean (i) any Subsidiary of the
Company, (ii) any employee benefit or stock ownership plan of the
Company or any of its Subsidiaries or (iii) any entity holding
Common Stock for or pursuant to the terms of any such plan.
(n) "Stock Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person or an
Affiliate or Associate of an Acquiring Person by press release,
filing made with the Securities and Exchange Commission or
otherwise, that an Acquiring Person has become such.
(o) "Subsidiary" of any Person (including the Company)
shall mean any corporation or other entity of which a majority of
the voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights (who, in accordance with Section 3 hereof,
shall, prior to the Distribution Date, also be the holders of the
Common Stock) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it
may deem necessary or desirable. Contemporaneously with such
appointment, if any, the Company shall notify the Rights Agent
thereof. Any actions which may be taken by the Rights Agent
pursuant to the terms of this Agreement may be taken by any such
Co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the
Distribution Date, (i) the Rights will be evidenced (subject to
the provisions of Section 3(b) hereof) by the certificates for
Common Stock registered in the names of the holders thereof
(which certificates for Common Stock shall also be deemed to be
Right Certificates) and not by separate Right Certificates, and
(ii) the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Stock in the share
transfer books of the Company maintained by the Company or its
appointed transfer agent. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the
Rights Agent at the request of the Company will countersign, and
the Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, insured, postage-
prepaid mail to each record holder of Common Stock as of the
Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right
<PAGE>
Certificate, in substantially the form of Exhibit A hereto (a
"Right Certificate"), evidencing one Right for each share of
Common Stock so held, subject to adjustment as provided herein,
together with a notice setting forth the Purchase Price as in
effect on the Distribution Date. As of the Distribution Date,
the Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Common Stock, in substantially the form of Exhibit B
hereto (the "Summary of Rights"), by first-class, postage-
prepaid mail, to each record holder of Common Stock as of the
Close of Business on the Record Date, at the address of such
holder shown on the records of the Company as of such date. With
respect to certificates for Common Stock outstanding as of the
Record Date, until the Distribution Date the Rights will be
evidenced by such certificates registered in the names of the
holders thereof together with a copy of the Summary of Rights
attached thereto. Until the Distribution Date (or the earlier of
the Redemption Date or the Final Expiration Date), the surrender
for transfer of any certificate for Common Stock outstanding on
the Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with the Common Stock represented thereby.
(c) Certificates for Common Stock which become outstanding
(including, without limitation, reacquired Common Stock referred
to in the last sentence of this paragraph (c)) after the Record
Date but prior to the earlier of the Distribution Date, the
Redemption Date or the Final Expiration Date shall have impressed
on, printed on, written on or otherwise affixed to them the
following legend:
This certificate also evidences and entitles
the holder hereof to certain rights as set
forth in a Rights Agreement between ImmuCell
Corporation and American Stock Transfer &
Trust Co., dated as of September 5, 1995 (the
"Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a
copy of which is on file at the principal
executive offices of ImmuCell Corporation.
Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be
redeemed, may expire, may be amended, may be
exchanged, or may be evidenced by separate
certificates and will no longer be evidenced
by this certificate. ImmuCell Corporation
will mail to the holder of this certificate a
copy of the Rights Agreement without charge
after receipt of a written request therefor.
As described in the Rights Agreement, Rights
issued to any Person who becomes an Acquiring
Person or any Associate or Affiliate thereof
(as defined in the Rights Agreement) and
certain subsequent holders of such Rights
shall become null and void.
<PAGE>
With respect to such certificates containing the foregoing
legend, until the Distribution Date the Rights associated with
the Common Stock 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 Stock
represented thereby. In the event that the Company purchases or
acquires any shares of Common Stock after the Record Date but
prior to the Distribution Date, any Rights associated with such
Common Stock shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any rights associated
with the shares of Common Stock which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Common Stock
and of assignment to be printed on the reverse thereof) shall be
substantially the same as Exhibit A hereto and may have such
marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Agreement or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or
relating to any transaction reporting system on which the Common
Stock or the Rights may from time to time be listed or quoted, or
to conform to usage. Subject to the provisions of Section 22
hereof, the Right Certificates shall entitle the holders thereof
to purchase such number of shares of Common Stock as shall be set
forth therein at the Purchase Price per share, but the number of
such shares and the Purchase Price shall be subject to adjustment
as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its
President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto
the Company's seal or facsimile thereof, and shall be attested by
the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates shall
be manually countersigned by an authorized signatory of the
Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such
officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights
Agent and issued and delivered by the Company with the same force
and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company;
and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to
sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its office designated for such purpose,
<PAGE>
books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses
of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. Subject to the provisions of Section 14 hereof, at
any time after the Close of Business on the Distribution Date,
and at or prior to the Close of Business on the earlier of the
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section
11(a)(ii) hereof or that have been exchanged pursuant to Section
24 hereof) may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of shares of
Common Stock as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the office of the
Rights Agent designated for such purpose. Thereupon the Rights
Agent shall countersign and deliver to the person entitled
thereto a Right Certificate or Right Certificates, as the case
may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer, split up, combination
or exchange of Right Certificates.
Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction
or mutilation of a Right Certificate (other than Right
Certificates representing Rights that have become null and void
pursuant to Section 11(a)(ii) hereof or that have been exchanged
pursuant to Section 24 hereof), and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to
them, and, at the Company's request, reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Right Certificate if mutilated, the Company will make and
deliver a new Right Certificate of like tenor to the Rights Agent
for delivery to the registered holder in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) Except as otherwise provided herein
(including, without limitation, the restrictions on
exercisability set forth in Section 23(b) hereof), the registered
holder of any Right Certificate may exercise the Rights evidenced
thereby in whole or in part at any time after the Distribution
Date upon surrender of the Right Certificate, with the form of
election to purchase 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
<PAGE>
each share of Common Stock as to which the Rights are exercised,
at or prior to the earlier of (i) the Final Expiration Date, (ii)
the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date"), or (iii) the time at which
such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each share of Common Stock
pursuant to the exercise of a Right shall initially be $70.00,
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.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof, in cash, or by
certified check, cashier's check or money order payable to the
order of the Company, the Rights Agent shall thereupon promptly
(i) requisition from any transfer agent of the Common Stock
certificates for the number of shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, (ii) when
appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) promptly after receipt of such
certificates, cause the same to be delivered to or upon the order
of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder, and (iv)
when appropriate, after receipt, promptly deliver such cash to or
upon the order of the registered holder of such Right
Certificate.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to the registered holder of such Right Certificate or
to his duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) 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 of Rights upon the occurrence of any purported exercise as
set forth in this Section 7 unless the form of election to
purchase on the reverse side of the Right Certificate surrendered
for such exercise shall have been completed and signed by the
registered holder thereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
<PAGE>
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
delivery a certificate of destruction thereof to the Company.
Section 9. Company Covenants Concerning Shares and Rights.
The Company covenants and agrees that, from and after the
Distribution Date, it will cause to be reserved and kept
available out of its authorized and unissued Common Stock, or any
Common Stock held in its treasury, the number of shares of Common
Stock that will be sufficient to permit the exercise in full of
all outstanding Rights in accordance with Section 7 hereof; such
number of shares of Common Stock reserved and kept available
shall be adjusted from time to time, if and to the extent
required, upon the occurrence of any of the events described in
Sections 11 or 13 hereof.
In the event that the number of shares of Common Stock which
is authorized by the Company's certificate of incorporation but
not outstanding or reserved for issuance for purposes other than
upon exercise of the Rights is not sufficient to permit the
exercise in full of a Right in accordance with Section 7, the
Company shall, within thirty days after the surrender of such
Right, and to the extent permitted by applicable law and any
material agreements in effect on the date hereof to which the
Company is a party: (A) with respect to each Right, upon
exercise of such Right, issue shares of Common Stock to the
extent available for the exercise in full of such Right and, to
the extent shares of Common Stock are not so available, make
adequate provision to substitute for the Common Stock in question
not received upon exercise of such Right (1) other equity
securities of the Company which are deemed in good faith by the
Board of Directors to have substantially the same value as shares
of Common Stock (such other equity securities are herein called
"common stock equivalents"), (2) debt securities of the Company,
(3) other assets, or (4) any combination of the foregoing, having
a value which, when added to the value of the shares of Common
Stock actually issued upon exercise of such Right, shall have an
aggregate value equal to the then current value of the Common
Stock issuable upon the exercise of a Right, where such aggregate
value has been determined in good faith by the Board of Directors
based upon the advice of a nationally recognized independent
investment banking firm selected in good faith by the Board of
Directors. If the Board of Directors shall determine in good
faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in
full of the Rights, the thirty day period set forth above may be
extended to the extent necessary, but no more than ninety days
after the surrender of the Right, in order that the Company may
seek shareholder approval for the authorization of such
additional shares (such thirty day period, as it may be extended,
is herein called the "Substitution Period"). To the extent that
<PAGE>
the Company determines that some action must be taken pursuant to
the first and/or second sentence of this paragraph, the Company
(x) shall provide, subject to the last sentence of this
paragraph, 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 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 paragraph, the value of a share of Common Stock shall be
the current per share market price of the Common Stock on the
date that a Right is exercised pursuant to Section 7 and the per
share or per unit value of any common stock equivalent shall be
deemed to equal the current per share market price of the Common
Stock on such date. The Board of Directors may, but shall not be
required to, establish procedures to allocate the right to
receive Common Stock upon the exercise of the Rights among
holders of the Rights pursuant to this paragraph.
So long as the shares of Common Stock and/or other
securities as provided herein issuable and deliverable upon the
exercise of the Rights may be listed on a national securities
exchange, the Company covenants and agrees that it will endeavor
to cause, from and after such time as the Rights become
exercisable, all securities reserved for such issuance to be
listed on such exchange upon official notice of issuance.
The Company further covenants and agrees that it will take
all such action as may be necessary to ensure that all of the
shares of Common Stock and/or other securities, as the case may
be, delivered upon exercise of Rights, at the time of delivery of
the certificates for such securities (subject to payment of the
Purchase Price), shall be duly and validly authorized and issued
and fully paid and nonassessable shares.
The Company further covenants and agrees that it will, if
required by law, use its best efforts to (i) file on an
appropriate form, as soon as practicable following the
Distribution Date, a registration statement under the Securities
Act with respect to the securities purchasable upon exercise of
the Rights, (ii) cause such registration statement to become
effective as soon as practicable after such filing, and (iii)
cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no
longer exercisable for such securities, and (B) the Final
Expiration Date. The Company will also take such action as may
be appropriate under, or to ensure compliance with, the
securities or "blue sky" laws of the various states in connection
with the exercisability of the Rights. The Company may
temporarily suspend the exercisability of the Rights in order to
prepare and file such registration statement and permit it to
become effective, and, upon any such suspension, the Company will
issue a public announcement stating that the exercisability of
<PAGE>
the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in
effect.
Notwithstanding anything in this Agreement to the contrary,
the Company further covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish or otherwise eliminate
the benefits intended to be afforded by the Rights.
In the event that the Company is obligated to issue other
securities of the Company, pay cash and/or distribute other
property pursuant to Sections 11, 13 and 14 hereof, the Company
further covenants and agrees that it will make all arrangements
necessary so that such other securities, cash and/or property are
available for distribution by the Rights Agent, if and when
appropriate.
Section 10. Common Stock Record Date. Each person in whose
name any certificate for Common Stock is issued upon the exercise
of Rights shall for all purposes be deemed to have become the
holder of record of the Common Stock represented thereby on, and
such certificate shall be dated, the date upon which the Right
Certificate evidencing such Rights was duly surrendered and
payment of the Purchase Price (and any applicable transfer taxes)
was made; provided, however, that if the date of such surrender
and payment is a date upon which the share 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 share
transfer books of the Company are open. Prior to the exercise of
the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Common Stock
for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and shall not
be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights. The Purchase Price, the number of shares of
Common Stock 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 Stock
payable in Common Stock, (B) subdivide the outstanding shares of
Common Stock, (C) combine the outstanding shares of Common Stock
into a smaller number of shares of Common Stock, or (D) issue any
shares of its capital stock in a reclassification of the Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this
Section 11(a), the Purchase Price in effect at the time of the
record date for such dividend or of the effective date of such
<PAGE>
subdivision, combination or reclassification, and the number and
kind of shares of capital stock issuable on such date upon
exercise of a Right, shall be proportionately adjusted so that
the holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of capital stock
which, if such Right had been exercised immediately prior to such
date and at a time when the share transfer books of the Company
were open, he would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination or reclassification; provided, however, that in no
event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.
If an event occurs which would require an adjustment under both
this Section 11(a)(i) and Section 11(a)(ii) hereof or Section 13
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) or Section 13
hereof.
(ii) Subject to Section 24 and the last sentence of
Section 23(b) of this Agreement, in the event that any Person, at
any time after the date of this Agreement, shall become an
Acquiring Person, each holder of a Right, except as provided
below, shall thereafter have a right to receive, upon exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of shares of Common Stock for which a
Right is then exercisable, in accordance with the terms of this
Agreement, such number of shares of Common Stock of the Company
as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the number of shares of Common Stock
for which a Right is then exercisable and dividing that product
by (y) 50% of the then current per share market price of the
Company's Common Stock (determined pursuant to Section 11(d)
hereof) on the date on which any Person shall become an Acquiring
Person. In the event that any Person shall become an Acquiring
Person and the Rights shall then be outstanding, the Company
shall not take any action which would eliminate or diminish the
benefits intended to be afforded by the Rights.
Notwithstanding the foregoing, any Rights that are or were
acquired or beneficially owned by any Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall be null
and void and any holder of such Rights shall thereafter have no
right to exercise such Rights under any provision of this
Agreement. No Right Certificate shall be issued pursuant to
Section 3 that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof whose
Rights would be void pursuant to the preceding sentence, and no
Right Certificate shall be issued at any time upon the transfer
of any Rights to an Acquiring Person or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate whose Rights would be null and void
pursuant to the preceding sentence, and any Right Certificate
delivered to the Rights Agent for transfer to an Acquiring Person
or any Associate or Affiliate thereof whose Rights would be null
and void pursuant to the preceding sentence shall be cancelled.
<PAGE>
(iii) In the event that the number of shares of Common
Stock which is authorized by the Company's certificate of
incorporation but not outstanding or reserved for issuance for
purposes other than a upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in
accordance with Section 11(a)(ii) and the Rights shall become so
exercisable, the Company shall, within thirty days after the
surrender of such Rights, and to the extent permitted by
applicable law and any material agreements in effect on the date
hereof to which the Company is a party: (A) determine the value
of the Common Stock issuable upon the exercise of each Right (the
"Current Value") and (B) with respect to each Right, upon
exercise of such Right, issue shares of Common Stock to the
extent available for the exercise in full of such Right and, to
the extent shares of Common Stock are not so available, make
adequate provision to substitute for the Common Stock in question
not received upon exercise of such Right (1) cash, (2) other
equity securities of the Company (including, without limitation,
shares, or units of shares, of preferred stock or preference
stock which are deemed in good faith by the Board of Directors to
have substantially the same value as shares of Common Stock (such
other equity securities are herein called "common stock
equivalents")), (3) debt securities of the Company, (4) other
assets, or (5) any combination of the foregoing, having a value
which, when added to the value of the shares of Common Stock
actually issued upon exercise of such Right, shall have an
aggregate value equal to the applicable Current Value, where such
aggregate value has been determined in good faith by the Board of
Directors based upon the advice of a nationally recognized
independent investment banking firm selected in good faith by the
Board of Directors. If the Board of Directors shall determine in
good faith that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise in
full of the Rights, the thirty day period set forth above may be
extended to the extent necessary, but no more than ninety days
after the event giving rise to the right to exercise the Rights
in accordance with Section 11(a)(ii) (the "Section 11(a)(ii)
Event"), in order that the Company may seek shareholder approval
for the authorization of such additional shares (such thirty day
period, as it may be extended, is herein called the "Common Stock
Substitution Period"). To the extent that the Company determines
that some action must be taken pursuant to the first and/or
second sentence of this Section 11(a)(iii), the Company (x) shall
provide, subject to Section 11(a)(ii) and the last sentence of
this Section 11(a)(iii), that such action shall apply uniformly
to all outstanding Rights (except to the extent provided by the
second sentence of Section 11(a)(ii) hereof), and (y) may suspend
the exercisability of the Rights until the expiration of the
Common Stock Substitution Period in order to seek any
authorization of additional shares and/or to decide the
appropriate form of distribution to be made pursuant to such
first sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of a share of Common Stock
<PAGE>
shall be the current per share market price of the Common Stock
on the date of the Section 11(a)(ii) Event and the per share or
per unit value of any common stock equivalent shall be deemed to
equal the current per share market price of the Common Stock on
such date. The Board of Directors may, but shall not be required
to, establish procedures to allocate the right to receive Common
Stock upon the exercise of the Rights among holders of the Rights
pursuant to this Section 11(a)(iii).
(b) In the event that the Company shall fix a record date
for the issuance of rights, options or warrants to all holders of
Common Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Common Stock (or shares having the same rights,
privileges and preferences as the Common Stock ("equivalent
common stock")) or securities convertible into Common Stock or
equivalent common stock at a price per share of Common Stock or
equivalent common stock (or having a conversion price per share,
if a security convertible into Common Stock or equivalent common
stock) less than the then current per share market price of the
Common Stock (as defined in Section 11(d) on such record date),
the Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares of
Common Stock which the aggregate offering price of the total
number of shares of Common Stock and/or equivalent common stock
so to be offered (and/or the aggregate initial conversion price
of the convertible securities so to be offered) would purchase at
such current market price and the denominator of which shall be
the number of shares of Common Stock outstanding on such record
date plus the number of additional shares of Common Stock and/or
equivalent common stock to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no
event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.
In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith
by the Board, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for
all purposes. Common Stock owned by or held for the account of
the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such
rights, 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 dated had not been fixed.
(c) In the event that the Company shall fix a record date
for the making of a distribution to all holders of the Common
Stock (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, cash (other
than a regular quarterly or other periodic cash dividend out of
<PAGE>
the earnings or retained earnings of the Company), assets, stock
(other than a dividend payable in Common Stock) or subscription
rights, options or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per
share market price of the Common Stock on such record date, less
the fair market value (as determined in good faith by the Board,
whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes) of the
portion of the cash, assets, stock or evidences of indebtedness
so to be distributed or of such subscription rights or warrants
applicable to one share of Common Stock, and the denominator of
which shall be such current per share market price of the Common
Stock; provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be less
than the aggregate par value of the shares of capital stock of
the Company to be issued upon exercise of one Right. Such
adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so
made, the Purchase Price shall again be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(d)(i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security"
for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of
such Security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current per share market
price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security
or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security,
and prior to the expiration of 30 consecutive Trading Days after
the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or
reclassification, then, and in each such case, the current per
share market price shall be appropriately adjusted to reflect the
current market price per 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 quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
<PAGE>
Quotation System ("NASDAQ") or such other system then in use, or
if on any 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 in the Security selected
by the Board. 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.
(ii) For the purpose of any computation hereunder, if
the Common Stock is not 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, whose determination shall
be described in a statement filed with the Rights Agent and shall
be conclusive for all purposes.
(e) Except as set forth below, no adjustment in the
Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Purchase
Price; provided, however, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest
cent or to the nearest one ten-thousandth of any share of Common
Stock or other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which requires such adjustment or (ii) the date of
the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a), the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock of the
Company other than Common Stock, thereafter the number of such
other shares so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with
respect to the Common Stock contained in Sections 11(a) through
(c), inclusive, and the provisions of Sections 7, 9, 10, 13 and
14 with respect to the Common Stock shall apply on like terms to
any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of shares of Common Stock purchasable from time to
time hereunder upon exercise of the Rights, all subject to
further adjustments provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of shares of Common
Stock (calculated to the nearest one ten-thousandth of a share of
<PAGE>
Common Stock) obtained by (i) multiplying (x) the number of
shares of Common Stock covered by a Right immediately prior to
this adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and (ii) dividing
the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of shares of
Common Stock 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 shares of Common
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest one ten-thousandth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right Certificates
have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior
to the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the
public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock issuable
upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of shares of Common Stock which
were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of
the shares of Common Stock issuable upon exercise of the Rights,
the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company
<PAGE>
may validly and legally issue fully paid and nonassessable shares
of Common Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder of
any Right exercised after such record date of the Common Stock
and other capital stock or securities of the Company, if any,
issuable upon such exercise over and above the Common Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to receive
such additional shares upon the occurrence of the event requiring
such adjustment.
(m) Notwithstanding anything in this Section 11 to the
contrary, the Board shall be entitled to make such reductions in
the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that in their
good faith judgment the Board shall determine to be advisable in
order that any consolidation or subdivision of the Common Stock,
issuance wholly for cash of any Common Stock at less than the
current market price, issuance wholly for cash or securities
which by their terms are convertible into or exchangeable for
Common Stock, dividends on Common Stock payable in Common Stock
or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to
holders of its Common Stock shall not be taxable to such
stockholders.
(n) Notwithstanding anything in this Agreement to the
contrary, 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 Stock payable in
Common Stock or (ii) effect a subdivision, combination or
consolidation of the Common Stock by reclassification otherwise
than by payment of dividends in shares of Common Stock into a
greater or lesser number of shares of Common Stock, then in any
such case (i) the number of shares of Common Stock purchasable
after such event upon proper exercise of each Right shall be
determined by multiplying the number of shares of Common Stock so
purchasable immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock
outstanding immediately before such event and the denominator of
which is the number of shares of Common Stock outstanding
immediately after such event, and (ii) each share of Common Stock
outstanding immediately after such event shall have issued with
respect to it that number of Rights which each share of Common
Stock outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section
11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or
consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or
<PAGE>
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 Stock a
copy of such certificate, and (c) mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 26
hereof. The Rights Agent may rely on such certificate and shall
not be deemed to have knowledge of any such adjustment unless and
until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earnings Power. (a) In the event that, following the
Distribution Date, directly or indirectly, (i) the Company shall
consolidate with, or merge with and into, any other Person and
the Company shall not be the continuing or surviving corporation
of such consolidation or merger, (ii) any Person shall
consolidate with the Company, or merge with and into the Company
and the Company shall be the continuing or surviving corporation
of such merger or consolidation and, in connection with such
merger or consolidation, all or part of the Common Stock shall be
changed into or exchanged for stock or other securities of any
other Person (or the Company) or cash or any other property, or
(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 Person other than the
Company or one or more of its wholly-owned Subsidiaries, then,
and in each such case, proper provision shall be made so that (i)
each holder of a Right (except as otherwise provided herein)
shall thereafter have the right to receive, upon the exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of shares of Common Stock for which a
Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Common Stock, such number of shares of
validly authorized and issued, fully paid, nonassessable and
freely tradeable Common Stock of the Issuer (as such term is
defined in Section 13(b) hereof), free and clear of any liens,
encumbrances and other adverse claims and not subject to any
rights of call or first refusal, as shall equal the result
obtained by (X) multiplying the then current Purchase Price by
the number of shares of Common Stock for which a Right is then
exercisable and dividing that product by (Y) 50% of the then
current per share market price of the Common Stock (determined
pursuant to Section 11(d) hereof) of the Issuer on the date of
consummation of such consolidation, merger, sale or transfer;
(ii) the Issuer of such Common Stock shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to the Issuer; and (iv) the Issuer
shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock
to permit the exercise in full of all outstanding Rights which
have not become null and void in accordance with Section
11(a)(ii)) in connection with such consummation as may be
necessary to assure that the provisions hereof shall thereafter
<PAGE>
be applicable, as nearly as reasonably may be, in relation to the
Common Stock thereafter deliverable upon the exercise of the
Rights. The Company shall not consummate any such consolidation,
merger, sale or transfer described in this Section 13(a) unless
prior thereto the Company and such Issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so
providing. The Company shall not enter into any transaction of
the kind referred to in this Section 13(a) if at the time of such
transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which,
as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be
afforded by the Rights.
(b) For purposes of this Section 13, "Issuer" shall mean
(i) in the case of any event described in Sections 13(a)(i) or
(ii) above, the Person that is the continuing, surviving,
resulting or acquiring Person (including the Company as the
continuing or surviving corporation of a transaction described in
Section 13(a)(ii) above), and (ii) in the case of any event
described in Section 13(a)(iii) above, the Person that is the
party receiving the greatest portion of the assets or earning
power (including without limitation securities creating any
obligation on the part of the Company and/or any of its
Subsidiaries) transferred pursuant to such transaction or
transactions; provided, however, that, in any such case, (A) if
(1) no class of equity security of such Person is, at the time of
such merger, consolidation or transaction and has been
continuously over the preceding 12-month period, registered
pursuant to Section 12 of the Exchange Act, and (2) such Person
is a Subsidiary, directly or indirectly, of another Person, a
class of equity security of which is and has been so registered,
the term "Issuer" shall mean such other Person; and (B) in case
such Person is a Subsidiary, directly or indirectly, of more than
one Person, a class of equity security of two or more of which
are and have been so registered, the term "Issuer" shall mean
whichever of such Persons is the issuer of the class of equity
security having the greatest aggregate market value.
Notwithstanding the foregoing, if the Issuer in any of the
events described in Section 13(a) is not a corporation or other
legal entity having outstanding equity securities, then, and in
each such case, (i) if the Issuer is directly or indirectly
wholly owned by a corporation or other legal entity having
outstanding equity securities, then all references to Common
Stock of the Issuer shall be deemed to be references to the
Common Stock of the corporation or other legal entity having
outstanding equity securities which ultimately controls the
Issuer, and (ii) if there is no such corporation or other legal
entity having outstanding equity securities, (Y) proper provision
shall be made so that the Issuer shall create or otherwise make
available for purposes of the exercise of the Rights in
accordance with the terms of this Agreement, a type or types of
security or securities having a fair market value at least equal
to the economic value of the Common Stock which each holder of a
Right would have been entitled to receive if the Issuer had been
a corporation or other legal entity having outstanding equity
securities and (Z) all other provisions of this Agreement shall
<PAGE>
apply to the issuer of such securities as if such securities were
Common Stock.
(c) The Company shall not consummate any consolidation,
merger, sale or transfer described in Section 13(a) unless the
Issuer shall have a sufficient number of authorized shares of
Common Stock (or other securities as contemplated in Section
13(b) above) which have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior to such consummation the Company
and the Issuer shall have executed and delivered to the Rights
Agent a supplemental agreement providing for the terms set forth
in subsections (a) and (b) of this Section 13 and further
providing that as soon as practicable after the consummation of
any such consolidation, merger, sale or transfer described in
Section 13(a), the Issuer will (i), if legally required, 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, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;
(ii), if legally required, take all such actions 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; and (iii) deliver to holders of the
Rights historical financial statements for the Issuer and each of
its Affiliates which comply in all respects with the requirements
for registration on Form 10 under the Exchange Act.
(d) 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 Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid
to the registered holders of the Right Certificates with regard
to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing
price per Right for the Trading Day immediately prior to the date
on which such fractional Rights would have been otherwise
issuable. The closing price for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported 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
Rights are 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 Rights
are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities
<PAGE>
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Rights selected by the Board. If on any such date no such market
maker is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by the Board
shall be used and such determination, which shall be described in
a statement filed with the Rights Agent, shall be conclusive for
all purposes.
(b) The Company shall not be required to issue fractions of
shares of Common Stock upon exercise of the Rights or to
distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the
Company shall pay to the registered holders of Right Certificates
at the time such Rights are exercised as herein provided with
regard to which such fractional shares would otherwise be
issuable, an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the
purposes of this Section 14(b), the current market value of a
share of Common Stock shall be the closing price of a share of
Common Stock (as determined pursuant to 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 Rights
expressly waives the right to receive any fractional Rights or
any fractional shares of Common Stock upon exercise of a Right.
Section 15. Rights of Actions. 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 Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Stock); and any registered holder of any Right Certificate
(or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any
other Right Certificate (or, prior to the Distribution Date, of
the Common Stock) may, in his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such
Right Certificate 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 Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
<PAGE>
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office of the Rights
Agent, duly endorsed or accompanied by a proper instrument of
transfer; and
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or, prior
to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of
the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated
Common Stock certificate made by anyone other than the Company or
the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to
the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Common Stock or any other securities of
the Company which may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon
the holder of any Right Certificate, as such, any of the rights
of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with
the provisions hereof.
Section 18. Concerning the Rights Agent. The Company
agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of
its duties hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything
done or omitted by the Rights Agent in connection with acceptance
and administration of this Agreement, including the costs and
expenses of defending against any claim of liability in the
premises.
The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its administration of this
Agreement in reliance upon any Right Certificate or certificate
<PAGE>
for the Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, discretion, 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. Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer or corporate trust business of the Rights Agent or
any successor Rights Agent, shall be successor to the Right Agent
under this Agreement without the execution or filing of any paper
or any further action the part of any of the parties hereto,
provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement any of the Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force and effect provided in the
Right Certificates and in this Agreement.
In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or its changed name, and in all such cases such
Right Certificates shall have the full force and effect provided
in the Right 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 Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under
<PAGE>
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the
President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Persons only for its own negligence, bad
faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Right Certificates (except as to 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 Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any
change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 11(a)(ii) hereof) or any
adjustment in the terms of the Rights (including the manner,
method or amount thereof) provided for in Sections 11, 13, 23, or
24, or the ascertaining of the existence of facts that should
requires any such change or adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after
receipt 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 shares of Common Stock to
be issued pursuant to this Agreement or any Right Certificate or
as to whether any shares of Common Stock 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
President, any Vice President, the Treasurer or the Secretary of
the Company, and to apply to such officers for advice or
<PAGE>
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 Rights 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 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. The
Rights Agent shall not be under any duty or responsibility to
insure compliance with any applicable federal or state securities
laws in connection with the issuance, transfer or exchange or
Right Certificates.
Section 21. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. The Company may remove
the Rights Agents or any successor Rights Agent upon 30 days'
notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the
Common Stock by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
<PAGE>
Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the Company), then
the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of any
other state of the United States, in good standing, which is
authorized under such laws to exercise corporate trust or stock
transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at
least $50 million. After appointment, the successors 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 of the delivery and transfer of such property.
Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the holders of the Right
Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the
case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
proved by the Board to reflect any adjustment or change in the
Purchase Price and the number of kind or class of shares or other
securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement.
Section 23. Redemption. (a) The Rights may be redeemed by
action of the Board pursuant to paragraph (b) of this Section 23
and shall not be redeemed in any other manner.
(b) The Board may, at its option, and as provided herein,
at any time prior to the earlier of (i) the Close of Business on
the fourteenth day following the Stock Acquisition Date, subject
to extension by the Board as provided in Section 23(c) hereof, or
(ii) the Close of Business on the Final Expiration Date, upon the
concurrence of Directors holding a majority of the Directorships
on the Board, redeem all (but not less than all) of the then
outstanding Rights at a redemption price of $.005 per Right,
appropriately adjusted to reflect any stock split, stock divided,
combination of shares or similar transaction occurring after the
date hereof (such redemption price being hereinafter referred to
<PAGE>
as the "Redemption Price"); provided, however, if the Board so
authorizes redemption of the Rights after a Stock Acquisition
Date, then there must be Continuing Directors then in office and
such authorization shall require the concurrence of a majority of
such Continuing Directors. The redemption of the Rights by the
Board may be made effective at such time, on such basis and with
such conditions as the Board in its sole discretion may
establish. Notwithstanding anything contained in this Agreement
to the contrary, the Rights shall not be exercisable after the
first occurrence of an event described in Section 11(a)(ii) until
such time as the Company's right of redemption hereunder has
expired.
(c) The Board may, at its option and as provided herein, at
any time prior to the Close of Business on the Final Expiration
Date and prior to such time as the Rights are no longer
redeemable by the Board, from time to time supplement or amend
the Rights Agreement without approval of the holders of any
Rights or the Rights Agent, to extend or shorten the period
during which the Rights may be redeemed; provided, however, that
after a Stock Acquisition Date, if the Board authorizes any such
amendment or supplement extending or shortening the period during
which the Rights may be redeemed, then there must be Continuing
Directors then in office and such authorization shall require the
concurrence of a majority of such Continuing Directors.
(d) Immediately upon the action of the Board ordering the
redemption of the Rights pursuant to paragraph (b) of this
Section 23, and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give
public notice of any such redemption; provided, however, that the
failure to give, or any defect in, any such notice shall not
affect the validity of such redemption. Within 10 days after
such action of the Board ordering the redemption of the Rights
pursuant to paragraph (b), as the case may be, the Company shall
mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent
for the Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be
made. Neither the Company nor any of is 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 shares or Common Stock prior to the
Distribution Date.
Section 24. Exchange. (a) The Board may, at its option,
at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 11(a)(ii) hereof) for
Common Stock at an exchange ratio of one share of Common Stock
<PAGE>
per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Common Stock issued pursuant to this Section
24(a) shall be duly and validly authorized and issued, fully
paid, nonassessable and fully tradeable shares, free and clear of
any liens, encumbrances and other adverse claims and not subject
to any rights of call or first refusal. Notwithstanding the
foregoing, the Board shall not be empowered to effect such
exchange at any time after any Person (other than the Company or
any Related Person), together with all Affiliates and Associates
of such Persons, becomes the Beneficial Owner of 50% or more of
the shares of Common Stock then outstanding.
(b) Immediately upon the action of the Board 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 shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange;
provided, however, that the failure to give, or any defect in,
such notice shall not affect the validity of such exchange. The
Company promptly shall mail a notice of any such exchange to all
of the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange of
the Common Stock for Rights will be effected and, in the event of
any partial exchange, the number of Right which will be
exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by
each holder of Rights.
(c) In the event that there shall not be sufficient Common
Stock issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action as may be
necessary to authorize additional shares of Common Stock for
issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions of
shares of Common Stock or to distribute certificates which
evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock, the Company shall pay to the
registered holders of the Right Certificates with regard to which
such fractional shares would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value of a
whole share of Common Stock. For the purposes of this paragraph
(d), the current market value of a whole share of Common Stock
shall be the closing price of a share of Common Stock (as
determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
<PAGE>
Section 25. Notice of Certain Events. In case, after the
Distribution Date, the Company shall propose (a) to declare or
pay a dividend payable in stock of any class to the holders of
its Common Stock or to make any other distribution to the holders
of its Common Stock (other than a regular quarterly or other
periodic cash dividend), (b) to offer to the holders of its
Common Stock rights or warrants to subscribe for or to purchase
any additional shares of Common Stock or stock of any class or
any other securities, rights or options, (c) to effect any
reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding
shares of Common Stock), (d) to effect any consolidation or
merger into or with, or to effect any sale or other transfer (or
to permit one or more of its Subsidiaries to effect any sale or
other transfer), in one or more transactions, of 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person, (e) to effect the
liquidation, dissolution or winding up of the Company, or (f) to
effect a split-up, subdivision, combination or consolidation of
the Common Stock (by reclassification or otherwise than by
payment of dividends in shares of Common Stock), then, in each
such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the
purposes of such stock dividend, or distribution, or offering of
rights, or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution,
or winding up is to take place and the date of participation by
the holders of the Common Stock, if any such date is to be fixed.
Such notice shall be so given in the case of any action covered
by clause (a) or (b) above at least 10 days prior to the record
date for determining holders of the Common Stock for purposes of
such action and in the case of any other such action, at least 10
days prior to the date of the taking of such proposed action or
the date of participation therein by the holders of the Common
Stock, whichever shall be the earlier.
In case any of the events set forth in Section 11(a)(ii) or
Section 13 hereof shall occur, then the Company shall as soon as
practicable thereafter give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which notice shall describe such
event and the consequences of such event to holders of Rights
under Section 11(a)(ii) or Section 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 Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
ImmuCell Corporation
56 Evergreen Drive
Portland, Maine 04103
Attention: Secretary
<PAGE>
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by first
class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
American Stock Transfer & Trust Co.
6201 15th Avenue
Brooklyn, NY 11219
(1995 ImmuCell Corporation Rights Agreement)
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Rights Agent.
Section 27. Supplements and Amendments. (a) Prior to the
Distribution Date and subject to Section 23(c) and Section 27(d)
hereof, if the Company so directs, the Company and the Rights
Agent shall supplement or amend any provision of this Agreement
in any manner which the Company may deem desirable without the
approval of any holders of Right Certificates or certificates
representing shares of Common Stock.
(b) From and after the Distribution Date and subject to
Section 23(c) and Section 27(d) hereof, if the Company so
directs, the Company and the Rights Agent shall supplement or
amend this Agreement without the approval of any holders of Right
Certificates or certificates representing shares of Common Stock
in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, to shorten or lengthen any time
period hereunder, or to supplement or amend the provisions of
this Agreement in any manner which the Company may deem necessary
or desirable, including, without limitation, the addition of
other events requiring adjustment to the Rights under Sections 11
or 13 or procedures relating to the redemption of the Rights,
which supplement or amendment shall not, in the good faith
determination of the Board, adversely affect the interests of the
holders of Rights Certificates other than the Acquiring Person or
any Affiliate or Associate of the Acquiring Person; provided,
however, that there must be Continuing Directors then in office
and such authorization shall require the concurrence of a
majority of such Continuing Directors and a majority of the Board
and, provided further, this Agreement may not be supplemented or
amended to lengthen, pursuant to the preceding parts of this
sentence, a time period relating to when the Rights may be
redeemed at such time as the Rights are not then redeemable, or
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.
(c) Upon the delivery of a certificate from an officer of
<PAGE>
the Company which 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;
provided, however, that the failure or refusal of the Rights
Agent to execute such supplement or amendment shall not affect
the validity or effective date of any supplement or amendment
adopted by the Company.
(d) Without limiting the foregoing, the Company may at any
time prior to such time as any Person becomes an Acquiring Person
amend this Agreement to lower the thresholds set forth in Section
1(a) hereof from 15% to not less than the greater of (i) any
percentage greater than the largest percentage of the outstanding
shares of Common Stock then known by the Company to be
beneficially owned by any Person (other than the Company or any
Related Person) and (ii) 10%. Notwithstanding anything in this
Agreement to the Contrary, (i) no supplement or amendment shall
be made which decreases the stated Redemption Price or the period
of time remaining until the Final Expiration Date and (ii) the
Rights Agent's consent must be obtained regarding any supplement
or amendment pursuant to this Section which alters the Rights
Agent's rights or duties, which consent shall not be unreasonably
withheld.
Section 28. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of 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 32. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together but one and the same instrument.
<PAGE>
Section 33. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and
year first above written.
Attest: IMMUCELL CORPORATION
By: /s/ Michael F. Brigham By: /s/ Thomas C. Hatch
Name: Michael F. Brigham Name: Thomas C. Hatch
Title: Chief Financial Officer Title: President and Chief
and Treasurer Executive Officer
Attest: AMERICAN STOCK TRANSFER &
TRUST CO.
By: /s/ Susan Silber By: /s/ Herbert J. Lemmer
Name: Susan Silber Name: Herbert J. Lemmer
Title: Assistant Secretary Title: Vice President
<PAGE>
A-1
Exhibit A
Form of Right Certificate
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER SEPTEMBER 19, 2005 OR
EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.005
PER RIGHT AND TO EXCHANGE ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR AN AFFILIATE OR AN
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.
Right Certificate
ImmuCell Corporation
This certifies that __________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement,
dated as of September 5, 1995 (the "Rights Agreement"), between
ImmuCell Corporation, a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Co. (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., Eastern time, on September 19, 2005 at the office of
the Rights Agent designated for such purpose, or at the office of
its successor as Rights Agent, one fully paid non-assessable
share of Common Stock of the Company, at a purchase price of
$70.00 per share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of shares of Common Stock which
may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and the Purchase
Price as of September 19, 1995, based on the Common Stock as
constituted at such date.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of securities which may be purchased upon the
<PAGE>
exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events, and the Rights are subject to amendment,
redemption and certain other events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and the above-
mentioned offices of the Rights Agent.
Pursuant to the Rights Agreement, if any Person shall become
an Acquiring Person, (i) any Rights that are or were acquired or
beneficially owned by any Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be null and void and
any holder of such Rights shall thereafter have no right to
exercise such Rights under any provision of the Rights Agreement,
(ii) no Right Certificate shall be issued pursuant to the Rights
Agreement that represents Rights beneficially owned by an
Acquiring Person or any Associate or Affiliate thereof, (iii) no
Right Certificate shall be issued at any time upon the transfer
of any Rights to an Acquiring Person or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate, and (iv) any Right Certificate delivered
to the Rights Agent for transfer to an Acquiring Person or any
Associate or Affiliate thereof shall be cancelled.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
shares of Common Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled
such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon
surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Company at its option at a redemption price of $.005 per Right or
(ii) may be exchanged in whole or in part for shares of Common
Stock.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby but in lieu of
issuing fractional shares of Common Stock the Company may make a
cash payment, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Common Stock or of any other securities
<PAGE>
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 hereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of
________________, 19__.
ATTEST: IMMUCELL CORPORATION
________________________ __________________________________
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST CO.
By____________________________
Authorized Signature
<PAGE>
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED __________________________________
hereby sells, assigns and transfers unto ______________________
_______________________________________________________________
(Please print name and address of transferees)
_______________________________________________________________
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint __________________ Attorney, to transfer the within Right
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ________________________, 19__.
________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor
institution which is a participant in a Securities Transfer
Association recognized program.
<PAGE>
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed if the registered holder desires to
exercise the Right Certificate.)
TO IMMUCELL CORPORATION
The undersigned hereby irrevocably elects to exercise
____________________________ Rights represented by this Right
Certificate to purchase the shares of Common Stock issuable upon
the exercise of such Rights and requests that certificates for
such Common Stock be issued in the name of:
Please insert social security
or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Dated: _______________, 19__.
______________________________
Signature
<PAGE>
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor
institution which is a participant in a Securities Transfer
Association recognized program.
<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are
[ ] are not being exercised, sold, assigned, transferred, split
up, combined or exchanged 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 pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] not acquire the Rights evidenced by
this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of any such Person.
Dated _____________________, 19__
______________________________
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Assignment or the Form of
Election to Purchase, as the case may be, must correspond to the
name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
<PAGE>
B-1
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On September 5, 1995, the Board of Directors of ImmuCell
Corporation (the "Company") declared a dividend of one common
share purchase right (a "Right") for each of the then outstanding
shares of Common Stock, par value $0.10 per share, (the "Common
Stock") of the Company. The dividend is payable on September 19,
1995 (the "Record Date") to the stockholders of record on that
date. Each Right entitles the registered holder to purchase from
the Company one share of Common Stock of the Company at a price
of $70.00 per share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Company and American Stock Transfer & Trust Co., as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that, without the prior consent of the "Continuing
Directors" (as such term is defined in the Rights Agreement), a
person or group of affiliated or associated persons has acquired
beneficial ownership of 15% or more of the outstanding shares of
Common Stock (such person being referred to as the "Acquiring
Person"), or (ii) 10 days (or such later date as may be
determined by action of the Board of Directors prior to such time
as any Person becomes an Acquiring Person) following the
commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would
result in the beneficial ownership by a person or group of 20% or
more of the outstanding shares of Common Stock (the earlier of
such dates being called the "Distribution Date"), the Rights will
be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common
Stock certificate with a copy of this Summary of Rights attached
thereto.
The Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates
issued after the Record Date, upon transfer or new issuance of
Common Stock, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Stock, outstanding as of
the Record Date, even without such notification or a copy of this
Summary of Rights being attached thereto, will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing
<PAGE>
the Rights ("Right Certificates") will be mailed to holders of
record of the Common Stock as of the close of business on the
Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on September 19, 2005 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed by the Company, in each
case as described below.
The Purchase Price payable, and the number of shares of
Common Stock or other securities or property issuable upon
exercise of the Rights, are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, stock split, combination or reclassification
of, the Common Stock, (ii) upon the grant to holders of Common
Stock of certain rights, options or warrants to subscribe for or
purchase shares of Common Stock at a price, or securities
convertible into shares of Common Stock with a conversion price,
less than the then current market price of the Common Stock or
(iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness, cash (excluding regular quarterly or
other periodic cash dividends paid out of the earnings or
retained earnings of the Company), assets, stock (other than
dividends payable in shares of Common Stock) or of subscription
rights or warrants (other than those referred to above).
In the event that, after the Distribution Date, the Company
should consolidate or merge with and into any other person and
the Company is not the surviving company, or, if the Company
should be the surviving company, all or part of the Company's
Common Stock is changed or exchanged for securities of any other
person or if 50% or more of its consolidated assets or earning
power are sold, proper provision will be made so that each holder
of a Right will thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price, that number
of shares of common stock of the acquiring company which at the
time of such transaction will have a market value of two times
the Purchase Price. In the event that any person becomes an
Acquiring Person, proper provision shall be made so that each
holder of a Right, other than Rights beneficially owned by the
Acquiring Person or any Affiliate or Associate of an Acquiring
Person (which will thereafter be void), will thereafter have the
right to receive upon the exercise thereof at the then current
Purchase Price, that number of shares of Common Stock having a
market value of two times the Purchase Price; provided, however,
that Rights are not exercisable following the occurrence of such
event until such time as the Rights are no longer redeemable by
the Company as set forth below.
At any time after a person or group becomes an Acquiring
Person and prior to the acquisition by such person or group of
50% or more of the outstanding Common Stock, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which have become void), in
whole or in part, at an exchange ratio of one share of Common
Stock per Right (subject to adjustment).
<PAGE>
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. No fractional
shares of Common Stock will be issued, and in lieu thereof, an
adjustment in cash may be made based on the market price of the
Common Stock on the last trading day prior to the date of
exercise.
At any time prior to the earlier of fourteen days following
the date that any person or group becomes an Acquiring Person,
(subject to extension by the Board of Directors of the Company),
or the Final Expiration Date, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a
price of $.005 per Right (the "Redemption Price"); provided, that
if the Board authorizes redemption of the Rights after the first
date of public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such, there must be
Continuing Directors then in office and a majority of the
Directors of the Board and a majority of the Continuing Directors
must approve such redemption. The redemption of the Rights may
be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
Prior to the Distribution Date, the terms of the Rights
Agreement may be amended by the Board of Directors of the Company
without the consent of the holders of the Rights or holders of
the Common Stock. From and after the Distribution Date, the
terms of the Rights Agreement may be amended by the Company
without the consent of the holders of the Rights or holders of
the Common Stock in any manner which the Company may deem
necessary or desirable so long as such supplement or amendment
does not adversely affect the interest of Rights holders (other
than the Acquiring Person or any Associate or Affiliates), and
provided that such supplement or amendment may not lengthen the
time period for redemption of the Rights if the Rights are not
then redeemable and provided that there must be Continuing
Directors then in office and that a majority of the Board and a
majority of the Continuing Directors must approve such amendment.
The Company may at any time prior to such time as a person or
group of affiliated or associated persons becomes an Acquiring
Person lower the threshold for a person or group becoming an
Acquiring Person from 15% to not less than the greater of (i) any
percentage greater than the largest percentage of the outstanding
shares of Common Stock then known to the Company to be
beneficially owned by any such person or group of affiliated or
associated persons and (ii) 10%. In no case shall any amendment
or supplement at any time decrease the Redemption Price or the
period of time remaining until the Final Expiration Date.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement is available free of charge
<PAGE>
from the Company. This summary description of the Rights does
not purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is hereby incorporated
herein by reference.
DBH806/usr2/id29/work/IMMUCELL/Rts.Agmt4
<PAGE>
