SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported)
August 6, 1998
STRUCTURAL DYNAMICS RESEARCH CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 0-16230 31-0733928
(State of incorporation (I.R.S. Employer
or organization) (Commission File No.) Identification No.)
200 Eastman Drive, Milford, Ohio 45150
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (513) 576-2400
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
On August 6, 1998, the Directors of Structural Dynamics
Research Corporation (the "Company") declared a dividend
distribution of one Right (a "Right") for each outstanding share of
the Company's Class A Common Stock, no par value per share,
(collectively, the "Common Shares"). The Rights will issue at the
close of business on August 10, 1998 (the "Record Date") to the
shareholders of record on that date. The terms of the Rights are
set forth in a Rights Agreement, dated August 10, 1998, (the "Rights
Agreement") between the Company and Harris Trust and Savings Bank,
an Illinois banking association (the "Rights Agent").
Each Right entitles the registered holder to purchase from the
Company one Common Share at a price of $110.00 per share (the
"Purchase Price"), subject to adjustment as described in the Rights
Agreement. The Rights will expire on August 10, 2008, unless
earlier redeemed by the Company as described below.
Until the Distribution Date (as described below), the Rights
will be evidenced by the Common Share certificates. The Rights
Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the Common Shares. Until the
Distribution Date (or early redemption or expiration of the Rights),
(i) newly-issued certificates for the Common Shares issued upon
transfer or new issuance of Common Shares will contain the notation
incorporating the Rights Agreement by reference, and (ii) the
surrender for transfer of any certificates for Common Shares will
also constitute the transfer of the Rights associated with the
Common Shares represented by such certificate.
The Rights are not exercisable until the earlier to occur of:
(i) ten days following a public announcement by the Company that a
person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding Common Shares, or (ii)
ten business days following the commencement of a tender offer or
exchange offer for 20% or more of such outstanding Common Shares.
(The earlier of such dates, unless extended by the Directors, shall
hereinafter be referred to as the "Distribution Date.")
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights (the "Rights
Certificates") will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and such
separate Rights Certificates will thereafter evidence the Rights,
which may then be traded apart from the Common Shares.
The Purchase Price payable upon exercise of the Rights, and the
number of Common Shares or other securities or property issuable
upon exercise, are subject to adjustment from time to time to
prevent dilution upon (i) a stock dividend on, or a subdivision,
combination or reclassification of, the Common Shares, (ii) the
grant to holders of the Common Shares of certain rights, options, or
warrants to subscribe for Common Shares or convertible securities at
less than the current market price of the Common Shares, or (iii)
upon the distribution to holders of the Common Shares of evidences
of indebtedness or assets (excluding regular dividends) or of
subscription rights or warrants (other than those referred to
above). With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price.
In the event that (i) the Company is the surviving corporation
in a merger with an Acquiring Person and the Company's Common Shares
are not changed or exchanged, (ii) a Person becomes the beneficial
owner of more than 20% of the outstanding Common Shares, (iii) an
acquiring person engages in one or more self-dealing transactions
specified in the Rights Agreement, or (iv) during such time as there
is an Acquiring Person, an event occurs that results in such
Acquiring Person's ownership interest being increased by more than
one percent, a "Flip-In Event" will have occurred, and each holder
of a Right, upon exercise thereof at the Exercise Price, that number
of Common Shares having a market value of two times the Exercise
Price of the Right.
In the event that: (i) the Company is acquired in a merger or
other business transaction in which the Company is not the surviving
corporation, or (ii) 50% or more of the Company's assets or earning
power is sold or transferred, a "Flip-Over Event" shall have
occurred and each holder of a Right shall, upon the exercise thereof
at the Exercise Price, have the right to receive that number of
shares of Common Stock of the acquiring company having a value equal
to two times the Exercise Price. (Flip-In Events and Flip-Over
Events are referred to collectively as "Triggering Events.")
Rights that are or (under certain circumstances specified in
the Rights Agreement) were beneficially owned by an Acquiring Person
shall not be exercisable following the occurrence of a Triggering
Event.
No fractional shares will be issued and in lieu thereof,
adjustment in cash will be made based upon the market price of the
Common Shares on the last trading day prior to the date of exercise.
Prior to August 10, 2008, at any time prior to the later of (i)
the Distribution Date or (ii) the date of the first Triggering
Event, the Directors may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the "Redemption Price").
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only
right of the holders of the Rights will be to receive the Redemption
Price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
The Rights Agreement may be amended by the Company and the
Rights Agent without the approval of any holders of the Rights at
any time and from time to time.
This Summary Description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by this reference.
Item 7. Financial Statements and Exhibits
(a) Exhibits
4.1 Rights Agreement dated as of August 10, 1998, between
Structural Dynamics Research Corporation and Harris Trust and
Savings Bank, an Illinois banking corporation, as Rights Agent.
99.1 Press release, dated August 6, 1998.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Report to be signed on its
behalf by the undersigned thereunto duly authorized.
STRUCTURAL DYNAMICS RESEARCH CORP.
Date: August 6, 1998 By:/s/John A. Mongelluzzo
John A. Mongelluzzo
Vice President, Secretary and
General Counsel
<PAGE>
EXHIBIT 4.1
STRUCTURAL DYNAMICS
RESEARCH CORPORATION
AND
HARRIS TRUST AND SAVINGS BANK
RIGHTS AGENT
RIGHTS AGREEMENT
Dated as of August 10, 1998
<PAGE>
TABLE OF CONTENTS
ARTICLE 1CERTAIN DEFINITIONS 5
ARTICLE 2APPOINTMENT OF RIGHTS AGENT 7
ARTICLE 3 ISSUE OF RIGHTS CERTIFICATES 8
ARTICLE 4FORM OF RIGHTS CERTIFICATES 9
ARTICLE 5 COUNTERSIGNATURE AND REGISTRATION 10
ARTICLE 6 TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHTS CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHTS CERTIFICATES 11
ARTICLE 7EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE 12
ARTICLE 8CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES 14
ARTICLE 9RESERVATION AND AVAILABILITY OF CAPITAL STOCK 14
ARTICLE 10CAPITAL STOCK RECORD DATE 15
ARTICLE 11ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF SHARES OR NUMBER OF
RIGHTS 16
ARTICLE 12CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER
OF SHARES 24
ARTICLE 13CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
POWER 25
ARTICLE 14FRACTIONAL RIGHTS AND FRACTIONAL SHARES 27
ARTICLE 15RIGHTS OF ACTION 28
ARTICLE 16AGREEMENT OF RIGHTS HOLDERS 28
ARTICLE 17RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER 29
ARTICLE 18 CONCERNING THE RIGHTS AGENT 29
ARTICLE 19MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT 30
ARTICLE 20DUTIES OF RIGHTS AGENT 30
ARTICLE 21CHANGE OF RIGHTS AGENT 32
ARTICLE 22. ISSUANCE OF NEW RIGHTS CERTIFICATES 33
ARTICLE 23REDEMPTION AND TERMINATION 34
ARTICLE 24NOTICE OF CERTAIN EVENTS 35
ARTICLE 25 NOTICES 36
ARTICLE 26SUPPLEMENTS AND AMENDMENTS 37
ARTICLE 27SUCCESSORS 37
ARTICLE 28DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS, ETC. 38
ARTICLE 29BENEFITS OF THIS AGREEMENT 38
ARTICLE 30SEVERABILITY 38
ARTICLE 31GOVERNING LAW 39
ARTICLE 32 COUNTERPARTS 39
ARTICLE 33 DESCRIPTIVE HEADINGS 39
EXHIBIT AFORM OF RIGHTS CERTIFICATE A-1
EXHIBIT B
FORM OF SUMMARY OF RIGHTS B-1
<PAGE>
RIGHTS AGREEMENT
This Rights Agreement, dated as of August 10, 1998 (hereinafter
referred to as the "Agreement"), between Structural Dynamics
Research Corporation, an Ohio corporation (hereinafter referred to
as the "Company"), and Harris Trust and Savings Bank, an Illinois
banking corporation (hereinafter referred to as the "Rights Agent").
W I T N E S S E T H
WHEREAS, on August 6, 1998 (hereinafter referred to as the
"Rights Dividend Declaration Date"), the Board of Directors of the
Company authorized and declared a dividend distribution of one Right
(as hereinafter defined) for each share of the Class A Common Stock
without par value of the Company (hereinafter collectively referred
to as "Class A Common Stock", "Common Stock" or "Common Shares")
outstanding at the close of business on August 10, 1998 (hereinafter
referred to as the "Record Date"), and has authorized the issuance
of one Right (as such number may hereinafter be adjusted pursuant to
the provisions of Section 11.15 hereof) for each share of the Common
Stock of the Company issued (whether originally issued or delivered
from the Company's treasury) between the Record Date and the
Distribution Date, each Right initially representing the right to
purchase one share of Class A Common Stock (hereinafter referred to
as "Class A Common Stock" or "Class A Common Shares") of the Company
having the same rights, powers and preferences for the Company's
Class A Common Stock set forth in the Amended Articles of
Incorporation of the Company, upon the terms and subject to the
conditions hereinafter set forth hereinafter referred to as the (the
"Rights");
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
For purposes of this Agreement, the following terms have the
meanings indicated:
Section 1.1 "Acquiring Person" shall mean a Person that is the
Beneficial Owner of Voting Securities entitling such Person to cast
twenty percent (20%) or more of the votes that may be cast generally
in an election of Directors of the Company. However, the term
"Acquiring Person" shall not include the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of a
Subsidiary of the Company, or any trustee of or fiduciary with
respect to any such plan acting in such capacity. Subsidiary shall
mean any corporation of which the Company owns, directly or
indirectly, fifty percent (50%) or more of the voting stock.
Section 1.2 "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in The General Rules and
Regulations under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and shall include any person otherwise acting
in the capacity of an "Associate" or "Affiliate".
Section 1.3 "Beneficial Owner" A Person shall be deemed to be
the "Beneficial Owner" of, and shall be deemed to "Beneficially
Own," any securities:
(a) which such Person, (1) directly or indirectly, has
the right to acquire (whether such right is exercisable immediately
or only after the passage of time) pursuant to any contract,
arrangement, understanding, relationship, or otherwise (whether or
not in writing) or upon the exercise of conversion rights, warrants
or options, or otherwise; or (2) which are beneficially owned,
directly or indirectly, (including securities deemed owned through
application of clause (1) above, (A) by its "Affiliate" or
"Associate" or (B) by any other individual, firm, corporation, or
other entity (or any "Affiliate" or "Associate thereof) with which
it or its "Affiliate" or "Associate" has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or
disposing of any security under this subparagraph (a);
(b) which such Person, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership" of (as
determined pursuant to Rule 13d-3 of the General Rules and
Regulations under the Exchange Act), including pursuant to any
contract, arrangement, understanding, relationship, or otherwise,
whether or not in writing; provided, however, that a Person shall
not be deemed the "Beneficial Owner" of, or to "Beneficially Own,"
any security under this subparagraph (b) as a result of a contract,
arrangement, understanding, relationship, or otherwise, to vote such
security if such contract, arrangement, understanding or
relationship: (A) arises solely from a revocable proxy given in
respect to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act, and (B) is not also
then reportable by such Person on Schedule 13d under the Exchange
Act (or any comparable or successor report).
Section 1.4 "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the State
of Ohio or the State of Illinois are obligated by law or executive
order to close.
Section 1.5 "Close of Business" on any given date shall mean
5:00 P.M., Chicago time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 P.M., Chicago
time, on the next succeeding Business Day.
Section 1.6 Reserved.
Section 1.7 "Person" shall mean any person or entity of any
nature whatsoever, specifically including an individual, a firm, a
company, a corporation, a partnership, a trust or other entity. A
Person, together with such person's Affiliates and Associates, and
any Persons acting as a partnership, limited partnership, joint
venture, association, syndicate or other group (whether or not
formally organized), or otherwise acting jointly or in concert or in
a coordinated or consciously parallel manner (whether or not
pursuant to an express agreement), for the purpose of acquiring,
holding, voting or disposing of Voting Securities with such Person,
shall be deemed a single "Person."
Section 1.8 "Section 11.1.2 Event" shall mean any event
described in Section 11.1.2 (A), (B) or (C) hereof.
Section 1.9 "Article 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13.1 hereof.
Section 1.10 "Stock Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition,
shall include, without limitation, a report filed pursuant to
Section 13(d) under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
Section 1.11 "Shareholder" or "Shareholders" shall mean any
holder of Common Shares.
Section 1.12 "Tender Offer" or "Exchange Offer" shall mean an
offer to acquire, or an acquisition of, securities subject to and
made in accordance with the provisions of Section 14(d) of the
Exchange Act.
Section 1.13 "Trading Day" with respect to stock shall mean a
day on which the principal national securities exchange on which
such stock is listed or admitted to trading is open for the
transaction of business or, if such stock is not listed or admitted
to trading on any national securities exchange, a Business Day.
Section 1.14 "Triggering Event" shall mean any Section 11.1.2
Event or any Article 13 Event.
Section 1.15 "Voting Securities" shall mean any securities of
the Company entitling the holder thereof to vote generally in the
election of Directors of the Company.
Where reference is made in this Agreement to sections of, and
the General Rules and Regulations under, the Exchange Act, such
reference shall mean such sections and rules as amended from time to
time and any successor provisions thereto.
ARTICLE 2
APPOINTMENT OF RIGHTS AGENT.
Section 2.1 The Company hereby appoints the Rights Agent to
act as agent for the Company and the holders of the Rights (who, in
accordance with Article 3 hereof, shall prior to the Distribution
Date also be the Shareholders) 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.
ARTICLE 3
ISSUE OF RIGHTS CERTIFICATES.
Section 3.1 Until the earlier of the Close of Business on
the tenth day after the Stock Acquisition Date, or (ii) the Close of
Business on the tenth business day after the date that a Tender or
Exchange Offer by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under
the Exchange Act, if upon consummation thereof, such Person would be
the Beneficial owner of 20% or more of the Common Stock then
outstanding (the earlier of (i) and (ii) being herein referred to as
the "Distribution Date"), (x) the Rights will be evidenced (subject
to the provisions of Section 3.2 by the certificates of the Common
Stock registered in the names of the Shareholders (which
certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and (y)
the Rights will be transferrable only in connection with the
transfer of the underlying Common Stock (including a transfer to the
Company). As soon as practicable after the Distribution Date, the
Rights Agent will send by first-class, postage prepaid mail, to each
record holder of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates,
substantially in the form of Exhibit A hereto (the "Rights
Certificates"), evidencing one Right for each Common Share so held,
subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common Stock has
been made pursuant to Section 11.16 hereof, at the time of
distribution of the Rights Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with
Section 14.1 hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of
any fractional Rights. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates.
Section 3.2 If it has not already done so, the Company
will, as promptly as practicable following the Record Date, send a
copy of a Summary of Rights, in substantially the form attached
hereto as Exhibit B (the "Summary of Rights"), by first-class,
postage prepaid mail, to each record holder of the Common Stock as
of the close of business on the Record Date, at the address of such
holder shown on the records of the Company, and if the Company has
sent said copy of the Summary of Rights prior to the Record Date,
the Company will also send by first class postage prepaid mail a
copy of the Summary of Rights to each record holder of the Common
Stock on the Record Date who was not already sent a copy of the
Summary of Rights. With respect to certificates for the Common Stock
outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates for the Common Stock
and the registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such term is
defined in Section 7.1 hereof), the transfer of any certificates
representing Common Stock in respect of which Rights have been
issued shall also constitute the transfer of the Rights associated
with such Common Stock.
Section 3.3 Rights shall be issued in respect of all shares
of Common Stock which are issued (whether originally issued or
delivered from the Company's treasury) after the Record Date but
prior to the earlier of the Distribution Date or the Expiration
Date. Certificates representing such Common Stock shall also be
deemed to be certificates for Rights, and shall bear the following
legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in the Rights Agreement
between Structural Dynamics Research Corporation (the "Company") and
Harris Trust and Savings Bank (the "Rights Agent") dated as of
August 10, 1998 (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which is on
file at the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. The Company will mail to the holder
of this certificate a copy of the Rights Agreement, as in effect on
the date of mailing, without charge promptly after receipt of a
written request therefor. Under certain circumstances set forth in
the Rights Agreement, Rights issued to, or held by, any Person who
is, was or becomes an Acquiring Person or any Affiliate or Associate
thereof (as such terms are defined in the Rights Agreement), whether
currently held by or on behalf of such Person or by any subsequent
holder, may become null and void.
ARTICLE 4
FORM OF RIGHTS CERTIFICATES
Section 4.1 The Rights Certificates (and the forms of
election to purchase and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth in
Exhibit A hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be
required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of Article
11 and Article 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase one share of Class A
Common Stock of the Company as shall be set forth therein at the
price set forth therein (such exercise price per share hereinafter
referred to herein as the "Purchase Price"), but the amount and type
of securities purchasable upon the exercise of each Right and the
Purchase Price thereof shall be subject to adjustment as provided
herein.
Section 4.2 Any Rights Certificate issued pursuant to
Section 3.1 or Article 22 hereof that represents Rights which the
Company knows are beneficially owned by: (i) an Acquiring Person or
any Associate or Affiliate of an Acquiring Person, (ii) a transferee
of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate
or Affiliate) who becomes a transferee prior to or concurrently with
the Acquiring Person becoming such and receives such Rights pursuant
to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance of
Section 7.5 hereof, and any Rights Certificates issued pursuant to
Article 6 or Article 11 hereof upon transfer, exchange, replacement
or adjustment of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the following
legend:
The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined in the Rights Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby may become null and
void in the circumstances specified in Section 7.5 of the Rights
Agreement.
ARTICLE 5
COUNTERSIGNATURE AND REGISTRATION
Section 5.1 The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its President or
any Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a facsimile thereof
which shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The
Rights Certificates shall be countersigned by the Rights Agent and
shall not be valid for any purpose unless so countersigned. In case
any officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such officer of
the Company; and any Rights Certificates may be signed on behalf of
the Company by any person who, at the actual date of the execution
of such Rights Certificate shall be a proper officer of the Company
to sign such Rights Certificates, although at the date of the
execution of this Rights Agreement any such person was not such an
officer.
Section 5.2 Following the Distribution Date, the Rights
Agent shall keep or cause to be kept, at its principal office or
offices designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by
each of the Rights Certificates, the Certificate number and the date
of each of the Rights Certificates.
ARTICLE 6
TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS
CERTIFICATES
Section 6.1 Subject to the provisions of Section 4.2,
Section 7.5 and Article 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged for
another Rights Certificate or Certificates, entitling the registered
holder to purchase a like number of shares of Class A Common Stock
(or, following a Triggering Event, Common Stock Equivalents, other
securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder
(or former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Rights Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Rights
Certificate or Certificates to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with
respect to the transfer of any such surrendered Rights Certificates
until the registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse side
of such Rights Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request. Thereupon the Rights Agent shall, subject
to Section 4.2, Section 7.5 and Article 14 hereof, countersign and
deliver to the Person entitled thereto a Rights Certificate or
Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split
up, combination or exchange of Rights Certificates.
Section 6.2 Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation of a Rights Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto,
and upon surrender to the Rights Agent and cancellation of the
Rights Certificate if mutilated, the Company will execute and
deliver a new Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
ARTICLE 7
EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS
Section 7.1 Subject to Section 7.5 hereof, the registered
holder of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including, without
limitation, the restrictions on exercisability set forth in Section
9.3, Section 11.1.3 and Section 23.1 hereof) in whole or in part at
any time after the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the Rights
Agent at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the aggregate
Purchase Price with respect to the total number of shares (or other
securities, cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior to the
earliest of (i) the Close of Business on August 10, 2008 (the "Final
Expiration Date"), (ii) the consummation of a transaction
contemplated by Section 13.4 hereof, or (iii) the time at which the
rights are redeemed as provided in Article 23 hereof (the earliest
of (i), (ii) and (iii) being herein referred to as the "Expiration
Date").
Section 7.2 The Purchase Price for each share of Class A
Common Stock pursuant to the exercise of a Right shall initially be
$110.00, and shall be subject to adjustment from time to time as
provided in Article 11, Section 13.1 and Section 26.1 hereof and
shall be payable in accordance with Section 7.3 below.
Section 7.3 Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to
purchase and the certificate duly executed, accompanied by payment,
with respect to each Right so exercised, of the Purchase Price per
share of Class A Common Stock (or other shares, securities, cash or
other assets, as the case may be) to be purchased as set forth below
and an amount equal to any applicable transfer tax, the Rights Agent
shall, subject to Section 20..111 hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the Class A Common Stock (or
make available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of shares of Class A
Common Stock to be purchased and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, or
(B) if the Company shall have elected to deposit the total number of
shares of Class A Common Stock issuable upon exercise of the Rights
hereunder with a depository agent, requisition from the depository
agent depository receipts representing such number of shares of
Class A Common Stock as are to be purchased (in which case
certificates for the Class A Common Stock represented by such
receipts shall be deposited by the transfer agent with the
depository agent) and the Company will direct the depository agent
to comply with such request, (ii) requisition from the Company the
amount of cash, if any, to be paid in lieu of fractional shares in
accordance with Article 14 hereof, (iii) after receipt of such
certificates or depository receipts, cause the same to be delivered
to or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be designated
by such holder, and (iv) after receipt thereof, deliver such cash,
if any, to or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such amount may
be reduced pursuant to Section 11.1.3 hereof) may be made (x) in
cash or by certified bank check or money order payable to the order
of the Company, or (y) by delivery of a certificate or certificates
(with appropriate stock powers executed in blank attached thereto)
evidencing a number of shares of the Common Stock of the Company
equal to the then Purchase Price divided by the closing price (as
determined pursuant to Section 11.4 hereof) per Common Share on the
Trading Day immediately preceding the date of such exercise. In the
event that the Company is obligated to issue other securities of the
Company, pay cash and/or distribute other property pursuant to
Section 11.1 hereof, the Company will make all arrangements
necessary so that such other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when
appropriate.
Section 7.4 In case the registered holder of any Rights
Certificate shall exercise less than all the Rights evidenced
thereby, a new Rights Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights Agent
and delivered to, or upon the order of, the registered holder of
such Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Article 14
hereof.
Section 7.5 Notwithstanding anything in this Agreement to
the contrary, from and after the first occurrence of a Section
11.1.2 Event, any Rights beneficially owned by (i) an Acquiring
Person or an Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person
becomes such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for
consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer
which the Board of Directors of the Company has determined is part
of a plan, arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7.5, shall become
null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights,
whether under any provision of this Agreement or otherwise;
provided, however, that the Rights held by an Acquiring Person, an
Affiliate or Associate of an Acquiring Person or the transferees of
such persons referred to above shall not be voided unless the
Acquiring Person in question or an Affiliate or Associate of such
Acquiring Person shall be involved in the transaction giving rise to
the Section 11.1.2 Event. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7.5 and
Section 4.2 hereof are complied with, but shall have no liability to
any holder of Rights Certificates or other Person as a result of its
failure to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees hereunder.
Section 7.6 Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth in
this Article 7 unless such registered holder (i) shall have
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) shall have
provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
ARTICLE 8
CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES
Section 8.1 All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it,
and no Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Agreement. The
Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such cancelled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
ARTICLE 9
RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
Section 9.1 The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued Class A Common Stock (and, following the occurrence of a
Triggering Event, out of its remaining Class A Common Stock and/or
other securities or out of its authorized and issued shares held in
its treasury), the number of shares of Class A Common Stock (and,
following the occurrence of a Triggering Event, its remaining Class
A Common Stock and/or other securities) that, as provided in this
Agreement including Section 11.1.3 hereof, will be sufficient to
permit the exercise in full of all outstanding Rights.
Section 9.2 So long as the Class A Common Stock (and,
following the occurrence of a Triggering Event, its remaining Class
A Common Stock and/or other securities) issuable and deliverable
upon the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to
cause, from and after such time as the Rights become exercisable,
all shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
Section 9.3 The Company shall use its best efforts to (i)
file, as soon as practicable following the earliest date after the
first occurrence of a Section 11.1.2 Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11.1.3 hereof,
or as soon as is required by law following the Distribution Date, as
the case may be, a registration statement under the Securities Act
of 1933 (the "Act"), with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of
which the Rights are no longer exercisable for such securities, and
(B) the date of the expiration of the Rights. The company will also
take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (Q) of the first
sentence of this Section 9.3, the exercisability of the Rights in
order to prepare and file such registration statement and permit it
to become effective. Upon any such suspension, the Company shall
issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been
obtained.
Section 9.4 The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all shares
of Class A Common Stock (and, following the occurrence of a
Triggering Event, its remaining Class A Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of
the Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable.
Section 9.5 The Company further covenants and agrees that
it will pay when due and payable any and all federal and state
transfer taxes and charges which may be payable in respect to the
issuance or delivery of the Rights Certificates and of any
certificates for a number of shares of Class A Common Stock (or
remaining Class A Common Stock and/or other securities, as the case
may be) upon the exercise of Rights. The Company shall not, however,
be required to pay any transfer tax which may be payable in respect
of any transfer or delivery of Rights Certificates to a Person other
than, or the issuance or delivery of a number of shares of Class A
Common Stock (or remaining Class A Common Stock and/or other
securities, as the case may be) in respect of a name other than that
of the registered holder of the Rights Certificates evidencing
Rights surrendered for exercise or to issue or deliver any
certificates for a number of shares of Class A Common Stock (or
remaining Class A Common Stock and/or other securities, as the case
may be) in a name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid (any such
tax being payable by the holder of such Rights Certificate at the
time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
ARTICLE 10
CAPITAL STOCK RECORD DATE
Section 10.1 Each person in whose name any certificate for
a number of shares of Class A Common Stock (or remaining Class A
Common Stock and/or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of such fractional share of Class A
Common (or remaining Class A Common Stock and/or other securities,
as the case may be) represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and all applicable transfer taxes) was made;
provided, however, that if the date of such surrender and payment is
a date upon which the Class A Common Stock (or remaining Class A
Common Stock and/or other securities, as the case may be) transfer
books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or otherwise)
on, and such certificate shall be dated, the next succeeding
Business Day on which the Class A Common Stock (or remaining Class
A Common Stock and/or other securities, as the case may be) transfer
books of the Company are open. Prior to the exercise of the rights
evidenced thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a shareholder of the Company with respect
to shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or other
distributions or to exercise any pre-emptive rights, and shall not
be entitled to receive any notice of any proceedings of the Company,
except as provided herein.
ARTICLE 11
ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF
SHARES OR NUMBER OF RIGHTS.
Section 11.1 The Purchase Price, the number and kind of
shares covered by each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in this
Article 11.
Section 11.1.1 In the event the Company shall at any
time after the date of this Agreement (A) declare a dividend on the
Class A Common Stock payable in shares of Class A Common Stock, (B)
subdivide the outstanding shares of Class A Common Stock, (C)
combine the outstanding shares of Class A Common Stock into a
smaller number of shares, or (D) issue any shares of its capital
stock in a reclassification of the Class A Common Stock (including
any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11.1 and
Section 7.5 hereof, the Purchase Price in effect at the time of the
record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and
kind of shares of Class A Common Stock or capital stock, as the case
may be, issuable on such date, shall be proportionately adjusted so
that the holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Class A Common
Stock or capital stock, as the case may be, which, if such Right had
been exercised immediately prior to such date and at a time when the
Class A Common Stock transfer books were open, the holder would have
owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification. If an
event occurs which would require an adjustment under both this
Section 11.1.1 and Section 11.1.2 hereof, the adjustment provided
for in this Section 11.1.1 shall be in addition to, and shall be
made prior to, any adjustment required pursuant to Section 11.1.2
hereof.
Section 11.1.2 In the event:
(A) any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after the date of
this Agreement, directly or indirectly, (1) shall merge or
consolidate with or into the Company and the Company shall be the
continuing or surviving corporation of such merger or consolidation
and the Common Stock of the Company shall remain outstanding and
unchanged, (2) shall, in one transaction or a series of related
transactions, transfer any assets to the Company or to any of its
Subsidiaries in exchange (in whole or in part) for Common Stock, for
shares of other equity securities of the Company, or for securities
exercisable for or convertible into shares of equity securities of
the Company (Common Stock or otherwise) or otherwise obtain from the
Company, with or without consideration, any additional shares of
such equity securities or securities exercisable for or convertible
into shares of such equity securities (other than pursuant to a pro
rata distribution to all holders of Common Stock), (3) shall sell,
purchase, lease, exchange, mortgage, pledge, transfer or otherwise
acquire or dispose of, in one transaction or a series of
transactions, to, from or with (as the case may be) the Company or
any of its Subsidiaries, assets on terms and conditions less
favorable to the Company than the Company would be able to obtain in
arm's length negotiation with an unaffiliated third party, other
than pursuant to a transaction set forth in Section 13.1 hereof, (4)
shall sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of in one transaction or a series of
related transactions, to, from or with (as the case may be) the
Company or any of the Company's Subsidiaries (other than incidental
to the lines of business, if any, engaged in as of the date hereof
between the Company and such Acquiring Person or Associate or
Affiliate) assets having an aggregate fair market value of more than
$10,000,000, other than pursuant to a transaction set forth in
Section 13.1 hereof, (5) shall receive any compensation from the
Company or any of the Company's Subsidiaries other than compensation
for full-time employment as a regular employee at rates in
accordance with the Company's (or its Subsidiaries') past practices,
(6) shall receive the benefit, directly or indirectly (except
proportionately as a shareholder and except if resulting from a
requirement of law or governmental regulation), of any loans,
advances, guarantees, pledges or other financial assistance or any
tax credits or other tax advantage provided by the Company or any of
its Subsidiaries, or (7) shall engage in any other transaction
involving the Company of any of its Subsidiaries, which transaction
is deemed by the Board of Directors of the Company to be material,
or
(B) any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company
or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant
to the terms of any such plan), alone or together with its
Affiliates and Associates, shall, at any time after the Rights
Dividend Declaration Date, become the Beneficial Owner of 20% or
more of the Common Stock then outstanding, unless the event causing
the 20% threshold to be crossed is a transaction set forth in
Section 13.1 hereof, or
(C) during such time as there is an Acquiring
Person, there shall be any reclassification of securities (including
any reverse stock split), or recapitalization of the Company, or any
merger or consolidation of the Company with any of its Subsidiaries
or any other transaction or series of transactions involving the
Company or any of its Subsidiaries, other than a transaction or
transactions to which the provisions of Section 13.1 apply (whether
or not with or into or otherwise involving an Acquiring Person)
which has the effect, directly or indirectly, of increasing by more
than 1% the proportionate share of the outstanding shares of any
class of equity securities of the Company or any of its Subsidiaries
which is directly or indirectly beneficially owned by any Acquiring
Person or any Associate or Affiliate of any Acquiring Person, then,
promptly following the first occurrence of a Section 11.1.2 Event,
proper provision shall be made so that each holder of a Right
(except as provided below and in Section 7.5 hereof) shall
thereafter have the right to receive, upon exercise thereof at the
then current Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of shares of Class A Common Stock,
such number of shares of Common Stock of the Company as shall equal
the result obtained by (x) multiplying the then current Purchase
Price by the then number of shares of Class A Common Stock for which
a Right was exercisable immediately prior to the first occurrence of
a Section 11.1.2 Event, and (y) dividing that product (which,
following such first occurrence, shall thereafter be referred to as
the "Purchase Price" for each Right and for all purposes of this
Agreement) by either 50% of the current market price (determined
pursuant to Section 11.4 hereof) per share of the Company's Common
Stock on the date of such first occurrence (such number of shares,
the "Adjustment Shares"), or, if two-thirds of the Board of
Directors of the Company so determine, by such other percentage as
the Board of Directors of the Company, in its discretion, deems
appropriate and necessary to attempt to insure fair value to the
Shareholders. "Fair Value" shall be determined by at least a
majority of the members of the Board of Directors who are not
officers of the Company, after receiving advice from one or more
investment banking firms and after taking into consideration all
factors which such members of the Board of Directors deem relevant,
including, without limitation, the Prices and terms which such
members of the Board of Directors believe, in good faith, could
reasonably be achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value.
Section 11.1.3 In the event that the number of shares
of the Class A Common Stock which are authorized by the Company's
Articles but not outstanding or reserved for issuance for purposes
other than upon exercise of the Rights are not sufficient to permit
the exercise in full of the Rights in accordance with Section
11.1.1, or in the event that two-thirds of the Board of Directors of
the Company believe it is in the best interests of the Company and
its Shareholders to do so, the Company shall: (A) determine the
excess of (1) the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value") over (2) the Purchase
Price (such excess, the "Spread"), and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment
Shares, upon payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) or other equity securities of
the Company (including, without limitation, preferred shares or
units of preferred shares) which the Board of Directors of the
Company has deemed (based, among other things, on the dividend and
liquidation rights of such preferred shares) to have substantially
the same economic value as Class A Common Stock (such preferred
shares, hereinafter referred to as "Common Share Equivalents"), (4)
debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having an aggregate value equal to the
Current Value where such aggregate value has been determined by the
Board of Directors of the Company after considering the advice of an
investment banking firm selected by the Board of Directors of the
Company; provided, however, if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the later of (x) the first
occurrence of a Section 11.1.2 Event and (y) the date on which the
Company's right of redemption pursuant to Section 23.1 expires (the
later of (x) and (y) being referred to herein as the "Section 11.1.2
Trigger Date"), then the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without requiring payment
of the Purchase Price, Class A Common Stock (to the extent
available) and then, if necessary, cash, which shares and/or cash
have an aggregate value equal to the Spread. If the Board of
Directors of the Company shall determine in good faith that it is
likely that sufficient additional Class A Common Stock could be
authorized for issuance upon exercise in full of the Rights, the
thirty (30) day period set forth above may be extended to the extent
necessary, but not more than ninety (90) days after the Section
11.1.2 Trigger Date, in order that the Company may seek Shareholder
approval for the authorization of such additional shares (such
period, as it may be extended, the "Substitution Period"). To the
extent that the Company determines that some action need be taken
pursuant to the first and/or second sentences of this Section
11.1.3, the Company (x) shall provide, subject to Section 7.5
hereof, that such action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability of the Rights until
the expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to such first sentence and
to determine the value thereof. In the event of any such suspension,
the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well
as a public announcement at such time as the suspension is no longer
in effect. For purposes of this Section 11.1.3, the value per share
of the Class A Common Stock shall be the current market price (as
determined pursuant to Section 11.4 hereof) per share of Class A
Common Stock on the Section 11.1.2 Trigger Date and the value of any
Common Share Equivalent shall be deemed to have the same value as
the Class A Common Stock on such date.
Section 11.2 In case the Company shall fix a record
date for issuance of rights, options or warrants to all holders of
Class A Common Stock entitling them to subscribe for or purchase
(for a period expiring within forty-five (45) calendar days
after such record date) shares of Class A Common Stock (or shares
having the same rights, privileges and preferences as the Class A
Common Stock ("Equivalent Common Shares")) or securities convertible
into Class A Common Stock or Equivalent Common Shares at a price per
share of Class A Common Stock or per Equivalent Common Share (or
having a conversion price per share, if a security convertible into
Class A Common Stock or Equivalent Common Shares) less than the
current market price (as determined pursuant to Section 11.4 hereof)
per share of Class A Common Stock on such record date, the Purchase
Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the
number of shares of Class A Common Stock outstanding on such record
date, plus the number of shares of Class A Common Stock which the
aggregate offering price of the total number of shares of Class A
Common Stock and/or Equivalent Common Shares so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market
price, and the denominator of which shall be the number of shares of
Class A Common Stock outstanding on such record date, plus the
number of additional shares of Class A Common Stock and/or
Equivalent Common Shares to be offered for subscription or purchase
(or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid
by delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Class A Common Stock owned by or held for
the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the event
that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
Section 11.3 In case the Company shall fix a record date
for a distribution to all holders of Class A Common Stock (including
any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation) of
evidences of indebtedness, cash (other than a regular dividend out
of the earnings or retained earnings of the Company), assets (other
than a regular dividend referred to above or dividend payable in
shares of Class A Common Stock, but including any dividend payable
in stock other than Class A Common Stock) or subscription rights or
warrants (excluding those referred to in Section 11.2 hereof), the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which
shall be the current market price (as determined pursuant to Section
11.4 hereof) per share of Class A Common Stock on such record date,
less the fair market value (as determined in good faith by the Board
of Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent) of the portion of the
cash, assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a share of Class
A Common Stock and the denominator of which shall be such current
market price (as determined pursuant to Section 11.4 hereof) per
share of Class A Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed, and in the event
that such distribution is not so made, the Purchase Price shall be
adjusted to be the Purchase Price which would have been in effect if
such record date had not been fixed.
Section 11.4 For the purpose of any computation hereunder,
other than computations made pursuant to Section 11.1.3 hereof, the
"current market price" per share of Class A Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of Class A Common Stock for the thirty (30) consecutive
Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section 11.1.3 hereof, the "current
market price" per share of Class A Common Stock on any date shall be
deemed to be the average of the daily closing prices per share of
Class A Common Stock for the ten (10) consecutive Trading Days
immediately following such date; provided, however, that in the
event that the current market price per share of Class A Common
Stock is determined during a period following the announcement by
the issuer of such share of Class A Common Stock of (A) a dividend
or distribution on such share of Class A Common Stock payable in
Class A Common Stock or securities convertible into Class A Common
Stock (other than the Rights), or (B) any subdivision, combination
or reclassification of such Class A Common Stock, and prior to the
expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the ex-dividend date
for such dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each
case, the "current market price" shall be properly adjusted to take
into account ex-dividend trading. The closing price for each day
shall be the last sale price, regular way, or, if no such sale takes
place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if
the Class A Common Stock is not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Class A
Common Stock is listed or admitted to trading or, if the Class A
Common Stock is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the
average of the-high bid and low-asked prices in the over-the-counter
market, as reported by the Nasdaq National Market ("Nasdaq") or such
other system then in use, or, if on any such date the Class A Common
Stock is not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market
maker making a market in the Class A Common Stock selected by the
Board of Directors of the Company. If on any such date no market
maker is making a market in the Class A Common Stock, the fair value
of such shares on such date as determined in good faith by the Board
of Directors of the Company shall be used as the current market
price. If the Class A Common Stock is not publicly held or not so
listed or traded, "current market price" per share shall mean the
fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in
a statement filed with the Rights Agent and shall be conclusive for
all purposes.
Section 11.5 Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least one percent 1% in the Purchase Price; provided,
however, that any adjustments which by reason of this Section 11.5
are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this
Article 11 shall be made to the nearest cent or to the nearest ten-thousandth
of a share of Class A Common Stock or other share.
Notwithstanding the first sentence of this Section 11.5, any
adjustment required by this Article 11 shall be made no later than
the earlier of (i) three (3) years from the date of the transaction
which mandates such adjustment, or (ii) the Expiration Date.
Section 11.6 If as a result of an adjustment made pursuant
to Section 11.1.2 or Section 13.1 hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares of
capital stock other than Class A Common Stock, thereafter the number
of such other shares so receivable upon exercise of any Right and
the Purchase Price thereof shall be subject to adjustment from time
to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Class A Common Stock contained
in Sections 11.1, 11.2, 11.3, 11.5, 11.7, 11.8, 11.9, 11.10, 11.11
and 11.12, and the provisions of Articles 7, 9, 10, 13 and 14 hereof
with respect to the Class A Common Stock shall apply on like terms
to any such other shares.
Section 11.7 All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of shares of Class A Common Stock purchasable from
time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
Section 11.8 Unless the Company shall have exercised its
election as provided in Section 11.9, upon each adjustment of the
Purchase Price as a result of the calculations made in Sections 11.2
and 11.3, each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase, at
the adjusted Purchase Price, that number of shares of Class A Common
Stock obtained by (i) multiplying (x) the number of shares covered
by a Right immediately prior to this adjustment, by (y) the Purchase
Price in effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the Purchase
Price in effect immediately after such adjustment of the Purchase
Price.
Section 11.9 The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of Rights,
in lieu of any adjustment in the number of shares of Class A Common
Stock purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of shares of Class A Common Stock for
which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated to the nearest
one-hundredth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date
for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten (10) days later
than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11.9, the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Rights
Certificates on such record date Rights Certificates evidencing,
subject to Article 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the
option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment,
and upon surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on the record
date specified in the public announcement.
Section 11.10 Irrespective of any adjustment or change in
the Purchase Price or the number of shares of Class A Common Stock
issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
Section 11.11 Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated value,
if any, of the number of shares of Class A Common Stock issuable
upon exercise of the Rights, the Company shall take any corporate
action which, in the opinion of its counsel, may be necessary in
order that the Company may validly and legally issue on a fully-paid
and non-assessable basis such number of shares of Class A Common
Stock at such adjusted Purchase Price.
Section 11.12 In any case in which this Article 11 shall
require that an adjustment in the Purchase Price be made effective
as of a record date for a specified event, the Company may elect to
defer until the occurrence of such event the issuance to the holder
of any Right exercised after such record date the number of shares
of Class A Common Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
number of shares of Class A Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on
the basis of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares (fractional or otherwise) or
securities upon the occurrence of the event requiring such
adjustment.
Section 11.13 Anything in this Article 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those adjustments
expressly required by this Article 11, as and to the extent that the
Board of Directors of the Company in its good faith judgment shall
determine to be advisable in order that any (i) consolidation or
subdivision of the Class A Common Stock, (ii) issuance wholly for
cash of any share of Class A Common Stock at less than the current
market price, (iii) issuance wholly for cash of a share of Class A
Common Stock or securities which by their terms are convertible into
or exchangeable for a share of Class A Common Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to
in this Article 11, hereafter made by the Company to holders of its
Class A Common Stock shall not be taxable to such shareholders.
Section 11.14 Except as permitted by Article 23 or Article
26 hereof, the Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate, with any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11.15 hereof), (ii) merge
with or into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11.15 hereof),
or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole)
to any other Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of which complies
with Section 11.15 hereof), if (x) at the time of or immediately
after such consolidation, merger or sale there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the Rights or (y)
prior to, simultaneously with or immediately after such
consolidation, merger or sale, the shareholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes
of Section 13.1 hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
Section 11.15 The Company covenants and agrees that, after
the Distribution Date, it will not, except as permitted by Article
23 or Article 26 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the
Rights.
Section 11.16 Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding 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, the number of Rights associated with each Common
Share then outstanding, or issued or delivered thereafter but prior
to the Distribution Date, shall be proportionately adjusted so that
the number of Rights thereafter associated with each Common Share
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each Common Share
immediately prior to such event by a fraction the numerator of which
shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator
of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
ARTICLE 12
CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Section 12.1 Whenever an adjustment is made as provided in
Article 11 and Article 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b) promptly
file with the Rights Agent, and with each transfer agent for the
Class A Common Stock, a copy of such certificate, and (c) mail a
brief summary thereof to each holder of a Rights Certificate (or, if
prior to the Distribution Date, to each holder of a certificate
representing Common Stock) in accordance with Article 25 hereof.
The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained.
<PAGE>
ARTICLE 13
CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
Section 13.1 In the event that, following the Stock
Acquisition Date, directly or indirectly, (x) the Company shall
merge or consolidate with or into any other Person (other than a
Subsidiary of the Company in a transaction which complies with
Section 11.15 hereof), and the Company shall not be the continuing
or surviving corporation of such merger or consolidation, (y) any
Person (other than a Subsidiary of the Company in a transaction
which complies with Section 11.15 hereof), shall merge or
consolidate with or into, the Company, and the Company shall be the
continuing or surviving corporation of such merger or consolidation,
and, in connection with such merger or consolidation, all or part of
the outstanding Common Stock shall be changed into or exchanged for
stock or other securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer),
in one transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any
Person or Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies with
Section 11.15 hereof), then, and in each such case and except as
contemplated by Section 13.4 hereof, proper provision shall be made
so that: (i) each holder of a Right, except as provided in Section
7.5 hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price in accordance
with the terms of this Agreement, such number of validly authorized
and issued, fully paid, non-assessable and freely tradable shares of
Common Stock of the Principal Party (as such term is hereinafter
defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by the
number of shares of Class A Common Stock for which a Right is
exercisable immediately prior to the first occurrence of an Article
13 Event (or, if a Section 11.1.2 Event has occurred prior to the
first occurrence of an Article 13 Event, multiplying the number of
such shares for which a Right was exercisable immediately prior to
the first occurrence of a Section 11.1.2 Event by the Purchase Price
in effect immediately prior to such first occurrence), and (2)
dividing that product (which, following the first occurrence of an
Article 13 Event, shall be referred to as the "Purchase Price" for
each Right and for all purposes of this Agreement ) by either 50% of
the current market price (determined pursuant to Section 11.4
hereof) per Common Share of such Principal Party on the date of
consummation of such Article 13 Event, or, if two-thirds of the
Board of Directors of the Company so determine, by such other
percentage as the Board of Directors of the Company, in its
discretion, deems appropriate and necessary to attempt to ensure
fair value to the Shareholders; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such
Article 13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Article 11 hereof shall
apply only to such Principal Party following the first occurrence of
an Article 13 Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the provisions
of Section 11.1.2 hereof shall be of no effect following the first
occurrence of any Article 13 Event.
Section 13.2 "Principal Party" shall mean
(i) in the case of any transaction described in clause
(x) or (y) of the first sentence of Section 13.1, the Person that is
the issuer of any securities into which shares of Common Stock of
the Company are converted in such merger or consolidation, and if no
securities are so issued, the Person that is the other party to such
merger or consolidation; and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13.1, the Person that is
the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of
such Person is not at such time and has not been continuously over
the preceding twelve (12) month period registered under Section 12
of the Exchange Act, and such Person is a direct or indirect
subsidiary of another Person the Common Stock of which are and have
been so registered, "Principal Party" shall refer to such other
Person; and (2) in case such Person is a subsidiary, directly or
indirectly, of more than one Person, the Common Stock of two or more
of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common Stock
having the greatest aggregate market value.
Section 13.3 The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal Party
shall have a sufficient number of authorized shares of its Common
Stock which have not been issued or reserved for issuance to permit
the exercise in full of the Rights in accordance with this Article
13 and unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of
assets mentioned in paragraph (a) of this Section 13, the Principal
Party will
(i) prepare and file a registration Statement under
the Act, with respect to the Rights and securities purchasable upon
exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective
as soon as practicable after such filing and (B) remain effective
(with a prospectus at all times meeting the requirements of the Act)
until the Expiration Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Article 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In
the event that an Article 13 Event shall occur at any time after the
occurrence of a Section 11.1.2 Event, the Rights which have not
theretofore been exercised shall thereafter become exercisable in
the manner described in Section 13.1.
Section 13.4 Notwithstanding anything in this Agreement to
the contrary, Article 13 shall not be applicable to a transaction
described in subparagraphs (x) through (z) of Section 13.1 if (i)
the price per share of Common Stock offered (in the case of a
transaction described in subparagraphs (x) and (y) of Section 13.1)
is not less than the price per Common Share paid to all holders of
Common Stock whose shares were purchased pursuant to such tender
offer or exchange offer, and (ii) the form of consideration being
offered (in the case of a transaction described in subparagraphs (x)
and (y) of Section 13.1) to the remaining holders of Common Stock
pursuant to such transaction is the same as the form of
consideration paid pursuant to such Tender or Exchange Offer. Upon
consummation of any such transaction contemplated by this Section
13.4, all Rights hereunder shall expire.
ARTICLE 14
FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
Section 14.1 The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11.16 hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of
the Rights Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For purposes
of this Section 14.1, the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price of the Rights for
any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the
Rights are listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as
reported by Nasdaq or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by
the Board of Directors of the Company. If on any such date no such
market maker is making a market in the Rights the fair value of the
Rights on such date as determined in good faith by the Board of
Directors of the Company shall be used as the current whole value of
a whole Right.
Section 14.2 The Company shall not be required to issue
fractions of shares of Class A Common Stock upon exercise of the
Rights or to distribute certificates which evidence fractional
shares of Class A Common Stock. In lieu of fractional shares of
Class A Common Stock, the Company may pay to the registered holders
of Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of the
current market value of shares of Class A Common Stock. For purposes
of this Section 14.2, the current market value of one share of Class
A Common Stock shall be the closing price of a share of Class A
Common Stock (as determined pursuant to Section 11.4.2 hereof) for
the Trading Day immediately prior to the date of such exercise.
Section 14.3 The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any fractional Rights
or any fractional shares upon exercise of a Right, except as
permitted by this Article 14.
ARTICLE 15
RIGHTS OF ACTION
Section 15.1 All rights of action in respect of this
Agreement are vested in the respective registered holders of the
Rights Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), without the consent of the Rights Agent or of the
holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in such
Rights Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Agreement and shall
be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the
obligations hereunder of any Person subject to this Agreement.
ARTICLE 16
AGREEMENT OF RIGHTS HOLDERS
Section 16.1 By accepting the Right, every holder of a
Right consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
Section 16.1.1 Prior to the Distribution Date, the
Rights will be transferable only in connection with the transfer of
Common Stock;
Section 16.1.2 After the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the principal office or offices of
the Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
Section 16.1.3 Subject to Section 6.1 and Section 7.6
hereof, the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Share certificate) is
registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Share certificate
made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent,
subject to the last sentence of Section 7.5 hereof, shall be
required to be affected by any notice to the contrary; and
Section 16.1.4 Notwithstanding anything in this
Agreement to the contrary, neither the Company nor the Rights Agent
shall have any liability to any holder of a Right or other Person as
a result of its inability to perform any of its obligations under
this Agreement by reason of any preliminary or permanent injunction
or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts to have any
such order, decree or ruling lifted or otherwise overturned as soon
as possible.
ARTICLE 17
RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER
Section 17.1 No holder, as such, of any Rights Certificate
shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of shares of Class A Common Stock
or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a shareholder of the Company or any right
to vote for the election of directors or upon any matter submitted
to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or
other actions affecting shareholders (except as provided in Article
24 hereof), or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such Rights
Certificate shall have been exercised in accordance with the
provisions hereof.
ARTICLE 18
CONCERNING THE RIGHTS AGENT
Section 18.1 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 disbursements 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, (except
losses, liabilities or expenses incurred by the Rights Agent as a
result of any negligence, bad faith or willful misconduct on the
part of the Rights Agent), for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of
this Agreement, including the costs and expenses of defending
against any claim of liability in the premises.
Section 18.2 The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered
or omitted by it in connection with its administration of this
Agreement in reliance upon any Rights Certificate or certificate for
Common Stock or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other
paper or document reasonably believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons.
ARTICLE 19
MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT
Section 19.1 Any corporation into which the Rights Agent or
any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto;
provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Article 21 hereof. In case at the time such successor Rights Agent
shall succeed to the agency created by this Agreement, any of the
Rights Certificates shall have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Rights Certificates either in the name of
the predecessor 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.
Section 19.2 In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not delivered, the
Rights Agent may adopt the countersignature under its prior name and
deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights
Certificates either in its prior name or in its changed name; and in
all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
ARTICLE 20
DUTIES OF RIGHTS AGENT
Section 20.1 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:
Section 20.1.1 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.
Section 20.1.2 Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of "current market price") be proved or established by
the Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by the Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Agreement
in reliance upon such certificate.
Section 20.1.3 The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or willful
misconduct.
Section 20.1.4 The Rights Agent shall not be liable
for or by reason of any of the statements of fact or recitals
contained in this Agreement or in the Rights Certificates or be
required to verify the same (except as to its countersignature on
such Rights Certificates), but all such statements and recitals are
and shall be deemed to have been made by the Company only.
Section 20.1.5 The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by
the Rights Agent) or in respect of the validity or execution of any
Rights Certificates (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 adjustment required under the
provisions of Article 11 or Article 13 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 evidenced by Rights
Certificates after actual notice of any such adjustments); nor shall
it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Common Stock
to be issued pursuant to this Agreement or any Rights Certificate or
as to whether any Common Stock will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
Section 20.1.6 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.
Section 20.1.7 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, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the Company,
and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
Section 20.1.8 The Rights Agent and any shareholder,
director, officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not
Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company
or for any other legal entity.
Section 20.1.9 The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it or perform
any duty hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act,
default, neglect or misconduct; provided, however, reasonable care
was exercised in the selection and continued employment thereof.
Section 20.1.10 No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if there shall
be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
Section 20.1.11 If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate attached to the form of assignment or form
of election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with
respect to such requested exercise of transfer without first
consulting with the Company.
ARTICLE 21
CHANGE OF RIGHTS AGENT
Section 21.1 The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon thirty (30) days, notice in writing mailed to the
Company, and to each transfer agent of the Common Stock, by
registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights Agent, as
the case may be, and to each transfer agent of the Common Stock, by
registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
thirty (30) days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such
a court, shall be (a) a corporation organized and doing business
under the laws of the United States or of the State of New York (or
of any other state of the United States so long as such corporation
is authorized to do business as a banking institution in the State
of New York), in good standing, having a principal office in the
State of New York, which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $100,000,000 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 has been
originally named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than
the effective date of any such appointment, the Company shall file
notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Stock, and mail notice thereof in
writing to the registered holders of the Rights Certificates.
Failure to give any notice provided for in this Article 21, however,
or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
ARTICLE 22
ISSUANCE OF NEW RIGHTS CERTIFICATES
Section 22.1 Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may, at its
option, issue new Rights Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or
class of shares or other securities or property purchasable under
the Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance, sale
or delivery of Common Stock following the Distribution Date and
prior to the redemption or expiration of the Rights, the Company (a)
shall, with respect to Common Stock so issued, sold or delivered
pursuant to the exercise of stock options, stock appreciation
rights, grants or awards outstanding on the Distribution Date under
any benefit plan or arrangement for employees or Directors, or upon
the exercise, conversion or exchange of securities outstanding on
the Record Date or hereinafter issued by the Company, and (b) may,
in any other case, if deemed necessary or appropriate by the Board
of Directors of the Company, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Rights Certificate shall
be issued 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 the Person to
whom such Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of the
issuance thereof.
ARTICLE 23
REDEMPTION AND TERMINATION
Section 23.1 The Board of Directors of the Company may, at
its option, at any time prior to the earlier of (i) the close of
business on the tenth day following the Stock Acquisition Date (or,
if the Stock Acquisition Date shall have occurred prior to the
Record Date, the close of business on the tenth day following the
Record Date), or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption price of
$.0l per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price") and the Company
may, at its option, pay the Redemption Price either in Common Stock
(based on the "current market price", as defined in Section 11.4
hereof of the Common Stock at the time of redemption) or cash;
provided, however, that if, following the occurrence of a Stock
Acquisition Date and following the expiration of the right of
redemption hereunder but prior to any Triggering Event, (i) a Person
who is an Acquiring Person shall have transferred or otherwise
disposed of a number of shares of Common Stock in one transaction or
series of transactions, not directly or indirectly involving the
Company or any of its Subsidiaries, which did not result in the
occurrence of a Triggering Event, or the Company shall have issued
additional equity securities, in either instance such that such
Person is thereafter a Beneficial Owner of 10% or less of the
outstanding Common Stock, and (ii) there are no other Persons,
immediately following the occurrence of the event described in
clause (i), who are Acquiring Persons, then the right of redemption
shall be reinstated and thereafter be subject to the provisions of
this Article 23. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable after
the first occurrence of a Section 11.1.2 Event until such time as
the Company's right of redemption hereunder has expired.
Section 23.2 Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to
exercise the, Rights will terminate and the only right thereafter of
the holders of Rights shall be to receive the Redemption Price for
each Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the holders
of the then outstanding Rights by mailing such notice to all such
holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the Transfer Agent for the Common
Stock. Any notice that is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the payment
of the Redemption Price will be made.
Section 23.3 In determining whether to redeem the Rights as
provided in this Article 23, the Board of Directors of the Company
may take into consideration the factors set forth in Section 1701.59
of the Ohio Revised Code as constituted at the time of adoption of
this Rights Agreement or hereafter amended from time to time or any
successor provision thereto.
ARTICLE 24
NOTICE OF CERTAIN EVENTS
Section 24.1 In case the Company shall propose, at any time
after the Distribution Date, (i) to pay any dividend payable in
stock of any class to the holders of shares of Class A Common Stock
or to make any other distribution to the holders of Class A Common
Stock (other than a regular dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of shares
of Class A Common Stock rights or warrants to subscribe for or to
purchase any additional shares of Class A Common Stock or shares of
stock of any class or any other securities, rights or options, or
(iii) to effect any reclassification of its shares of Class A Common
Stock (other than a reclassification involving only the subdivision
of outstanding Common Shares), or (iv) to effect any consolidation
or merger into or with any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11.15
hereof), or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer),
in one transaction or a series of related transactions, of more than
50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions each of which complies with Section 11.15 hereof),
or (v) 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 Rights Certificate to the extent feasible and in
accordance with Article 25 hereof, a notice of such proposed action,
which shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of shares of Class A
Common Stock, if any such date is to be fixed, and such notice shall
be so given in the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date for
determining holders of shares of Class A Common Stock for purposes
of such action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of shares
of Class A Common Stock whichever shall be the earlier.
Section 24.2 In case any of the events set forth in Section
11.1.2 hereof shall occur, then, in any such case, (i) the Company
shall as soon as practicable thereafter give to each holder of a
Rights Certificate, to the extent feasible and in accordance with
Article 25 hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event to holders
of Rights under Section 11.1.2 hereof, and (ii) all references in
the preceding paragraph to Class A Common Stock shall be deemed
thereafter to refer to Common Stock and/or, if appropriate, other
securities.
ARTICLE 25
NOTICES
Section 25.1 Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder
of any Rights Certificate to or on the Company shall be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights
Agent) as follows:
STRUCTURAL DYNAMICS RESEARCH CORPORATION
2000 Eastman Drive
Milford, Ohio 45150
Attention: Secretary
Section 25.2 Subject to the provisions of Article 21, any
notice or demand authorized by this Agreement to be given or made by
the Company or by the holder of any Rights Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
HARRIS TRUST AND SAVINGS BANK
311 West Monroe Street, 14th Floor
Chicago, Illinois 60606
Section 25.3 Notices or demands authorized by this
Agreement to be given or made by the Company or the Rights Agent to
the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing Common
Stock) shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of
such holder shown on the registry books of the Company
ARTICLE 26
SUPPLEMENTS AND AMENDMENTS
Section 26.1 Prior to the Distribution Date, the Company
may and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the
approval of any holders of certificates representing Common Stock.
From and after the Distribution Date, the Company may and the Rights
Agent shall, if the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights Certificates
in order (i) to cure any ambiguity, (ii) to correct or supplement
any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder, or (iv) to change or supplement
the provisions hereunder in any manner which the Company may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates. Upon the delivery
of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance
with the terms of this Article 26, the Rights Agent shall execute
such supplement or amendment. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with
the interests of the holders of Common Stock.
ARTICLE 27
SUCCESSORS
Section 27.1 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.
<PAGE>
ARTICLE 28
DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS, ETC.
Section 28.1 For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. The Board of
Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all rights
and powers specifically granted to the Board or to the Company, or
as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration
of this Agreement (including a determination to redeem or not redeem
the Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other parties, and (y) not
subject the Board to any liability to the holders of the Rights.
ARTICLE 29
BENEFITS OF THIS AGREEMENT
Section 29.1 Nothing in this Agreement shall be construed
to give to any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock) any legal
or equitable right, remedy or claim under this Agreement; but this
Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock).
ARTICLE 30
SEVERABILITY
Section 30.1 If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated; provided,
however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is
held by such court or authority to be invalid, void or unenforceable
and the Board of Directors of the Company determines in its good
faith judgment that severing the invalid language from this
Agreement would adversely affect the purpose or effect of this
Agreement, the right of redemption set forth in Article 23 hereof
shall be reinstated and shall not expire until the close of business
on the tenth day following the date of such determination by the
Board of Directors.
ARTICLE 31
GOVERNING LAW
Section 31.1 This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Ohio and for all purposes shall be
governed by and construed in accordance with the laws of such state
applicable to contracts made and to be performed entirely within
such state, except Articles 18, 19, 20 and 21 hereof which for all
purposes shall be governed by and construed under the laws of the
State of Illinois.
ARTICLE 32
COUNTERPARTS
Section 32.1 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.
ARTICLE 33
DESCRIPTIVE HEADINGS
Section 33.1 Descriptive headings of the several Articles
of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
STRUCTURAL DYNAMICS RESEARCH CORPORATION
By /s/ John A. Mongelluzzo
Name: John A. Mongelluzzo
Title: Vice President, Secretary and
General Counsel
HARRIS TRUST AND SAVINGS BANK
By /s/ Kenneth Penn
Name: Kenneth Penn
Title: Corporate Trust Officer
<PAGE>
Exhibit A
Form of Rights Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER AUGUST 10, 2008 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.0l PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL
AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.]*
- ---------------------------------
* The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
<PAGE>
Rights Certificate
STRUCTURAL DYNAMICS RESEARCH CORPORATION
This certifies that __________________________ or registered
assigns, is the registered owner of the number of rights set forth
above, each of which entitles the owner thereof, subject to the
terms, provisions and conditions of the Rights Agreement, dated as
of August 10, 1998 (the "Rights Agreement"), between Structural
Dynamics Research Corporation, an Ohio corporation (the "Company"),
and Harris Trust and Savings Bank (the "Rights Agent"), to purchase
from the Company at any time prior to 5:00 P.M. (Chicago time) on
August 10, 2008 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent, one
fully paid, non-assessable share of Class A Common Stock (the
"Common Stock") of the Company, at a purchase price of $110.00 per
share (the "Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and
Related Certificate duly executed. The Purchase Price shall be paid,
at the election of the holder, in cash or shares of Class A Common
Stock of the Company having an equivalent value. The number of
Rights evidenced by this Rights Certificate (and the number of
shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price per share set forth above, are the
number and Purchase Price as of August 10, 1998, based on the Common
Stock as constituted at such date.
Except as otherwise provided in the Rights Agreement, upon the
occurrence of any Section 11.1.2 Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms
are defined in the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of a
person who, after such transfer, became an Acquiring Person, or an
Affiliate or Associate of an Acquiring Person, such Rights shall
become null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of any such
Section 11.1.2 Event.
As provided in the Rights Agreement, the Purchase Price and the
number and kind of shares of Common Stock or other securities, which
may be purchased upon the exercise of the Rights evidenced by this
Rights Certificate are subject to modification and adjustment upon
the happening of certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated 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, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the
Rights Agreement are available upon written request to the Company.
The Rights Certificate, with or without other Rights
Certificates, upon surrender at the principal office or offices of
the Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Common Stock as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered shall
have entitled such holder to purchase. If this Rights Certificate
shall be exercised in part, the holder shall be entitled to receive
upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provision of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its
option at a redemption price of $.0l per Right at any time prior to
the earlier of the close of business on (i) the tenth day following
the Stock Acquisition Date (as such time period may be extended
pursuant to the Rights Agreement), and (ii) the Final Expiration
Date. After the expiration of the redemption period, the Company's
right of redemption may be reinstated if an Acquiring Person reduces
his beneficial ownership to 10% or less of the outstanding shares of
Common Stock in a transaction or series of transactions not
involving the Company.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall, by virtue of this
Rights Certificate alone, be entitled to vote or receive dividends
or be deemed for any purpose the holder of shares of Common Stock or
of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company
or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give
or withhold consent to any corporate action, or, to receive notice
of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
<PAGE>
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Date as of ________________________, _____
ATTEST: STRUCTURAL DYNAMICS RESEARCH
CORPORATION
By___________________________
Secretary Name:
Title:
Countersigned:
HARRIS TRUST AND SAVINGS BANK
By ___________________________
Authorized Signature (Form of Reverse Side of Rights
Certificate)
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ________________________________________hereby
sells, assigns and transfers unto
_______________________________________________________________
[please print name and address of transferee]
this Rights Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
______________________ Attorney, to transfer the within-named Rights
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ____________________, ___
____________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _________________, ___ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever.
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights
represented by the Rights Certificate.)
To: Structural Dynamics Research Corporation
The undersigned hereby irrevocably elects to exercise
Rights represented by this Rights Certificate to purchase
the shares of Class A Common Stock issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security or other identifying
number:___________________________________________________________
__________________________________________________________________
__________________________________________________________________
(Please print name and address)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the balance
of such Rights shall be registered in the name of and delivered to:
Please insert social security or other identifying
number:____________________________________________________________
(Please print name and address)
__________________________________________________________________
Dated: , ___
Signature
Signature Guaranteed:<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights Evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Affiliate or Associate of any such
Acquiring person (as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ]did [ ] did not acquire the Rights evidenced by
this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: _________________, __ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face of
this Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
<PAGE>
Exhibit B Form of Summary of Rights
STRUCTURAL DYNAMICS RESEARCH CORPORATION
SUMMARY OF RIGHTS TO PURCHASE CLASS A COMMON STOCK
On August 6, 1998, the board of Directors of Structural
Dynamics Research Corporation (the "Company") declared a dividend
distribution of one Right for each outstanding share of Class A
Common Stock of the Company to shareholders of record at the close
of business on August 10, 1998. Each Right entitled the registered
holder to purchase from the Company one share of the Class A Common
Stock (the "Common Stock"), at a Purchase Price of $110.00 per
share, subject to adjustment. The Purchase Price may be paid, at
the option of the holder, in cash or shares of Common Stock having
a value at the time of exercise equal to the Purchase Price. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and Harris
Trust and Savings Bank, as Rights Agent.
Common Share Certificates Evidencing Rights
Initially, the Rights will be attached to all Common Stock
Certificates representing shares of Common Stock then outstanding,
and no separate Rights Certificates will be distributed. The Rights
will separate from the shares of Common Stock and a distribution
date (the "Distribution Date") will occur upon the earlier of (i) 10
days following a public announcement that a person or group of
affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of
20% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would result
in a person or group beneficially owning 20% or more of the
outstanding shares of Common Stock. Until the Distribution Date,
(i) the Rights will be evidenced by the certificates for the Common
Stock and will be transferred with and only with the transfer of the
underlying Common Stock certificates, (ii) new Common Stock
certificates issued after August 10, 1998, will contain a notation
incorporating the Rights Agreement by reference and (iii) the
surrender for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights
associated with the shares of common Stock represented by such
certificate.
Distribution Date
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on August 10, 2008, unless
earlier redeemed by the Company as described below.
Issuance of Rights Certificates; Expiration of Rights
As soon as practicable after the Distribution Date, Rights
Certificates will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date and,
thereafter, the separate Rights Certificates alone will represent
the Rights. Except as otherwise determined by the Board of
Directors, and except in connection with the exercise of employee
stock options or stock appreciation rights under any other benefit
plan for employees or Directors or in connection with the exercise
of warrants or conversion of convertible securities, only shares of
Common Stock issued after August 10, 1998, and prior to the
Distribution Date will be issued with Rights.
Protection Against Self-Dealing and Certain Unfair Transactions;
Right to Buy SDRC Class A Common Stock at Half Price
In the event that, at any time following the Distribution Date,
(i) the Company is the surviving corporation in a merger with an
Acquiring Person and its shares of Common Stock are not changed or
exchanged, (ii) a Person becomes the beneficial owner of more than
20% of the then outstanding shares of Common Stock, (iii) an
Acquiring Person engages in one or more "self-dealing" transactions
as set forth in the Rights Agreement, or (iv) during such time as
there is an Acquiring Person, an event occurs which results in such
Acquiring Person's ownership interest being increased by more than
one percent (e.g., a reverse stock split), each holder of a Right
will thereafter have the adjusted right to receive, upon exercise,
shares of Common Stock (or, in certain circumstances, cash, property
or other securities of the Company) having a value equal to two
times the exercise price of the Right or equal to such other value
as the Board of Directors of the Company, in its discretion and by
a two-thirds vote, shall deem appropriate and necessary to attempt
to insure fair value to the Shareholders. In addition, following the
occurrence of any of the events set forth in clauses (i), (ii),
(iii) or (iv) of this paragraph, all Rights that are, or (under
certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person who was involved in the
transaction giving rise to any such event will be null and void.
However, Rights are not exercisable following the occurrence of any
of the events set forth above until such time as the Rights are no
longer redeemable by the Company as set forth below.
For example, at an exercise price of $110.00 per Right, each
Right not otherwise voided following an event set forth in the
preceding paragraph would entitle its holder to purchase $220.00
worth of Common Stock (or other consideration, as noted above) for
$110.00. Assuming that the Common Stock had a per share value of
$110.00 at such time, the holder of each valid Right would be
entitled to purchase 2 shares of Common Stock for $110.00.
Protection Against Certain Unfair Two-Step or Coercive Transactions;
Right to Buy Acquiring Company Stock at Half Price
In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving
corporation (other than a merger which is described in, or which
follows a tender offer or exchange offer described in, the second
preceding paragraph), or (ii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except
Rights which previously have been voided as set forth above) shall
thereafter have the adjusted right to receive, upon exercise, shares
of Common Stock of the acquiring company having a value equal to two
times the exercise price of the Right or equal to such other value
as the Board of Directors of the Company, in its discretion and by
a two-thirds vote, shall deem appropriate and necessary to attempt
to insure fair value to the shareholders. The events set forth in
this paragraph and in the second preceding paragraph are referred to
as the "Triggering Events."
Adjustments to Prevent Dilution
The Purchase Price payable, and the number of shares of Common
Stock or other securities or property issuable, upon exercise of the
rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Common Stock, (ii) if
holders of the Common Stock are granted certain rights or warrants
to subscribe for Common Stock or convertible securities at less than
the current market price of the Common Stock, or (iii) upon the
distribution to holders of the Common Stock of evidences-of
indebtedness-or assets (excluding regular dividends) or of
subscription rights or warrants (other than those referred to
above).
Cash Paid Instead of Issuing Fractional Shares
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments amount to at least 1%
of the Purchase Price. No fractional shares will be issued and, in
lieu thereof, an adjustment in cash will be made based on the market
price of the Common Stock on the last trading date prior to the date
of exercise.
Redemption
At any time until ten days following the Stock Acquisition
Date, the Company may redeem the Rights in whole, but not in part,
at a price of $.0l per Right. After the redemption period has
expired, the Company's right of redemption may be reinstated if an
Acquiring Person reduces his beneficial ownership to 10% or less of
the outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Immediately upon the action
of the Board of Directors of the Company ordering redemption of the
Rights, the Rights will terminate and the only right of the holders
of Rights will be to receive the $.01 per Right redemption price.
No Shareholder Rights Prior to Exercise
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends. While the
distribution of the Rights will not be taxable to shareholders or to
the Company, shareholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for shares of Common Stock (or other consideration) of
the Company or for shares of Common Stock of the acquiring company
as set forth above.
Amendment of Rights Agreement
Any of the provisions of the Rights Agreement may be amended by
the Board of Directors of the Company prior to the Distribution
Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company in
order to cure any ambiguity, to make changes which do not adversely
affect the interests of holders of Rights (excluding the interests
of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement.
Rights Agreement Filed With Securities and Exchange Commission
A copy of the Rights Agreement is being filed with the
Securities and Exchange Commission as an Exhibit to a Registration
Statement on Form 8-A. A copy of the Rights Agreement is available
free of charge from the Company. This summary description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is incorporated
herein by reference.
<PAGE>
EXHIBIT 99.1
For Immediate Release
Contact:
John A. Mongelluzzo
Vice President, Secretary and General Counsel
513/576-2401
SDRC BOARD ADOPTS NEW SHAREHOLDER RIGHTS PLAN
CINCINNATI, OHIO, August 6, 1998 -- Structural Dynamics Research
Corporation (NASDAQ:SDRC) announced today that the Company's board
of directors has approved a new shareholder rights plan to replace
the plan that will expire on August 10, 1998. The new plan contains
provisions that are similar to those in the previous plan. Under
the new plan, a dividend of one right will be distributed for each
share of SDRC common stock outstanding at the close of business on
August 10, 1998.
Initially, the rights are attached to SDRC's common shares and do
not become exercisable unless a person or group acquires 20% or more
of SDRC's common shares or announces a tender or exchange offer
which, upon consummation, would result in a person or group owning
20% or more of SDRC's common shares. The new rights are redeemable
at a price of $.01 per right and will expire on August 10, 2008.
The plan was not adopted in response to any specific threat to
acquire control of SDRC, and the board is not aware of any such
activity.
SDRC is a leading international supplier of Mechanical Design
Automation and Testing software, Product Data Management software,
and related services. The Company's products and services help
manufacturers optimize product concepts early in the design process,
enabling them to significantly improve product quality while
reducing product development time and cost. SDRC employs more than
2,200 people and has 64 offices in 16 countries throughout North
America, Europe and the Asia/Pacific region.
Note to Editors: SDRC is a registered trademark of Structural
Dynamics Research Corporation.
