SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
COOKER RESTAURANT CORPORATION
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(Exact name of registrant as specified in its charter)
Ohio 62-1292102
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(State of incorporation (I.R.S. Employer
or organization) Identification No.)
5500 Village Boulevard
West Palm Beach, FL 33407
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(Address of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class
to be so registered is to be registered
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Preferred Share Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act:
None
--------------------------
(Title of class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
On January 11, 2000, the Board of Directors of Cooker
Restaurant Corporation (the "Company"), adopted the Company's
Preferred Share Purchase Rights Plan (the "Rights Plan") and
declared a dividend distribution of one (1) preferred share
purchase right (a "Right") for each outstanding share of common
stock, without par value (the "Common Stock"), of the Company to
shareholders of record at the close of business on January 16,
2000. Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of the Company's Class A
Junior Participating Preferred Stock (the "Preferred Shares") (or
in certain circumstances, cash, property or other securities) at a
price of $17.50 per one one-hundredth of a Preferred Share (the
"Purchase Price"), subject to adjustment. The purpose of this
Registration Statement is to register the Rights.
Right to Purchase Company Stock ("Flip-In")
In the event that any person or group of affiliated or
associated persons acquires beneficial ownership of 15% or more of
the outstanding shares of Common Stock (an "Acquiring Person"),
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 Common
Shares having a market value of two times the exercise price of the
Right. Issuances (and consequent beneficial ownership) of Common
Stock (at or in excess of such 15% threshold) by the Company in
connection with certain acquisition transactions effected by the
Company and approved by the Board of Directors are excepted from
this provision.
Right to Purchase Acquiring Person Stock ("Flip-Over")
If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets
or earning power are sold after a person or group has become an
Acquiring Person, each holder of a Right (other than Rights
beneficially owned by the Acquiring Person, which will be void)
will thereafter have the right to receive that number of shares of
common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right.
Distribution Date
The distribution date is the earlier of:
(i) 10 days following a public announcement that a person or
group of affiliated or associated persons have acquired beneficial
ownership of 15% or more of the outstanding shares of Common Stock;
or
(ii) 10 business days (or such later date as may be determined
by action of the Board of Directors of the Company prior to such
time as any person or group of affiliated persons becomes an
Acquiring Person) following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the
<PAGE> 1
consummation of which would result in the beneficial ownership by
a person or group of 15% or more of the outstanding shares of
Common Stock.
Transfer and Detachment
Until 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 certificates. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
shares of Common Stock, no separate rights certificates will be
issued and transfer of Common Stock certificates will also
constitute transfer of these Rights.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Rights Certificates")
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 thereafter evidence the
Rights.
Exercisability
The Rights are not exercisable until the Distribution Date.
The Rights will expire on January 16, 2010 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each
case, on the terms and conditions set forth in the Rights Plan (as
described below).
Adjustments
The Purchase Price payable, and the number of Preferred Shares
or 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 in the event of stock dividends, stock
splits, reclassifications, or certain distributions with respect to
the Common Stock. The number of outstanding Rights and the number
of Preferred Shares or shares of Common Stock issuable upon
exercise of each Right are also subject to adjustment if, prior to
the Distribution Date, there is 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. With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1.0% in such Purchase Price. No fractional
shares will be issued (other than integral multiples of one one-
hundredth of a Preferred Share) and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred
Shares or Common Stock, as the case may be, on the last trading day
prior to the date of exercise.
Preferred Shares
Preferred Shares purchasable upon exercise of the Rights will
be redeemable by the Company at any time at a redemption price
equal to 100 times the current per share market price of the Common
Stock. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment equal to the greater of (a)
$.05 or (b) 100 times the aggregate per share amount of all cash and
<PAGE> 2
non-cash dividends declared per share of Common Stock. In the
event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $.10 per
share, and following the preferential liquidation payment, the
holders of the Common Stock shall be entitled to receive an amount
equal to the quotient obtained by dividing the preferential
liquidation payment by 100. Each Preferred Share will have 100
votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which
Common Stock is exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per share of Common Stock.
These rights are protected by customary antidilution provisions.
The value of the one one-hundredth interest in a Preferred
Share purchasable upon exercise of each Right should, because of
the nature of the Preferred Shares' dividend, liquidation and
voting rights, approximate the value of one share of Common Stock.
Exchange
At any time after any person or group becomes an Acquiring
Person, and prior to the acquisition by any such person or group 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 the Acquiring Person, which will have become void), in
whole or in part, for shares of Common Stock, at an exchange ratio
of one share of Common Stock (or, in certain instances, one one-
hundredth of a Preferred Share) per Right (subject to adjustment).
Redemption
At any time prior to any person or group becoming an Acquiring
Person, the Board of Directors of the Company may redeem the
Rights, in whole but not in part, at a price of $.005 per Right
(the "Redemption Price"). If, however, such redemption is
authorized on or after the date of a change, resulting from a proxy
contest or consent solicitation, in a majority of the directors in
office, then such redemption must be approved by a majority of
Independent Directors (as defined in the Rights Plan), if any, and
by a majority of the full board of directors. The redemption of
the Rights may be made effective at such time on such basis with
such conditions as the Board of Directors in its sole discretion
may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
Amendments
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of the
Rights, including an amendment to lower the "15%" thresholds
described above to not less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding shares of
Common Stock then known to the Company to be beneficially owned by
any person or group of affiliated or associated persons and (ii)
10%, except that from and after such time when there is an
Acquiring Person no such amendment may adversely affect the
<PAGE> 3
interests of the holders of the Rights, and any amendment must be
approved by a majority of Independent Directors, if any, and by a
majority of the full Board.
Interpretation; Board Approvals
The Board of Directors of the Company has the sole authority
to administer the Rights Plan and to exercise all rights and powers
granted to the Board or to the Company, or as are advisable in the
administration of the Rights Plan, including the power to
(i) interpret the provisions of the Rights Plan and (ii) make all
determinations appropriate for the administration of the Rights
Plan (including a determination to redeem or not redeem the Rights,
to exchange the Rights or to amend the Rights Plan). All such
interpretations and determinations in good faith are final and
binding on the parties (including the Rights holders) and do not
subject the Board (or the directors) to any liability to the
holders of Rights. In the event a vote, approval or determination
of the Board of Directors (including a determination to redeem or
not redeem the Rights, to exchange the Rights or to amend or
supplement the Rights Plan) occurs at any time after either a
Person becomes an Acquiring Person or a change (resulting from a
proxy contest or consent solicitation) in a majority of the
directors in office, then such vote, approval or determination must
be approved by a majority of Independent Directors (as defined in
the Rights Plan), if any, and by a majority of the full Board of
Directors.
Rights and Holders
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
Further Information
A copy of the Rights Agreement (the "Rights Agreement")
setting forth the Rights Plan has been filed with the Securities
and Exchange Commission as Exhibit 2 to this Registration Statement
on Form 8-A. This summary description of the Rights and the Rights
Plan does not purport to be complete and is qualified in its
entirety by reference to the full text of the Rights Agreement,
which is hereby incorporated herein by reference.
Item 2. Exhibits. The following exhibits are filed as a part
of the Registration Statement:
Exhibit No. Description
1. Form of Rights Certificate (included as Exhibit B to the
Rights Agreement filed as Exhibit 2 herein.)
2. Rights Agreement, dated as of January 16, 2000, between
the Registrant and First Union National Bank, as Rights
Agent (including the Exhibits thereto).
3. Press Release dated January 11, 2000.
__________________
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
January 11, 2000 COOKER RESTAURANT CORPORATION
By: /s/ Mark W. Mikosz
Mark W. Mikosz, Vice President
and Chief Financial Officer
<PAGE> 5
EXHIBIT INDEX
Exhibit No. Description
1. Form of Rights Certificate (included as Exhibit B to
the Rights Agreement filed as Exhibit 2 herein.)
2. Rights Agreement, dated as of January 16, 2000, between the
Registrant and First Union National Bank, as Rights Agent
(including the Exhibits thereto).
3. Press Release dated January 11, 2000.
<PAGE> 6
EXHIBIT 1
FORM OF RIGHTS CERTIFICATE
(included as Exhibit B to the
Rights Agreement filed as Exhibit 2 herein)
<PAGE> EX1-1
EXHIBIT 2
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PREFERRED SHARE PURCHASE RIGHTS PLAN
RIGHTS AGREEMENT
BETWEEN
COOKER RESTAURANT CORPORATION
AND
FIRST UNION NATIONAL BANK,
as Rights Agent
Dated as of January 16, 2000
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<PAGE> EX2-1
TABLE OF CONTENTS
Page
Section 1. Certain Definitions.......................................1
Section 2. Appointment of Rights Agent...............................5
Section 3. Issuance of Rights Certificates...........................6
Section 4. Form of Rights Certificates...............................7
Section 5. Countersignature and Registration.........................8
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates.............................9
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights.................................................10
Section 8. Cancellation and Destruction of Rights Certificates.......12
Section 9. Reservation and Availability of Preferred Shares..........12
Section 10. Preferred Stock Record Date...............................13
Section 11. Adjustment of Purchase Price; Number and Kind of
Shares or Number of Rights; Exchange of Rights for
Shares of Common Stock....................................14
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares.................................................22
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power...................................23
Section 14. Fractional Rights and Fractional Shares...................25
Section 15. Rights of Action..........................................25
Section 16. Agreement of Rights Holders...............................26
Section 17. Rights Certificate Holder Not Deemed a Shareholder........26
Section 18. Concerning the Rights Agent...............................27
Section 19. Merger or Consolidation or Change of Name of
Rights Agent..............................................27
Section 20. Duties of Rights Agent....................................28
Section 21. Change of Rights Agent....................................30
(i)
<PAGE> EX2-2
Section 22. Issuance of New Rights Certificates.......................31
Section 23. Redemption and Termination................................31
Section 24. Notice of Certain Events..................................32
Section 25. Notices...................................................32
Section 26. Supplements and Amendments................................33
Section 27. Successors................................................34
Section 28. Determinations and Actions by the Board of
Directors, etc............................................34
Section 29. Benefits of this Rights Plan..............................35
Section 30. Severability..............................................35
Section 31. Governing Law.............................................35
Section 32. Reserved..................................................35
Section 33. Counterparts..............................................35
Section 34. Descriptive Headings......................................35
Section 35. Consequential Damages.....................................36
EXHIBITS
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Exhibit A - Certificate of Amendment regarding Class A Junior
Participating Preferred Shares
Exhibit B - Form of Rights Certificate
Exhibit C - Form of Summary of Rights
(ii)
<PAGE> EX2-3
RIGHTS AGREEMENT, dated as of January 16, 2000 (the "Rights
Plan" or the "Agreement"), by and between COOKER RESTAURANT
CORPORATION, an Ohio corporation (the "Company"), and FIRST UNION
NATIONAL BANK, a national banking institution (the "Rights Agent").
RECITALS
WHEREAS, the Rights Agreement dated as of February 1, 1990
between the Company and National City Bank, as Rights Agent (the
"1990 Rights Agreement"), expires pursuant to its terms at the
close of business on January 16, 2000; and
WHEREAS, this Rights Plan shall become effective immediately
upon the expiration of the 1990 Rights Agreement; and
WHEREAS, on January 11, 2000 (the "Rights Dividend Declaration
Date"), pursuant to Section 1701.16 of the Ohio Revised Code, the
Board of Directors of the Company authorized and declared a
dividend distribution of one preferred share purchase right (each,
a "Right" and, collectively, the "Rights") for each share of Common
Stock, without par value, of the Company outstanding at the close
of business on January 16, 2000 (the "Record Date") to be paid on
January 16, 2000, and has authorized the issuance of one Right (as
such number may hereinafter be adjusted pursuant to the provisions
of Section 11(p) hereof) for each share of Common Stock issued (as
hereinafter defined) between the Record Date and the earliest to
occur of the Distribution Date, the Redemption Date and the Final
Expiration Date (as such terms are hereinafter defined), all on the
terms and subject to the conditions set forth in this Agreement;
and
WHEREAS, each Right shall initially represent the right to
purchase one one-hundredth of a Preferred Share (as defined below),
upon the terms and subject to the conditions hereinafter set forth.
Preferred Shares shall mean shares of Class A Junior Participating
Preferred Shares, without par value, of the Company having the
rights and preferences set forth in the Certificate of Amendment
attached to this Agreement as Exhibit A.
AGREEMENT -- SHARE PURCHASE RIGHTS PLAN
NOW, THEREFORE, 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
Rights Plan, the following terms have the meanings indicated
(capitalized terms within any definition shall have the meanings
indicated elsewhere herein with respect to such terms):
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall
be the Beneficial Owner of fifteen percent (15.0%) or more of the
shares of Common Stock then outstanding. Notwithstanding the
foregoing, the term "Acquiring Person" shall not mean or include
(i) the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or established by the
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<PAGE> EX2-4
Company for or pursuant to the terms of any such plan; (ii) any
Person who or which, together with all Affiliates and Associates of
such Person, would be an Acquiring Person solely by reason of a
reduction in the number of issued and outstanding shares of Common
Stock of the Company pursuant to a transaction or a series of
related transactions voted on and approved by a Majority Director
Vote (as defined below); provided, however, that in the event that
such Person described in the foregoing clause (ii) does not become
an Acquiring Person by reason of the foregoing clause (ii), such
Person shall nonetheless become an Acquiring Person in the event
such Person thereafter acquires Beneficial Ownership of an
additional 1.0% of the issued and outstanding Common Stock of the
Company, unless such additional Common Stock ownership results
solely from a subsequent reduction in the number of issued and
outstanding shares of Common Stock of the Company pursuant to a
transaction or a series of related transactions approved by a
Majority Director Vote; or (iii) any Person who or which, together
with all Affiliates and Associates of such Person, would be an
Acquiring Person solely by reason of a transaction in which the
Company (or one or more of its Subsidiaries) acquires a business
(whether such acquisition is accomplished by means of a purchase of
stock or assets, a merger, share exchange or otherwise) owned by
such Person in exchange (in whole or in part) for shares of Common
Stock of the Company pursuant to a transaction (or a series of
related transactions) approved by a Majority Director Vote (an
"Approved Acquisition Transaction"); provided, however, that in the
event that such Person described in the foregoing clause (iii) does
not become an Acquiring Person by reason of the foregoing clause
(iii), such Person shall nonetheless become an Acquiring Person in
the event such Person thereafter acquires Beneficial Ownership of
an additional 1.0% of the issued and outstanding Common Stock of
the Company, unless such additional Common Stock ownership results
solely from a reduction in the number of issued and outstanding
shares of Common Stock of the Company (such as that described in
clause (ii) above), or a subsequent Approved Acquisition
Transaction, pursuant to a transaction or a series of related
transactions approved by a Majority Director Vote.
Notwithstanding the foregoing, if the Board of Directors
of the Company determines in good faith that a Person who would
otherwise be an "Acquiring Person," as defined pursuant to the
foregoing provision, has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of shares of
Common Stock so that such Person would no longer be an "Acquiring
Person," as defined pursuant to the foregoing provisions, then such
Person shall not be deemed to be an "Acquiring Person" for any
purposes of this Agreement.
(b) "Acquiring Person Transferee" shall have the meaning set
forth in Section 7(e) hereof.
(c) "Act" shall mean the Securities Act of 1933, as amended.
(d) "Affiliate" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(e) "Associate" shall have the meaning ascribed to such term
in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
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<PAGE> EX2-5
(f) A Person shall be deemed the "beneficial owner" of, and
shall be deemed to "beneficially own", any securities:
(i) which such Person or any of such Person's Affiliates
or Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has 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) or upon the exercise of
conversion rights, exchange rights, rights (other than these
Rights), warrants or options, or otherwise; provided, however, that
a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own", (A) 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) any security with
respect to which such person has the right to vote pursuant to any
agreement, arrangement or understanding, if the agreement,
arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act, and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person (or any Affiliate or Associate
thereof) with which such Person (or any of such Persons Affiliates
or Associates) has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described in
proviso (B) to subparagraph (ii) of this Section 1(f)) or disposing
of any voting securities of the Company; provided, however, that
nothing in this Section 1(f) shall cause a person engaged in
business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own," any securities acquired
through such person's participation in good faith in a firm
commitment underwriting until the expiration of forty days after
the date of such acquisition.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, 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.
(g) "Business day" shall mean any day other than a Saturday,
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.
(h) "Close of business" on any given date shall mean 5:00
P.M., 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 time,
on the next succeeding day which is a Business Day.
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<PAGE> EX2-6
(i) "Common Stock" shall mean the common stock, without par
value, of the Company, except that "Common Stock" when used with
reference to any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or the
equity securities or other equity interest having power to control
or direct the management, of such Person.
(j) "Current market price" shall have the meaning set forth
in Section 11(d) hereof.
(k) "Distribution Date" shall have the meaning set forth in
Section 3(a) hereof.
(l) "Exchange Act" shall have the meaning set forth in
Section 1(d) hereof.
(m) "Exchange Ratio" shall have the meaning set forth in
Section 11(r)(i) hereof.
(n) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(o) "Final Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(p) "Independent Director" shall mean any member of the
Company's Board of Directors, while such person is a member of the
Board, who (i) is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, (ii) is not an employee or
officer of the Company or an employee, officer or director of any
Acquiring Person, and (iii) is not a relative or spouse of (A) an
Acquiring Person, (B) any officer or other person employed in a
management position with the Company or with any Acquiring Person
or (C) any director of any Acquiring Person.
(q) "Majority Director Vote" shall mean (whether the
reference relates to a determination, approval or vote of the Board
of Directors, the Company or certain of the directors of the
Company) the affirmative vote and approval of the directors of the
Company (duly elected or appointed in accordance with the Company's
By-laws) constituting a majority in number of the total number of
directors then constituting the Company's Board of Directors (as
authorized in accordance with the Company's By-laws); provided,
however, that if a Majority Director Vote is required or taken
hereunder (or otherwise pursuant to this Agreement) at any time on
or after a Special Vote Event (as defined below) shall have
occurred, then, in addition to such vote and approval of the full
Board of Directors, the vote and approval of a majority of the
Independent Directors, if any, shall also be required. For
purposes of this Agreement, a "Special Vote Event" shall mean and
include either (or the earlier of) (i) the time any Person becomes
an Acquiring Person, or (ii) the date of a change, resulting from
a proxy or consent solicitation, in a majority of the directors of
the Company in office at the commencement of such solicitation, if
any Person who is a participant in such solicitation has stated
(or, if upon the commencement of such solicitation, a majority of
the Board of Directors of the Company has determined in good faith)
that such Person (or any of its Affiliates or Associates) intends
to take, or may consider taking, any action which would result in
such Person becoming an Acquiring Person or which would cause the
occurrence of a Triggering Event. To the extent permitted or
required under Ohio law, the authorization and approval of this
Agreement by the Company's Board of Directors shall also constitute
the authorization and approval of the special quorum and vote
requirements with respect to the directors of the Company
(including any requirement with regard to a vote by or approval of
Independent Directors), as set forth or provided in this Agreement.
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<PAGE> EX2-7
(r) "Person" shall mean any individual, firm, company,
corporation, partnership, trust or other entity.
(s) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(t) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(u) "Redemption Date" shall have the meaning set forth in
Section 7(a) hereof.
(v) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(w) "Right" and "Rights" shall have the meanings set forth in
the recitals at the beginning of this Rights Plan.
(x) "Rights Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(y) "Rights Dividend Declaration Date" shall have the meaning
set forth in the recitals at the beginning of this Rights Plan.
(z) "Section 11(a)(ii) Event" shall have the meaning set
forth in Section 11(a)(ii) hereof.
(aa) "Section 13 Event" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) hereof.
(bb) "Special Vote Event" shall have the meaning set forth in
Section 1(q) hereof.
(cc) "Stock Acquisition Date" shall mean the first date of a
public announcement (which, for purposes of this definition, shall
include a report filed pursuant to the Exchange Act) by the Company
or an Acquiring Person that a Person has become an Acquiring
Person.
(dd) "Subsidiary" shall mean, with reference to any Person,
any corporation or other entity of which a majority of the voting
securities (or voting power of the voting equity securities or
interests) is beneficially owned, directly or indirectly, by such
Person.
(ee) "Summary of Rights" shall have the meaning set forth in
Section 3(b) hereof.
(ff) "Trading Day" shall have the meaning set forth in Section
11(d) hereof.
(gg) "Triggering Event" shall mean (or, as the case may be,
the earliest of) a Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company 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 other Agents or Co-Rights Agents as it may
deem necessary or desirable.
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<PAGE> EX2-8
Section 3. Issuance of Rights Certificates.
(a) Until the earlier of (i) the close of business on the
tenth day after the Stock Acquisition Date (or, if the tenth day
after such date occurs before the Record Date, the close of
business on the Record Date), or (ii) the close of business on the
tenth business day (or such later date as may be determined by a
Majority Director Vote 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 Person or entity organized, appointed or
established by 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,
any employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of any such
plan) 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 fifteen (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 such dates
referred to in clauses (i) and (ii) of this sentence being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock of the Company
registered in the names of the holders thereof (which certificates
shall be deemed also to be Rights Certificates) and not by separate
certificates, and (y) the Rights (and the right to receive Rights
Certificates) will be transferable only in connection with the
transfer of the underlying shares of Common Stock of the Company
(including a transfer to the Company). As soon as practicable
after the Distribution Date, the Company will prepare and execute,
the Rights Agent will countersign, and the Company will send or
cause to be sent (and the Rights Agent, if requested, will send) by
first-class, insured, postage prepaid mail, to each record holder
of the Common Stock of the Company as of the close of business on
the Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificate(s), in
substantially the form attached hereto as Exhibit B (the "Rights
Certificates"), evidencing one Right for each share of Common Stock
so held (subject to adjustment as provided herein). In the event
that an adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at the time
of distribution of the Rights Certificates, the Company shall make
the necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Rights Certificates representing
only whole numbers of Rights are distributed and cash is paid in
lieu of any fractional Rights. As of the Distribution Date, the
Rights will be evidenced solely by the Rights Certificates.
(b) As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights, in substantially
the form attached hereto as Exhibit C (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder of the
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 the Common Stock
outstanding as of the Record Date, until the Distribution Date, the
Rights will be evidenced by such certificates for the Common Stock
and the registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the
Distribution Date (or the earlier of the Redemption Date or the
Final Expiration Date), the transfer (or surrender for transfer) of
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<PAGE> EX2-9
any certificates representing shares of Common Stock outstanding on
the Record Date, with or without a Summary of Rights attached
thereto, shall also constitute the transfer of the Rights
associated with the shares of Common Stock represented thereby.
(c) Rights shall also be issued (consistent with the
provisions of subsection (a) of this Section 3) in respect of all
shares of Common Stock of the Company which are issued after the
Record Date but prior to the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date. Certificates for
shares of Common Stock (including, without limitation, any
reacquired shares referred to in the last sentence of this Section
3(c)) which become outstanding after the Record Date but prior to
the earliest of the Distribution Date, the Redemption Date or the
Final Expiration Date shall have impressed on, printed on, written
on or otherwise affixed to them the following legend:
"This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights
Agreement between Cooker Restaurant Corporation (the
"Company") and First Union National Bank, as Rights Agent
(the "Rights Agent"), dated as of January 16, 2000, as it
may be amended from time to time (the "Agreement"), the
terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
executive offices of the Company. Under certain
circumstances, as set forth in the Agreement, such Rights
(as defined in the Agreement) will be evidenced by
separate certificates and will no longer be evidenced by
this certificate. The Company will mail to the holder of
this certificate a copy of the Agreement, as in effect on
the date of mailing, without charge after the receipt of
a written request therefor. Under certain circumstances
set forth in the Agreement, Rights issued to, or held or
beneficially owned by, any Person who becomes an
Acquiring Person (as such terms are defined in the
Agreement), whether currently held by or on behalf of
such Person or by any subsequent holder, become null and
void."
With respect to such certificate(s) containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Stock of the Company represented by such
certificate(s) shall be evidenced by such certificate(s) alone,
and the surrender for transfer of any such certificate(s) shall
also constitute the transfer of the Rights associated with the
shares of Common Stock of the Company represented thereby. In
the event that the Company purchases or acquires any Common Stock
of the Company after the Record Date but prior to the
Distribution Date, any Rights associated with such reacquired
Common Stock of the Company 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 of the Company which
are no longer outstanding.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to
purchase Preferred Shares and of assignment to be printed on the
reverse thereof) shall each be in substantially the form attached
hereto as Exhibit B 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 Rights Plan, or as may be
required to comply with any applicable law or with any rule or
-7-
<PAGE> EX2-10
regulation made pursuant thereto or with any rule or regulation of
any stock exchange or stock quotation or trading system on which
the Rights may from time to time be listed or quoted for trading,
or to conform to usage. Subject to the provisions of Section 11
and Section 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date and shall entitle
the holders thereof to purchase such number of one one-hundredths
of a Preferred Share as shall be set forth therein at the price per
one one-hundredth of a Preferred Share set forth therein (as
determined in accordance with Section 7(b) hereof, the "Purchase
Price"), but the number and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be
subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights beneficially owned by: (i)
an Acquiring Person or any Associate or Affiliate thereof, (ii) a
transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person
becomes such or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to
or concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer (whether or
not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with
whom such Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or
(B) a transfer which the Board of Directors (or directors, as the
case may be) of the Company, by a Majority Director Vote, has
determined, in its sole discretion, is part of a plan, scheme,
arrangement or understanding which has as a primary purpose or
effect the avoidance or circumvention of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment of any
other Rights Certificate referred to in this sentence, shall
contain (to the extent feasible) the following legend:
"The Rights represented by this Rights Certificate are or
were beneficially owned by a Person who was or became an
Acquiring Person, or an Affiliate or Associate thereof
(as such terms are defined in a Rights Agreement between
Cooker Restaurant Corporation (the "Company") and First
Union National Bank, as Rights Agent (the "Agreement").
Accordingly, this Rights Certificate and the Rights
represented hereby become null and void in the
circumstances specified in Section 7(e) of the Agreement.
The Company will mail to the holder of this certificate
a copy of the Agreement, as in effect on the date of
mailing, without charge after the receipt of a written
request therefor."
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive
Officer or its President, either manually or by facsimile
signature, and shall be attested by the Secretary or an Assistant
Secretary of the Company, either manually or by facsimile
signature. The Rights Certificates shall be manually or by
facsimile signature countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Rights
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be
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<PAGE> EX2-11
countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the person who
signed such Rights Certificates had not ceased to be such officer
of the Company; and any Rights Certificates may be signed on behalf
of the Company by any person who, at the actual date of the
execution of such Rights Certificate, shall be a proper officer of
the Company authorized to sign such Rights Certificate, although at
the date of the execution of this Rights Plan any such person was
not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office or offices
designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books
shall show the name and addresses of the respective holders of the
Rights Certificates, the number of Rights evidenced on its face by
each of the Rights Certificates and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the close of business on
the Distribution Date, and at or prior to the close of business on
the earlier of the Redemption Date and the Final Expiration Date,
any Rights Certificate or Rights Certificates (other than any Right
Certificates representing Rights that have become void pursuant to
Section 7(e) hereof or that have been exchanged pursuant to Section
11(r) hereof) may be transferred, split up, combined or exchanged
for another Rights Certificate or Certificates, entitling the
registered holder thereof to purchase a like number of shares of
one one-hundredths of a Preferred Share as the Rights Certificate
or Certificates surrendered then entitled such holder (or former
holder in the case of a transfer) to purchase. Any registered
holder desiring to transfer, split up, combine or exchange any
Rights Certificate or Certificates shall make such request in
writing delivered to the Rights Agent and shall surrender the
Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the principal office or offices of the
Rights Agent designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action whatsoever
with respect to the transfer of any such surrendered Rights
Certificate until the registered holder shall have completed and
signed the certificate contained in the form of assignment on the
reverse side of such Rights Certificate and shall have provided
such additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon the Rights Agent
shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of
Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Rights
-9-
<PAGE> EX2-12
Certificate if mutilated, the Company will execute and deliver a
new Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) Subject to Sections 7(e), 11 and 13 and other provisions
hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c) and Section 23(a) hereof),
in whole or in part, at any time after the Distribution Date, upon
surrender of the Rights Certificate, with the form of election to
purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the Rights
Agent designated for such purpose, together with payment of the
aggregate Purchase Price for each one one-hundredth of a Preferred
Share (or other securities) as to which the Rights evidenced by
such Rights Certificate are exercised, at or prior to the earliest
of (i) the close of business on January 16, 2010 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date"), or (iii)
the time at which the Rights are exchanged as provided in Section
11(r) hereof (the earliest of (i), (ii) and (iii) being sometimes
herein referred to as the "Expiration Date").
(b) The Purchase Price for each one one-hundredth of a
Preferred Share purchasable pursuant to the exercise of a Right
shall initially be $17.50, and shall be subject to adjustment
from time to time as provided in Section 11 or 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 Rights Certificate representing
exercisable Rights, with the form of election to purchase and the
certificate duly executed, accompanied by payment of the Purchase
Price for each share to be purchased upon exercise of such Rights,
as set forth below, and an amount equal to any applicable transfer
tax required to be paid by the holder of such Rights Certificate,
the Rights Agent shall, subject to Section 20(j) hereof, thereupon
promptly (i) (A) requisition from any transfer agent of the
Preferred Shares or other securities to be purchased (or make
available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of shares to be purchased
and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company shall have
elected, in its sole discretion, to deposit the total number of
shares issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent depositary
receipts representing such number of shares as are to be purchased
(in which case certificates for the shares represented by such
receipts shall be deposited by the transfer agent with the
depositary agent) and the Company will direct the depositary agent
to comply with such request, (ii) when appropriate, requisition
from the Company the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14 hereof, (iii) after
receipt of such certificates or depositary receipts, cause the same
to be delivered to or upon the order of the registered holder of
such Rights Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after receipt
thereof, deliver such cash, if any, to or upon the order of the
registered holder of such Rights Certificate. The payment of the
Purchase Price and any applicable transfer taxes shall be made in
cash or by certified bank check or cashier's check payable to the
Company.
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<PAGE> EX2-13
(d) In case the registered holder of any Rights Certificate
shall exercise less than all the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Rights Plan to the
contrary, from and after the occurrence of a Section 11(a)(ii)
Event, any Rights that are or were acquired or beneficially owned
by an Acquiring Person (or any Associate or Affiliate of such
Acquiring Person) or an Acquiring Person Transferee (as such term
is defined below in this Section 7(e)), shall be and become null
and void without any further action, and no holder of such Rights
(or of Rights Certificates evidencing such Rights) shall have any
rights whatsoever with respect to such Rights (including, without
limitation, any rights to exercise such Rights), whether under any
provision of this Rights Plan or otherwise. The Company shall use
all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but shall
have no liability to any holder of Rights Certificates or any other
Person as a result of its failure to make any determinations with
respect to an Acquiring Person or their respective Affiliates,
Associates or Acquiring Person Transferees hereunder. No Rights
Certificate(s) shall be issued pursuant to Section 3 hereof that
represents Rights beneficially owned by an Acquiring Person (or any
Associate or Affiliate thereof or any Acquiring Person Transferee)
whose Rights would be null and void pursuant to the preceding
sentence; in addition, no Rights Certificate(s) shall be issued at
any time upon the transfer of any Rights to an Acquiring Person (or
any Associate or Affiliate thereof or any Acquiring Person
Transferee) whose Rights would be null and void pursuant to the
preceding sentence; and any Rights Certificate(s) delivered to the
Rights Agent for transfer to an Acquiring Person (or any Associate
or Affiliate thereof or any Acquiring Person Transferee) whose
Rights would be null and void pursuant to the preceding sentence
shall be cancelled. For purposes of this Agreement, the term
"Acquiring Person Transferee" shall mean and include, with respect
to Rights (whether or not attached to shares of Common Stock), (i)
a transferee of an Acquiring Person (or of any Associate or
Affiliate of such Acquiring Person) who becomes a transferee after
the Acquiring Person becomes such, or (ii) 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, in its sole discretion, is part of
a plan, scheme, arrangement or understanding which has as a primary
purpose or effect the avoidance or circumvention of this Section
7(e).
(f) Notwithstanding anything in this Rights Plan to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request.
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<PAGE> EX2-14
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or any of its agents, be delivered to
the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and no
Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Rights Plan.
The Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such cancelled
Rights Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred
Shares.
(a) Subject to the Company's rights in Section 11(q) or
elsewhere herein to otherwise fulfill its obligations hereunder,
the Company covenants and agrees that, from and after the
Distribution Date, it will cause to be reserved and kept available
out of its authorized and unissued Preferred Shares or any
Preferred Shares held in its treasury, the number of Preferred
Shares that, as provided in this Rights Plan, will be sufficient to
permit the exercise in full of all outstanding Rights; provided,
however, that the Company shall not be required to reserve and keep
available shares of Common Stock or other securities sufficient to
permit the exercise in full of all outstanding Rights pursuant to
the adjustments set forth in Section 11(a)(ii) or Section 13 hereof
unless the Rights become exercisable pursuant to such adjustments.
(b) So long as the Common Stock is listed on any national
securities exchange or listed or registered for quotation on any
other market (including, without limitation, the NASDAQ Stock
Market ("NASDAQ")), the Company shall use its best efforts to
cause, from and after such time as the Rights become exercisable,
all Preferred Shares and/or other securities issuable pursuant to
outstanding Rights to be listed on such exchange upon official
notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as
soon as practicable and as required by law following the
Distribution Date, a registration statement under the Act, with
respect to the securities purchasable upon exercise of the Rights
on an appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no longer
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<PAGE> EX2-15
exercisable for such securities, and (B) the date of the expiration
or termination of the Rights. The Company will also take such
action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company may
temporarily suspend, for a period or periods of time from time to
time, not to exceed ninety (90) days in the aggregate after the
date set forth in clause (i) of the first sentence of this Section
9(c), the exercisability of the Rights in order to prepare and file
such registration statement and permit it to become effective.
Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect. Notwithstanding any
provision of this Rights Plan to the contrary, the Rights shall not
be exercisable in any jurisdiction unless or until the requisite
qualification in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares delivered
upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Purchase
Price therefore), be duly and validly authorized and issued and
fully paid and nonassessable shares.
(e) The Company further covenants and agrees that it will pay
when due and payable any and all federal and state transfer taxes
and charges which may be payable in respect of the issuance or
delivery of the Rights Certificates and of any certificates for
shares issued upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable
in respect of any transfer or delivery of Rights Certificates to a
Person other than, or the issuance or delivery of shares in respect
of a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to issue
or deliver any certificates for shares in a name other than that of
the registered holder upon the exercise of any Rights until such
tax shall have been paid (any such tax being payable by the holder
of such Rights Certificate at the time of surrender) or until it
has been established to the Company's satisfaction that no such tax
is due.
Section 10. Preferred Stock Record Date. Each person in
whose name any certificate for a number of Preferred Shares or
shares of Common Stock (or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes be deemed
to have become the holder of record of such shares represented
thereby on, and such certificates shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the share transfer
books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on
which the share transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote (or consent with respect thereto), to transfer, to
receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice
of any meeting or proceeding of the Company, except as provided
herein.
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<PAGE> EX2-16
Section 11. Adjustment of Purchase Price; Number and Kind
of Shares or Number of Rights; Exchange of Rights for Shares of
Common Stock. The Purchase Price, the number and kind of shares
covered by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this 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) or
Section 7(e) hereof, the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and
kind of shares of capital stock issuable on such date, shall be
appropriately and proportionately adjusted (including applicable
adjustments under paragraph (p) of this Section 11) so that the
holder of any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price then in effect, the
aggregate number and kind of shares of capital stock which, if such
Right had been exercised immediately prior to such date and at a
time when the 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 any Right be less
than the aggregate par value of the shares of capital stock of the
Company issuable upon exercise of such Right. If an event occurs
which would require an adjustment under both this Section 11(a)(i)
and Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In the event that, at any time after the Rights
Dividend Declaration Date, any Person shall become an Acquiring
Person (such event being referred to herein as a "Section 11(a)(ii)
Event"), then, subject to Sections 11(r) and 23(a) and except as
otherwise provided in this Section 11, each holder of a Right
(except as provided in Section 7(e) hereof) shall thereafter have
the right to receive, in accordance with the terms of this
Agreement, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-
hundredths of a Preferred Share for which the Right is then
exercisable, 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 one one-hundredths of a
Preferred Share for which a Right was exercisable immediately prior
to the first occurrence of the Section 11(a)(ii) Event, and
dividing that product by (y) 50% of the then current market price
(as determined pursuant to Section 11(d) hereof) per share of the
Common Stock of the Company on the date of the occurrence of such
Section 11(a)(ii) Event. In the event that there shall not be
sufficient shares of Common Stock authorized or available for
issuance to permit the exercise in full of the Rights in accordance
with this Section 11(a)(ii), the Company shall take all such action
as may be necessary to authorize additional shares of Common Stock
for issuance upon exercise of the Rights. In the event the Company
shall, after good faith effort, be unable to take all such action
as may be necessary to authorize such additional shares of Common
Stock, the Company shall substitute, for each share of Common Stock
that would otherwise be issuable upon exercise of a Right, a number
of Preferred Shares or fraction thereof such that the current
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<PAGE> EX2-17
market price (as defined in paragraph (d) below) of one Preferred
Share multiplied by such number or fraction is equal to the current
market price of one Common Share as of the date of issuance of such
Preferred Shares or fraction thereof. In the event that any Person
shall become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the
Rights as provided under this Agreement.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Common
Stock entitling them (for a period expiring within forty-five (45)
calendar days after such record date) to subscribe for or purchase
Common Stock (or shares having the same rights, privileges and
preferences as the shares of 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 current market price (as determined pursuant
to Section 11(d) hereof) per share of Common Stock on such record
date, the Purchase Price to be in effect after such record date,
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding
on such record date, plus the number of shares of Common Stock
which the aggregate offering price of the total number of shares of
Common Stock and/or equivalent common stock so to be offered
(and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current market
price, and the denominator of which shall be the number of shares
of Common Stock outstanding on such record date, plus the number of
additional shares of Common Stock and/or equivalent common stock to
be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible);
provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par
value of the shares of capital stock of the Company issuable upon
exercise of one Right. In case such subscription price may be paid
by delivery of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights. Shares of Common Stock owned by or held for
the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed, and in the event
that such rights or warrants are not so issued, the Purchase Price
shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for 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 corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but including any
dividend payable in stock other than 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 current market price (as determined pursuant
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<PAGE> EX2-18
to Section 11(d) hereof) per share of Common Stock on such record
date, less the fair market value (as determined in good faith by
the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the
portion of the cash, assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable
to a share of Common Stock, and the denominator of which shall be
such current market price (as determined pursuant to Section 11(d)
hereof) per share of 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 issuable 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 be adjusted to be the Purchase Price which
would have been in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, the
"current market price" per Preferred Share (subject to the second
paragraph of this paragraph (d)) or share of Common Stock (or per
share of any other security) on any date shall be deemed to be the
average of the daily closing prices per share of such security for
the thirty (30) consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current market price per share
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 shares of such security (other than the
Rights), or (B) any subdivision, combination or reclassification of
such security, and prior to the expiration of the requisite thirty
(30) Trading Day period after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
"current market price" shall be properly adjusted to take into
account ex-dividend trading. The closing price for each day shall
be the last sale price, regular way, or, 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 in question 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 NASDAQ or such other system then in
use, or, if on any such date the security in question is not quoted
by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market
in the security selected by the Board of Directors of the Company.
If on any such date no market maker is making a market in the
security, the fair value of such shares on such date as determined
in good faith by the Board of Directors of the Company shall be
used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the security in
question 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
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<PAGE> EX2-19
Business Day. If the security is not publicly held or not so listed
or traded, "current market price" per share shall mean the fair
value per share as determined in good faith by the Board of Directors
of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes
of this Rights Plan.
For the purpose of any computation hereunder, the "current
market price" per Preferred Share shall be determined in accordance
with the preceding paragraph. However, if the Preferred Shares are
not publicly traded, the "current market price" of a Preferred
Share shall be conclusively deemed to be the current market price
per share of the Common Stock as determined pursuant to the
preceding paragraph (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after the
date hereof), multiplied by one hundred.
(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (1.0%) 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-millionth
of a Preferred Share or one-hundredth of a share of Common Stock or
other share as the case may be. Notwithstanding the first sentence
of this Section 11(e), any adjustment required by this Section 11
shall be made no later than the earlier of (i) three (3) years from
the date of the transaction which requires such adjustment, or (ii)
the 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)(ii) or Section 13(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares or
fraction of a share of capital stock other than Common Stock,
thereafter the number or fraction of such other shares so
receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Sections
11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof 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 or otherwise hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of (or fraction of) Preferred Shares or shares of
Common Stock or other securities 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 one one-hundredths of a
Preferred Share (calculated to the nearest one-millionth) obtained
by (i) multiplying (x) the number of one one-hundredths of a
Preferred Share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately prior
-17-
<PAGE> EX2-20
to such adjustment of the Purchase Price, and (ii) dividing the
product so obtained by the Purchase Price in effect immediately
after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any
adjustment of the Purchase Price, to adjust the number of Rights,
in lieu of any adjustment in the number of one one-hundredths of a
Preferred Share purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of Rights
shall be exercisable for the number of one one-hundredths of a
Preferred Share of Common Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest one-hundredth) obtained
by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later than the
date of the public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to
this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option
of the Company, shall cause to be distributed to such holders of
record in substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights
Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the
manner provided for herein (and may bear, at the option of the
Company, the adjusted Purchase Price) and shall be registered in
the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
Price or the number of one one-hundredths of a Preferred Share
issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of one one-hundredths of a Preferred
Share which were expressed in the initial Rights Certificates
issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-hundredth of the then
stated or par value, if any, of the Preferred Shares issuable upon
exercise of the Rights, the Company shall take any corporate action
which may, in the opinion of its counsel, be necessary in order
that the Company may validly and legally issue such number of duly
authorized, fully paid and nonassessable Preferred Shares (or
shares of Common Stock or other securities issuable thereunder, as
the case may be) 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 issuance to the holder of
-18-
<PAGE> EX2-21
any Right exercised after such record date the number of Preferred
Shares or shares of Common Stock or other capital stock or
securities of the Company, if any, issuable upon such exercise over
and above the number of Preferred Shares or 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 (fractional or otherwise) or securities 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
the Board of Directors of the Company shall determine in good faith
by a Majority Director Vote to be advisable in order that any (i)
consolidation or subdivision of the Common Stock, (ii) issuance
wholly for cash of any shares of Common Stock at less than the
current market price, (iii) 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, (iv) stock
dividends, or (v) issuance of rights, options or warrants referred
to in this Section 11, hereafter made by the Company to holders of
its Common Stock shall not be taxable to such shareholders.
(n) The Company covenants and agrees that it shall not, at
any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), (ii) merge
with or into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o) hereof)
or (iii) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction, or a series of related transactions,
assets or earning power aggregating 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Company
and/or any of its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale there are any
rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights, or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the shareholders of the Person
who constitutes, or would constitute, the "Principal Party" for
purposes of Section 13(a) hereof shall have received a distribution
of Rights previously owned by such Person or any of its Affiliates
and Associates.
(o) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by Section 23
or Section 26 hereof or otherwise specifically permitted by this
Rights Plan, take (or permit any Subsidiary to take) any action if
at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the
benefits intended to be afforded by the Rights.
(p) Anything in this Rights Plan to the contrary
notwithstanding, in the event that the Company shall at any time
after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares
of Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding shares of Common Stock, or (iii) combine the
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<PAGE> EX2-22
outstanding shares of Common Stock into a smaller number of shares,
then, (A) in any such case the Purchase Price shall be adjusted by
multiplying the Purchase Price in effect prior to such occurrence
by a fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately before such event and the
denominator of which is the number of shares of Common Stock
outstanding immediately after such event, and (B) 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(p) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or
consolidation is effected.
(q) In lieu of issuing shares of Common Stock (and/or
Preferred Shares) in accordance with Section 11(a)(ii) hereof, the
Board of Directors may, if the number of shares of Common Stock
which are authorized by the Company's Certificate of Incorporation
but not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights is not sufficient to permit the
exercise in full of the Rights in accordance with Section 11(a)(ii)
hereof, the Board of Directors shall, to the extent permitted by
applicable law and any material agreements then in effect to which
the Company is a party, (A) determine the value of the shares of
Common Stock (the "Adjustment Shares") issuable upon the exercise
of a Right immediately after the adjustments provided for in
Section 11(a)(ii) (the "Current Value"), and (B) with respect to
each Right (other than Rights which have become void pursuant to
the provisions hereof), make adequate provision to substitute for
any or all such Adjustment Shares, upon payment of the applicable
Purchase Price, (1) cash, (2) other equity securities of the
Company (including, without limitation, shares, or units of shares,
of preferred stock which are deemed in good faith by the Board of
Directors to have substantially the same value as shares of Common
Stock (such shares or units of shares of preferred stock are herein
called "Common Stock equivalents")), (3) debt securities of the
Company, (4) other assets, (5) a reduction of the Purchase Price,
or (6) any combination of the foregoing having a value which, when
added to the value of the shares of Common Stock (and/or Preferred
Shares) actually issued upon exercise of such Right, shall have an
aggregate value equal to the Current Value, where such aggregate
value has been determined in good faith by the Board of Directors
based upon the advice of a nationally recognized independent
investment banking firm selected in good faith by the Board of
Directors; provided that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within thirty (30) days following the date (the "Section 11(a)(ii)
Trigger Date") which is the later of (x) the first occurrence of a
Section 11(a)(ii) Event and (y) the date on which the Company's
right of redemption pursuant to Section 23(a) expires, then the
Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available) and
Preferred Shares and then, if necessary, cash, which shares and
cash have an aggregate value equal to the excess of (x) the Current
Value over (y) the Purchase Price for the number of shares (or
fraction of a share) for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii) Event. If,
upon the occurrence of a Section 11(a)(ii) Event, the number of
shares of Common Stock that are authorized by the Company's
Certificate of Incorporation but not outstanding or reserved for
-20-
<PAGE> EX2-23
issuance for purposes other than upon exercise of the
Rights are not sufficient to permit exercise in full of the Rights
in accordance with Section 11(a)(ii) hereof, and if the Board of
Directors shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized
for issuance upon exercise in full of the Rights, then, if the
Board of Directors so elects, the thirty (30) day period set forth
above may be extended to the extent necessary, but not more than
ninety (90) days after the Section 11(a)(ii) Trigger Date, in order
that the Company may seek shareholder approval for the
authorization of such additional shares (such thirty (30) day
period, as it may be extended, is herein called the "Substitution
Period"). To the extent that the Company determines that some
action must be taken pursuant to the first or second sentence of
this Section 11(q), the Company (x) shall provide, subject to
Section 7(e) hereof and the last sentence of this Section 11(q),
that such action shall apply uniformly to all outstanding Rights,
and (y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any
authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to such first sentence and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such times as the
suspension is no longer in effect. For purposes of this Section
11(q), the value of the Common Stock shall be the current market
price per share of the Common Stock on the Section 11(a)(ii)
Trigger Date and the per share or per unit value of any "Common
Stock equivalent" shall be deemed to equal the current market price
per share of the Common Stock on such date. The Board of Directors
may, but shall not be required to, establish procedures to allocate
the right to receive Common Stock upon the exercise of the Rights
among holders of Rights pursuant to this Section 11(q).
(r) (i) The Board of Directors of the Company may, at its
option upon approval by a Majority Director Vote, at any time after
any Person becomes an Acquiring Person, exchange shares of Common
Stock for all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof), at an exchange
ratio of one (1.0) share of Common Stock per Right, appropriately
adjusted to reflect any adjustment in the number of Rights pursuant
to Section 11(a)(i) 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 such Subsidiary, or any entity holding Common Stock
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.
(ii) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (i) of this Section 11(r) 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
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<PAGE> EX2-24
Rights Agent. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of exchange will state the method by
which the exchange of the Common Stock for Rights will be effected
and, in the event of any partial exchange, the number of Rights
which will be exchanged. Any partial exchange shall be effected
pro rata based on the number of Rights (other than Rights which
have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(iii) In the event that there shall not be sufficient
shares of Common Stock available for issuance to permit any
exchange of Rights as contemplated in accordance with this Section
11(r), the Company shall either take such action as may be
necessary to authorize additional shares of Common Stock for
issuance upon exchange of the Rights or, alternatively, at the
option and in the sole discretion of the Board of Directors (or
directors, as the case may be), approved by a Majority Director
Vote, in lieu of issuing Common Stock in exchange for each such
Right, (x) pay cash in an amount equal to the Current Value (as
hereinafter defined), (y) issue debt or equity securities or a
combination thereof (which may include Preferred Shares), having a
value equal to the Current Value, where the value of such
securities shall be determined by the Board of Directors in good
faith based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors, or (z) deliver any
combination of cash, property, Common Stock and/or other securities
having a value equal to the Current Value (again, where the value
of such securities shall be determined by the Board of Directors in
good faith based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors). For
purposes of this paragraph (iii) only, the term "Current Value"
shall mean the product of the current market price per share of
Common Stock (determined pursuant to Section 11(d) as of the Stock
Acquisition Date) multiplied by the number of shares of Common
Stock for which the Right otherwise would be exchangeable if there
were sufficient shares available. To the extent that the Company
determines that some action need be taken pursuant to clauses (x),
(y) or (z) of this paragraph (iii), the Board of Directors may
temporarily suspend the exercisability of the Rights for a period
of up to ninety (90) days following the Stock Acquisition Date, in
order to seek any authorization of additional shares of Common
Stock and/or to decide the appropriate form of distribution to be
made pursuant to this paragraph (iii) and to determine the value
thereof. In the event of any such suspension, the Company shall
issue a public announcement stating that the exercisability of the
Rights has been temporarily suspended.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 or Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b) promptly
file with the Rights Agent, and with the transfer agent for the
Common Stock, a copy of such certificate, and (c) mail a brief
summary thereof to each holder of a Rights Certificate (or, if
prior to the Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with Section 25
hereof. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein and shall not be
obligated or responsible for calculating any adjustment nor shall
it be deemed to have knowledge of any such adjustment unless and
until it shall have received such a certificate.
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<PAGE> EX2-25
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person (other
than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the
outstanding shares of Common Stock shall be changed into or
exchanged for stock or other securities of any other Person or cash
or any other property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer) in one transaction or a series of related
transactions, assets or earning power aggregating 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the Company
or any Subsidiary of the Company in one or more transactions each
of which complies with Section 11(o) hereof), then, and in each
such case, proper provisions shall be made so that: (i) each holder
of a Right, except as provided in Section 7(e) hereof, shall
thereafter have the right to receive, upon the exercise thereof, in
accordance with the terms of this Rights Plan, such number of duly
and validly authorized and issued, fully paid, nonassessable and
freely tradable shares of Common Stock of the Principal Party (as
such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of one one-hundredths of a
Preferred Share for which a Right is exercisable immediately prior
to the first occurrence of a Section 13 Event, and dividing that
product (which product, following the first occurrence of a Section
13 Event, shall be the aggregate "Purchase Price" for all the
securities that may be purchased pursuant to the Right upon the
adjustment pursuant to this clause (i) and for all purposes of this
Rights Plan) by (2) 50% of the current market price (determined
pursuant to Section 11(d) hereof) per share of the Common Stock of
such Principal Party on the date of consummation of such Section 13
Event; (ii) such Principal Party (i.e., the issuer of such shares)
shall thereafter be liable for, and shall assume, by virtue of such
Section 13 Event, all the obligations and duties of the Company
pursuant to this Rights Plan; (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 only to such Principal Party following the first
occurrence of a Section 13 Event; (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation of
a sufficient number of shares of its Common Stock in accordance
with the provisions of this Rights Plan) in connection with the
consummation of any such transaction as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to its shares of Common
Stock thereafter deliverable upon the exercise of the Rights; and
(v) the provisions of Section 11(a)(ii) hereof shall be of no
effect following the first occurrence of any Section 13 Event.
(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
-23-
<PAGE> EX2-26
of the Company are converted in such merger or consolidation, and
if no securities are so issued, the Person that is the other party
to such merger or consolidation; and
(ii) in the case of any transaction described in clause
(z) of the first sentence of Section 13(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, (1) if the Common Stock of such
Person is not at such time and has not been continuously over the
preceding twelve (12) month period registered under Section 12 of
the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such other
Person; and (2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks 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.
(c) The Company shall not consummate any such consolidation,
merger, sale or transfer (or any other transaction constituting a
Section 13 Event) unless the Principal Party shall have a
sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13
and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger or sale of
assets (or any other transaction constituting a Section 13 Event),
the Principal Party will:
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and will use its
best efforts to cause such registration statement to (A) become
effective as soon as practicable after such filing and (B) remain
effective (with a prospectus at all times meeting the requirements
of the Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
In the event that a Section 13 Event shall occur at any time after
the occurrence of a Section 11(a)(ii) Event, the Rights which have
not theretofore been exercised shall thereafter become exercisable
in the manner described in Section 13(a). 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
-24-
<PAGE> EX2-27
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.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of
Rights, except prior to the Distribution Date as provided in
Section 11(p) hereof, or to distribute Rights Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Rights
Certificates with regard to which such fractional Rights would be
otherwise issuable, an amount in cash equal to the same fraction of
the current market value of a whole Right. For purposes of this
Section 14(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 of the Rights for any day
shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, 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
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.
(b) The Company shall not be required to issue fractions of
Preferred Shares (other than integral multiples of one one-
hundredths of a Preferred Share) or fractions of shares of Common
Stock or other securities upon exercise or exchange of the Rights
or to distribute certificates which evidence such fractional
shares. In lieu of fractional shares of Common Stock or Preferred
Shares, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised or exchanged as
herein provided an amount in cash equal to (A) in the case of
fractional Common Stock, the same fraction of the current market
value of a share of Common Stock and (B) in the case of a
fractional portion of a Preferred Share, the same fraction of the
current market value of one Preferred Share. For purposes of this
Section 14(b), the current market value of a share shall be the
closing price of such share (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 such holder's right to receive any fractional
Rights or any fractional shares upon exercise or exchange of a
Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in
respect of this Rights Plan are vested in the respective registered
holders of the Rights Certificates (and, prior to the Distribution
-25-
<PAGE> EX2-28
Date, the registered holders of the Common Stock); and any registered
holder of any Rights Certificate (or, prior to the Distribution Date,
of the Common Stock), without the consent of the Rights Agent or of
the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
+evidenced by such Rights Certificate and in this Rights Plan.
Without limiting the foregoing or any remedies available to the
holders of the Rights, it is specifically acknowledged that the
holders of the Rights would not have an adequate remedy at law for
any breach of this Agreement, and shall be entitled to specific
performance of the obligations under, and injunctive relief against
actual or threatened violations of the obligations of any Person
subject to, this Agreement.
Section 16. Agreement of Rights Holders. Every holder of
a Right by acceptance of 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 Common Stock;
(b) after the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in whose
name a Rights Certificate (or, prior to the Distribution Date, the
associated Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Rights Certificates or
the associated Common 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, subject to the second
sentence of Section 7(e) hereof, shall be required to be affected
by any notice to the contrary; and
(d) notwithstanding anything in this Rights Plan to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this Rights
Plan by reason of any preliminary or permanent injunction or other
order, decree or ruling issued by a court of competent jurisdiction
or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority, prohibiting
or otherwise restraining performance of such obligations.
Section 17. Rights Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Rights Certificate shall
be entitled to vote (or consent with respect to), receive dividends
or be deemed for any purpose whatsoever the holder of any Preferred
Shares (or any portion thereof) or shares of Common Stock or of any
other securities of the Company which may at any time be issuable
on the exercise of the Rights represented thereby, nor shall
-26-
<PAGE> EX2-29
anything contained herein or in any Rights Certificate be construed to
confer upon the holder of any Rights Certificate, as such, any of
the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings,
proceedings or other actions affecting shareholders (except as
provided in Section 24 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursements and other disbursements
incurred in the administration and execution of this Rights Plan
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent, its directors,
officers, employees and agents for, and to hold each of them
harmless against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct on the part of
the Rights Agent or such other indemnified parties, for anything
done or omitted by the Rights Agent or such other indemnified
parties in connection with the acceptance and administration of
this Rights Plan.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this Rights
Plan or the performance of the Rights Agent's duties hereunder in
reliance upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or
other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by
the proper Person or Persons.
(c) The indemnity provided in this Section 18 shall survive
the expiration of the Rights and the termination of this Agreement.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under this
Rights Plan without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided,
however, that such corporation would be eligible for appointment as
a successor Rights Agent under the provisions of Section 21 hereof.
In case at the time such successor Rights Agent shall succeed to
the agency created by this Rights Plan any of the Rights
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of a
predecessor Rights Agent and deliver such Rights Certificates so
-27-
<PAGE> EX2-30
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor Rights
Agent; and in all such cases such Rights Certificates shall have
the full force provided in the Rights Certificates and in this
Rights Plan.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt
the countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates and in this Rights Plan.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Rights Plan
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their acceptance
thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
acceptable to the Company (who may be legal counsel for the
Company), and the advice or opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance
with such advice or opinion.
(b) Whenever in the performance of its duties under this
Rights Plan the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of "current
market price") be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer 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
Rights Plan in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights Plan or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Rights Plan or in any Rights
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any such adjustment
(except with respect to the exercise of Rights evidenced by Rights
Certificates after actual notice of any such adjustment); nor shall
it by any act hereunder be deemed to make any representation or
-28-
<PAGE> EX2-31
warranty as to the authorization or reservation of any shares of Common
Stock to be issued pursuant to this Rights Plan or any Rights
Certificate or as to whether any shares of Common Stock will, when
so issued, be validly authorized and issued, fully paid and
nonassessable.
(e) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights Agent
of the provisions of this Rights Plan.
(f) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President, any Vice
President, the Secretary 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 to be taken by it in good faith in accordance with
instructions of any such officer or for any delay in acting while
awaiting instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken
or omitted by the Rights Agent under this Agreement and the date on
or after which such action shall be taken or such omission shall be
effective. The Rights Agent shall not be liable for any action
taken by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the date
specified in such application (which date shall not be less than
five Business Days after the date any officer of the Company
actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to
taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written
instructions in response to such application specifying the action
to be taken or omitted.
(g) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights
Agent under this Rights Plan. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(h) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct as long as the Rights Agent was not grossly
negligent and acted in good faith, in the selection and continued
employment thereof.
(i) No provision of this Rights Plan shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
-29-
<PAGE> EX2-32
(j) If, with respect to any Rights Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached
to the form of assignment or form of election to purchase, as the
case may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
(k) The Rights Agent undertakes only the express duties and
obligations imposed on it by this Agreement and no implied duties
or obligations shall be read into this Agreement against the Rights
Agent.
(l) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Rights Agent be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits).
Section 21. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Rights Plan upon sixty (60) days' notice in
writing mailed to the Company, and to each transfer agent of the
Common Stock or Preferred Shares, by registered or certified mail,
and to the holders of the Rights Certificates by first-class mail.
The Company may remove the Rights Agent or any successor Rights
Agent upon thirty (30) days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to
the transfer agent of the Common Stock or Preferred Shares, by
registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
sixty (60) days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a
Rights Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation organized and doing business
under the laws of the United States or of any state of the United
States, in good standing, which is authorized under such laws to
exercise corporate trust 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 $50,000,000. 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 and
records 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 Preferred Shares and mail a notice thereof in writing to
the registered holders of the Rights Certificates. Failure to give
any notice provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
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<PAGE> EX2-33
Section 22. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Rights Plan or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Rights
Plan. In addition, in connection with the issuance or sale of
shares of Common Stock following the Distribution Date and prior to
the redemption or expiration of the Rights, the Company (a) shall,
with respect to shares of Common Stock so issued or sold pursuant
to the exercise of stock options or under any employee plan or
arrangement, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the Board of
Directors of the Company, issue Rights Certificates representing
the appropriate number of Rights in connection with such issuance
or sale; provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant
risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii) no
such Rights Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its option,
as approved by a Majority Director Vote, at any time prior to the
earlier of (i) the time that any Person becomes an Acquiring
Person, or (ii) the Final Expiration Date, redeem all but not less
than all of the then outstanding Rights at a redemption price of
$.005 per Right, as such amount may be appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The redemption
of the Rights pursuant to this Section 23(a) may be made effective
at such time, on such basis and with such conditions as the Board
of Directors of the Company, in its sole discretion, may establish
(as approved by a Majority Director Vote).
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23, and without any further action
and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to all such holders at
each holder's last address as it appears upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common Stock;
provided, however, that the failure to give, or any defect in, any
such notice shall not affect the validity of such redemption. Any
notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice. Each
such notice of redemption will state the method by which the
payment of the Redemption Price will be made. Neither the Company
nor any of its Affiliates or Associates may redeem, acquire or
purchase for value any Rights at any time in any manner other than
that specifically set forth in this Section 23 or in Section 11(r)
hereof, and other than in connection with the purchase of shares of
Common Stock prior to the Distribution Date.
-31-
<PAGE> EX2-34
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any
class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular
quarterly cash dividend out of earnings or retained earnings of the
Company), or (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, or (iii) to effect any
reclassification of its Common Stock (other than a reclassification
involving only the subdivision of outstanding shares of Common
Stock), or (iv) to effect any consolidation or merger into or with
any other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or to effect
any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions
each of which complies with Section 11(o) hereof), or (v) to effect
the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section
25 hereof, a notice of such proposed action, which shall specify
the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the shares of
Common Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the record date
for determining holders of the shares of Common Stock for purposes
of such action, and in the case of any such other action, at least
twenty (20) days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
shares of 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, in any such case, (i) the Company shall
as soon as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section
25 hereof, a notice of the occurrence of such event, which shall
specify the event and the consequences of the event to holders of
Rights under Section 11(a)(ii) hereof, and (ii) all references in
the preceding paragraph to Common Stock shall be deemed thereafter
to refer, if appropriate, to other securities.
(c) The failure to give notice required by this Section 24 or
any defect therein shall not affect the legality or validity of the
action taken by the Company or the vote on any such action.
Section 25. Notices. Notices or demands authorized by this
Rights Plan to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall
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<PAGE> EX2-35
be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Cooker Restaurant Corporation
5500 Village Boulevard
West Palm Beach, FL 33407
Attention: President
Subject to the provisions of Section 21, any notice or demand
authorized by this Rights Plan to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in
writing with the Company) as follows:
First Union National Bank
Shareholder Services Group
1525 West W.T. Harris Boulevard, 3C3
Charlotte, North Carolina 28262-1153
Attention: Shareholder Services Group
Notices or demands authorized by this Rights Plan to be given or
made by the Company or the Rights Agent to the holder of any Rights
Certificate (or, if prior to the Distribution Date, to the holder
of certificates representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail, postage
pre-paid, addressed to such holder at the address of such holder as
shown on the registry books of the Company.
Section 26. Supplements and Amendments. The Company may,
and the Rights Agent shall if the Company so directs, from time to
time, supplement or amend this Agreement without the approval of
any holder(s) of Rights Certificates in order to cure any
ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions
herein, or to make, change or effect any other provisions with
respect to the Rights which the Company may deem necessary or
desirable, any such supplement or amendment to be approved by a
Majority Director Vote and evidenced by a writing signed by the
Company and the Rights Agent; provided, however, that, from and
after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would adversely
affect the interests of the holders of Rights. Without limiting
the foregoing, the Company may, at any time prior to such time as
any Person becomes an Acquiring Person, amend this Agreement to
lower the percentage thresholds set forth in Sections 1(a) and 3(a)
hereof to not less than the greater of (a) the sum of .001% and the
largest percentage of the outstanding shares of Common Stock then
known by the Company to be beneficially owned by any Person (other
than the Company, 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 for or pursuant to the
terms of any such plan) and (b) 10.0%. Upon the delivery of a
certificate from an appropriate officer of the Company which states
that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in
-33-
<PAGE> EX2-36
this Rights Plan to the contrary, no supplement or amendment may be
made after the time that any Person becomes an Acquiring Person
unless such supplement or amendment (i) does not adversely affect
the interests of the holders of Rights, and (ii) is approved by a
Majority Director Vote, and no supplement or amendment that
materially changes the rights or duties of the Rights Agent under
this Agreement shall be effective without the execution of such
supplement or amendment by the Rights Agent.
Section 27. Successors. All the covenants and provisions
of this Rights Plan 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 28. Determinations and Actions by the Board of
Directors, etc. For all purposes of this Rights Plan, any
calculation of the number of shares of Common Stock outstanding at
any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act. The Board of
Directors of the Company (where specifically provided for herein,
by the requisite vote and/or with the approval of Independent
Directors (where a Majority Director Vote is required)) shall have
the exclusive power and authority to administer this Rights Plan
and to exercise all rights and powers specifically granted to the
Board (with, where specifically provided for herein, the approval
of Independent Directors (where a Majority Director Vote is
required)) or to the Company, or as may be necessary or advisable
in the administration of this Rights Plan, including, without
limitation, the right and power to (i) interpret the provisions of
this Rights Plan and (ii) make all determinations deemed necessary
or advisable for the administration of this Rights Plan (including
a determination to redeem or not redeem the Rights, to exchange the
Rights or to amend or supplement this Rights Plan). All such
actions, calculations, interpretations and determinations
(including, for purposes of clause (y) below, all omissions with
respect to the foregoing) which are done or made by the Board
(with, where specifically provided for herein, the approval of
Independent Directors (where a Majority Director Vote is required))
in good faith, shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other
parties and (y) not subject the Board or the Independent Directors
(if applicable) to any liability to the holders of the Rights.
The Board may at any time and from time to time (and upon the
occurrence of a Triggering Event shall forthwith) establish and set
aside one or more funds (in such amount or amounts as the Board
shall deem necessary or desirable), whether in trust, escrow or
other segregated accounts (regardless of whether any such fund is
combined for administrative purposes with any other fund or funds
established by the Company, for the purpose of assuring that
adequate resources are available to the Board of Directors (or
Independent Directors, as the case may be), to enable them to carry
out their prescribed functions, and to maintain their authority and
powers, under this Agreement, or to fulfill their fiduciary
obligations to the shareholders of the Company. Without limiting
the generality of the statement of purposes contained in the next
preceding sentence, the fund or funds so established shall, on
demand of a majority of the Board or Independent Directors, be made
available to the Board (including Independent Directors) for the
purposes of (i) seeking affirmatively to establish, or to defend,
the validity of this Agreement, including, without limitation, this
-34-
<PAGE> EX2-37
Section 28, and (ii) seeking affirmatively to establish, or to
defend, the validity and/or propriety of any action taken (or
omitted to be taken) by the Board (including Independent Directors)
pursuant to this Agreement, the Certificate of Incorporation or the
Bylaws or applicable provisions of the Ohio General Corporation
Law. The establishment by the Board, and utilization by the Board
of Directors (or Independent Directors, as the case may be), of any
fund or funds established pursuant to this paragraph shall be
separate and apart from, and shall not detract from, diminish or
otherwise affect adversely, any rights or protections afforded,
conferred or given to the Company's Directors (including the
Independent Directors) pursuant to the Certificate of Incorporation
or Bylaws of the Company.
Section 29. Benefits of this Rights Plan. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock).
Section 30. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Without limiting the foregoing, if any provision requiring that a
determination, vote or approval be made by less than the entire
Board (or at a time or with the concurrence of a group of directors
consisting of less than the entire Board) is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, such determination, vote or approval shall then be
made by the full Board of Directors in accordance with applicable
law and the Company's Certificate of Incorporation and By-laws.
Section 31. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Ohio and for all
purposes shall be governed by and construed in accordance with the
laws of such State applicable to contracts made and to be performed
entirely within such State.
Section 32. Reserved
Section 33. Counterparts. This Agreement may be executed
in counterparts and both of such counterparts shall for all
purposes be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of
the several Sections of this Rights Plan are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
-35-
<PAGE> EX2-38
Section 35. Consequential Damages. Neither party to this
Agreement shall be liable to the other party or any third party for
consequential damages.
-36-
<PAGE> EX2-39
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Plan to be duly executed and attested, all as of the date first
above written.
COOKER RESTAURANT CORPORATION
By: /s/Henry R. Hillenmeyer
Name: Henry R. Hillenmeyer
Title: Chairman and CEO
FIRST UNION NATIONAL BANK
By: /s/Holly H. Drummond
Name: Holly H. Drummond
Title: Corporate Trust Officer
-37-
<PAGE> EX2-40
EXHIBIT A
CERTIFICATE OF AMENDMENT
of
CLASS A JUNIOR PARTICIPATING PREFERRED SHARES
of
COOKER RESTAURANT CORPORATION
<PAGE> A-1
CERTIFICATE OF AMENDMENT
TO THE AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
COOKER RESTAURANT CORPORATION
The undersigned Chairman of the Board and Secretary of Cooker
Restaurant Corporation, an Ohio corporation (the "Corporation"),
hereby certify that the following is a true and complete copy of
the resolution adopting the amendment of the Amended and Restated
Articles of Incorporation of the Corporation (the "Articles of
Incorporation") set forth therein and that it was duly adopted (a)
by the Board of Directors of the Corporation at its meeting held
pursuant to notice on the 16th day of January, 1990 and (b) by the
holders of a majority of the outstanding shares of the Corporation
entitled to vote on such amendment at the annual meeting of
shareholders held pursuant to notice on April 17, 1990:
RESOLVED, that Article IV, Section 1 of the Articles of
Incorporation is amended to redesignate the classes and aggregate
number of shares of each class of the Corporation's Preferred
Shares that the Corporation is authorized to have issued and
outstanding and shall read in its entirety as follows:
Section 1. Number and Class of Shares. The number of shares
which the Corporation is authorized to have issued and outstanding
is 35,000,000 shares. The classes and the aggregate number of
shares of each class are as follows:
(a) 30,000,000 Common Shares, without par value;
(b) 300,000 Class A Junior Participating Preferred
Shares, without par value; and
(c) 4,700,000 Class B Preferred Shares, without par
value.
; and further
RESOLVED, that Article IV, Section 2 of the Articles of
Incorporation is amended to redesignate the Corporation's Preferred
Shares as Class B Preferred Shares and shall read in its entirety
as follows:
Section 2. Class B Preferred Shares.
2. 1 Insurance in Series. Any unissued or treasury Class
B Preferred Shares may be issued from time to time in one or more
series for such consideration as may be fixed from time to time by
the Board of Directors. The Board of Directors is hereby expressly
authorized to adopt amendments to these Amended and Restated
Articles of Incorporation in respect to any unissued or treasury
Class B Preferred Shares to, among other things, fix or change (a)
<PAGE> A-2
the division of Class B Preferred Shares into one or more series,
(b) the designation and authorized number of shares of each series,
and (c) the express terms of each series of Class B Preferred
Shares. The express terms of shares of different series of Class
B Preferred Shares shall be identical, except that there may be
variations in respect of:
2.1. 1 the dividend or distribution rate;
2.1. 2 the dates of payments of dividends or
distributions and the dates from which they are cumulative;
2.1. 3 redemption rights and price;
2.1. 4 liquidation price;
2.1. 5 sinking fund requirements.
2.1. 6 conversion rights; and
2.1. 7 restrictions on the issuance of shares of
the same series or of any other class or series.
2.2 Voting Rights. As to every matter requiring the
approval of the shareholders of the Corporation, every holder of
Class B Preferred Shares shall be entitled to one vote for each
Class B Preferred Share standing in his name on the books of the
Corporation, with the same and identical voting rights, except as
otherwise provided herein, as a holder of Common Shares. The Class
B Preferred Shares and Common Shares shall vote together as a
single class, except as otherwise required by law or these Amended
and Restated Articles of Incorporation.
2.3 Priority of Class B Preferred Shares in Event of
Dissolution. In the event of any dissolution, liquidation, or
winding up of the affairs of the Corporation, whether voluntarily
or involuntarily, the holders of each series of Class B Preferred
Shares shall be entitled, after payment or provision for payment of
the debts and other liabilities of the Corporation, to receive, out
of the net assets of the Corporation, the amount fixed and
determined by the Board of Directors in any amendment to these
Amended and Restated Articles of Incorporation providing for the
issuance of a particular series of Class B Preferred Shares, before
any distribution shall be made to the holders of Common Shares.
Neither the merger or consolidation of the Corporation, nor the
sale, lease or conveyance of all or part of its assets, shall be
deemed to be a liquidation, dissolution or winding up of the
affairs of the Corporation within the meaning of this Section 2.3.
2.4 Priority of Class B Preferred Shares to Dividends or
Other Distributions. As and when dividends or other distributions
payable in cash, property or capital stock of the Corporation may
be declared by the Board of Directors, holders of Class B Preferred
Shares shall be paid a dividend or distribution in an amount to be
determined by the Board of Directors before payment of any such
dividend or distribution is made to holders of Common Shares.
2
<PAGE> A-3
; and further
RESOLVED, that Article IV, Section 3 of the Articles of
Incorporation is amended to amend the terms of the Corporation's
Series A Participating Preferred Shares to more closely resemble
units of 100 Common Shares by redesignating the Series A
Participating Preferred Shares as a new class of Class A Junior
Participating Preferred Shares and that the express terms of such
class of shares are as follows:
Section 3. Class A Junior Participating Preferred Shares.
3.1 Designation and Amount. The shares of this class of
preferred shares shall be designated as "Class A Junior
Participating Preferred Shares" and the number of shares
constituting such class shall be 300,000.
3.2 Dividends and Distributions.
(A) Subject to the prior and superior rights of the
holders of any shares of any class or series of preferred shares
ranking prior and superior to the Class A Junior Participating
Preferred Shares, with respect to dividends, the holders of shares
of Class A Junior Participating Preferred Shares shall be entitled
to receive, when, as and if declared by the Board of Directors out
of funds legally available for the purpose, quarterly dividends
payable in cash on the first day of March, June, September and
December in each year (each such date being referred to herein as
a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share
or fraction of a Class A Junior Participating Preferred Share or
fraction thereof, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $.05 or (b) subject to the
provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise), declared on the Common Shares of
the Corporation since the immediately preceding Quarterly Dividend
Payment Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any Class A Junior
Participating Preferred Shares. In the event the Corporation shall
at any time after March 5, 1990 (the "Rights Declaration Date") (i)
declare any dividend on Common Shares payable in Common Shares,
(ii) subdivide the outstanding Common Shares, or (iii) combine the
outstanding Common Shares into a small number of shares, then in
each such case the amount to which holders of Class A Junior
Participating Preferred Shares were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator of
which is the number of Common Shares outstanding immediately after
such event and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Class A Junior Participating Preferred Shares
as provided in paragraph (A) above immediately after it declares a
dividend or distribution on the Common Shares (other than a
dividend payable in Common Shares); provided, that in the event no
dividend or distribution shall have been declared on the Common
3
<PAGE> A-4
Shares during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $.05 per share on the Class A Junior Participating
Preferred Shares shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding Class A Junior Participating Preferred
Shares from the Quarterly Dividend Payment Date next preceding the
date of issue of Class A Junior Participating Preferred Shares,
unless the date of issue of such shares is prior to the record date
for the first Quarterly Dividend Payment Date, in which case
dividends on such shares shall begin to accrue form the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of Class A Junior Participating Preferred
Shares entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends
shall not bear interest. Dividends paid on the Class A Junior
Participating Preferred Shares in an amount less than the total
amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding.
3.3 Voting Rights. The holders of Class A Junior
Participating Preferred Shares shall have the following voting
rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each Class A Junior Participating Preferred
Share shall entitle the holder thereof to 100 votes on all matters
submitted to a vote of the shareholders of the Corporation.
(B) Except as otherwise provided herein or by law,
the holders of Class A Junior Participating Preferred Shares and
the holders of Common Shares shall vote together as one class on
all matters submitted to a vote of shareholders of the Corporation.
(C) (i) If at any time dividends on any Class A
Junior Participating Preferred Shares shall be in arrears in an
amount equal to six quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a period (herein
called a "default period") which shall extend until such time when
all accrued and unpaid dividends for all previous quarterly
dividend periods and for the current quarterly dividend period on
all Class A Junior Participating Preferred Shares then outstanding
shall have been declared and paid or set apart for payment. During
each default period, all holders of preferred shares (including
holders of the Class A Junior Participating Preferred Shares) with
dividends in arrears in an amount equal to six quarterly dividends
thereon, voting as a class, irrespective of class or series, shall
have the right to elect two Directors of the Corporation.
(ii) During any default period, such
voting right of the holders of Class A Junior Participating
Preferred Shares may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section 3.3(C) or at
any annual meeting of shareholders, and thereafter at annual
meetings of shareholders, provided that neither such voting right
nor the right of the holders of any other class or series of
preferred shares, if any, to increase, in certain cases, the
4
<PAGE> A-5
authorized number of Directors shall be exercised unless the
holders of ten percent in number of preferred shares outstanding
shall be present in person or by proxy. The absence of a quorum of
the holders of Common Shares shall not affect the exercise by the
holders of preferred shares of such voting right. At any meeting
at which the holders of preferred shares shall exercise such voting
right initially during an existing default period, they shall have
the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up
to two Directors or, if such right is exercised at an annual
meeting, to elect two Directors. If the number which may be so
elected at any special meeting does not amount to the required
number, the holders of the preferred shares shall have the right to
make such increase in the number of Directors as shall be necessary
to permit the election by them of the required number. After the
holders of the preferred shares shall have exercised their right to
elect Directors in any default period and during the continuance of
such period, the number of Directors shall not be increased or
decreased except by vote of the holders of preferred shares as
herein provided or pursuant to the rights of any equity securities
raking senior to or pari passu with the Class A Junior
Participating Preferred Shares.
(iii) Unless the holders of preferred
shares shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors
may order, or any shareholder or shareholders owning in the
aggregate not less than ten percent of the total number of
preferred shares outstanding, irrespective of class or series, may
request, the calling of a special meeting of the holders of
preferred shares, which meeting shall thereupon be called by the
President, a Vice President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which holders
of preferred shares are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of preferred
shares by mailing a copy of such notice to him at his last address
as the same appears on the books of the Corporation. Such meeting
shall be called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of the
calling of such meeting within 60 days after such order or request,
such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than ten percent of
the total number of preferred shares outstanding. Notwithstanding
the provisions of this paragraph (C)(iii), no such special meeting
shall be called during the period within 60 days immediately
preceding the date fixed for the next annual meeting of the
shareholders.
(iv) In any default period, the holders of
Common Shares, and other classes of shares of the Corporation if
applicable, shall continue to be entitled to elect the whole number
of Directors until the holders of preferred shares shall have
exercised their right to elect two Directors voting as a class,
after the exercise of which right (A) the Directors so elected by
the holders of preferred shares shall continue in office until
their successors shall have been elected by such holders or until
the expiration of the default period, and (B) any vacancy in the
Board of Directors may (except as provided in paragraph (C)(ii) of
this Section 3.3) be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class of shares
which elected the Director where office shall have become vacant.
References in this paragraph (C) to Directors elected by the
holders of a particular class of shares shall include Directors
elected by such Directors to fill vacancies as provided in clause
(B) of the foregoing sentence.
5
<PAGE> A-6
(v) Immediately upon the expiration of a
default period, (A) the right of the holders of preferred shares as
a class to elect Directors shall cease, (B) the term of any
Directors elected by the holders of preferred shares as a class
shall terminate, and (C) the number of Directors shall be such
number as may be provided for in the articles of incorporation or
code of regulations irrespective of any increase made pursuant to
the provisions of paragraph (C)(ii) of this Section 3.3 (such
number being subject, however, to change thereafter in any manner
provided by law or in the articles of incorporation or code of
regulations). Any vacancies in the Board of Directors effected by
the provisions of clauses (B) and (C) in the preceding sentence may
be filled by a majority of the remaining Directors.
(D) Except as set forth herein, holders of Class A
Junior Participating Preferred Shares shall have no special voting
rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Shares as
set forth herein) for taking any corporate action.
3.4 Certain Restrictions
(A) Whenever quarterly dividends or other dividends
or distributions payable on the Class A Junior Participating
Preferred Shares as provided in Section 3.2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on Class A Junior
Participating Preferred Shares outstanding shall have been paid in
full, the Corporation shall not:
(i) declare or pay dividends on, make any
other distributions on; or redeem or purchase or otherwise acquire
for consideration any shares ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Class A
Junior Participating Preferred Shares;
(ii) declare or pay dividends on or make
any other distributions on any shares ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Class A Junior Participating Preferred Shares, except
dividends paid ratably on the Class A Junior Participating
Preferred Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled.
(iii) redeem or purchase or otherwise
acquire for consideration any shares ranking on a parity (either as
to dividends or upon liquidation, dissolution or winding up) with
the Class A Junior Participating Preferred Shares, provided that
the Corporation may at any time redeem, purchase or otherwise
acquire any such parity shares in exchange for any shares of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Class A Junior
Participating Preferred Shares; or
(iv) purchase or otherwise acquire for
consideration any Class A Junior Participating Preferred Shares, or
any shares ranking on a parity with the Class A Junior
Participating Preferred Shares, except in accordance with a
purchase offer made in writing or by publication (as determined by
the Board of Directors) to all holders of such shares upon such
6
<PAGE> A-7
terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine
in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary
of the Corporation to purchase or otherwise acquire for
consideration any shares of the Corporation unless the Corporation
could, under paragraph (A) of this Section 3.4, purchase or
otherwise acquire such shares at such time and in such manner.
3.5 Reacquired Shares. Any Class A Junior Participating
Preferred Shares purchased or otherwise required by the Corporation
in any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued preferred shares and
may be reissued as part of a new class of series of preferred
shares to be created by resolution or resolutions of the
shareholders or the Board of Directors of the Corporation, subject
to the conditions and restrictions on issuance set forth herein.
3.6 Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution shall
be made to the holders of shares ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Class A Junior Participating Preferred Shares unless, prior
thereto, the holders of Class A Junior Participating Preferred
Shares shall have received $.10 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment (the "Class A Liquidation
Preference"). Following the payment of the full amount of the
Class A Liquidation Preference, no additional distributions shall
be made to the holders of Class A Junior Participating Preferred
Shares unless, prior thereto, the holders of Common Shares shall
have received an amount per share (the "Common Adjustment") equal
to the quotient obtained by dividing (i) the Class A Liquidation
Preference by (ii) 100 (as appropriately adjusted as set forth in
subparagraph C below to reflect such events as stock splits, stock
dividends and recapitalizations with respect to the Common Shares)
(such number in clause (ii), the "Adjusted Number"). Following the
payment of the full amount of the Class A Liquidation Preference
and the Common Adjustment in respect of all outstanding Class A
Junior Participating Preferred Shares and Common Shares,
respectively, holders of Class A Junior Participating Preferred
Shares and holders of Common Shares shall receive their ratable and
proportionate share of the remaining assets to be distributed in
the ratio of the Adjustment Number to one with respect to such
preferred shares and Common Shares, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of the Class
A Liquidation Preference and the liquidation preferences of all
other classes or series of preferred shares, if any, which rank on
a parity with the Class A Junior Participating Preferred Shares,
then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not
7
<PAGE> A-8
sufficient assets available to permit payment in full of the Common
Adjustment, then such remaining assets shall be distributed ratably
to the holders of Common Shares.
(C) In the event the Corporation shall at any time
after the Rights Declaration Date (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the
Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to
each event.
3.7 Consolidation, Merger, etc. In case the Corporation
shall enter into any consolidation, merger, combination or other
transaction in which the Common Shares are exchanged for or changed
into other shares or securities, each or any other property, then
in any such case the Class A Junior Participating Preferred Shares
shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of
shares, securities, cash and any other property (payable in kind),
as the case may be, into which or for which each Common Share is
changed or exchanged. In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend on
Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, or (iii) combine the outstanding Common
Shares into a smaller number of shares, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of Class A Junior Participating Preferred Shares
shall be adjusted by multiplying such amount by a fraction the
numerator of which is the number of Common Shares outstanding
immediately after such event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to
such event.
3.8 Optional Redemption.
(A) The Corporation shall have the option to redeem
the whole or any part of the Class A Junior Participating Preferred
Shares at any time at a redemption price equal to, subject to the
provisions for adjustment hereinafter set forth, 100 times the
"current per share market price" of the Common Shares on the date
of the mailing of the notice of redemption, together with unpaid
accumulated dividends to the date of such redemption. In the event
the Corporation shall at any time after the Rights Declaration
Date, (i) declare any dividend on Common Shares payable in Common
Shares, (ii) subdivide the outstanding Common Shares or (iii)
combine the outstanding Common Shares into a smaller number of
shares, then in each such case the amount to which holders of Class
A Junior Participating Preferred Shares were otherwise entitled
immediately prior to such event under the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator
of which is the number of Common Shares outstanding immediately
after such event and the denominator of which is the number of
Common Shares that were outstanding immediately prior to such
event. The "current per share market price" on any date shall be
deemed to be the average of the closing price per Common Share for
8
<PAGE> A-9
the 10 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date. 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, 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 Common Shares 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 or admitted to trading on the principal national
securities exchange on which the Common Shares are listed or
admitted to trading or, if the Common Shares 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-county market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use or, if
on any such date the Common Shares 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
Common Shares selected by the Board of Directors of the
Corporation. If on such date no such market maker is making a
market in the Common Shares, the fair value of the Common Shares on
such date as determined in good faith by the Board of Directors of
the Corporation shall be used. The term "Trading Day" shall mean
a day on which the principal national securities exchange on which
the Common Shares are listed or admitted to trading is open for the
transaction of business or, if the Common Shares are not listed or
admitted to trading on any national securities exchange, a Monday,
Tuesday, Wednesday, Thursday or Friday on which banking
institutions in the State of Ohio are not authorized or obligated
by law or executive order to close.
(B) Notice of any such redemption shall be given by
mailing to the holders of the Class A Junior Participating
Preferred Shares a notice of such redemption, first class postage
prepaid, not later than the 30th day and not earlier than the 60th
day before the date fixed for redemption, at their last address as
the same shall appear upon the books of the Corporation. Any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the
shareholder received such notice, and failure duly to give such
notice by mail, or any defect in such notice, to any holder of
Class A Junior Participating Preferred Shares shall not affect the
validity of the proceedings for the redemption of such shares. If
less than all of the Class A Junior Participating Preferred Shares
are to be redeemed, the redemption shall be made by lot as
determined by the Board of Directors.
(C) If any such notice of redemption shall have
been duly given or if the Corporation shall have given to the bank
or trust company hereinafter referred to irrevocable written
authorization promptly to give or complete such notice, and if on
or before the redemption date specified therein the funds necessary
for such redemption shall have been deposited by the Corporation
with the bank or trust company designated in such notice, doing
business in the United States of America and having a capital,
surplus and undivided profits aggregating at least $10,000,000
according to its last published statement of condition, in trust
for the benefit of the holders of Class A Junior Participating
Preferred Shares called for redemption, then, notwithstanding that
any certificate for such shares so called for redemption shall not
9
<PAGE> A-10
have been surrendered for cancellation, from and after the time of
such deposit all such shares called for redemption shall no longer
be deemed outstanding and all rights with respect to such shares
shall no longer be deemed outstanding and all rights with respect
to such shares shall forthwith cease and terminate, except the
right of the holders thereof to receive from such bank or trust
company at any time after the time of such deposit the funds so
deposited, without interest, and the right to exercise, up to the
close of business on the fifth day before the date fixed for
redemption, all privileges of conversion or exchange if any. In
case less than all the shares represented by any surrendered
certificate are redeemed, a new certificate shall be issued
representing the unredeemed shares. Any interest accrued on such
funds shall be paid to the Corporation from time to time. Any
funds so deposited and unclaimed at the end of six years from such
redemption date shall be repaid to the Corporation, after which the
holders of Class A Junior Participating Preferred Shares called for
redemption shall look only to the Corporation for payment thereof;
provided, that any funds so deposited which shall not be required
for redemption because of the exercise of any privilege of
conversion or exchange subsequent to the date of deposit shall be
repaid to the Corporation forthwith.
3.9 Ranking. The Class A Junior Participating Preferred
Shares shall rank junior to all other classes or series of the
Corporation's preferred shares as to the payment of dividends and
the distribution of assets, unless the terms of any such class or
series shall provide otherwise.
3.10 Amendment. So long as any Class A Junior
Participating Preferred Shares are outstanding, the Articles of
Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers,
preferences or special rights of the Class A Junior Participating
Preferred Shares so as to affect them adversely without the
affirmative vote of the holders of a majority or more of the
outstanding Class A Junior Participating Preferred Shares, voting
separately as a class.
3.11 Fractional Shares. Class A Junior
Participating Preferred Shares may be issued in fractions of a
share which shall entitle the holder, in proportion to such holders
fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other
rights of holders of Class A Junior Participating Preferred Shares.
IN WITNESS WHEREOF, we have executed this Certificate as of
this 18th day of April, 1990.
/s/G. Arthur Seelbinder
G. Arthur Seelbinder
Chairman of the Board of
Directors
/s/Margaret A. Epperson
Margaret A. Epperson,
Secretary
<PAGE> A-2
EXHIBIT B
Form of Rights Certificate
COOKER RESTAURANT CORPORATION
Certificate No. R-______________________________________________ Rights
NOT EXERCISABLE AFTER JANUARY 16, 2010 OR EARLIER IF REDEEMED
OR EXCHANGED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AT THE OPTION OF THE COMPANY, AT $.005 PER RIGHT, AND TO EXCHANGE,
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS
SUCH TERM IS DEFINED IN THE RIGHTS PLAN) AND ANY TRANSFEREE OR
SUBSEQUENT HOLDER OF THE RIGHTS MAY BECOME NULL AND VOID. [THE
RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS PLAN). ACCORDINGLY, THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY BECOME NULL AND VOID
IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.] [1]
- ----------------------------
[1] The portion of the legend in brackets shall be inserted only if
applicable and shall replace the preceding sentence.
<PAGE> B-1
RIGHTS CERTIFICATE
This certifies that _________________________________, or
registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject
to the terms, provisions and conditions of the Rights Agreement,
dated as of January 16, 2000 (the "Rights Plan"), between Cooker
Restaurant Corporation, an Ohio corporation (the "Company"), and
First Union National Bank (the "Rights Agent"), to purchase from
the Company at any time prior to 5:00 P.M. (New York time) on
January 16, 2010 at the office or offices of the Rights Agent
designated for such purpose, or its successor(s) as Rights Agent,
one one-hundredth of a fully paid, non-assessable share of the
Company's Class A Junior Participating Preferred Shares, without
par value (the "Preferred Shares") (or in certain circumstances,
cash, property or other securities), at a purchase price of
$17.50 per one one-hundredth of a Preferred Share (the "Purchase
Price"), upon presentation and surrender of this Rights Certificate
with the Form of Election to Purchase and related Certificate duly
executed. The Purchase Price shall be paid in cash. The number of
Rights evidenced by this Rights Certificate (and the number of
shares which may be purchased upon exercise thereof) set forth
above, and the Purchase Price per share set forth above, are the
number and Purchase Price as of January 16, 2000, based on the
Company's Common Stock and Preferred Shares as constituted at such
date.
Upon the occurrence of a Section 11(a)(ii) Event (as such term
is defined in the Rights Plan), if the Rights evidenced by this
Rights Certificate are beneficially owned by (i) an Acquiring
Person or an Affiliate or Associate thereof (as such terms are
defined in the Rights Plan), or (ii) an Acquiring Person Transferee
(as such term is defined in the Rights Plan), such Rights become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
As provided in the Rights Plan, the Purchase Price and the
number and kind of shares of the Company's capital stock or other
securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events, including
Triggering Events (as such term is defined in the Rights Plan).
This Rights Certificate, and the Rights evidenced hereby, are
subject to all of the terms, provisions and conditions of the
Rights Plan, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to
which Rights Plan reference is hereby made for a full description
of the rights, limitations of rights, obligations, duties and
immunities hereunder and thereunder of the Rights Agent, the
Company and the holders of the Rights Certificates, which
limitations of rights include (without limitation) the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Plan. In the event of any
conflict or inconsistency between the terms, provisions and
conditions of Rights as set forth in the Rights Plan and those
described or set forth in this Rights Certificate, the terms,
provisions and conditions set forth in the Rights Plan shall govern
and prevail. Copies of the Rights Plan are on file at the
above-mentioned office of the Rights Agent and are also available
upon written request to the Rights Agent.
<PAGE> B-2
If this Rights Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole
Rights not exercised. This Rights Certificate, with or without
other Rights Certificates, upon surrender at the principal office
or offices of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of
like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of Preferred Shares as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase.
Subject to the terms, provisions and conditions of the Rights
Plan, the Rights evidenced by this Certificate (i) may be redeemed
by the Company at its option at a redemption price of $.005 per
Right or (ii) may be exchanged in whole or in part for shares of
Common Stock. Under certain circumstances set forth in the Rights
Plan, the decision to redeem shall require the concurrence of a
majority of the members of the full Board of Directors and a
majority of any Independent Directors (as such term is defined in
the Rights Plan). The Rights Plan is also subject to amendment and
supplement by the Company, on the terms and conditions set forth in
the Rights Plan.
No fractional shares of Common Stock or Preferred Shares
(other than integral multiples of one one-hundredth of a Preferred
Share) will be issued upon the exercise of any Right or Rights
evidenced hereby, but in lieu thereof a cash payment will be made,
as provided in the Rights Plan.
No holder of this Rights Certificate shall be entitled to vote
(or consent with respect to) or receive dividends or be deemed for
any purpose the holder of any Preferred Shares or 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 Plan or herein be construed to confer upon
the holder hereof, as such, any of the rights of a shareholder of
the Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting or
proceeding thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Plan), or to receive
dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Plan.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
<PAGE> B-3
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as of ______________, 2000
ATTEST:___________________________ COOKER RESTAURANT CORPORATION
BY:_______________________________ BY:_____________________________
Name: Name:
Title: Title:
Countersigned:
FIRST UNION NATIONAL BANK
By:_______________________________
Authorized Signature
<PAGE> B-4
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED _____________________________________ hereby sells,
assigns and transfers unto ___________________________________________
______________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together will all right, title and interest
therein, and does hereby irrevocably constitute and appoint
________________________________ Attorney, to transfer the within
Rights Certificate on the books of the within-named Company, with
full power of substitution.
Dated: __________________, 20__
___________________________________
Signature
Signature Guarantee:
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever. Signatures must be guaranteed by a
<PAGE> B-5
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.
<PAGE> B-6
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person, an Acquiring Person Transferee or an
Affiliate or Associate thereof (as such terms are defined under the
Rights Plan);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the
Rights evidenced by this Rights Certificate from any Person who is
or was or subsequently became an Acquiring Person, an Acquiring
Person Transferee or an Affiliate or Associate thereof (as such
terms are defined under the Rights Plan).
Dated: ________________, 20__
___________________________________
Signature
Signature Guarantee:
<PAGE> B-7
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever. 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.
<PAGE> B-8
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: Cooker Restaurant Corporation
The undersigned hereby irrevocably elects to exercise
_______________ Rights represented by this Rights Certificate to
purchase the Preferred Shares issuable upon the exercise of the
Rights (or such other securities of the Company or of any other
person which may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in the name of
and delivered to:
Please insert social security or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
(Please insert social security or other identifying number)
If such number of Rights shall not be all the Rights evidenced
by this Rights Certificate, a new Rights Certificate for the
balance of such Rights shall be registered in the name of and
delivered to:
Please insert social security or other identifying number
___________________________________________________________________
(Please print name and address)
___________________________________________________________________
(Please insert social security or other identifying number)
Dated: ______________, 20__
________________________________
Signature
Signature Guarantee:
<PAGE> B-9
NOTICE
The signature to the foregoing Form of Election to Purchase
must correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever. 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.
<PAGE> B-10
CERTIFICATE
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being exercised by or on behalf of a Person who is or
was an Acquiring Person, an Acquiring Person Transferee or an
Affiliate or Associate thereof (as such terms are defined under the
Rights Plan);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is or was
or became an Acquiring Person, an Acquiring Person Transferee or an
Affiliate or Associate thereof (as such terms are defined under
the Rights Plan).
Dated: _________________, ____
________________________________
Signature
Signature Guarantee:
<PAGE> B-11
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights
Certificate in every particular, without alteration or enlargement
or any change whatsoever. 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.
<PAGE> B-12
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On January 11, 2000, the Board of Directors adopted a share
purchase rights plan (the "Rights Plan") and declared a dividend
distribution of one right (a "Right") for each outstanding share of
common stock, without par value (the "Common Stock"), of the
Company to shareholders of record at the close of business on
January 16, 2000. Each Right entitles the registered holder to
purchase from the Company one one-hundredth of a share of the
Company's Class A Junior Participating Preferred Shares (the
"Preferred Shares") (or in certain circumstances, cash, property or
other securities) at a price of $17.50 per one one-hundredth of a
Preferred Share (the "Purchase Price"), subject to adjustment.
Right to Purchase Company Stock ("Flip-In")
In the event that any person or group of affiliated or associated
persons acquires beneficial ownership of 15% or more of the
outstanding shares of Common Stock (an "Acquiring Person"), 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 Common
Shares having a market value of two times the exercise price of the
Right. Issuances (and consequent beneficial ownership) of Common
Stock (at or in excess of such 15% threshold) by the Company in
connection with certain acquisition transactions effected by the
Company and approved by the Board of Directors are excepted from
this provision.
Right to Purchase Acquiring Person Stock ("Flip-Over")
If the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets
or earning power are sold after a person or group has become an
Acquiring Person, each holder of a Right (other than Rights
beneficially owned by the Acquiring Person, which will be void)
will thereafter have the right to receive that number of shares of
common stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right.
Distribution Date
The distribution date is the earlier of:
(i) 10 days following a public announcement that a person or
group of affiliated or associated persons have acquired beneficial
ownership of 15% or more of the outstanding shares of Common Stock;
or
(ii) 10 business days (or such later date as may be determined
by action of the Board of Directors of the Company prior to such
time as any person or group of affiliated persons becomes an
<PAGE> C-1
Acquiring Person) following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the
consummation of which would result in the beneficial ownership by
a person or group of 15% or more of the outstanding shares of
Common Stock.
Transfer and Detachment
Until 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 certificates. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
shares of Common Stock, no separate rights certificates will be
issued and transfer of Common Stock certificates will also
constitute transfer of these Rights. As soon as practicable
following the Distribution Date, separate certificates evidencing
the Rights ("Rights Certificates") 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 thereafter evidence the Rights.
Exercisability
The Rights are not exercisable until the Distribution Date. The
Rights will expire on January 16, 2010 (the "Final Expiration
Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed or exchanged by the Company, in each
case, on the terms and conditions set forth in the Rights Plan (as
described below).
Adjustments
The Purchase Price payable, and the number of Preferred Shares or
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 in the event of stock dividends, stock
splits, reclassifications, or certain distributions with respect to
the Common Stock. The number of outstanding Rights and the number
of Preferred Shares or shares of Common Stock issuable upon
exercise of each Right are also subject to adjustment if, prior to
the Distribution Date, there is 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. With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1.0% in such Purchase Price. No fractional
shares will be issued (other than integral multiples of one one-
hundredth of a Preferred Share) and, in lieu thereof, an adjustment
in cash will be made based on the market price of the Preferred
Shares or Common Stock, as the case may be, on the last trading day
prior to the date of exercise.
Preferred Shares
Preferred Shares purchasable upon exercise of the Rights will be
redeemable by the Company at any time at a redemption price equal
to 100 times the current per share market price of the Common
Stock. Each Preferred Share will be entitled to a minimum
preferential quarterly dividend payment equal to the greater of (a)
$.05 or (b) 100 times the aggregate per share amount of all cash and
<PAGE> C-2
non-cash dividends declared per share of Common Stock. In the
event of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of $.10 per
share, and following the preferential liquidation payment, the
holders of the Common Stock shall be entitled to receive an amount
equal to the quotient obtained by dividing the preferential
liquidation payment by 100. Each Preferred Share will have 100
votes, voting together with the Common Stock. Finally, in the
event of any merger, consolidation or other transaction in which
Common Stock is exchanged, each Preferred Share will be entitled to
receive 100 times the amount received per share of Common Stock.
These rights are protected by customary antidilution provisions.
The value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should, because of the
nature of the Preferred Shares' dividend, liquidation and voting
rights, approximate the value of one share of Common Stock.
Exchange
At any time after any person or group becomes an Acquiring Person,
and prior to the acquisition by any such person or group 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 the Acquiring Person, which will have become void), in
whole or in part, for shares of Common Stock, at an exchange ratio
of one share of Common Stock (or, in certain instances, one one-
hundredth of a Preferred Share) per Right (subject to adjustment).
Redemption
At any time prior to any person or group becoming an Acquiring
Person, the Board of Directors of the Company may redeem the
Rights, in whole but not in part, at a price of $.005 per Right
(the "Redemption Price"). If, however, such redemption is
authorized on or after the date of a change, resulting from a proxy
contest or consent solicitation, in a majority of the directors in
office, then such redemption must be approved by a majority of
Independent Directors (as defined in the Rights Plan), if any, and
by a majority of the full board of directors. The redemption of
the Rights may be made effective at such time on such basis with
such conditions as the Board of Directors in its sole discretion
may establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
Amendments
The terms of the Rights may be amended by the Board of Directors of
the Company without the consent of the holders of the Rights,
including an amendment to lower the "15%" thresholds described
above to not less than the greater of (i) the sum of .001% and the
largest percentage of the outstanding shares of Common Stock then
known to the Company to be beneficially owned by any person or
group of affiliated or associated persons and (ii) 10%, except that
from and after such time when there is an Acquiring Person no such
amendment may adversely affect the interests of the holders of the
<PAGE> C-3
Rights, and any amendment must be approved by a majority of
Independent Directors, if any, and by a majority of the full Board.
Interpretation; Board Approvals
The Board of Directors of the Company has the sole authority to
administer the Rights Plan and to exercise all rights and powers
granted to the Board or to the Company, or as are advisable in the
administration of the Rights Plan, including the power to
(i) interpret the provisions of the Rights Plan and (ii) make all
determinations appropriate for the administration of the Rights
Plan (including a determination to redeem or not redeem the Rights,
to exchange the Rights or to amend the Rights Plan). All such
interpretations and determinations in good faith are final and
binding on the parties (including the Rights holders) and do not
subject the Board (or the directors) to any liability to the
holders of Rights. In the event a vote, approval or determination
of the Board of Directors (including a determination to redeem or
not redeem the Rights, to exchange the Rights or to amend or
supplement the Rights Plan) occurs at any time after either a
Person becomes an Acquiring Person or a change (resulting from a
proxy contest or consent solicitation) in a majority of the
directors in office, then such vote, approval or determination must
be approved by a majority of Independent Directors (as defined in
the Rights Plan), if any, and by a majority of the full Board of
Directors.
Rights and Holders
Until a Right is exercised, the holder thereof, as such, will have
no rights as a shareholder of the Company, including, without
limitation, the right to vote or to receive dividends.
Further Information
A copy of the Agreement setting forth the Rights Plan has been
filed with the Securities and Exchange Commission as an Exhibit to
a Registration Statement on Form 8-A dated January 11, 2000. A
copy of the Rights Plan 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
Agreement, which is hereby incorporated herein by reference.
<PAGE> C-4
EXHIBIT 3
COOKER RESTAURANT CORPORATION ADOPTS
PREFERRED SHARE PURCHASE RIGHTS PLAN
- -----------------------------------------------------------------------
West Palm Beach, Florida, January 11, 2000. - Cooker Restaurant
Corporation (NYSE: CGR) announced today that its Board of
Directors has adopted a Preferred Share Purchase Rights Plan (the
"Rights Plan") to replace the shareholders' rights plan established
in 1990, and, in connection therewith, declared a dividend
distribution of one Preferred Share Purchase Right on each
outstanding share of the Company's common stock held as of the
close of business on January 16, 2000.
In a letter being sent to the shareholders, Henry R. Hillenmeyer,
Cooker's Chairman of the Board stated: "The Rights Plan is designed
to assure that all of the Company's shareholders receive fair and
equal treatment in the event of any proposed takeover of the
Company, and to guard against partial tender offers, squeeze-outs,
open market accumulations and other coercive or unfair tactics to
gain control of the Company without paying all shareholders a fair
price. The Rights are not being adopted in response to any
specific takeover threat, but are a response to the general
takeover environment.
The Company stated that the Rights Plan is similar to those adopted
by many other public companies. The Rights are intended to enable
the Company's shareholders to realize the long-term value of their
investment in the Company. They will not prevent a takeover, but
should encourage anyone seeking to acquire the Company to negotiate
with the Board of Directors prior to attempting a takeover.
Each Right initially entitles the holder to purchase one one-
hundredth of a share of the Company's Class A Junior Participating
Preferred Stock at an initial exercise price of $17.50 per one-
hundredth of a share (subject to adjustment). The Rights will be
exercisable only if a person or group acquires 15% or more of the
Company's common stock or announces a tender or exchange offer the
consummation of which would result in ownership by a person or
group of 15% or more of the common stock. Upon any such
occurrence, each Right will entitle its holder (other than such
person or group or affiliated or associated persons) to purchase,
at the Right's then-current exercise price, a number of Cooker's
common shares having a market value of twice the exercise price.
In addition, if the Company is acquired in a merger or other
business combination transaction, or sells 50% or more of its
assets or earning power, after a person or group has acquired 15%
or more of the Company's outstanding shares, each Right will
entitle its holder to purchase, at the Right's then-current
exercise price, a number of the acquiring company's common shares
having a market value of twice such price. The acquiring person
(and affiliated and associated persons) will not be entitled to
exercise the Rights under such circumstances.
Prior to the acquisition by a person or group of 15% or more of the
Company's common stock, the Rights are redeemable for $.005 per
Right at the option of the Board of Directors. A redemption
authorized after a change in a majority of the Board of Directors
(resulting from a proxy contest or consent solicitation) must also
be approved by a majority of "independent directors" (as defined in
the plan). The Board of Directors is also authorized to reduce the
15% thresholds referred to above to not less than 10% under
appropriate circumstances. Following the acquisition by a person
or group of 15% or more of the Company's common stock and prior to
<PAGE> EX3-1
an acquisition of 50% or more of the common stock, the Board of
Directors may exchange the Rights (other than Rights owned by the
triggering person or group) at an exchange ratio of one share of
common stock per Right.
The dividend distribution will be made on January 16, 2000, payable
to shareholders of record as of that date. The Rights will expire
on January 16, 2010. The adoption of the Rights Plan and the
distribution of the Rights is not dilutive, does not affect
reported earnings per share, and is not taxable to shareholders.
A copy of the complete Rights Plan will be included with the
appropriate filings with the Securities and Exchange Commission.
The Company also announced today the election of Brad Saltz and
D. Shannon LeRoy to fill the current vacancies on the Board of
Directors. Mr. Saltz was elected for a term expiring in 2001.
He has been Vice President of Finance and Chief Financial Officer
for Houston's Restaurants, Inc. for 11 years and brings 19 years
of leadership skills in business and industry organizations to
the Company. Mr. LeRoy was elected for a term expiring in 2002.
He is President of Equitas, L.P., an S.B.I.C. in Nashville, and
has a strong background in financing restaurant companies,
including Houston's, O'Charley's, and a number of fast food
franchisees. Mr. Hillenmeyer noted that the election of Messrs.
Saltz and Shannon brings a wealth of skill and expertise to the
Board that should prove a major asset to the Comapny in
implementing both its short and long term strategy.
* * *
As of December 1, 1999, the Company operated 64 "Cooker Bar and
Grille" restaurants. Cooker Bar and Grille restaurants are
designed to provide a warm, comfortable and friendly environment.
The menu offers a wide variety of appetizers, soups and salads as
well as chicken, fish, beef, pork and pasta entrees, sandwiches and
desserts. Most of these items are prepared from scratch using
original recipes and fresh ingredients. Portion sizes are generous
and service is prompt, friendly and efficient. Cooker backs
everything with a "100% Satisfaction Guarantee."
This press release may contain forward-looking statements, as
defined in Private Securities Litigation Reform Act of 1995, that
involves a number of risks and uncertainties including the
Company's ability to meet the objectives included in its business
plan. Important factors that could cause results to differ
materially from those indicated by such forward-looking statements
are set forth in Management's Discussion and Analysis of Results of
Operations and Financial Condition in Cooker's annual report on
Form 10K for the year ended January 3, 1999, including the Company's
ability to meet the objectives in its business plan.
Cooker Restaurant Corporation is traded on the New York Stock Exchange
under the symbol CGR.
/CONTACT: Henry R. Hillenmeyer, Chairman & CEO, or Mark W. Mikosz, CFO,
both of Cooker Restaurant Corporation, 561-615-6000, or fax, 561-615-6001/
<PAGE> EX3-2
