<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CHARTER ONE FINANCIAL, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 34-1567092
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(State of incorporation or organization) (IRS Employer
Identification No.)
1215 SUPERIOR AVENUE, CLEVELAND, OHIO 44114
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED STOCK PURCHASE RIGHTS
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(Title of Class)
<PAGE> 2
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Amendment of Rights Agreement
- -----------------------------
On November 20, 1989, the Board of Directors of Charter One Financial,
Inc. (the "Company") declared a dividend of one preferred share purchase right
(an "Original Right") for each outstanding share of common stock, par value $.01
per share, of the Company (the "Common Stock"). Terms of the Original Rights are
set forth in the Rights Agreement (the "Original Rights Agreement"), dated
November 20, 1989, between the Company and BankBoston, N.A. (as successor to The
First National Bank of Boston), as Rights Agent (the "Rights Agent"). The
dividend was paid to the stockholders of record as of the close of business on
December 1, 1989, and the Board further directed the issuance of one Original
Right with respect to each share of Common Stock issued after December 1, 1989
and before the expiration of the Original Rights. The Original Rights were
scheduled to expire on November 20, 1999.
On October 20, 1999, the Board of Directors amended the Original Rights
in their entirety to represent a right (a "Right") to purchase one one-hundredth
of a share of Series A Participating Preferred Stock, par value $.01 per share
("Preferred Stock"), of the Company at a price of $100.00 (as the same may be
adjusted, the "Exercise Price"). The terms of the Rights are set forth in the
Amended and Restated Rights Agreement (the "Rights Agreement"), dated October
20, 1999, between the Company and the Rights Agent. A copy of the Rights
Agreement is attached as an exhibit to this filing. The description of the
Rights below is a summary only and is qualified in its entirety by reference to
the Rights Agreement.
Transfer of Rights; Rights Certificates
- ----------------------------------------
Prior to the Separation Time referred to below, the Rights will be
evidenced by and trade with the Common Stock and will not be exercisable. After
the Separation Time, the Company will mail Rights Certificates to stockholders
and the Rights will become transferable apart from the Common Stock.
Separation Time
- ---------------
Rights will separate from the Common Stock and become exercisable
following the earlier of:
(i) the "Flip-in" date referred to below; or
(ii) the tenth business day (or such later date as the
Company's Board of Directors may decide) after any person (other than
the Company, a subsidiary of the Company, or an employee benefit plan
of the Company or a subsidiary of the Company) commences a tender or
exchange offer that would result in the person becoming an "Acquiring
Person" (as defined below), or after public announcement of the
intention of a person to make such a tender or exchange offer.
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Acquiring Person
- ----------------
An "Acquiring Person" means any person who becomes the beneficial owner
of 20% or more of the outstanding shares of Common Stock, except for the
following: the Company, any subsidiary of the Company or any employee benefit
plan of the Company or any subsidiary of the Company; a person who becomes the
beneficial owner of 20% or more of the outstanding shares of Common Stock,
solely as a result of an acquisition by the Company of shares of Common Stock,
unless and until the person becomes the beneficial owner (other than by means of
a stock dividend or stock split) of any additional shares of Common Stock; a
person who becomes the beneficial owner of 20% or more but not more than 25% of
the outstanding shares of Common Stock, if the person's beneficial ownership in
excess of 20% is solely as a result of an acquisition of Common Stock from the
Company which is approved in advance by two-thirds of the Company's Board of
Directors; or a person who inadvertently becomes an Acquiring Person, as long as
the person timely divests himself or itself of a sufficient number of shares to
no longer be an Acquiring Person.
Exercise of Rights
- ------------------
After the Separation Time, each Right will entitle the holder to
purchase, for the Exercise Price, one one-hundredth of a share of the Preferred
Stock (or, under certain circumstances, other securities or assets of the
Company). The dividend, voting, liquidation and other rights of the Preferred
Stock are such that the market value of one one-hundredth of a share of
Preferred Stock should approximately equal the market value of one share of
Common Stock.
"Flip-in" Date
- --------------
Upon public announcement that any person has become an Acquiring
Person, then ten business days thereafter (or such earlier or later day, not
beyond the 30th business day, as the Company's Board of Directors may decide):
(i) Rights owned by the Acquiring Person or any affiliate,
associate or transferee of the Acquiring Person will automatically
become void; and
(ii) Each other Right will automatically become a right to
buy, for the Exercise Price, that number of one one-hundredths of a
share of Preferred Stock or, at the option of the Company, that number
of shares of Common Stock (or, under certain circumstances, an amount
of other securities or assets of the Company) having a market value of
twice the Exercise Price. Thus, if the Rights "Flip-in," Rights holders
will generally be entitled to purchase Company stock at a 50% discount.
Exchange Option
- ---------------
After a "Flip-in" date has occurred but before a Schedule 13D has been
filed with the Securities and Exchange Commission announcing that the Acquiring
Person has acquired more than 50% of the outstanding shares of Common Stock, the
Company's Board of Directors may, in lieu
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of allowing Rights to be exercised, require the outstanding Rights to be
exchanged for Common Stock or Preferred Stock (or, under certain circumstances,
other securities or assets of the Company).
"Flip-over" Trigger
- -------------------
After an Acquiring Person has become such, the Company may not
consolidate or merge with any person or sell 50% or more of its assets or
earning power to any person if at the time of such merger or sale (or agreement
to do any of the foregoing) the Acquiring Person controls the Company's Board of
Directors and, in the case of a merger, will receive different treatment than
other stockholders (each a "Flip-over Transaction or Event"), unless proper
provision is made so that each Right would thereafter become a right to buy, for
the Exercise Price, that number of shares of common stock of such other person
having a market value of twice the Exercise Price.
Redemption
- ----------
The Rights may be redeemed by the Company's Board of Directors at any
time until the close of business on the "Flip-in" date, at a Redemption Price of
$0.01 per Right, subject to adjustment in the event of a stock dividend, stock
split or similar event. At the Company's option, the redemption price may be
paid in cash, Company securities or any other form of consideration deemed
appropriate by the Company's Board of Directors.
Power to Amend
- --------------
The Company may amend the Rights Agreement in any respect until the
close of business on the "Flip-in" date. Thereafter, upon approval by two-thirds
of the Company's directors, the Company may amend the Rights Agreement in any
respect not materially adverse to Rights holders generally (other than an
Acquiring Person or any affiliate or associate of an Acquiring Person) or to
cure any ambiguity or supplement any provision of the Rights Agreement which may
be inconsistent with any other provision.
Expiration
- ----------
The Rights will expire upon the first to occur of the following: (i)
the redemption of the Rights; (ii) the exchange of the Rights, as described
under "Exchange Option;" (iii) the close of business on October 20, 2009; and
(iv) the time that is immediately prior to any merger, consolidation or
combination of the Company (except where the Company is the surviving entity and
the shares of Common Stock are not exchanged for different securities, cash or
other consideration) consummated before any person has become an Acquiring
Person.
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Other
- -----
The holders of Rights, as such, will not have any of the rights of
stockholders of the Company, including the right to vote or to receive
dividends, until the Rights have been exercised in accordance with the Rights
Agreement.
The Rights will not prevent a takeover of the Company. However, the
Rights may cause substantial dilution to a person or group that acquires 20% or
more of the Common Stock, unless the Rights are first redeemed by the Company's
Board of Directors. Nevertheless, the Rights should not interfere with a
transaction that is in the best interests of the Company and its stockholders
because the Rights can be redeemed prior to the close of business on the
"Flip-in" date and because the Rights will expire if the Company is acquired in
a merger before any person has acquired 20% or more of the Common Stock.
ITEM 2. EXHIBITS.
Item 2 of the Company's Registration Statement on Form 8-A filed on
November 22, 1989 is hereby amended to add an Exhibit (2), as follows:
Exhibit No. Description
----------- -----------
(2) Amended and Restated Stockholder Protection
Rights Agreement, dated as of October 20,
1999 (the "Rights Agreement"), between
Charter One Financial, Inc. and BankBoston,
N.A., as Rights Agent, and forms of
Certificate of Designation, Rights
Certificate and Election to Exercise,
included as exhibits to the Rights
Agreement.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
CHARTER ONE FINANCIAL, INC.
Date: October 28, 1999 By: /s/ Robert J. Vana
---------------------------
Robert J. Vana
Chief Corporate Counsel and
Secretary
<PAGE> 7
EXHIBIT INDEX
Exhibit No. Description
- ---------------------- -----------------------------------------------------
(2) Amended and Restated Stockholder Protection Rights
Agreement, dated as of October 20, 1999 (the "Rights
Agreement"), between Charter One Financial, Inc. and
BankBoston, N.A., as Rights Agent, and forms of
Certificate of Designation, Rights Certificate and
Election to Exercise, included as exhibits to the
Rights Agreement.
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EXHIBIT 2
<PAGE> 2
================================================================================
AMENDED AND RESTATED
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
dated as of
October 20, 1999
between
Charter One Financial, Inc.
and
BankBoston, N.A.,
as Rights Agent
================================================================================
<PAGE> 3
AMENDED AND RESTATED STOCKHOLDER PROTECTION RIGHTS AGREEMENT
Table of Contents
<TABLE>
<CAPTION>
Page
----
ARTICLE I
CERTAIN DEFINITIONS
<S> <C>
1.1 Certain Definitions. ........................................................2
ARTICLE II
THE RIGHTS
2.1 Summary of Rights. ..........................................................10
2.2 Legend on Common Stock Certificates. ........................................10
2.3 Exercise of Rights; Separation of Rights. ...................................11
2.4 Adjustments to Exercise Price; Number of Rights. ............................15
2.5 Date on Which Exercise is Effective. ........................................17
2.6 Execution, Authentication, Delivery and Dating of Rights Certificates. ......17
2.7 Registration, Registration of Transfer and Exchange. ........................18
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates. ..................19
2.9 Persons Deemed Owners. ......................................................20
2.10 Delivery and Cancellation of Certificates. ..................................21
2.11 Agreement of Rights Holders. 21
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 Flip-in. ....................................................................22
3.2 Flip-over. ..................................................................26
ARTICLE IV
THE RIGHTS AGENT
4.1 General. ....................................................................27
4.2 Merger or Consolidation or Change of Name of Rights Agent. ..................28
4.3 Duties of Rights Agent. .....................................................29
4.4 Change of Rights Agent. .....................................................32
</TABLE>
i
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<TABLE>
<CAPTION>
ARTICLE V
MISCELLANEOUS
<S> <C>
5.1 Redemption. .................................................................33
5.2 Expiration. .................................................................34
5.3 Issuance of New Rights Certificates. ........................................35
5.4 Supplements and Amendments. .................................................36
5.5 Fractional Shares. ..........................................................36
5.6 Rights of Action. ...........................................................37
5.7 Holder of Rights Not Deemed a Stockholder. ..................................37
5.8 Notice of Proposed Actions. .................................................38
5.9 Notices. ....................................................................39
5.10 Suspension of Exercisability. ...............................................40
5.11 Costs of Enforcement. .......................................................40
5.12 Successors. .................................................................40
5.13 Benefits of this Agreement. .................................................40
5.14 Descriptive Headings. .......................................................41
5.15 Governing Law. ..............................................................41
5.16 Counterparts. ...............................................................41
5.17 Severability. ...............................................................41
5.18 Determinations and Actions by the Board of Directors. .......................42
</TABLE>
EXHIBITS
Exhibit A Form of Amended and Restated Certificate of Designation,
Preferences and Rights of Series A Participating Preferred
Stock
Exhibit B Form of Rights Certificate (Together with Form of Election to
Exercise)
ii
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AMENDED AND RESTATED
STOCKHOLDER PROTECTION RIGHTS AGREEMENT
---------------------------------------
AMENDED AND RESTATED STOCKHOLDER PROTECTION RIGHTS AGREEMENT
("Agreement"), dated as of October 20, 1999, between Charter One Financial,
Inc., a Delaware Corporation (the "Company"), and BankBoston, N.A., a national
banking association, as Rights Agent (the "Rights Agent," which term shall
include any successor Rights Agent hereunder).
The Company and the Rights Agent (as successor to The First National
Bank of Boston) have heretofore entered into a Rights Agreement dated as of
November 20, 1989 (as amended, the "Original Rights Agreement"). In connection
therewith, the Board of Directors of the Company authorized and declared a
dividend of one preferred share purchase right ("Original Right") for each share
of Common Stock (as hereinafter defined) of the Company outstanding as of the
close of business on December 1, 1989 (the "Record Date"), and the Board of
Directors further authorized and directed the issuance of one Original Right
(subject to adjustment as provided in the Original Rights Agreement) with
respect to each share of Common Stock issued between the Record Date and the
earlier of the Distribution Date and the Expiration Date (as such terms are
defined in the Original Rights Agreement), with each Original Right having the
rights assigned to it under the Original Rights Agreement.
Pursuant to Section 27 of the Original Rights Agreement, the Company
and the Rights Agent hereby amend and restate the Original Rights Agreement to
read in its entirety in the form hereof. The Board of Directors of the Company
has approved the amendment and restatement such that each Original Right shall
be deemed to be a preferred share purchase right (a "Right") having the rights
assigned to it pursuant to this Agreement. The Board of Directors has also
authorized the issuance of one Right (as such number may be adjusted hereafter
pursuant to the terms of this Agreement) in respect of each share of Common
Stock issued after the date of this Agreement and prior to the
<PAGE> 6
earlier of the Separation Time and the Expiration Time (as such terms are
hereinafter defined), and, to the extent provided in Section 5.3 of this
Agreement, each share of Common Stock issued after the Separation Time and prior
to the Expiration Time. Each Right entitles the holder thereof, after the
Separation Time and prior to the Expiration Time, to purchase securities of the
Company (or in certain cases, of certain other entities) pursuant to the terms
and subject to the conditions set forth in this Agreement.
Accordingly, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
1.1 CERTAIN DEFINITIONS. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean any Person who is or shall become a
Beneficial Owner of 20% or more of the outstanding shares of Common Stock;
PROVIDED, HOWEVER, that the term "Acquiring Person" shall not include (i) the
Company, any Subsidiary of the Company or any employee stock ownership or other
employee benefit plan of the Company or any Subsidiary of the Company; (ii) any
Person who is or shall become the Beneficial Owner of 20% or more of the
outstanding shares of Common Stock solely as a result of an acquisition by the
Company of shares of Common Stock, until such time thereafter as such Person
shall become the Beneficial Owner (other than by means of a stock dividend or
stock split) of any additional shares of Common Stock; or (iii) any Person who
is or shall become the Beneficial Owner of 20% or more, but not more than 25%,
of the outstanding shares of Common Stock if such Person's Beneficial Ownership
of over 20%
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of the outstanding shares of Common Stock is solely as a result of an
acquisition of Common Stock from the Company which acquisition from the Company
receives the prior approval of two-thirds of the Company's Board of Directors.
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" has become such inadvertently (including, without limitation, because
(i) such Person was unaware that it Beneficially Owned a percentage of Common
Stock that would otherwise cause such Person to be an "Acquiring Person" or (ii)
such Person was aware of the extent of its Beneficial Ownership of Common Stock
but had no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement), and such Person, as promptly as practicable after being
advised of such determination divests himself or itself of Beneficial Ownership
of a sufficient number of shares of Common Stock so that such Person would no
longer be an Acquiring Person, then such Person shall not be deemed to be or to
have become an "Acquiring Person" for any purposes of this Agreement.
"Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 under the Securities Exchange Act of 1934, as
amended, as such Rule is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner," and to have
"Beneficial Ownership" of, and to "Beneficially Own," any securities as to which
such Person or any of such Person's Affiliates or Associates is or may be deemed
to be a beneficial owner pursuant to Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as amended, as such rules are in effect on the date of
this Agreement, as well as any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to become a Beneficial Owner
(whether such right is exercisable immediately or only after the passage of time
or the occurrence of conditions) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights, exchange rights,
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rights (other than the Rights), warrants or options, or otherwise; PROVIDED,
HOWEVER, that a Person shall not be deemed the "Beneficial Owner," or to have
"Beneficial Ownership" of, or to "Beneficially Own," any security (i) solely
because such security has been tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's Affiliates or Associates until such
tendered security is accepted for payment or exchange, (ii) solely because such
Person or any of such Person's Affiliates or Associates has or shares the power
to vote or direct the voting of such security pursuant to a revocable proxy
given in response to a public proxy or consent solicitation made to more than
ten holders of the Common Stock and pursuant to, and in accordance with, the
applicable rules and regulations under the Securities Exchange Act of 1934, as
amended, except if such power (or the arrangements relating thereto) is then
reportable under Item 6 of Schedule 13D under the Securities Exchange Act of
1934, as amended (or any similar provision of a comparable or successor report),
(iii) solely because of the grant by the Company to such Person, in connection
with the execution of an agreement to acquire or merge with the Company, of
options to acquire such security, (iv) solely as a result of such Person's
position or service as a director or officer of the Company or an Affiliate of
the Company (including, without limitation, solely as a result of any statement
or disclosure, by or on behalf of the Company, of the combined or aggregate
securities ownership of any two or more such directors or officers), (v) held
for or pursuant to the terms of any employee stock ownership or other employee
benefit plan of the Company or a Subsidiary of the Company, (vi) held by the
Company or a Subsidiary of the Company in its capacity as a trustee or (vii)
acquired by such Person, if such Person is engaged in business as an underwriter
of securities, through such Person's participation in good faith in a firm
commitment underwriting, until the expiration of 40 days after the date of such
acquisition. For purposes of this Agreement, in determining the percentage of
the outstanding shares of Common Stock with respect to which a
4
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Person is the Beneficial Owner, all shares as to which such Person is deemed the
Beneficial Owner shall be deemed outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the Commonwealth of Massachusetts are
generally authorized or obligated by law or executive order to close.
"Close of business" on any given date shall mean 5:00 p.m., Boston,
Massachusetts time, on such date (or, if such date is not a Business Day, 5:00
p.m, Boston, Massachusetts time, on the next succeeding Business Day).
"Common Stock" shall mean the shares of Common Stock, par value $.01
per share, of the Company.
"Continuing Director" shall mean any member of the Company's Board of
Directors who is not an Acquiring Person, an Affiliate or Associate of an
Acquiring Person, or a representative or nominee of an Acquiring Person or of
any such Associate or Affiliate, and who was a member of the Board of Directors
of the Company prior to the Stock Acquisition Date; and any successor of a
Continuing Director, who is not an Acquiring Person, an Affiliate or Associate
of an Acquiring Person, or a representative or nominee of an Acquiring Person or
of any such Associate or Affiliate, and who was recommended or elected to
succeed the Continuing Director by a majority of the Continuing Directors.
"Exchange Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 3.1(c) hereof.
"Exercise Price" shall mean, as of any date, the price at which a
holder may purchase the securities or assets issuable upon exercise of one whole
Right. Until adjustment thereof in accordance with the terms hereof, the
Exercise Price shall equal $100.00.
5
<PAGE> 10
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii) the Redemption Time, (iii) the close of business on the tenth-year
anniversary of the date of this Agreement and (iv) the time that is immediately
prior to consummation of any merger, consolidation or combination of the Company
(other than a merger, consolidation or combination in which the Company is the
surviving entity and which does not result in the outstanding shares of Common
Stock being converted into or exchanged for different securities, cash or other
property, or any combination thereof) effected before an Acquiring Person has
become such pursuant to a plan or agreement the terms of which are binding upon
all stockholders of the Company (except to the extent that dissenting
stockholders may be entitled, under statutory provisions or provisions contained
in the Company's Certificate of Incorporation, to receive the appraised or fair
value of their holdings).
"Flip-in Date" shall mean the tenth business day after any Stock
Acquisition Date which is not the result of a Flip-over Transaction or Event or
such earlier or later date, not beyond the 30th business day after such Stock
Acquisition Date, as the Board of Directors of the Company may from time to time
fix by resolution adopted prior to the Flip-in Date that would otherwise have
occurred.
"Flip-over Entity," for purposes of Section 3.2, shall mean (i) in the
case of a Flip-over Transaction or Event described in clause (i) of the
definition thereof, the Person issuing any securities into which shares of
Common Stock are being converted or exchanged and, if no such securities are
being issued, the other party to such Flip-over Transaction or Event and (ii) in
the case of a Flip-over Transaction or Event referred to in clause (ii) of the
definition thereof, the Person receiving the greatest portion of the assets or
earning power being transferred in such Flip-over Transaction or Event.
"Flip-over Stock" of any Person shall mean the capital stock (or
similar equity interest) with the greatest voting power in respect of the
election of directors (or other persons similarly
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<PAGE> 11
responsible for direction of the business and affairs) of such Person or, if
such Person is a Subsidiary of another Person, the Person or Persons which
ultimately controls such first-mentioned Person.
"Flip-over Transaction or Event" shall mean a transaction or series of
transactions after the time when an Acquiring Person has become such in which,
directly or indirectly, (i) the Company shall consolidate or merge or
participate in a binding share exchange with any other Person (other than a
wholly owned Subsidiary of the Company) if, at the time of the consolidation,
merger or share exchange or at the time the Company enters into any agreement
with respect to any such consolidation, merger or share exchange, a majority of
the Board of Directors of the Company are not Continuing Directors and any term
of or arrangement concerning such consolidation, merger or share exchange
relating to the Acquiring Person is not identical to the terms and arrangements
relating to other holders of the Common Stock or (ii) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall sell or otherwise
transfer) assets (A) aggregating more than 50% of the assets (measured by either
book value or fair market value), or (B) generating more than 50% of the
operating income or cash flow of the Company and its Subsidiaries (taken as a
whole) to any Person (other than the Company or one or more of its wholly owned
Subsidiaries) or to two or more such Persons which are Affiliates or Associates
or otherwise acting in concert, unless, at the time of such sale or transfer of
assets or at the time of the entry by the Company (or any such Subsidiary) into
an agreement with respect to such sale or transfer of assets, a majority of the
Board of Directors of the Company are Continuing Directors. For purposes of the
foregoing provision, the term "Acquiring Person" shall include any Acquiring
Person and its Affiliates and Associates (other than the Company, a wholly owned
Subsidiary of the Company or an employee stock ownership or other employee
benefit plan of the Company or a wholly owned Subsidiary of the Company),
counted together as a single Person.
7
<PAGE> 12
"Market Price" per share of any securities on any date shall mean the
average of the daily closing prices per share of such securities (determined as
described below) on each of the 20 consecutive Trading Days through and
including the Trading Day immediately preceding such date; PROVIDED, HOWEVER,
that if an event of a type analogous to any of the events described in Section
2.4 hereof shall have caused the closing prices used to determine the Market
Price on any Trading Days during such period of 20 Trading Days not to be fully
comparable with the closing price on such date, each such closing price so used
shall be appropriately adjusted in order to make it fully comparable with the
closing price on such date. The closing price per share of any securities on any
date shall be the last reported sale price or, in case no such sale takes place
or is quoted on such date, the average of the closing bid and asked prices for
each share of such securities, in either case as reported by The Nasdaq Stock
Market or such other automated quotation system then in use or by the securities
exchange on which the securities are then listed, or, if on any such date the
securities are not quoted by any such organization or listed on any such
exchange, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the securities selected by the
Board of Directors of the Company; PROVIDED, HOWEVER, that if on any such date
the securities are not traded in the over-the-counter market or on any
securities exchange, the closing price per share of such securities on such date
shall mean the fair value per share of securities on such date as determined in
good faith by the Board of Directors of the Company, after consultation with a
nationally recognized investment banking firm, and set forth in a certificate
delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership, association,
group (as such term is used in Rule 13d-5 under the Securities Exchange Act of
1934, as amended, as such Rule is in effect on the date of this Agreement),
corporation or other entity.
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<PAGE> 13
"Preferred Stock" shall mean the Series A Participating Preferred
Stock, par value $.01 per share, of the Company having the rights and
preferences set forth in the Form of Amended and Restated Certificate of
Designation, Preferences and Rights attached to this Agreement as Exhibit A.
"Redemption Price" shall mean an amount equal to one cent ($0.01) per
Right, subject to adjustment as provided in Section 5.1(c) of this Agreement.
"Redemption Time" shall mean the time at which the right to exercise
the Rights shall terminate pursuant to Section 5.1 hereof.
"Separation Time" shall mean the close of business on the earlier of
(i) the tenth business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the Separation
Time that would otherwise have occurred) after the date of (a) commencement by
any Person (other than the Company, a Subsidiary of the Company or an employee
stock ownership or other employee benefit plan of the Company or a Subsidiary of
the Company) of, or (b) first public announcement of the intention of any Person
(other than the Company, a Subsidiary of the Company, or an employee stock
ownership or other employee benefit plan of the Company or a Subsidiary of the
Company) to commence, a tender or exchange offer which, if consummated, would
result in such Person's becoming an Acquiring Person and (ii) the Flip-in Date;
PROVIDED, that if any tender or exchange offer referred to in clause (i) of this
definition is cancelled, terminated or otherwise withdrawn prior to the
Separation Time without the purchase of any shares of Common Stock pursuant
thereto, such offer shall be deemed, for purposes of this definition, never to
have been made.
"Stock Acquisition Date" shall mean the first date of public
announcement by the Company (by any means) or by an Acquiring Person (by means
of filing a Schedule 13D or Schedule 13G
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under the Securities Exchange Act of 1934, as amended (or any comparable or
successor report or schedule), or an amendment thereto) that an Acquiring Person
has become such.
"Subsidiary" of any specified Person shall mean any corporation or
other entity a majority of the voting power of the voting equity securities or
equity interest of which is Beneficially Owned, directly or indirectly, by such
Person.
"Trading Day", when used with respect to any securities, shall mean a
day on which the principal national securities exchange, market or quotation
system on which such securities are listed or admitted to trading is open for
the transaction of business or, if such securities are not listed or admitted to
trading on any national securities exchange, market or quotation system, a
Business Day.
ARTICLE II
THE RIGHTS
2.1 SUMMARY OF RIGHTS. As soon as practicable after the date of this
Agreement, the Company will mail a letter summarizing the terms of the Rights to
each holder of record of Common Stock as of the date of this Agreement, at such
holder's address as shown on the records of the Company.
2.2 LEGEND ON COMMON STOCK CERTIFICATES. Certificates for the Common
Stock issued (whether originally issued or from the Company's treasury account)
after the date hereof but prior to the earlier of the Separation Time and the
Expiration Time shall evidence one Right for each share of Common Stock
represented thereby and shall have impressed on, printed on, written on or
otherwise affixed to them a legend in substantially the following form:
Until the earlier of the Separation Time and the Expiration Time (as
such terms are defined in the Rights Agreement referred to below), this
certificate shall also evidence and entitle the
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holder hereof to certain Rights as set forth in the Amended and
Restated Stockholder Protection Rights Agreement, dated as of October
20, 1999 (as such may be amended from time to time, the "Rights
Agreement"), between Charter One Financial, Inc. (the "Company") and
BankBoston, N.A., as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may be exchanged for shares of Common Stock, Preferred Stock
or other securities or assets of the Company, may expire, may become
void (if they are "Beneficially Owned" by an "Acquiring Person" or an
"Affiliate" or "Associate" thereof, as such terms are defined in the
Rights Agreement, or by any transferee of any of the foregoing) or may
be evidenced by separate certificates and may no longer be evidenced by
this certificate. The Company will mail or arrange for the mailing of a
copy of the Rights Agreement to the holder of this certificate without
charge promptly after the receipt of a written request therefor.
Certificates representing shares of Common Stock that are issued and outstanding
as of the date of this Agreement shall evidence one Right for each share of
Common Stock evidenced thereby notwithstanding the absence of the foregoing
legend. To the extent provided in Section 5.3, Rights shall be issued by the
Company in respect of shares of Common Stock that are issued or sold by the
Company after the Separation Time and prior to the Expiration Time.
2.3 EXERCISE OF RIGHTS; SEPARATION OF RIGHTS.
(a) Subject to Sections 3.1, 3.2, 5.1 and 5.10 and subject to
adjustment as herein set forth, and except as provided below and to the extent
that such exercise does not violate any applicable law, each Right will entitle
the holder thereof, after the Separation Time and prior to the Expiration Time,
to purchase, for the Exercise Price, one one-hundredth of a share of Preferred
Stock.
(b) Until the Separation Time, (i) no Right may be exercised and (ii)
each Right will be evidenced by the certificate for the associated share of
Common Stock (together, in the case of certificates issued on or prior to the
date of this Agreement, with the letter mailed to the record holder thereof
pursuant to Section 2.1) and will be transferable only together with, and will
be
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transferred by a transfer (whether with or without such letter) of, such
associated share. Notwithstanding any other provision of this Agreement, any
Rights held by the Company or any of its Subsidiaries, other than in a fiduciary
capacity, shall be void.
(c) Subject to the terms and conditions herein set forth, after the
Separation Time and prior to the Expiration Time, the Rights (i) may be
exercised and (ii) may be transferred independent of shares of Common Stock.
Promptly following the Separation Time, the Rights Agent will mail to each
holder of record of Common Stock as of the Separation Time (other than any
Person whose Rights have become void pursuant to Section 3.1(b)), at such
holder's address as shown by the records of the Company (the Company hereby
agreeing to furnish copies of such records to the Rights Agent for this
purpose), (x) a certificate (a "Rights Certificate") in substantially the form
of Exhibit B hereto appropriately completed, representing the number of Rights
held by such holder at the Separation Time and having such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or quotation system on which the
Rights may from time to time be listed or traded, or to conform to usage, and
(y) a disclosure statement describing the Rights; PROVIDED, HOWEVER, that the
Company shall have no obligation to distribute Rights Certificates to any
Acquiring Person or Affiliate or Associate of an Acquiring Person or any
transferee of any of the foregoing.
(d) Subject to this Section 2.3 and Section 5.10, Rights may be
exercised on any Business Day after the Separation Time and prior to the
Expiration Time, by submitting to the Rights Agent the Rights Certificate
evidencing such Rights with an Election to Exercise (an "Election to
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Exercise") substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment, by certified or official bank check or money
order payable to the order of the Company, of a sum equal to the Exercise Price
multiplied by the number of Rights being exercised and a sum sufficient to cover
any transfer tax or charge which may be payable in respect of any transfer
involved in the transfer or delivery of Rights Certificates or the issuance or
delivery of certificates for shares or depositary receipts (or both) in a name
other than that of the holder of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d) above, and subject to
Section 5.10, the Rights Agent will thereupon promptly (i)(A) requisition from
the Company's transfer agent stock certificates evidencing such number of shares
or other securities to be purchased (the Company hereby irrevocably authorizing
its transfer agent to comply with all such requisitions) and (B) if the Company
elects pursuant to Section 5.5 hereof not to issue certificates representing
fractional shares, requisition from the depositary selected by the Company
depositary receipts representing the fractional shares to be purchased or
requisition from the Company the amount of cash to be paid in lieu of fractional
shares in accordance with Section 5.5 hereof and (ii) after receipt of such
certificates, depositary receipts and/or cash, deliver the same to or upon the
order of the registered holder of such Rights Certificate, registered (in the
case of certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns.
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(g) The Company covenants and agrees that it will (i) take all such
action as may be necessary to ensure that all shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such shares
(subject to payment of the Exercise Price), be duly and validly authorized,
executed, issued and delivered and fully paid and nonassessable; (ii) use its
best efforts to comply with the Securities Act of 1933, as amended, and the
Securities Exchange Act of 1934, as amended, and any other law, rule or
regulation applicable with respect to the Rights and the securities purchasable
upon exercise of the Rights; (iii) take such action as may be appropriate under
the blue sky laws of the various states, provided that the Company shall not be
obligated to take any such action with respect to any jurisdiction outside the
United States, or with respect to any United States jurisdiction the applicable
laws, rules or regulations of which, or the directives, comments, policies or
requirements of governmental authorities thereunder, the Company considers to be
materially adverse or unreasonably burdensome, including, without limitation,
those which would require or result in (A) any change in the corporate
structure, operations, financial reporting or method of accounting, contractual
arrangements or governing instruments of the Company or any of its affiliates or
(B) the Company or any of its affiliates filing any general consent to service
of process, qualifying to do business as a foreign corporation or becoming
subject to additional or increased taxation; and (iv) pay when due and payable
any and all federal and state transfer taxes and charges which may be payable in
respect of the original issuance or delivery of the Rights Certificates or of
any shares issued upon the exercise of Rights, provided that the Company shall
not be required to pay any transfer tax or charge which may be payable in
respect of any transfer involved in the transfer or delivery of Rights
Certificates or the issuance or delivery of certificates for shares in a name
other than that of the holder of the Rights being transferred or exercised. Any
other provision of this Agreement to the contrary notwithstanding, the Rights
shall not be
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exercisable, and the Company shall not be obligated to offer, sell, issue or
deliver any Preferred Stock or other securities pursuant to this Agreement, in
any jurisdiction except in compliance with the qualification, registration, or
other requirements of such jurisdiction applicable to the offer, sale, issuance,
or delivery of securities by the Company pursuant to this Agreement.
2.4 ADJUSTMENTS TO EXERCISE PRICE; NUMBER OF RIGHTS.
(a) In the event the Company shall at any time after the date of this
Agreement and prior to the Separation Time (i) declare or pay a dividend on
Common Stock payable in Common Stock, (ii) subdivide the outstanding Common
Stock or (iii) combine the outstanding Common Stock into a smaller number of
shares of Common Stock, (x) the Exercise Price in effect after such adjustment
will be equal to the Exercise Price in effect immediately prior to such
adjustment divided by the number of shares of Common Stock (the "Expansion
Factor") that a holder of one share of Common Stock immediately prior to such
dividend, subdivision or combination would hold thereafter as a result thereof
and (y) each Right held prior to such adjustment will become that number of
Rights equal to the Expansion Factor, and the adjusted number of Rights will be
deemed to be distributed among the shares of Common Stock with respect to which
the original Rights were associated (if they remain outstanding) and the shares
issued in respect of such dividend, subdivision or combination, so that each
such share of Common Stock will have exactly one Right associated with it. Each
adjustment made pursuant to this paragraph shall be made as of the payment or
effective date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the date of this
Agreement and prior to the earlier of the Separation Time and the Expiration
Time issue any shares of Common Stock otherwise than in a transaction referred
to in the preceding paragraph, each such share of Common Stock so
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<PAGE> 20
issued shall automatically have one new Right associated with it, which Right
shall be evidenced by the certificate representing such share. To the extent
provided in Section 5.3, Rights shall be issued by the Company in respect of
shares of Common Stock that are issued or sold by the Company after the
Separation Time and prior to the Expiration Time.
(b) In the event the Company shall at any time after the date of this
Agreement and prior to the Separation Time issue or distribute any securities or
assets in respect of, in lieu of or in exchange for Common Stock (other than
pursuant to a regular periodic cash dividend or a dividend paid solely in Common
Stock) whether by dividend, in a reclassification or recapitalization (including
any such transaction involving a merger, consolidation or binding share
exchange), or otherwise, the Company shall make such adjustments, if any, in the
Exercise Price, number of Rights and/or securities or other property purchasable
upon exercise of Rights as the Board of Directors of the Company, in its sole
discretion, may deem to be appropriate under the circumstances in order to
adequately protect the interests of the holders of Rights generally, and the
Company and the Rights Agent shall amend this Agreement as necessary to provide
for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this Section
2.4 shall be calculated to the nearest cent. Whenever an adjustment to the
Exercise Price is made pursuant to this Section 2.4, the Company (i) shall
promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (ii) shall promptly file
with the Rights Agent and with the transfer agent for the Common Stock a copy of
such certificate and (iii) may, if it so desires, mail a brief summary thereof
to each holder of Rights or make a disclosure with respect thereto in a report
of the Company filed under the Securities Exchange Act of 1934, as amended, or
in a press release of the Company.
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(d) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to express the securities so purchasable which
were expressed in the initial Rights Certificates issued hereunder.
2.5 DATE ON WHICH EXERCISE IS EFFECTIVE. Each person in whose name any
certificate for shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; PROVIDED, HOWEVER,
that if the date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open.
2.6 EXECUTION, AUTHENTICATION, DELIVERY AND DATING OF RIGHTS
CERTIFICATES.
(a) The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, President or one of its Vice Presidents, under its
corporate seal reproduced thereon, if any, attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such
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individuals or any of them have ceased to hold such offices prior to the
countersignature and delivery of such Rights Certificates.
Promptly after the Company learns of the Separation Time, the Company
shall notify the Rights Agent of such Separation Time and shall deliver Rights
Certificates executed by the Company to the Rights Agent for countersignature,
and, subject to Section 3.1(b), the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
until manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of countersignature
thereof.
2.7 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) After the Separation Time, the Company shall cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
and transfer of Rights. The Rights Agent is hereby appointed "Rights Registrar"
for the purpose of maintaining the Rights Register for the Company and
registering Rights and transfers of Rights after the Separation Time as herein
provided. In the event that the Rights Agent shall cease to be the Rights
Registrar, the Rights Agent shall have the right to examine the Rights Register
at all reasonable times after the Separation Time.
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights Certificate,
and subject to the provisions of Section 2.7(c) and (d) below, the Company shall
execute, and the Rights Agent shall countersign and deliver, in the name of the
holder or the designated transferee or transferees, as required pursuant to the
holder's
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instructions, one or more new Rights Certificates evidencing the same aggregate
number of Rights as did the Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b) hereof, all Rights
issued upon any registration of transfer or exchange of Rights Certificates
shall be the valid obligations of the Company, and such Rights shall be entitled
to the same benefits under this Agreement as the Rights surrendered upon such
registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the Rights Agent, as the case
may be, duly executed by the holder thereof or such holder's attorney duly
authorized in writing. As a condition to the issuance of any new Rights
Certificate under this Section 2.7, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
(d) The Company shall not be required to register the transfer or
exchange of any Rights after the Rights have been redeemed under Section 5.1
hereof, become void pursuant to Section 3.1(b) hereof or been exchanged under
Section 3.1(c) hereof.
2.8 MUTILATED, DESTROYED, LOST AND STOLEN RIGHTS CERTIFICATES.
(a) If any mutilated Rights Certificate is surrendered to the Rights
Agent prior to the Expiration Time, then, subject to Sections 3.1(b) and 5.1
hereof, the Company shall execute and the Rights Agent shall countersign and
deliver in exchange therefor a new Rights Certificate evidencing the same number
of Rights as did the Rights Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent
prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights
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Certificate and (ii) such security or indemnity as may be required by the Rights
Agent and the Company to save each of them and any of their agents harmless,
then, subject to Sections 3.1(b) and 5.1 hereof and in the absence of notice to
the Company or the Rights Agent that such Rights Certificate has been acquired
by a BONA FIDE purchaser, the Company shall execute and upon its request the
Rights Agent shall countersign and deliver, in lieu of any such destroyed, lost
or stolen Rights Certificate, a new Rights Certificate evidencing the same
number of Rights as did the Rights Certificate so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Rights
Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section 2.8 in
lieu of any destroyed, lost or stolen Rights Certificate shall evidence an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Rights Certificate shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Agreement equally and
proportionately with any and all other Rights duly issued hereunder.
2.9 PERSONS DEEMED OWNERS. Prior to due presentment of a Rights
Certificate (or, prior to the Separation Time, the associated Common Stock
certificate) for registration of transfer, the Company, the Rights Agent and any
agent of the Company or the Rights Agent may deem and treat the person in whose
name such Rights Certificate (or, prior to the Separation Time, such Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any
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notice to the contrary. As used in this Agreement, unless the context otherwise
requires, the term "holder" of any Rights shall mean the registered holder of
such Rights (or, prior to the Separation Time, the associated shares of Common
Stock).
2.10 DELIVERY AND CANCELLATION OF CERTIFICATES. All Rights Certificates
surrendered upon exercise or for redemption, registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall destroy all
cancelled Rights Certificates and deliver a certificate of destruction to the
Company.
2.11 AGREEMENT OF RIGHTS HOLDERS. Every holder of Rights by accepting
the same consents and agrees with the Company and the Rights Agent and with
every other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated share of
Common Stock;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Time, the associated Common Stock certificate) for registration of
transfer, the Company, the Rights Agent
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and any agent of the Company or the Rights Agent may deem and treat the person
in whose name the Rights Certificate (or, prior to the Separation Time, the
associated Common Stock certificate) is registered as the absolute owner thereof
and of the Rights evidenced thereby for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will under the
circumstances set forth in Section 3.1(b) become void; and
(e) this Agreement may be supplemented or amended from time to time
pursuant to Sections 2.4 or 5.4 hereof.
ARTICLE III
ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN TRANSACTIONS
3.1 FLIP-IN.
(a) In the event that prior to the Expiration Time a Flip-in Date shall
occur, except as provided below, each Right shall constitute the right to
purchase from the Company, upon exercise thereof in accordance with the terms
hereof (but subject to Section 5.10 hereof) and for an amount in cash equal to
the Exercise Price (as appropriately adjusted in order to protect the interests
of the holders of Rights generally in the event that on or after the Separation
Time an event of a type analogous to any of the events described in Section
2.4(a) or (b) shall have occurred with respect to the Common Stock or Preferred
Stock), that number of one one-hundredths of a share of Preferred Stock (or, at
the option of the Company upon approval by its Board of Directors, that number
of shares of Common Stock) as shall equal the result obtained by (x) multiplying
the Exercise Price by
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the number of one one-hundredths of a share of Preferred Stock for which a Right
is then exercisable pursuant to Section 2.3(a) of this Agreement (before
adjustment pursuant to this Section 3.1(a)) and (y) dividing that product by 50%
of the Market Price of one share of Common Stock on the Stock Acquisition Date.
(b) Notwithstanding the foregoing, any Rights that are or were
Beneficially Owned on or after the Stock Acquisition Date by an Acquiring Person
or an Affiliate or Associate thereof or by any transferee, direct or indirect,
of any of the foregoing shall become void and any holder of such Rights
(including transferees) shall thereafter have no right to exercise or transfer
such Rights under any provision of this Agreement. If any Rights Certificate is
presented for assignment or exercise and the Person presenting the same will not
complete the certification set forth at the end of the form of assignment or
notice of election to exercise and provide such additional evidence of the
identity of the Beneficial Owner and its Affiliates and Associates (or former
Beneficial Owners and their Affiliates and Associates) as the Company shall
reasonably request, then the Company shall be entitled conclusively to deem the
Beneficial Owner thereof to be an Acquiring Person or an Affiliate or Associate
thereof or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced thereby to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the date on which a Schedule 13D, or any
amendment thereto is filed with the Securities and Exchange Commission by an
Acquiring Person announcing that such Person has become the Beneficial Owner of
more than 50% of the outstanding shares of Common Stock, elect to exchange all
(but not less than all) the then outstanding Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 3.1(b)) for
shares of Common Stock or Preferred Stock at an exchange ratio of one share of
Common Stock (if Rights are to be exchanged
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for Common Stock) or one one-hundredth of a share of Preferred Stock (if Rights
are to be exchanged for Preferred Stock) per Right, appropriately adjusted in
order to protect the interests of holders of Rights generally in the event that
after the Separation Time an event of a type analogous to any of the events
described in Section 2.4(a) or (b) shall have occurred with respect to the
Common Stock or Preferred Stock (such exchange ratio, as adjusted from time to
time, being hereinafter referred to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right (other
than Rights that have become void pursuant to Section 3.1 (b)) will thereafter
represent only the right to receive a number of shares of Common Stock or
Preferred Stock equal to the Exchange Ratio. Promptly after the action of the
Board of Directors electing to exchange the Rights, the Company shall give
notice thereof (specifying the steps to be taken to receive shares of Common
Stock or Preferred Stock in exchange for Rights) to the Rights Agent and the
holders of the Rights (other than Rights that have become void pursuant to
Section 3.1(b)) outstanding immediately prior thereto by mailing such notice in
accordance with Section 5.9.
Each Person in whose name any certificate for shares is issued upon the
exchange of Rights pursuant to this Section 3.1(c) shall for all purposes be
deemed to have become the holder of record of the shares represented thereby on,
and such certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of any applicable taxes
and other governmental charges payable by the holder was made; PROVIDED,
HOWEVER, that if the date of such surrender and payment is a date upon which the
stock transfer books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares on, and such
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certificate shall be dated, the next succeeding Business Day on which the stock
transfer books of the Company are open.
(d) In the event that there shall not be available and unreserved for
other purposes sufficient treasury shares or authorized but unissued shares of
Preferred Stock or Common Stock of the Company to permit the exercise or
exchange in full of the Rights in accordance with Sections 2.3(a), 3.1(a) or
3.1(c), the Company shall take such action as shall be necessary to ensure and
provide, to the extent permitted by applicable law and any agreements or
instruments in effect on the Stock Acquisition Date to which it is a party, that
each Right (which shall not include Rights that have become void pursuant to the
provisions of Section 3.1(b)) shall thereafter constitute the right to receive,
(x) at the Company's option, either (A) in return for the Exercise Price, debt
or equity securities or other assets (or a combination thereof) having a fair
value equal to twice the Exercise Price, or (B) without payment of consideration
(except as otherwise required by applicable law), debt or equity securities or
other assets (or a combination thereof) having a fair value equal to the
Exercise Price, or (y) if the Board of Directors of the Company elects to
exchange the Rights in accordance with Section 3.1(c), debt or equity securities
or other assets (or a combination thereof) having a fair value equal to the
product of the Market Price of a share of Common Stock on the Flip- in Date
times the Exchange Ratio in effect on the Flip-in Date. In any applicable case
set forth in (x) or (y) above the fair value of such debt or equity securities
or other assets shall be as determined in good faith by the Board of Directors
of the Company, after consultation with its investment banking firm.
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3.2 FLIP-OVER.
(a) Prior to the Expiration Time, the Company shall not enter into any
agreement with an Acquiring Person (or any of its Affiliates or Associates) with
respect to, consummate or permit to occur any Flip-over Transaction or Event
unless and until it shall have entered into a supplemental agreement with the
Person engaging in such Flip-over Transaction or Event (the "Flip-over Entity"),
for the benefit of the holders of the Rights, providing that, upon consummation
or occurrence of the Flip-over Transaction or Event (i) each Right shall
thereafter constitute the right to purchase from the Flip-over Entity, upon
exercise thereof in accordance with the terms hereof, that number of shares of
Flip-over Stock of the Flip-over Entity having an aggregate Market Price on the
date of consummation or occurrence of such Flip-over Transaction or Event equal
to twice the Exercise Price for an amount in cash equal to the Exercise Price
(such right to be appropriately adjusted in order to protect the interests of
the holders of Rights generally in the event that after such date of
consummation or occurrence an event of a type analogous to any of the events
described in Section 2.4(a) or (b) shall have occurred with respect to the
Flip-over Stock) and (ii) the Flip-over Entity shall thereafter be liable for,
and shall assume, by virtue of such Flip-over Transaction or Event and such
supplemental agreement, all the obligations and duties of the Company pursuant
to this Agreement. The provisions of this Section 3.2 shall apply to successive
Flip-over Transactions or Events.
(b) Prior to the Expiration Time, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall not
enter into any agreement with respect to, consummate or permit to occur any
Flip-over Transaction or Event if at the time thereof there are any rights,
warrants or securities outstanding or any other arrangements, agreements or
instruments
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which would eliminate or otherwise diminish in any respect the benefits intended
to be afforded by this Rights Agreement to the holders of Rights upon
consummation of such transaction.
ARTICLE IV
THE RIGHTS AGENT
4.1 GENERAL.
(a) The Company hereby appoints the Rights Agent to act as agent for
the Company and the holders of the Rights (who, in accordance with Section
2.3(b) hereof, shall, prior to the Separation Time, also be the holders of the
shares of 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, upon
ten (10) days' prior written notice to the Rights Agent. The Rights Agent shall
have no duty to supervise, and shall in no event be liable for, the acts or
omissions of any such co-Rights Agent. 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, including counsel
fees, incurred without gross negligence, bad faith or willful misconduct on the
part of the Rights Agent, for action taken or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability. Anything in
this Agreement to the contrary notwithstanding, in no event shall the Rights
Agent be liable for special, indirect or consequential loss or damage of any
kind whatsoever,
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including but not limited to lost profits, even if the Rights Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
the action.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken or omitted by it in connection with its
administration of this Agreement in reliance upon any certificate for securities
purchasable upon exercise of Rights, Rights Certificate, certificate for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, certificate, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
4.2 MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent is a party, or any corporation succeeding to the
shareholder services business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 4.4 hereof. In case
at the time such successor Rights Agent succeeds to the agency created by this
Agreement any of the Rights Certificates have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates have not been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either
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in the name of the predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
4.3 DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or omitting any action hereunder,
such fact or matter (unless other evidence in respect thereof is herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by a person believed by the Rights Agent to be the
Chairman of the Board,
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the President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate will be full authorization
to the Rights Agent for any action taken or omitted in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the Rights
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and 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 authorization, execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any certificate for securities
purchasable upon exercise of Rights or Rights Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Rights Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant to
Section 3.1(b) hereof) or any adjustment required under the provisions of
Section 2.4, 3.1, 3.2 or 5.1(c) hereof or responsible for the manner, method or
amount of any such adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the exercise of Rights
after receipt of the certificate contemplated by Section 2.4 describing any such
adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the
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authorization or reservation of any securities purchasable upon exercise of
Rights or any Rights or as to whether any securities purchasable upon exercise
of Rights will, when issued, be duly and validly authorized, executed, issued
and delivered and fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President or any Vice President or the Secretary or
any Assistant Secretary or the Treasurer or any Assistant Treasurer of the
Company, and to apply to such persons for advice or instructions in connection
with its duties, and it shall not be responsible for any action taken or omitted
by it in good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any affiliate, stockholder, director, officer
or employee of the Rights Agent or any such affiliate, stockholder, director,
officer or employee may buy, sell or deal in Common Stock, Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as through the Rights Agent were
not Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent or any affiliate, stockholder, director, officer or employee thereof from
acting in any other capacity for the Company or for any other person.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty or obligation hereunder either
itself or by or through its attorneys or agents,
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and the Rights Agent shall not be responsible for any action taken or omitted in
good faith and without negligence or misconduct by any such attorneys or agents
or for any loss to the Company resulting from any such action, except for the
Rights Agent's gross negligence, bad faith or willful misconduct in the
selection and continued employment of such attorneys or agents.
4.4 CHANGE OF RIGHTS AGENT. The Rights Agent may resign and be
discharged from its duties under this Agreement upon 60 days' notice (or such
lesser notice as is acceptable to the Company) in writing mailed to the Company
and to the transfer agent of Common Stock by registered or certified mail, in
accordance with Section 5.9. The Company may remove the Rights Agent upon 30
days' notice in writing, mailed to the Rights Agent and to the transfer agent of
the Common Stock by registered or certified mail, in accordance with Section
5.9. If the Rights Agent should resign or be removed or otherwise become
incapable of acting, the Company will appoint a successor to the Rights Agent.
If the Company fails to make such appointment within a period of 30 days after
such removal or after it has been notified in writing of such resignation or
incapacity by the resigning Rights Agent it will as soon as practicable
following the end of such 30 day period either mail a written notice of such
failure to the holders of the Rights or make a disclosure with respect to such
failure in a report of the Company filed under the Securities Exchange Act of
1934, as amended, or in a Company press release. Following the Company's
providing notice or making disclosure described in the preceding sentence, the
holder of any Rights may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be (a) a corporation organized and
doing business under the laws of the United States or of any state of the United
States, in good standing, which is authorized under such laws to exercise the
powers of the Rights Agent
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contemplated by this Agreement and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50,000,000 or (b) an
Affiliate of a corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and the transfer agent of the Common Stock, and either
(i) mail a notice thereof in writing to the holders of the Rights or (ii) make a
disclosure with respect thereto in a report of the Company filed under the
Securities Exchange Act of 1934, as amended, in a press release of the Company
or in any proxy statement or other communication of the Company with its
stockholders. Failure to give any notice provided for in this Section 4.4,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
ARTICLE V
MISCELLANEOUS
5.1 REDEMPTION.
(a) The Board of Directors of the Company may, at its option, at any
time prior to the close of business on the Flip-in Date, elect to redeem all
(but not less than all) the then outstanding Rights at the Redemption Price. The
Company may, at its option, pay the Redemption Price in cash,
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securities of the Company or any other form of consideration deemed appropriate
by the Board of Directors of the Company.
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights (or, if the resolution of the Board of
Directors electing to redeem the Rights states that the redemption will not be
effective until the occurrence of a specified future time or event, upon the
occurrence of such future time or event), without any further action and without
any notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive the Redemption Price. Promptly
after the above action to redeem the Rights, the Company shall give notice of
such redemption to the holders of the then outstanding Rights by mailing such
notice in accordance with Section 5.9.
(c) If the Company shall at any time after the date of this Agreement
(i) pay any dividend on Common Stock in shares of Common Stock, (ii) subdivide
or split the outstanding shares of Common Stock into a greater number of shares
or (iii) combine or consolidate the outstanding shares of Common Stock into a
smaller number of shares or effect a reverse split of the outstanding shares of
Common Stock, then and in each such event the Redemption Price shall be adjusted
so that the Redemption Price after such event shall equal the Redemption Price
immediately prior to such event multiplied by a fraction, the denominator of
which is the number of shares of Common Stock outstanding immediately after such
event and the numerator of which is the number of shares of Common Stock
outstanding immediately prior to such event.
5.2 EXPIRATION. No Person shall have any rights pursuant to this
Agreement or any Right after the Expiration Time, except, if the Rights are
exchanged or redeemed, as provided in Section 3.1(c), 3.1(d) or 5.1 hereof.
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5.3 ISSUANCE OF NEW RIGHTS CERTIFICATES. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kinds or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock by the Company
following the Separation Time and prior to the Expiration Time pursuant to
conversion or redemption rights or to options issued or granted prior to and
outstanding at the Separation Time, the Company (a) shall, with respect to
shares of Common Stock so issued or sold pursuant to the Company's stock option
or other employee benefit plans or arrangements, or upon conversion of the
Company's convertible securities, if any, issued prior to and outstanding at the
Separation Time, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue to the holders of
such shares of Common Stock, Rights Certificates representing the appropriate
number of Rights in connection with the issuance or sale of such shares of
Common Stock; PROVIDED, HOWEVER, in each case, (i) no such Rights Certificate
shall be issued, if, and to the extent that, the Company shall be advised by
counsel that such issuance would create a significant risk of material adverse
tax consequences to the Company or to the Person to whom such Rights
Certificates would be issued, (ii) no such Rights Certificates shall be issued
if, and to the extent that, appropriate adjustment shall have otherwise been
made in lieu of the issuance thereof, and (iii) the Company shall have no
obligation to distribute Rights Certificates to any Acquiring Person or
Affiliate or Associate of an Acquiring Person or any transferee of any of the
foregoing.
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5.4 SUPPLEMENTS AND AMENDMENTS. The Company from time to time may, in
its sole and absolute discretion, and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Rights (i) in any respect prior to the close of business on the Flip-in Date,
(ii) after the close of business on the Flip-in Date, to make any changes that
two-thirds of the members of the Board of Directors of the Company may deem
necessary or desirable and which shall not materially adversely affect the
interests of the holders of Rights as such (other than an Acquiring Person or
any Affiliate or Associate of an Acquiring Person), or (iii) after the close of
business on the Flip-in Date, in order to cure any ambiguity or to correct or
supplement any provision contained herein which may be inconsistent with any
other provisions herein or otherwise defective. Upon delivery to the Rights
Agent of a certificate from an appropriate officer of the Company which states
that a proposed supplement or amendment is in compliance with the terms of this
Section 5.4, the Rights Agent shall duly execute and deliver such supplement or
amendment.
5.5 FRACTIONAL SHARES. If the Company elects not to issue certificates
representing fractional shares upon exercise of Rights, the Company shall, in
lieu thereof, (a) evidence such fractional shares by depositary receipts issued
pursuant to an appropriate agreement between the Company and a depositary
selected by it, providing that each holder of a depositary receipt shall have
all of the rights, privileges and preferences to which such holder would be
entitled as a beneficial owner of such fractional share, or (b) pay to the
registered holder of such Rights the same fraction of the Market Price
(determined as of the date of exercise) of one share of the stock issuable upon
such exercise on the day of exercise.
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5.6 RIGHTS OF ACTION. Subject to the terms of this Agreement, including
without limitation the provisions of Section 5.18, rights of action in respect
of this Agreement, other than rights of action vested solely in the Rights
Agent, are vested in the respective holders of the Rights; and any holder of any
Rights, without the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such holder's own benefit and
the benefit of other holders of Rights, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise act
in respect of, such holder's right to exercise such holder's Rights in the
manner provided in such holder's Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive relief
against actual or threatened violations of, the obligations of any Person
subject to this Agreement.
5.7 HOLDER OF RIGHTS NOT DEEMED A STOCKHOLDER. No holder, as such, of
any Rights shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of shares or any other securities which may at any time be
issuable on the exercise of such Rights, nor shall anything contained herein or
in any Rights Certificate be construed to confer upon the holder of any Rights,
as such, any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any corporate action, or
to receive notice of meetings or other actions affecting stockholders (except as
provided in Section 5.8 hereof), or to receive dividends or subscription
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rights, or otherwise, until such Rights shall have been exercised or exchanged
in accordance with the provisions hereof.
5.8 NOTICE OF PROPOSED ACTIONS. In case the Company shall propose after
the Separation Time and prior to the Expiration Time (i) to pay any dividend
payable in stock of any class to the holders of Preferred Stock or to make any
other distribution to the holders of Preferred Stock (other than a regular
quarterly cash dividend), (ii) to offer to the holders of Preferred Stock rights
or warrants to subscribe for or to purchase any additional shares of Preferred
Stock or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of the Preferred Stock (other than
a reclassification involving only the subdivision of outstanding shares of
Preferred Stock), (iv) to pay any dividend on the Common Stock payable in Common
Stock or to effect a subdivision, combination or consolidation of the Common
Stock (by reclassification or otherwise than by payment of dividends in Common
Stock), (v) to effect or permit (in cases where the Company's permission is
required) occurrence of any Flip-over Transaction or Event or (vi) to effect the
liquidation, dissolution or winding up of the Company, then, in each such case,
the Company shall give to each holder of a Right, in accordance with Section 5.9
hereof, a notice of such proposed action, which shall specify the record date
for purposes of any such stock dividend or distribution of rights or warrants,
or the date on which such reclassification, Flip-over Transaction or Event,
liquidation, dissolution, or winding up is to take place, and such notice shall
be so given, in the case of any action covered by clause (i) or (ii) or (iv)
above, at least 10 days prior to the record date for determining the holders of
shares of Preferred Stock or Common Stock for purposes of such action, and in
the case of any other action, at least 10 days prior to the date of the taking
of such
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proposed action. Such notice shall also advise Rights holders of any adjustment
to the Exercise Price that will be made pursuant to this Agreement by reason of
such proposed action.
5.9 NOTICES. Notices or demands authorized or required by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
to or on the Company shall be sufficiently given or made if delivered or sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Charter One Financial, Inc.
1215 Superior Avenue
Cleveland, Ohio 44114
Attention: Robert J. Vana
Corporate Counsel
and Secretary
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is field in writing with the
Company) as follows:
BankBoston, N.A.
c/o EquiServe Limited Partnership
150 Royall Street
Canton, Massachusetts 02021
Attention: Client Administration
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Time, on
the
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registry books of the transfer agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice.
5.10 SUSPENSION OF EXERCISABILITY. To the extent that the Company
determines in good faith that some action will or need be taken pursuant to
Section 3.1(c) or to comply with federal or state securities laws, the Company
may suspend the exercisability of the Rights for a period of up to 90 days
following the Separation Time or the Flip-in Date in order to take such action
or comply with such laws. In the event of any such suspension, the Company shall
issue as promptly as practicable a public announcement stating that the
exercisability of the Rights has been temporarily suspended.
5.11 COSTS OF ENFORCEMENT. The Company agrees that if the Company or
any other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 SUCCESSORS. All the covenants and provisions of this Agreement by
or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
5.13 BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or
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equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
holders of the Rights.
5.14 DESCRIPTIVE HEADINGS. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.15 GOVERNING LAW. Except to the extent governed by Federal law, this
Agreement and each Right issued hereunder shall be deemed to be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflict of laws of such state.
5.16 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
5.17 SEVERABILITY. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
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5.18 DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. The Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise the rights and powers specifically
granted to the Board of Directors of the Company or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation, a determination
to redeem or not redeem the Rights or to amend this Agreement). All such
actions, interpretations and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) that are done or made by
the Board of Directors of the Company in good faith, shall (x) be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights, as such, and all other parties, and (y) not subject the Board of
Directors to any liability to the holders of the Rights, the Rights Agent, the
Company or any other parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Charter One Financial, Inc.
By: /s/ Charles John Koch
------------------------------------
Name: Charles John Koch
Title: Chairman, President and Chief
Executive Officer
BankBoston, N.A.
By: /s/ Joshua P. McGinn
------------------------------------
Name: Joshua P. McGinn
Title: Senior Account Manager
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EXHIBIT A
---------
AMENDED
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF
SERIES A PARTICIPATING PREFERRED STOCK
OF
CHARTER ONE FINANCIAL, INC.
PURSUANT TO SECTION 151 OF THE GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
We, Charles John Koch, Chairman, President and Chief Executive Officer,
and Robert J. Vana, Chief Corporate Counsel and Secretary, of Charter One
Financial, Inc., a corporation organized and existing under the Delaware General
Corporation Law (the "Corporation"), in accordance with the provisions of
Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors of
the Corporation in accordance with the Corporation's Certificate of
Incorporation, as amended to date (the "Certificate of Incorporation"), the
Board of Directors on November 20, 1989 adopted a resolution creating a series
of shares of preferred stock, par value $0.01 per share, designated as the
Series A Participating Preferred Stock (no shares of which have been issued as
of October 20, 1999); that the Corporation filed such designation with the
Secretary of State of the State of Delaware on February 7, 1990; and that the
Board of Directors on October 20, 1999 adopted the following resolutions to
amend and restate the terms of such Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Corporation in accordance with the provisions of the
Certificate of Incorporation and the Delaware General Corporation Law, the
Series A Participating Preferred Stock heretofore created be, and that the
designation and amount thereof and the powers, preferences and relative,
participating, optional and other special rights of the shares of such series,
and the qualifications, limitations or restrictions thereof hereby are amended
and restated as follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
designated as "Series A Participating Preferred Stock," which shall have par
value $0.01 per share, and the number of shares constituting such series shall
be 3,400,000. Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, that no decrease shall reduce the number of
shares of Series A Participating Preferred Stock to a number less than the
number of shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation convertible into Series A
Participating Preferred Stock.
-1-
<PAGE> 49
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of preferred stock ranking prior and superior to the shares
of Series A Participating Preferred Stock with respect to dividends, the holders
of shares of Series A Participating Preferred Stock in preference to the holders
of shares of Common Stock, par value $0.01 per share (the "Common Stock"), of
the Corporation and any other junior stock, shall be entitled to receive, when,
as and if declared by the Board of Directors out of funds legally available for
the purpose, quarterly dividends payable in cash on the first business day of
January, April, July and October in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Participating Preferred Stock in an amount per share
(rounded to the nearest cent) equal to the greater of (a) $1.00, or (b) subject
to the provision for adjustment hereinafter set forth, 100 times the aggregate
per share amount of all cash dividends, and 100 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock (by reclassification or
otherwise), declared on the Common Stock, since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Participating Preferred Stock. In the event the Corporation
shall at any time after October 20, 1999 (i) declare any dividend on the Common
Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a smaller number of
shares, then in each such case the amount to which holders of shares of Series A
Participating Preferred Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by multiplying such
amount by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) The Corporation shall declare a dividend or distribution on the
Series A Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1.00 per share on the
Series A Participating Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series A Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares of Series A
Participating Preferred Stock unless the date of issue of such shares is prior
to the record date for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend Payment Date or is a
date after the record date for the determination of holders of shares of Series
A Participating Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date.
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<PAGE> 50
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series A Participating Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such shares at
the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Participating Preferred Stock
entitled to receive payment of a dividend or distribution declared thereon,
which record date shall be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. VOTING RIGHTS. The holders of shares of Series A
Participating Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth, each
share of Series A Participating Preferred Stock shall entitle the holder thereof
to 100 votes on all matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time after October 20,
1999 declare or pay any dividend on the Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share
to which holders of shares of Series A Participating Preferred Stock were
entitled immediately prior to such event shall be adjusted by multiplying such
number by a fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding immediately prior to
such event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series A Participating Preferred Stock and the holders of shares of
Common Stock shall vote together as one class on all matters submitted to a vote
of shareholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Participating Preferred
Stock;
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<PAGE> 51
(ii) declare or pay dividends on or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock, except dividends paid ratably on the Series A
Participating Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts
to which the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Participating
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Participating Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Participating Preferred Stock or any shares of stock ranking
on a parity with the Series A Participating Preferred Stock (either as
to dividends or upon liquidation, dissolution or winding up) except in
accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of Series A Participating
Preferred Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of preferred stock and may be reissued as part of a new series
of preferred stock to be created by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. (A) Upon any
liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Participating Preferred Stock unless, prior thereto,
the holders of shares of Series A Participating Preferred Stock shall have
received $1.00 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such payment
(the "Series A Liquidation Preference"). Following the payment of the full
amount of the Series A Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series A Participating Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have received
an amount per share (the "Common Adjustment") equal to the
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<PAGE> 52
quotient obtained by dividing (i) the Series A Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph C below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series A
Participating Preferred Stock and Common Stock, respectively, holders of Series
A Participating Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis, respectively.
(B) In the event there are not sufficient assets available to permit
payment in full of the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if any, which rank on a
parity with the Series A Participating Preferred Stock then such remaining
assets shall be distributed ratably to the holders of such parity shares in
proportion to their respective liquidation preferences. In the event there are
not sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Corporation shall at any time after October 20,
1999 (i) declare any dividend on Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series A Participating Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 100 times the aggregate amount of
stock, securities, cash and/or any other property (payable in kind), as the case
may be, into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time after October 20, 1999
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series A Participating Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately prior to
such event.
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<PAGE> 53
Section 8. REDEMPTION. The shares of Series A Participating Preferred
Stock shall not be redeemable. The preceding sentence shall not limit the
ability of the Corporation to purchase or otherwise deal in such shares of stock
to the extent permitted by law.
Section 9. RANKING. The Series A Participating Preferred Stock shall
rank junior to all other series of the Corporation's preferred stock as to the
payment of dividends and the distribution of assets upon liquidation,
dissolution or winding up of the Corporation, unless the terms of any such
series shall provide otherwise.
Section 10. AMENDMENT. The Certificate of Incorporation shall not be
further amended in any manner which would materially alter or change the powers,
preferences or special rights of the Series A Participating Preferred Stock so
as to affect them adversely without the affirmative vote of the holders of a
majority or more of the outstanding shares of Series A Participating Preferred
Stock voting separately as a class.
Section 11. FRACTIONAL SHARES. Series A Participating Preferred Stock
may be issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit of all
other rights of holders of Series A Participating Preferred Stock.
RESOLVED FURTHER, that the proper officers of the Corporation be, and
each of them hereby is, authorized to execute an Amended Certificate of
Designation, Preferences and Rights with respect to the Series A Participating
Preferred Stock pursuant to Section 151 of the Delaware General Corporation Law
and to take all appropriate action to cause such Certificate to become
effective, including, but not limited to, the filing and recording of such
Certificate with and/or by the Secretary of State of the State of Delaware.
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<PAGE> 54
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this ___ day
of ___________, 1999.
------------------------------
Charles John Koch
Chairman, President and Chief
Executive Officer
Attest:
- --------------------------------
Robert J. Vana
Chief Corporate Counsel and
Secretary
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<PAGE> 55
EXHIBIT B
---------
[Form of Rights Certificate]
Certificate No. - ___________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MAN DATORY EXCHANGE,
AT THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE
FOREGOING WILL BE VOID.
Rights Certificate
CHARTER ONE FINANCIAL, INC.
This certifies that , or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Amended and Restated Stockholder Protection Rights Agreement,
dated as of October 20, 1999 (as such Agreement may be amended from time to
time, the "Rights Agreement"), between Charter One Financial, Inc. (the
"Company"), and BankBoston, N.A., as Rights Agent (the "Rights Agent," which
term shall include any successor Rights Agent under the Rights Agreement), to
purchase from the Company at any time after the Separation Time and prior to the
Expiration Time (as such terms are defined in the Rights Agreement), one
one-hundredth of a share of the Series A Participating Preferred Stock, par
value $.01 per share (the "Preferred Stock"), of the Company (subject to
adjustment as provided in the Rights Agreement) at the Exercise Price referred
to below, upon presentation and surrender
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<PAGE> 56
of this Rights Certificate with the Form of Election to Exercise duly executed
at the principal office of the Rights Agent. The Exercise Price initially shall
be $100.00 per Right and shall be subject to adjustment in certain events as
provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement,
the Rights evidenced hereby may entitle the registered holder thereof to
purchase securities of an entity other than the Company or securities or assets
of the Company other than Preferred Stock, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder
of the Rights Agent, the Company and the holders of the Rights Certificates.
Copies of the Rights Agreement are on file at the principal office of the
Company and are available without cost upon written request.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent designated for
such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor evidencing an aggregate number of Rights equal to the
aggregate number of Rights evidenced by the Rights Certificate or Rights
Certificates surrendered. If this Rights Certificate shall be exercised in part,
the registered holder
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<PAGE> 57
shall be entitled to receive, upon surrender hereof, another Rights Certificate
or Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, each Right
evidenced by this Certificate may be (a) redeemed by the Company under certain
circumstances, at its option, at a redemption price of $0.01 per Right or (b)
exchanged by the Company under certain circumstances, at its option, for one
share of Common Stock or one one-hundredth of a share of Preferred Stock per
Right (or, in certain cases, other securities or assets of the Company), subject
in each case to adjustment in certain events as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any purpose the holder of
any securities which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to the stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Rights evidenced by this Rights Certificate shall have been exercised or
exchanged as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights Agent.
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<PAGE> 58
WITNESS the facsimile signature of the proper officers of the
Company.
Date:
------------------------------
ATTEST: CHARTER ONE FINANCIAL, INC.
By:
- ----------------------------------- -------------------------------------
Secretary Its:
Countersigned:
BANKBOSTON, N.A.
By:
--------------------------------
Its:
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<PAGE> 59
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer this Rights Certificate.)
FOR VALUE RECEIVED ______________ hereby sells, assigns and transfers
unto _________
- ---------------------------------------------------------
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Rights Certificate on the books of the within-named Company, with full
power of substitution.
Dated: __________________,___
Signature Guaranteed:
-----------------------------------
Signature
(Signature must correspond to name
as written upon the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever)
Signatures must be medallion guaranteed by a member firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank, thrift institution or trust
company having an office or correspondent in the United States.
- --------------------------------------------------------------------------------
(To be completed if true)
<PAGE> 60
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of Common Stock of the Company, that the Rights evidenced by
this Rights Certificate are not, and, to the knowledge of the undersigned, have
never been, Beneficially Owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
---------------------
Signature
- --------------------------------------------------------------------------------
NOTICE
------
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
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<PAGE> 61
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
----------------------------
(To be executed if holder desires to
exercise the Rights)
TO: CHARTER ONE FINANCIAL, INC.
The undersigned hereby irrevocably elects to exercise _______________
whole Rights represented by the attached Rights Certificate to purchase the
securities issuable upon the exercise of such Rights and requests that
certificates for such securities be issued in the name of:
Name: __________________________________________
Address: _______________________________________
Social Security or Other Taxpayer
IDENTIFICATION NUMBER:
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Name: __________________________________________
Address: _______________________________________
Social Security or Other Taxpayer
IDENTIFICATION NUMBER:
Date: _________________,_______
Signature Guaranteed:
-----------------------------------
Signature
(Signature must correspond to name
as written upon the face of this
Rights Certificate in every
particular, without alteration or
enlargement or any change
whatsoever)
<PAGE> 62
Signatures must be medallion guaranteed by a member firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank, thrift institution or trust
company having an office or correspondent in the United States.
- --------------------------------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of
Rights and shares of capital stock of the Company, that the Rights evidenced by
the enclosed Rights Certificate are not, and, to the knowledge of the
undersigned, have never been, Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
----------------------
Signature
- --------------------------------------------------------------------------------
NOTICE
------
In the event the certification set forth above is not completed in
connection with a purported exercise, the Company will deem the Beneficial Owner
of the Rights evidenced by the enclosed Rights Certificate to be an Acquiring
Person or an Affiliate or Associate thereof (as defined in the Rights Agreement)
or a transferee of any of the foregoing and accordingly will deem the Rights
evidenced by such Rights Certificate to be void and not transferable or
exercisable.
-2-
