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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-A/A
(AMENDMENT NO. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
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REXENE CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Commission file number: 1-9988
Delaware 75-2104131
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
5005 LBJ Freeway 75244
Dallas, Texas
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code:
(214) 450-9000
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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Common Stock Purchase Rights New York Stock Exchange
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None
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Page 1 of 56 sequentially numbered pages.
Index to Exhibits on sequentially numbered page 4.
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
This Amendment No. 1 to the Registrant's Form 8-A Registration Statement
relates to an amendment to the Stockholder Rights Agreement relating to the
Registrant's Common Stock Purchase Rights issued by the Registrant on
February 8, 1993 in the form of a dividend to all stockholders of record on that
date. The amendment to the Stockholder Rights Agreement increases the initial
Purchase Price (as defined therein) of the Common Stock subject to the Rights
from $25 to $60 per share. A description of the Rights, including all
provisions thereof, as amended pursuant to the amendment described above, is
contained in the Stockholder Rights Agreement, a copy of which is included as an
exhibit to this Registration Statement on Form 8-A, and all of which is
incorporated herein by this reference.
ITEM 2. EXHIBITS.
1. Amendment No. 1 to Stockholder Rights Agreement, dated as of
August 29, 1994, between Rexene Corporation and American Stock
Transfer & Trust Company, which includes as Exhibit 1 thereto a
complete copy of the Stockholder Rights Agreement, as amended by
Amendment No. 1.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, as amended, the registrant has duly caused this Amendment No. 1 to
Form 8-A Registration Statement to be signed on its behalf by the undersigned,
thereto duly authorized.
REXENE CORPORATION
By:
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Kevin W. McAleer, Executive
Vice President and Chief
Financial Officer
Date: October 21, 1994
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EXHIBIT INDEX
Sequentially
Numbered
Exhibit Description Page
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1 Amendment No. 1 to Stockholders 5
Rights Agreement, dated as of
August 29, 1994, between Rexene
Corporation and American Stock
Transfer & Trust Company, which
includes as Exhibit 1 thereto a
complete copy of the Stockholder
Rights Agreement, as amended by
Amendment No. 1.
E-1
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EXHIBIT 1
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REXENE CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY, as
Rights Agent
Stockholder Rights Agreement
Dated as of January 26, 1993
(As Amended August 29, 1994)
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<PAGE>
STOCKHOLDER RIGHTS AGREEMENT
Agreement, dated as of January 26, 1993 and amended August 29, 1994 (this
"Agreement"), between Rexene Corporation, a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, a New York banking
corporation (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one common stock purchase right (a "Right") for each share of Common
Stock (as hereinafter defined) of the Company outstanding on February 8, 1993
(the "Record Date"), each Right representing the right to purchase one share of
Common Stock, upon the terms and subject to the conditions herein set forth, and
has further authorized and directed (i) the issuance of one Right with respect
to each share of Common Stock that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Termination Date and the
Final Expiration Date (as such terms are hereinafter defined) and (ii) the
issuance of one Right with respect to each share of Common Stock that shall
become outstanding between the Distribution Date and the earlier of the
Termination Date and the Final Expiration Date by reason of the exercise of any
option, warrant or conversion privilege contained in any option, warrant, right
or convertible security issued by the Company prior to the Distribution Date
(other than the Rights) unless the Board of Directors provides to the contrary
at the time of the issuance of any such option, warrant, right or convertible
security.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the shares of Common Stock of the Company then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary (as such term is
hereinafter defined) of the Company or (iii) any employee benefit plan of
the Company or any Subsidiary of the Company or any entity holding shares
of Common Stock for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring Person"
as the result of an acquisition of shares of Common Stock by the Company
which, by reducing the number of shares of Common Stock of the Company
outstanding, increases the proportionate number of shares of Common Stock
beneficially owned by such Person to 15% or more of the shares of Common
Stock of the Company then
Exhibit 1 - 1
<PAGE>
outstanding; PROVIDED, HOWEVER, that if a Person, other than those Persons
excepted in the first sentence of this paragraph, shall, together with all
Affiliates and Associates, become the Beneficial Owner of 15% or more of
the shares of Common Stock of the Company then outstanding by reason of
Common Stock purchases by the Company and shall, after such purchases by
the Company, become the Beneficial Owner of any additional shares of Common
Stock of the Company, then such Person shall be deemed to be an "Acquiring
Person".
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as in effect on the date of this Agreement; PROVIDED, HOWEVER, that any
Subsidiary of the Company, any employee benefit plan of the Company or any
Subsidiary of the Company or any entity holding shares of Common Stock of
the Company for or pursuant to the terms of any such plan shall not be
deemed an Affiliate or Associate.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly, including,
without limitation, securities with respect to which such Person or
any of such Person's Affiliates or Associates has "beneficial
ownership" pursuant to Rule 13d-3 of the General Rules and Regulations
under the Exchange Act;
(ii) which such Person or any of such Person's Affiliates or
Associates has, directly or indirectly, (A) the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, whether or not in writing (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other than
the Rights), warrants or options, or otherwise; PROVIDED, HOWEVER,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange; or (B) the right to vote or exercise written
consent pursuant to any agreement, arrangement or understanding;
PROVIDED, HOWEVER, that a Person shall not be deemed the
Exhibit 1 - 2
<PAGE>
Beneficial Owner of, or to beneficially own, any security if the
agreement, arrangement or understanding to vote, or exercise written
consent with respect to, such security arises solely from a revocable
proxy or consent given to such Person or any of such Person's
Affiliates or Associates in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act, but only if
such agreement, arrangement or understanding is not also then
reportable by such Person on Schedule 13D under the Exchange Act (or
any comparable or successor report) as being beneficially owned by
such Person; or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting or exercising written consent (except to the extent
contemplated by the proviso to Section 1(c)(ii)(B)) or disposing of
any securities of the Company.
Notwithstanding anything in this definition of Beneficial Ownership to
the contrary, (A) the phrase "then outstanding", when used with reference
to a Person's Beneficial Ownership of securities of the Company, shall mean
the number of such securities then issued and outstanding together with the
number of such securities not then actually issued and outstanding which
such Person would be deemed to own beneficially hereunder; (B) an
agreement, arrangement or understanding (whether or not in writing), or any
communications or discussions, among two or more Persons with respect to
any matter relating to the management, operation or conduct of the business
of the Company, and including, discussing or agreeing on, or communications
with respect to, a position with respect to any such matter and
communicating such discussion, communication, agreement or position to
other Persons (including stockholders of the Company) or to the Company
shall not constitute an agreement, arrangement or understanding for
purposes of Section 1(c)(ii)(B); and (C) a Person shall not be deemed to be
the "Beneficial Owner" of or to "beneficially own", pursuant to clause (i),
(ii) or (iii) of this paragraph (c), shares of Common Stock of the Company
or other securities beneficially owned by the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or any Subsidiary of
the Company or any entity holding shares of Common Stock of the Company for
or pursuant to the terms of any such plan.
Exhibit 1 - 3
<PAGE>
(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M., New
York, New York time, on such date; PROVIDED, HOWEVER, that if such date is
not a Business Day it shall mean 5:00 P.M., New York, New York time, on the
next succeeding Business Day.
(f) "Common Stock", when used with reference to the Company, shall
mean the common stock, par value $.01 per share, of the Company. "Common
Stock" when used with reference to any Person other than the Company shall
mean the capital stock (or equity interest) with the greatest voting power
of such other Person or, if such other Person is a Subsidiary of another
Person, the Person or Persons which ultimately control such first-mentioned
Person.
(g) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(h) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(i) "Person" shall mean any individual, firm, corporation,
partnership or other entity, and shall include any successor (by merger or
otherwise) of such entity; PROVIDED, HOWEVER, that when two or more Persons
act as a partnership, limited partnership, syndicate or other group for the
purpose of acquiring, holding or disposing of the shares of Common Stock of
the Company, such partnership, limited partnership, syndicate or other
group shall be deemed a "Person".
(j) "Purchase Price" shall have the meaning set forth in Section 4
hereof.
(k) "Right Certificate" shall have the meaning set forth in Section 3
hereof.
(l) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
(m) "Subsidiary" of any Person shall mean any corporation or other
entity of which a majority of the voting
Exhibit 1 - 4
<PAGE>
power of the voting equity securities or equity interest is owned, directly
or indirectly, by such Person.
(n) "Termination Date" shall have the meaning set forth in Section 7
hereof.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior to the Distribution Date
also be the holders of the shares of Common Stock) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable. In the event the Company appoints one or more Co-Right
Agents, the respective duties of the Rights Agent and any Co-Right Agents shall
be as the Company shall determine.
Section 3. ISSUE OF RIGHT CERTIFICATES.
(a) Until the earlier to occur of the Close of Business on (i) the
tenth day after the Shares Acquisition Date (or, if the tenth day after the
Shares Acquisition Date occurs before the Record Date, the Record Date) or
(ii) the tenth business day (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person becomes
an Acquiring Person) after the date of the commencement 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
entity holding shares of Common Stock of the Company for or pursuant to the
terms of any such plan) of, or of the first public announcement of the
intention of any Person (other than the Company, any Subsidiary of the
Company or any employee benefit plan of the Company or of any Subsidiary of
the Company, or any entity holding Common Stock for or pursuant to the
terms of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the Beneficial
Owner of shares of Common Stock of the Company aggregating 15% or more of
the then outstanding shares of Common Stock of the Company (including any
such date which is after the date of this Agreement and prior to the
issuance of the Rights; 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(b) hereof) by the certificates for shares of
Common Stock registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right
Certificates will be transferable only in connection with the transfer of
shares of Common Stock. As soon as practicable after the Distribution
Date, or, with respect to shares of Common Stock issued on or after
Exhibit 1 - 5
<PAGE>
the Distribution Date and prior to the earlier of the Termination Date and
the Final Expiration Date by reason of the exercise of any option, warrant,
right or conversion privilege contained in any option, warrant, right or
convertible security issued by the Company prior to the Distribution Date
(other than the Rights), unless otherwise provided to the contrary by the
Board of Directors at the time of the issuance of any such option, warrant,
right or convertible security, simultaneously with the issuance of such
shares of Common Stock, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent (and
the Rights Agent will, if requested, send) by first-class insured, postage-
prepaid mail, to each record holder of shares of Common Stock as of the
Close of Business on the Distribution Date, or, with respect to shares of
Common Stock so issued on or after the Distribution Date (unless otherwise
provided with respect thereto as aforesaid), to the record holder of such
shares of Common Stock on the date of issuance, at the address of such
holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit A hereto (a "Right Certificate"),
evidencing one Right for each share of Common Stock so held. As of and
after the Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Common Stock,
in substantially the form of Exhibit B hereto (the "Summary of Rights"), by
first-class, postage-prepaid mail, to each record holder of shares of
Common Stock of the Company as of the Close of Business on the Record Date
at the address of such holder shown on the records of the Company. With
respect to certificates for shares of Common Stock outstanding as of the
Record Date, until the Distribution Date, the Rights will be evidenced by
such certificates registered in the names of the holders thereof together
with a copy of the Summary of Rights attached thereto, and the registered
holders of the shares of Common Stock shall also be registered holders of
the associated Rights. Until the Distribution Date (or, if earlier, the
earlier of the Termination Date or the Final Expiration Date), the
surrender for transfer of any certificate for shares of Common Stock
outstanding on the Record Date, with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights
associated with the shares of Common Stock represented thereby.
(c) Certificates for shares of Common Stock of the Company which
become outstanding (including, without limitation, reacquired shares of
Common Stock referred to in the last sentence of this paragraph (c)) after
the Record Date but prior to the earliest of the Distribution Date, the
Exhibit 1 - 6
<PAGE>
Termination Date or the Final Expiration Date shall be deemed also to
constitute certificates for Rights, and shall have impressed on, printed
on, written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Stockholder Rights
Agreement (the "Rights Agreement") between Rexene Corporation and
American Stock Transfer & Trust Company, dated as of January 26, 1993,
the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal offices of Rexene
Corporation. Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Rexene Corporation
will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor.
As described in the Rights Agreement, Rights beneficially owned by any
person who becomes an Acquiring Person (as defined in the Rights
Agreement) may become null and void.
With respect to such certificates containing the foregoing legend, until
the Distribution Date, the Rights associated with the shares of Common Stock
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the shares of Common Stock represented
thereby. In the event that the Company purchases or acquires any shares of
Common Stock after the Record Date but prior to the Distribution Date, any
Rights associated with such shares of Common Stock shall be deemed cancelled and
retired so that the Company shall not be entitled to exercise any Rights
associated with the shares of Common Stock which are no longer outstanding.
Section 4. FORM OF RIGHT CERTIFICATES. The Right Certificates (and the
forms of election to purchase shares of Common Stock and certification of status
and form of assignment and certification of status to be printed on the reverse
thereof) shall be substantially the same as Exhibit A hereto and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Right Certificates, whenever
distributed, shall be dated as of the Record Date and shall entitle the holders
thereof to purchase such number of shares of Common Stock as shall be set forth
therein at the
Exhibit 1 - 7
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price per share of Common Stock set forth therein (the "Purchase Price"), but
the number of such shares of Common Stock and the Purchase Price shall be
subject to adjustment as provided herein.
Section 5. COUNTERSIGNATURE AND REGISTRATION. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, any of its Vice Presidents, or its
Treasurer, either manually or by facsimile signature, shall have affixed thereto
the Company's seal or a facsimile thereof, and shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned by
an authorized signatory of the Rights Agent and shall not be valid for any
purpose unless so countersigned. In case any officer of the Company who shall
have signed any of the Right Certificates or who shall have attested the
Company's seal thereon shall cease to be such officer of the Company before
countersignature by an authorized signatory of the Rights Agent and issuance and
delivery by the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the Company with
the same force and effect as though the person who signed such Right
Certificates or who attested the Company's seal thereon had not ceased to be
such officer of the Company; and any Right Certificate may be signed on behalf
of the Company and the Company's seal may be attested by any person who, at the
actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate or to attest such seal,
although at the date of the execution of this Rights Agreement any such person
was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at its principal office, books for registration and transfer of the Right
Certificates issued hereunder. Such books shall show the names and addresses of
the respective holders of the Right Certificates, the number of Rights evidenced
on its face by each of the Right Certificates and the date of each of the Right
Certificates.
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES. Subject
to the provisions of Section 14 hereof, at any time after the Close of Business
on the Distribution Date, and at or prior to the Close of Business on the
earlier of the Termination Date or the Final Expiration Date, any Right
Certificate or Right Certificates (other than Right Certificates representing
Rights that have become void pursuant to Section 11(a)(ii) hereof or that have
been exchanged pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of shares of Common
Stock as the Right Certificate or Right Certificates
Exhibit 1 - 8
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surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged, with the form of assignment and
certification of status properly executed, at the principal office of the Rights
Agent. Thereupon the Rights Agent shall, subject to Section 14 hereof,
countersign and deliver to the person entitled thereto a Right Certificate or
Right Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer, split up, combination or
exchange of Right Certificates. Neither the Rights Agent nor the Company shall
be obligated to take any action whatsoever with respect to the transfer of any
such surrendered Right Certificate until the Registered Holder shall have duly
completed and executed the form of assignment on the reverse side of such Right
Certificate and shall have provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) of such Rights Certificate or
Affiliates or Associates thereof as the Company shall reasonably request.
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.
(a) Subject to Section 11(a)(ii), the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution
Date upon surrender of the Right Certificate, with the form of election to
purchase and certification of status on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the Rights Agent,
together with payment of the Purchase Price for each share of Common Stock
as to which the Rights are exercised, at or prior to the earliest of
(i) the Close of Business on February 8, 2003, unless extended pursuant to
Section 27 hereof (the "Final Expiration Date"), (ii) the time at which the
Rights are terminated as provided in Section 23
Exhibit 1 - 9
<PAGE>
hereof (the "Termination Date"), or (iii) the time at which such Rights are
exchanged as provided in Section 24 hereof.
(b) The Purchase Price for each share of Common Stock pursuant to the
exercise of a Right shall initially be $60, shall be subject to adjustment
from time to time as provided in Sections 11 and 13 hereof and shall be
payable in lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and certification of status
contained therein duly executed, accompanied by payment of the Purchase
Price for the shares to be purchased and an amount equal to any applicable
transfer tax (as determined by the Rights Agent) required to be paid by the
holder of such Right Certificate in accordance with Section 9 hereof by
certified check, cashier's check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i) requisition from any
transfer agent of the Common Stock certificates for the number of shares of
Common Stock to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, (ii) when appropriate,
requisition from the Company the amount of cash to be paid in lieu of
issuance of fractional shares in accordance with Section 14 hereof, (iii)
after receipt of such certificates, cause the same to be delivered to or
upon the order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such holder and
(iv) when appropriate, after receipt, deliver such cash to or upon the
order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered holder of
such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding paragraph (a) hereof, a holder of a Right may
exercise such Right after the Distribution Date but prior to the receipt of
the associated Right Certificate by so notifying in writing the Rights
Agent and furnishing to the Rights Agent such information and evidence of
the election as the Rights Agent may reasonably request; PROVIDED, HOWEVER,
that the Rights Agent shall not be required to take any of the actions
specified in paragraph (c) of this Section 7 until the holder has satisfied
the requirements specified in such paragraph (c).
Exhibit 1 - 10
<PAGE>
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake
any action with respect to a registered holder upon the occurrence of any
purported transfer or exercise unless such registered holder shall have (i)
completed and signed the certification of status following the form of
assignment or election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such assignment or exercise and
(ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request.
Section 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATES. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
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 Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company, or shall, at the
written request of the Company, destroy such cancelled Right Certificates, and
in such case shall deliver a certificate of destruction thereof to the Company.
Section 9. RESERVATION AND AVAILABILITY OF COMMON STOCK. The Company
covenants and agrees that it will use its best efforts to reserve and keep
available out of its authorized and unissued shares of Common Stock or any
authorized and issued shares of Common Stock held in its treasury, the number of
shares of Common Stock that will be sufficient to permit the exercise in full of
all outstanding Rights.
So long as the shares of Common Stock issuable upon the exercise of Rights
may be listed on any national securities exchange, the Company shall use its
best efforts to cause, from and after the Distribution Date, all shares reserved
for such issuance to be listed on such exchange upon official notice of issuance
upon such exercise.
The Company will prepare and file, as soon as practicable following the
Shares Acquisition Date or any announcement of a tender offer or exchange offer
as contemplated by Section 3, a registration statement under the Securities Act
of 1933, as amended (the "Act"), with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form, and use its best
efforts to cause such registration statement to (i)
Exhibit 1 - 11
<PAGE>
become effective as soon as practicable after such filing, and (ii) 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 or (B) the Final Expiration Date. The Company
will also take such action as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the various states in connection with
the exercisability of the Rights. The Company may temporarily suspend, for a
period of time not to exceed 90 days after the date the registration statement
is filed, the exercise of the Rights in order to permit the registration
statement to become effective. Upon any such suspension, the Company shall
issue a public announcement stating that the exercise 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 if the requisite qualification in such jurisdiction shall not have
been obtained or the exercise thereof is not permitted under applicable law.
The Company covenants and agrees that it will take all such action as may
be necessary to ensure that all shares of Common Stock delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such shares of
Common Stock upon payment of Purchase Price, be duly and validly authorized and
issued and fully paid and nonassessable shares of Common Stock.
The Company further covenants and agrees that, subject to Sections 6 and
7(c), it will pay when due and payable any and all federal and state original
issue or transfer taxes and charges which may be payable in respect of the
issuance or delivery of the Right Certificates or of any shares of Common Stock
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
Right Certificates to a person other than, or the issuance or delivery of
certificates for the shares of Common Stock in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or to deliver any certificates for shares of common Stock
upon the exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. COMMON STOCK RECORD DATE. Each Person in whose name any
certificate for shares of Common Stock is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
shares of Common Stock represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing such Rights was duly
Exhibit 1 - 12
<PAGE>
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the Common Stock transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Common Stock transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Right Certificate, as
such, shall not be entitled to any rights of a holder of shares of Common Stock
for which the Rights shall be exercisable, including, without limitation, the
right to vote (except as provided in Section 27 hereof), herein to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES OR NUMBER OF
RIGHTS. The Purchase Price, the number of shares of Common Stock covered by
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Common Stock payable in shares
of Common Stock, (B) subdivide the outstanding shares of Common Stock, (C)
combine the outstanding Common Stock into a smaller number of shares or
(D) issue any shares of its capital stock in a reclassification of the
Common Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the
Purchase Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination or
reclassification, and the number and kind of shares of capital stock
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right
had been exercised immediately prior to such date and at a time when the
Common Stock transfer books of the Company were open, such holder would
have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification; PROVIDED,
HOWEVER, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right. If an
event occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii), the adjustment provided for in this Section
11(a)(i) shall be in addition to,
Exhibit 1 - 13
<PAGE>
and shall be made prior to, any adjustment required pursuant to Section
11(a)(ii).
(ii) Subject to Section 24 of this Agreement, in the event any Person
shall become an Acquiring Person, proper provision shall be made so that
each holder of a Right, except as provided in this subparagraph (ii), shall
thereafter have a right to receive, upon exercise thereof at a price equal
to the then current Purchase Price multiplied by the number of shares of
Common Stock for which a Right is then exercisable, in accordance with the
terms of this Agreement, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the number of shares of Common Stock for which a
Right is then exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Stock (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of any such
event. Successive adjustments shall be made pursuant to this Section
11(a)(ii) each time an event described herein occurs.
From and after the occurrence of an event described in paragraph
11(a)(ii), any Rights that are or were acquired or beneficially owned by
(i) an Acquiring Person (or any Associate or Affiliate of such 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 a
part of a plan, arrangement or understanding which has as a primary purpose
or effect the avoidance of this paragraph, shall become null and void
without any further action and no holder of such Rights shall have any
rights whatsoever with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use all reasonable
efforts to ensure that the provisions hereof are complied with, but shall
have no liability to any holder of a Right Certificate or other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferors.
(iii) In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to
permit the exercise in full of the
Exhibit 1 - 14
<PAGE>
Rights in accordance with the foregoing subparagraph (ii), the Company
shall use its best efforts to cause the authorization of additional shares
of Common Stock for issuance upon exercise of the Rights; PROVIDED,
HOWEVER, if the Company is unable to cause the authorization of additional
shares of Common Stock, then, in the event the Rights become so
exercisable, notwithstanding any other provision of this Agreement, the
Company, to the extent necessary and permitted by applicable law and any
agreements in effect on the date thereof to which it is a party, shall, in
lieu of issuing shares of Common Stock and requiring payment therefor upon
exercise, pay to each holder of a Right cash in the amount obtained by
multiplying (x) the then current Purchase Price by (y) the number of shares
of Common Stock for which a Right would have been exercisable prior to such
adjustment. To the extent that any legal or contractual restrictions will
prevent the Company from paying the full amount payable in accordance with
the foregoing sentence, the Company shall pay to holders of the Rights as
to which such payments are being made all amounts which are not then
restricted on a pro rata basis. The Company shall continue to make
payments on a pro rata basis as funds become available until such payments
have been paid in full.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of shares of Common Stock
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase shares of Common Stock (or shares
having the same rights, privileges and preferences as the Common Stock
("equivalent common stock")) or securities convertible into Common Stock or
equivalent common stock at a price per share of Common Stock or per share
of equivalent common stock (or having a conversion price per share, if a
security convertible into Common Stock or equivalent common stock) less
than the then current per share market price of the Common Stock (as
defined in Section 11(d)) on such record date, the Purchase Price to be in
effect after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of shares of Common
Stock outstanding on such record date plus the number of shares of Common
Stock which the aggregate offering price of the total number of shares of
Common Stock and/or equivalent common stock so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be
offered) would purchase at such current market price and the denominator of
which shall be the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock and/or
equivalent common stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are
Exhibit 1 - 15
<PAGE>
initially convertible); PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company issuable
upon exercise of one Right. In case such subscription price may be paid in
a consideration part or all of which shall be in a form other than cash,
the value of such consideration shall be as determined in good faith by a
majority of 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. Common Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in shares of Common Stock) or subscription rights or
warrants (excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the then current
per share market price of the Common Stock on such record date, less the
fair market value (as determined in good faith by a majority of 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) of the portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one
share of Common Stock and the denominator of which shall be such current
per share market price of the Common Stock; PROVIDED, HOWEVER, that in no
event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of the
Company to be issued upon exercise of one Right. Such adjustments shall be
made successively whenever such a record date is fixed; and in the event
that such distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current
per share market price" of any security (a
Exhibit 1 - 16
<PAGE>
"Security" for the purpose of this Section 11(d)(i)) on any date shall be
deemed to be the average of the daily closing prices per share of such
Security for the five consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date; PROVIDED, HOWEVER, that in the
event that the current per share market price of the Security is determined
during a period following the announcement by the issuer of such Security
of (A) a dividend or distribution on such Security payable in shares of
such Security or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security and prior to
the expiration of five Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the current
per share market price shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The closing
price for each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the Security
is not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the Security
is not listed or admitted to trading on any national securities exchange,
the last quoted price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotations
System ("NASDAQ") or such other system then in use, or, if on any such date
the Security is not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is not
listed or admitted to trading on any national securities exchange, a
Business Day.
(ii) For the purpose of any computation hereunder, the "current per
share market price" of the Common Stock shall be determined in accordance
with the method set forth in Section 11(d)(i). If the Common Stock is not
publicly traded, the "current per share market price" of the Common Stock
shall mean the fair value per share as determined in good faith by a
majority of the Board of Directors of the Company, whose
Exhibit 1 - 17
<PAGE>
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the
Purchase Price; PROVIDED, HOWEVER, that any adjustments which by reason of
this Section 11(e) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the nearest one
ten-thousandth of a share of Common Stock or any other share or security,
as the case may be. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the transaction which
requires such adjustment or (ii) the date of the expiration of the right to
exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock of the Company other than Common
Stock, thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions
with respect to the Common Stock contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10, 13 and 14 with respect
to the Common Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of shares of Common
Stock purchasable from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of
the calculations made in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number
of shares of Common Stock (calculated to the nearest ten-thousandth)
obtained by (i) multiplying (x) the number of shares of Common Stock
covered by a Right immediately prior to this adjustment by (y) the Purchase
Price in effect immediately prior to such adjustment of the Purchase Price
and (ii) dividing the product so obtained by the
Exhibit 1 - 18
<PAGE>
Purchase Price in effect immediately after such adjustment of the Purchase
Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of shares of Common Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after such adjustment
of the number of Rights shall be exercisable for the number of shares of
Common Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the
nearest ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price
in effect immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. Such record date may be the
date on which the Purchase Price is adjusted or any day thereafter, but, if
the Right Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such record date
Right Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed
to such holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after
such adjustment. Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Common Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Purchase Price and the number of shares of Common
Stock which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par
Exhibit 1 - 19
<PAGE>
value, if any, of the shares of Common Stock issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common Stock at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such
record date of the shares of Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and
above the shares of Common Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; PROVIDED, HOWEVER, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 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 Section 11, as and
to the extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the shares of
Common Stock, issuance wholly for cash of any shares of Common Stock at
less than the current market price, issuance wholly for cash of shares of
Common Stock or securities which by their terms are convertible into or
exchangeable for shares of Common Stock, dividends on shares of Common
Stock payable in shares of Common Stock or issuance of rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made by the
Company to holders of its shares of Common Stock shall not be taxable to
such stockholders.
(n) In the event that at any time after the date of this Agreement
and prior to the Distribution Date, the Company shall (i) declare or pay
any dividend on the shares of Common Stock payable in shares of Common
Stock or (ii) effect a subdivision, combination or consolidation of the
Common Stock (by reclassification or otherwise than by payment of dividends
in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, then in any such case (x) the number of shares of Common
Stock purchasable after such event upon proper exercise of each Right shall
be determined by multiplying the number of shares of Common Stock so
purchasable immediately prior to such event by a fraction, the
Exhibit 1 - 20
<PAGE>
numerator of which is the number of shares of Common Stock outstanding
immediately before such event and the denominator of which is the number of
shares of Common Stock outstanding immediately after such event, and (y)
each share of Common Stock outstanding immediately after such event shall
have issued with respect to it that number of Rights which each share of
Common Stock outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section 11(n) shall be
made successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected. If an event occurs
which would require an adjustment under Section 11(a)(ii) and this Section
11(n), the adjustment provided for in this Section 11(n) shall be in
addition to and prior to any adjustment required pursuant to Section
11(a)(ii).
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Sections 11 and 13 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Stock a copy of
such certificate and (c) mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 25 hereof.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER. (a) In the event that, on or after the Shares Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person, (y) any Person shall consolidate with the Company,
or merge with and into the Company and the Company shall be the continuing or
surviving corporation of such merger and, in connection with such merger, all or
part of the Common Stock shall be changed into or exchanged for stock or other
securities of any other Person (or the Company) or cash or any other property,
or (z) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in a transaction or a series of
transactions (other than in the ordinary course of business) assets or earning
power aggregating 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person other than the Company
or one or more of its wholly-owned Subsidiaries, then, and in each such case,
proper provision shall be made so that (i) each holder of a Right (except as
otherwise provided herein) shall thereafter have the right to receive, upon the
exercise thereof at a price equal to the then current Purchase Price multiplied
by the number of shares of Common Stock for which a Right is then exercisable,
in accordance with the terms of this Agreement, such number of freely tradeable
shares of Common Stock of the Principal Party (as such term is hereinafter
defined), free and clear of liens, encumbrances or other adverse claims, as
shall equal the result obtained by (A) multiplying the
Exhibit 1 - 21
<PAGE>
then current Purchase Price by the number of shares of Common Stock for which a
Right is then exercisable and dividing that product by (B) 50% of the then
current per share market price of the Common Stock of such Principal Party
(determined pursuant to Section 11(d) hereof) on the date of consummation of
such consolidation, merger, sale or transfer; (ii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company pursuant
to this Agreement; (iii) the term "Company" shall thereafter be deemed to refer
to such Principal Party, it being specifically intended that the provisions of
Section 11 hereof shall apply to such Principal Party; and (iv) such Principal
Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of its shares of Common Stock in accordance with Section 9
hereof) in connection with such consummation as may be necessary to assure that
the provisions hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the shares of Common Stock thereafter deliverable upon
the exercise of the Rights. The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the Company and
such issuer shall have executed and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into any transaction of the
kind referred to in this Section 13 if at the time of such transaction there are
any rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be afforded by the
Rights. The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers. If, in the case of a
transaction referred to in clause (z) of the first sentence of this Section 13,
the Person or Persons to whom assets or earning power are sold or otherwise
transferred are individuals, then the preceding sentence shall be inapplicable
and the Company shall require as a condition to such sale or transfer that such
Person or Persons pay to each holder of a Right Certificate, upon the surrender
to the Rights Agent of such Right Certificate and in exchange therefor (without
requiring any payment by such holder) cash in the amount obtained by multiplying
(x) the then current Purchase Price by (y) the number of shares of Common Stock
for which a Right is then exercisable.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of Common Stock of the
Company are converted in such transaction, or if there is more than
one such issuer, the issuer of shares of Common Stock with the
greatest aggregate market value, and if no securities are so issued,
the Person that is the other
Exhibit 1 - 22
<PAGE>
party to such transaction, or if there is more than one such Person,
the Person having shares of Common Stock with the greatest aggregate
market value; and
(ii) in the case of any transaction described in clause (z) of
the first sentence of Section 13(a), 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, (l) if the shares of Common Stock of
such Person are not at such time and have not been continuously over
the preceding 12-month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect Subsidiary of
another Person the shares of 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 shares of 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 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. (a) The Company
shall not be required to issue fractions of Rights or to distribute Right
Certificates which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price 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 for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Rights
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
Rights are listed or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities 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
Exhibit 1 - 23
<PAGE>
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, whose determination shall
be described in a statement filed with the Rights Agent.
(b) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Common Stock. In lieu of fractional
shares of Common Stock, the Company shall pay to the registered holders of
Right Certificates at the time such Rights are exercised as herein provided
an amount in cash equal to the same fraction of the current market value of
one share of Common Stock. For the purposes of this Section 14(b), the
current market value of a share of Common Stock shall be the closing price
of a share of Common Stock (as determined pursuant to Section 11(d) hereof)
for the Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares
upon exercise of a Right.
Section 15. RIGHTS OF ACTION. All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
shares of Common Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the shares of Common Stock), without the
consent of the Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the shares of Common Stock), may, in his own
behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such Right Certificate
in the manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject to, this
Agreement. Holders of Rights shall be entitled to recover the reasonable costs
and expenses, including attorneys' fees, incurred by them in any action to
enforce the provisions of this Agreement.
Exhibit 1 - 24
<PAGE>
Section 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the shares of Common Stock of the
Company;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the principal office of the Rights Agent, duly endorsed or accompanied
by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the person in
whose name the Right Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the associated Common
Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent shall be affected by any notice to the contrary.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No holder,
as such, of any Right Certificate shall be entitled to vote (except as provided
in Section 27 hereof), receive dividends or be deemed for any purpose the holder
of the shares of Common Stock or any other securities of the Company which may
at any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of
Exhibit 1 - 25
<PAGE>
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 arising therefrom,
directly or indirectly.
The Rights Agent shall be protected and shall incur no liability for, or in
respect of any action taken, suffered or omitted by it in connection with, its
administration of this Agreement in reliance upon any Right Certificate or
certificate 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
believed by it to be genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons, or otherwise upon the
advice of counsel as set forth in Section 20 hereof.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the stock transfer or
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21 hereof. In case
at the time such successor Rights Agent shall succeed to the agency created by
this Agreement any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall be changed and at
such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Exhibit 1 - 26
<PAGE>
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or
matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer or the Secretary of the Company and delivered to
the Rights Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the
Right Certificates (except its countersignature thereof) or to be required
to verify the same, but all such statements and recitals are and shall be
deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof
(except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in Section 3,
11, 13, 23 or 24, or the ascertaining of the
Exhibit 1 - 27
<PAGE>
existence of facts that would require any such change or adjustment (except
with respect to the exercise of Rights evidenced by Right Certificates
after actual notice that such change or adjustment is required); nor shall
it by any act hereunder be deemed to make any representation or warranty as
to the authorization or reservation of any shares of Common Stock to be
issued pursuant to this Agreement or any Right Certificate or as to whether
any shares of Common Stock will, when issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will inform the Rights Agent promptly
upon the Company's determination that a Person has become an Acquiring
Person, and the Rights Agent will not be responsible for determining the
status of a Person as an Acquiring Person prior to such notification,
except as such status may be indicated in the certification of status
accompanying a Right Certificate submitted to the Rights Agent. The
Company further agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the Chief Executive Officer, the
President, any Vice President, the Secretary or the 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 by it in good faith in accordance with instructions of any such
officer or for any delay in acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not Rights Agent under this Agreement. Nothing herein shall preclude
the Rights Agent from acting in any other capacity for the Company or for
any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any
Exhibit 1 - 28
<PAGE>
such attorneys or agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
of the Common Stock by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock by registered or certified mail, and to the holders of
the Right Certificates by first-class mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of 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 an office in the
State 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 $50 million. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may
be.
Exhibit 1 - 29
<PAGE>
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Right Certificates evidencing Rights in such form
as may be 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 Right Certificates made in
accordance with the provisions of this Agreement.
Section 23. TERMINATION OF RIGHTS. (a) A majority of the Board of
Directors of the Company may, at its option, at any time prior to the earlier of
(i) the time a Person becomes an Acquiring Person or (ii) the Final Expiration
Date, terminate and cancel all but not less than all of the then outstanding
Rights. No amounts shall be payable by the Company nor receivable by holders of
Rights pursuant to such termination. The termination of the Rights by the Board
of Directors may be made effective at such time on such basis and with such
conditions as the Board of Directors in its sole discretion may establish and
the Company shall not have any liability to any person as a result of the
termination of Rights pursuant to the terms of this Section 23.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the termination of the Rights pursuant to paragraph (a) of
this Section 23, evidence of which shall be filed with the Rights Agent,
and without any further action and without any notice, all rights of the
holders of Rights, including without limitation the right to exercise the
Rights, will terminate. The Company shall promptly give public notice of
any such termination; PROVIDED, HOWEVER, that the failure to give, or any
defect in, any such notice shall not affect the validity of such
termination. Within 10 days after such action of the Board of Directors
ordering the termination of the Rights pursuant to paragraph (a), the
Company shall mail a notice of termination to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice.
Section 24. EXCHANGE. (a) The Board of Directors of the Company may, at
its option, at any time after any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of
Section 11(a)(ii) hereof) for shares of Common Stock of the Company at an
exchange ratio of one share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring
Exhibit 1 - 30
<PAGE>
after the date hereof (such exchange ratio being hereinafter referred to as the
"Exchange Ratio"). Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or any Subsidiary of the Company or any entity holding shares of
Common Stock of the Company for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such person, becomes the
Beneficial Owner of 50% or more of the shares of Common Stock then outstanding.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to subsection (a) of
this Section 24 and without any further action and without any notice, the
right to exercise such Rights shall terminate and the only right thereafter
of a holder of such Rights shall be to receive that number of shares of
Common Stock equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange; PROVIDED, HOWEVER, that the failure to give,
or any defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear
upon the registry books of the Rights Agent. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by
which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which have become void
pursuant to the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
(c) In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall take all such action as may be necessary to authorize
additional shares of Common Stock for issuance upon exchange of the Rights.
(e) The Company may, but shall not be required to, issue fractions of
shares of Common Stock or to distribute certificates which evidence
fractional shares. In lieu of such fractional shares, the Company shall
pay to the registered holders of the Right Certificates with regard to
which such fractional shares would otherwise be issuable an amount in cash
equal to the same fraction of the current market value of a whole share of
Common Stock. For the
Exhibit 1 - 31
<PAGE>
purposes of this paragraph (e), the current market value of a whole share
of Common Stock shall be the closing price of a share of Common Stock (as
determined pursuant to the second sentence of Section 11(d)(i) hereof) for
the Trading Day immediately prior to the date of exchange pursuant to this
Section 24.
Section 25. NOTICE OF CERTAIN EVENTS. (a) In case the Company shall
propose (i) to pay any dividend payable in stock of any class to the holders of
Common Stock or to make any other distribution to the holders of Common Stock
(other than a regular quarterly cash dividend), (ii) to offer to the holders of
Common Stock rights or warrants to subscribe for or to purchase any additional
shares of Common Stock or shares of stock of any class or any other securities,
rights or options, (iii) to effect any reclassification of its Common Stock
(other than a reclassification involving only the subdivision of outstanding
shares of Common Stock), (iv) to effect any consolidation or merger into or
with, or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions
(other than in the ordinary course of business), of 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person 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
Right Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
stock dividend, or distribution 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 the Common Stock, if any such date is to be fixed, and such
notice shall be so given (a) in the case of any action covered by clause (i) or
(ii) above at least 6 days prior to the record date for determining holders of
the Common Stock for purposes of such action and (b) in the case of any such
other action, at least 10 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the Common Stock,
whichever shall be the earlier.
(b) In case any of the events set forth in Section 11(a)(ii) hereof
shall occur, then the Company shall as soon as practicable thereafter give
to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to holders of Rights
under Section 11(a)(ii) hereof.
Section 26. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid,
Exhibit 1 - 32
<PAGE>
addressed (until another address is filed in writing with the Rights Agent) as
follows:
Rexene Corporation
5005 LBJ Freeway
Occidental Towers
Dallas, Texas 75244
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Agreement to be given or made by the Company or by the holder
of any Right Certificate to or on the Rights Agent shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
American Stock Transfer
& Trust Company
40 Wall Street
New York, New York 10005
Attention: Carolyn O'Neil
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. SUPPLEMENTS AND AMENDMENTS. The Company may and the Rights
Agent shall, if so directed by the Company, from time to time supplement or
amend this Agreement, provided that at the time of such supplement or amendment
no Person has become an Acquiring Person, without the approval of any holders of
Right Certificates in order (i) to extend the Final Expiration Date or the
period during which the Rights may be terminated, notwithstanding anything to
the contrary provided in clause (iii) hereof, (ii) to cure any ambiguity, or to
correct or supplement any provision contained in this Agreement which may be
defective or inconsistent with any other provisions in this Agreement, or (iii)
to otherwise change or supplement any provision in this Agreement in any manner
which the Company may deem necessary or desirable; provided, however, that from
and after such time as any Person becomes an Acquiring Person no such change or
supplement shall adversely affect the interests of the holders of Right
Certificates (other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person) and no such change or supplement shall be adopted without the
consent of the holders of a majority of the Rights (other than Acquiring
Persons). Without limiting the foregoing, the Company may at any time prior to
such time as any Person becomes an Acquiring Person amend this Agreement to
change the thresholds set forth in Sections 1(a) and 3(a) of this Agreement.
Exhibit 1 - 33
<PAGE>
Section 28. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. BENEFITS OF THIS AGREEMENT. Nothing in this Agreement shall
be construed to give to any person or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the shares of Common Stock of the Company) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the shares of Common Stock of the Company).
The Board of Directors of the Company shall have the exclusive power and
total and complete authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board of Directors or the Company
or necessary or advisable in the administration of this Agreement, including
without limitation the right and power to interpret this Agreement and to make
conclusively all determinations deemed necessary or advisable for the
administration of this Agreement. All such acts, calculations, interpretations
and determinations (including, for purposes of clause (y) below, all omissions
with respect to the foregoing) that are done or made by the Board of Directors
in good faith shall (x) be final, conclusive and binding on the Company, the
Rights Agent and the holders of the Rights and all other parties and (y) not
subject the Board of Directors to any liability to the holders of the Rights or
any other party.
Section 30. SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
Section 31. GOVERNING LAW. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Exhibit 1 - 34
<PAGE>
Section 33. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
REXENE CORPORATION
Attest:
By: /s/ Bernard J. McNamee By: /s/ Kevin W. McAleer
------------------------- -----------------------------------
Name: Bernard J. McNamee Name: Kevin W. McAleer
Title: Title: Executive Vice President
and Chief Financial
Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY
Attest:
By: /s/ Herbert J. Lemmer By: /s/ Carolyn B. O'Neill
------------------------- -----------------------------------
Name: Herbert J. Lemmer Name: Carolyn B. O'Neill
Title: Vice President Title: Vice President
Exhibit 1 - 35
<PAGE>
Exhibit A
[Form of Right Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER FEBRUARY 8, 2003 OR EARLIER IF TERMINATION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO TERMINATION AT THE OPTION OF
THE COMPANY AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY A PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON
OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) AND SUBSEQUENT HOLDERS OF SUCH RIGHTS MAY
BECOME NULL AND VOID.
Right Certificate
REXENE 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 Stockholder Rights Agreement, dated as of January 26, 1993 (the "Rights
Agreement"), between Rexene Corporation, a Delaware corporation (the "Company"),
and American Stock Transfer & Trust Company (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such term is
defined in the Rights Agreement) and prior to 5:00 P.M., New York, New York
time, on February 8, 2003, at the principal office of the Rights Agent, or at
the office of its successor as Rights Agent, one fully paid non-assessable share
of Common Stock, par value $.01 per share (the "Common Stock"), of the Company,
at a purchase price of $60.00 per share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase and Certification of Status duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares of Common Stock
which may be purchased upon exercise hereof) set forth above, and the Purchase
Price set forth above, are the number and Purchase Price as of _______________,
____, based on the Common Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of
shares of Common Stock which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms,
<PAGE>
provisions and conditions are hereby incorporated herein by reference and made a
part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned offices of the Rights
Agent and are also available upon written request to the Company.
If a Person becomes an Acquiring Person (as such terms are defined in the
Rights Agreement), any Rights evidenced by this Right Certificate that are
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of
such Acquiring Person (as such terms are defined in the Rights Agreement), (ii)
a transferee of any such Acquiring Person or Associate or Affiliate who becomes
a transferee after the Acquiring Person becomes such or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of such Acquiring
Person or Associate or Affiliate who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such, shall be null and void
from and after the occurrence of such event.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number of
shares of Common Stock as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Rights Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may, prior to the time that any Person becomes an Acquiring
Person, but are not required to, be terminated by the Company at no cost or (ii)
may, at any time after any Person becomes an Acquiring Person, but are not
required to, be exchanged in whole or in part for shares of Common Stock.The
Board of Directors of the Company and the Company shall not have any liability
to any person as a result of the termination or exchange of the Rights pursuant
to the provisions of the Rights Agreement.
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.
A-2
<PAGE>
No holder of this Right Certificate, as such, shall be entitled to vote
(except as provided in the Rights Agreement) or receive dividends or be deemed
for any purpose the holder of the 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
stockholder of the Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or
other actions affecting stockholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of ______________, 19___.
[CORPORATE SEAL]
ATTEST: REXENE CORPORATION
___________________________ ________________________________________________
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER
& TRUST COMPANY
By: _______________________
Authorized Signature
A-3
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _______________________________________ hereby sells,
assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________________
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________________________
Attorney, to transfer the within Right Certificate on the books of the within-
named Company, with full power of substitution.
Dated: _____________________, 19___
________________________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office correspondent in
the United States.
A-4
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
CERTIFICATION OF STATUS
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate
/ / is
/ / is not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Associate or an Affiliate thereof (as such terms are defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
/ / did
/ / did not
acquire the Rights evidenced by this Right Certificate from any person who is,
was or subsequently became an Acquiring Person or an Affiliate or Associate
thereof.
________________________________________________
Signature
Date: __________________, 19___
NOTICE
The signature(s) in the foregoing Form of Assignment and Certification of
Status must correspond to the name as written upon the face of this Right
Certificate in every particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form of Assignment is
not completed, the Company will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and, in the case of an
Assignment, will affix a legend to that effect on any Right Certificates issued
in exchange for this Right Certificate.
A-5
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To REXENE CORPORATION:
The undersigned hereby irrevocably elects to exercise ________________
Rights represented by this Right Certificate to purchase the shares of Common
Stock issuable upon the exercise of such Rights and requests that certificates
for such shares of Common Stock be issued in the name of:
Please insert social security
or other identifying number:____________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number: ___________________________________________________
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Dated: ______________, 19___
_____________________________________________
Signature
A-6
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
CERTIFICATION OF STATUS
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate
/ / is
/ / is not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Associate or an Affiliate thereof (as such terms are defined in the Rights
Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it
/ / did
/ / did not
acquire the Rights evidenced by this Right Certificate from any person who is,
was or subsequently became an Acquiring Person or an Affiliate or Associate
thereof.
________________________________________________
Signature
Date: __________________, 19___
A-7
<PAGE>
[Form of Reverse Side of Right Certificate -- continued]
NOTICE
The signature(s) in the foregoing Form of Election to Purchase and
Certification of Status must correspond to the name as written upon the face of
this Right Certificate in every particular, without alteration or enlargement or
any change whatsoever.
In the event the certification set forth above in the Form or Election to
Purchase is not completed, the Company will deem the beneficial owner of the
Rights evidenced by this Right Certificate to be an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and, in the
case of an Assignment, will affix a legend to that effect on any Right
Certificates issued in exchange for this Right Certificate.
A-8
<PAGE>
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
(As Amended August 29, 1994)
On January 26, 1993, the Board of Directors of Rexene Corporation (the
"Company") declared a dividend of one common stock purchase right (a "Right")
for each outstanding share of common stock, par value $.01 per share (the
"Common Stock"), of the Company. The dividend is payable on February 8, 1993
(the "Record Date") to the stockholders of record of the Common Stock on that
date. When the Rights become exercisable, each Right will entitle the
registered holder to purchase from the Company one share of Common Stock at a
price of $60 per share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and American Stock Transfer & Trust
Company, as Rights Agent (the "Rights Agent").
Until the earlier to occur of the Close of Business on (i) the tenth
day after the date a person (an "Acquiring Person") (other than the Company, any
subsidiary of the Company, or any employee benefit plan of the Company or any
subsidiary of the Company) alone or together with affiliates and associates, has
become the beneficial owner of 15% (or such lower threshold as may be
established by the Board of Directors) or more of the outstanding shares of
Common Stock or (ii) the tenth business day after the date (or such later date
as may be determined by action of the Board of Directors prior to such time as
any person becomes an Acquiring Person) of the commencement of, or announcement
of an intention to make, a tender offer or exchange offer the consummation of
which would result in the beneficial ownership by a person or group (other than
the Company, any subsidiary of the Company, or any employee benefit plan of the
Company or any subsidiary of the Company) of 15% (or such lower threshold as may
be established by the Board of Directors) or more of such outstanding shares of
Common Stock (the earlier of (i) or (ii) being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the Common Stock
certificates outstanding as of the Record Date, by such Common Stock certificate
with a copy of this Summary of Rights attached thereto.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier termination or expiration of the Rights), new
Common Stock certificates issued after the Record Date, upon transfer or new
issuance of shares of Common Stock, will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
termination or expiration of the Rights), the surrender for transfer of any
certificates for shares of Common Stock, outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
<PAGE>
thereto, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificate") will be mailed to holders of record of the shares of
Common Stock as of the close of business on the Distribution Date and such
separate Right Certificates alone will evidence the Rights. Each share of
Common Stock issued after the Distribution Date and prior to the earlier of the
termination or expiration of the Rights pursuant to exercise of any option,
warrant, right or conversion privilege contained in any option, warrant, right
or convertible security issued by the Company prior to the Distribution Date
(other than the Rights) shall also include the right to receive a Right (unless
the Board of Directors provides to the contrary at the time of issuance of any
such option, warrant, right or convertible security) and Right Certificates
evidencing such Rights shall be issued at the time of issuance of such shares of
Common Stock.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on February 8, 2003 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier terminated by
the Company, in each case, as described below.
The Purchase Price payable, and the number of shares of Common Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Common Stock, (ii) upon the grant to holders of the shares of Common Stock of
certain rights or warrants to subscribe for or purchase shares of Common Stock
at a price, or securities convertible into shares of Common Stock with a
conversion price, less than the then current market price of the shares of
Common Stock or (iii) upon the distribution to holders of the shares of Common
Stock of evidences of indebtedness or assets (excluding a regular quarterly cash
dividend or a dividend payable in shares of Common Stock) or of subscription
rights or warrants (other than those referred to above).
The number of outstanding Rights and the number of shares of Common
Stock issuable upon exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend on the Common
Stock payable in shares of Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case, prior to the
Distribution Date.
In the event that on or after the first date of public announcement by
the Company or an Acquiring Person that an Acquiring Person has become such (the
"Shares Acquisition Date") the Company is acquired in a merger or other business
combination
B-2
<PAGE>
transaction or 50% or more of its consolidated assets or earning power are sold
(in one transaction or a series of transactions other than in the ordinary
course of business), proper provision will be made so that each holder of a
Right will thereafter have the right to receive, upon the exercise thereof at
the then current Purchase Price of the Right, that number of common shares of
the acquiring company which at the time of such transaction will have a market
value of two times the Purchase Price. In the event that any person, together
with its affiliates and associates, becomes the beneficial owner of 15% (or such
lower threshold as may be established by the Board of Directors) or more of the
shares of Common Stock then outstanding, proper provision shall be made so that
each holder of a Right, other than Rights beneficially owned by the Acquiring
Person (which will thereafter be void), will thereafter have the right to
receive upon exercise that number of shares of Common Stock of the Company
having a market value of two times the Purchase Price. Under no circumstances
may a Right be exercised following the occurrence of an event set forth in the
preceding sentence prior to the expiration of the Company's right of
termination.
At any time after any person becomes an Acquiring Person and prior to
the acquisition by such person, together with its affiliates and associates, of
beneficial ownership of 50% or more of the outstanding shares of Common Stock,
the Board of Directors of the Company may exchange the Rights (other than Rights
owned by such person which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock (or of a share of a class or series
of the Company's preferred stock having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional shares of Common Stock will be issued and in
lieu thereof, an adjustment in cash will be made based on the market price of
the shares of Common Stock on the last trading day prior to the date of
exercise.
At any time prior to the earlier to occur of (i) the acquisition by a
person, together with its affiliates and associates, of beneficial ownership of
15% (or such lower threshold as may be established by the Board of Directors) or
more of the outstanding shares of Common Stock or (ii) the Final Expiration
Date, the Board of Directors of the Company may terminate the Rights in whole,
but not in part, at no cost. The Termination of the Rights may be made
effective at such time on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. Immediately upon any
termination of the Rights, all rights relating to the Rights, including the
right to exercise the Rights, will terminate.
B-3
<PAGE>
The terms of the Rights may be amended by the Board in any manner
without the consent of the holders of the Rights, except that from and after
such time as any person becomes an Acquiring Person, no such amendment may
adversely affect the interest of the holders of the Rights or may be made
without the consent of the holders of a majority of the Rights (other than
Acquiring Persons.)
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote (other than with respect to the amendment of Rights in certain
circumstances) or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
February 1, 1993, as amended by Amendment DATED October 21, 1994. 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 hereby incorporated
herein by reference.
<PAGE>
AMENDMENT NO. 1 TO STOCKHOLDER RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 ("Amendment No. 1") to that certain Stockholder Rights
Agreement dated as of January 26, 1993 (the "Stockholder Rights Agreement") by
and between REXENE CORPORATION, a Delaware corporation (the "Company"), and
AMERICAN STOCK TRANSFER & TRUST COMPANY, a New York banking corporation (the
"Rights Agent");
W I T N E S S E T H:
WHEREAS, the Company and the Rights Agent entered into the Stockholder
Rights Agreement as of January 26, 1993; and
WHEREAS, the Board of Directors of the Company, by resolution duly adopted
at its regularly scheduled meeting on August 29, 1994, amended the Stockholder
Rights Agreement to increase the Purchase Price (as defined therein) from $25 to
$60; and
WHEREAS, at the time of the said amendment, no Person (as defined in the
Stockholder Rights Agreement) had become an Acquiring Person (as defined in the
Stockholder Rights Agreement); and
WHEREAS, pursuant to Section 27 of the Stockholder Rights Agreement, this
Amendment No. 1 shall set forth the said amendment to the said Purchase Price;
NOW THEREFORE, the parties hereto do hereby agree as follows:
1. DEFINED TERMS. Terms defined in the Stockholder Rights Agreement
shall have the same meaning when used in this Amendment No. 1.
2. AMENDMENT TO PURCHASE PRICE. Section 7(b) of the Stockholder Rights
Agreement shall be amended so that, as amended, Section 7(b) shall read in its
entirety as follows:
"7(b) The Purchase Price for each share of Common Stock pursuant
to the exercise of a Right shall initially be $60, shall be subject to
adjustment from time to time as provided in Sections 11 and 13 hereof
and shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below."
3. AMENDMENT TO FORM OF RIGHT CERTIFICATE. In accordance with Section 22
of the Stockholder Rights Agreement, the form of Right Certificates set forth in
EXHIBIT A to the Stockholder Rights Agreement is hereby amended in accordance
with Amendment No. 1 so that, when issued, said Right Certificates, shall
reflect the change in the Purchase Price from $25 to $60.
4. AMENDMENT TO "SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK," Exhibit B.
The first full paragraph of the Summary of Rights to Purchase
<PAGE>
Common Stock set forth in EXHIBIT B to the Stockholder Rights Agreement shall be
amended so that the said paragraph shall read in its entirety as follows:
"On January 26, 1993, the Board of Directors of Rexene
Corporation (the "Company") declared a dividend of one common stock
purchase right (a "Right") for each outstanding share of common stock,
par value $.01 per share (the "Common Stock"), of the Company. The
dividend is payable on February 8, 1993 (the "Record Date") to the
stockholders of record of the Common Stock on that date. When the
Rights become exercisable, each Right will entitle the registered
holder to purchase from the Company one share of Common Stock at a
price of $60 per share (the "Purchase Price"), subject to adjustment.
The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and American
Stock Transfer & Trust Company, as Rights Agent (the "Rights Agent")."
5. DEEMED AMENDMENT TO PURCHASE PRICE. The Purchase Price, wherever
referred to in the Stockholder Rights Agreement or in any Exhibit thereto shall
be deemed to be amended to be $60.
6. NO FURTHER AMENDMENT. Except as heretofore expressly set forth in
this Agreement No. 1, all terms and provisions of the Stockholder Rights
Agreement shall remain in full force and effect as originally executed. A copy
of the Stockholder Rights Agreement, as amended by this Amendment No. 1, is
attached hereto as Exhibit 1.
-2-
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1,
effective the 29th day of August, 1994.
REXENE CORPORATION
Attest: /s/ Bernard J. McNamee By: /s/ Kevin W. McAleer
-------------------------- ------------------------------------
Bernard J. McNamee Kevin W. McAleer
Secretary Executive Vice President
and Chief Financial Officer
Date: 9/16/94
------------------------------
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest: /s/ Herbert J. Lemmer By: /s/ Carolyn B. O'Neill
-------------------------- ------------------------------------
Name: HERBERT J. LEMMER Name: CAROLYN B. O'NEILL
Title: VICE PRESIDENT Title: VICE PRESIDENT
Date: 9/19/94
-------------------------------
-3-
