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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
THE GENLYTE GROUP INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 22-2584333
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(State of incorporation or organization (IRS Employer Identification No.)
4360 Brownsboro Road, Louisville, KY 40207
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act: None
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Preferred Stock Purchase Rights
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(Title of each class to be so registered)
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Item 1. Description of Registrant's Securities to be Registered.
On September 13, 1999, the Board of Directors of The Genlyte Group
Incorporated (the "Company") declared a dividend distribution, as of the
expiration of the Rights issued under the Stockholder Rights Plan dated as of
August 29, 1989, of one preferred stock purchase right (a "Right") for each
outstanding share of Common Stock, $.01 par value, of the Company (the "Common
Stock"), payable to the stockholders of record on September 17, 1999 (the
"Record Date"). The Board of Directors also authorized and directed the issuance
of one Right with respect to each Share of Common Stock issued thereafter until
the Distribution Date (as defined below) and, in certain circumstances, with
respect to shares of Common Stock issued after the Distribution Date.
Except as set forth below, each Right, when it becomes exercisable, entitles
the registered holder to purchase one one-hundredth of a share of Junior
Participating Cumulative Preferred Stock, $.01 par value (the "Preferred
Stock"), at a price of $105, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and The Bank of New York, as Rights
Agent (the "Rights Agent"), dated as of September 13, 1999.
Initially, the Rights will be attached to all certificates representing
shares of Common Stock then outstanding, and no separate Right Certificates will
be distributed. The Rights will separate from the shares of Common Stock upon
the earliest to occur of (i) a person or entity (a "Person") or group of
affiliated or associated Persons (a "Group") having acquired beneficial
ownership of 20% or more of the outstanding shares of Common Stock (except
pursuant to a Permitted Offer, as hereinafter defined); or (ii) 10 business days
(or such later date as the Board of Directors may determine) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in a Person or Group
becoming an Acquiring Person (as hereinafter defined) (the earliest of such
dates being called the "Distribution Date"). A Person or Group whose acquisition
of shares of Common Stock causes a Distribution Date pursuant to clause (i)
above is an "Acquiring Person." The date that a Person or Group becomes an
Acquiring Person is the "Stock Acquisition Date."
Notwithstanding the foregoing, a Person who acquires shares of Common Stock
pursuant to a tender or exchange offer which is for all outstanding shares of
Common Stock at a price and on terms which the Board of Directors determines
(prior to acquisition) to be adequate and in the best interests of the Company
and its stockholders (other than such Person, its affiliates and associates) (a
"Permitted Offer") will not be deemed to be an Acquiring Person and such
Person's ownership will not constitute a Distribution Date.
The shares of Preferred Stock purchasable upon exercise of the Rights will
have a minimum preferential quarterly dividend of $25.00 per share, but will be
entitled to receive, in the aggregate, a dividend of 100 times the dividend
declared on the shares of Common Stock. In the event of liquidation, the holders
of the shares of Preferred Stock will be entitled to receive a minimum
liquidation payment of $100 per share, but will be entitled to receive an
aggregate
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liquidation payment equal to 100 times the payment made per share of Common
Stock. Each share of Preferred Stock will have one hundred votes, voting
together with the shares of Common Stock. In the event of any merger,
consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Preferred Stock will be entitled to receive 100 times
the amount and type of consideration received per share of Common Stock. The
rights of the shares of Preferred Stock as to dividends and liquidation, and in
the event of mergers and consolidation, are protected by customary anti-dilution
provisions.
The Rights Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with the shares of Common Stock. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Common Stock certificates issued after the Record Date upon the transfer or new
issuance of shares of Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for shares of Common Stock outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date (and to each initial record
holder of certain shares of Common Stock issued after the Distribution Date),
and such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date, and will expire
at the close of business on September 12, 2009, unless earlier redeemed by the
Company as described below.
In the event that any person becomes an Acquiring Person, each holder of
Rights (other than Rights that have become null and void as described below)
will thereafter have the right (the "Flip-In Right") to receive, upon exercise
of such Rights, the number of shares of Common Stock (or, in certain
circumstances, other securities of the Company) having a then current market
value (determined in accordance with the Rights Agreement) equal to two times
the aggregate exercise price of such Rights. For example, if a Person became an
Acquiring person at a time when the current per share market price of the
Company's Common Stock was $21 and the Purchase Price was $105, each holder of a
Right (other than a Right which has become null and void as described herein)
would have the right to receive 10 shares of Common Stock upon exercise of the
Right and payment of the Purchase Price.
The Board, at its option, may exchange each Right (other than those that
have become null and void as described below) for one share of Common Stock in
lieu of the Flip-In Right, provided no Person is the beneficial owner of 50% or
more of the shares of Common Stock at the time of such exchange. Notwithstanding
the foregoing, following the occurrence of the event described above, all Rights
that are or (under certain circumstances specified in the Rights Agreement) were
beneficially owned by any Acquiring Person or any affiliate or associate thereof
or certain transferees thereof will be null and void.
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In the event that, at any time following the Stock Acquisition Date, (i) the
Company shall merge or consolidate with or into any entity and the holders of
all of the outstanding shares of Common Stock immediately prior to the
consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (ii) more than 50% of the Company's assets or
earning power is sold or transferred (subject to certain exceptions), then each
holder of Rights (except Rights which previously have been voided as set forth
above) shall thereafter have the right (the "Flip-Over Right") to receive, upon
exercise of such Rights, shares of Common Stock of the acquiring company (or in
certain circumstances, its parent) having a value equal to two times the
aggregate exercise price of the Rights. The Flip-Over Right shall not apply to
any transaction described in clause (i) if such transaction is with a Person or
Persons (or a wholly owned subsidiary of any such Person or Persons) that
acquired shares of Common Stock pursuant to a Permitted Offer and the price and
form of consideration offered in such transaction is the same as that paid to
all holders of Common Stock whose shares were purchased pursuant to the
Permitted Offer. The holder of a Right will continue to have the Flip-Over Right
whether or not such holder exercises the Flip-In Right.
The aggregate Purchase Price payable, and the number of shares of Common
Stock or other securities issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of a stock
dividend on, or a subdivision, combination or reclassification 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% in
such Purchase Price. No fractional shares of Common Stock will be issued and, in
lieu thereof, an adjustment in cash will be made based on the market price of
the Common Stock on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), which redemption shall be effective at such time, on such
basis and with such conditions as the Board of Directors may establish in its
sole discretion. The Company may, at its option, pay the Redemption Price in
Common Stock.
All of the provisions of the Rights Agreement may be amended by the Board of
Directors prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to cure
any ambiguity, defect or inconsistency, to make changes which do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person), or, subject to certain limitations, to shorten or lengthen
any time period under the Rights Agreement.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders of the Company, stockholders
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may, depending upon the circumstances, recognize taxable income should the
Rights become exercisable or upon the occurrence of certain events thereafter.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights should
not interfere with any merger or other business combination approved by the
Board of Directors, as the Rights may be redeemed by the Corporation at $.01 per
Right prior to the time that a person or group has acquired beneficial ownership
of 20% or more of the shares of Common Stock.
The Rights Agreement is attached hereto as an exhibit and is incorporated
herein by reference. The foregoing description of the Rights does not purport to
be complete and is qualified in its entirety by reference to such exhibit.
Item 2. Exhibits.
4.1 Rights Agreement dated as of September 13, 1999 between The Genlyte
Group Incorporated and The Bank of New York, as Rights Agent, with
the form of Certificate of Amendment of Certificate of Designation
attached as Exhibit A thereto, the form of Right Certificate attached
as Exhibit B thereto and the Summary of Rights to Purchase Shares
attached as Exhibit C thereto. Pursuant to the Rights Agreement,
printed Right Certificates will not be mailed until as soon as
practicable after the earlier of the date of public announcement that
a person or group has acquired beneficial ownership of 20% or more of
the shares of Common Stock or the tenth business day (or such later
date as may be determined by action of the Corporation's Board of
Directors) after a person commences or announces its intention to
commence a tender or exchange offer the consummation of which would
result in the beneficial ownership by a person or group of 20% or
more of the shares of Common Stock.
4.2 Certificate of Amendment of Certificate of Designation of The Genlyte
Group Incorporated, dated as of September 13, 1999.
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SIGNATURE
Pursuant to the requirement of Section 12 of the Securities Exchange Act of
1934, the registrant has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
Date: September 13, 1999
THE GENLYTE GROUP
INCORPORATED
By: /s/ Daniel R. Fuller
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Name: Daniel R. Fuller
Title: Assistant Secretary and General
Counsel
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EXHIBIT LIST
4.1 Rights Agreement dated as of September 13, 1999 between The Genlyte Group
Incorporated and The Bank of New York, as Rights Agent, with the form of
Certificate of Amendment of Certificate of Designation attached as
Exhibit A thereto, the form of Right Certificate attached as Exhibit B
thereto and the Summary of Rights to Purchase Shares attached as Exhibit
C thereto. Pursuant to the Rights Agreement, printed Right Certificates
will not be mailed until as soon as practicable after the earlier of the
date of public announcement that a person or group has acquired
beneficial ownership of 20% or more of the shares of Common Stock or the
tenth business day (or such later date as may be determined by action of
the Corporation's Board of Directors) after a person commences or
announces its intention to commence a tender or exchange offer the
consummation of which would result in the beneficial ownership by a
person or group of 20% or more of the shares of Common Stock.
4.2 Certificate of Amendment of Certificate of Designation of The Genlyte
Group Incorporated, dated as of September 13, 1999.
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THE GENLYTE GROUP INCORPORATED
and
THE BANK OF NEW YORK
as Rights Agent
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RIGHTS AGREEMENT
Dated as of September 13, 1999
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RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 13, 1999 (the "Agreement"),
between The Genlyte Group Incorporated, a Delaware corporation (the "Company"),
and The Bank of New York, a New York banking corporation (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend distribution of one right (a "Right") for each share of the common
stock, par value $.01, of the Company outstanding as of the close of business on
September 17, 1999 (the "Record Date"), and authorized and directed the issuance
of one Right in respect of each such share of common stock of the Company that
shall become outstanding between the Record Date and the earlier of the
Distribution Date and the Expiration Date (as such terms are hereinafter
defined); provided, however, that Rights may be issued in accordance with the
provisions of Section 22 hereof with respect to shares of such common stock that
become outstanding after the Distribution Date and prior to the Termination
Date.
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner of
20% or more of the then outstanding shares of Common Stock (other than as a
result of a Permitted Offer, as defined below) or was such a Beneficial Owner at
any time after the Close of Business on the date hereof, whether or not such
Person continues to be the Beneficial Owner of 20% or more of the then
outstanding shares of Common Stock. Notwithstanding the foregoing, (A) the term
"Acquiring Person" shall not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company or of any Subsidiary of
the Company (a "Benefit Plan"), or (iv) any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
Benefit Plan, and (B) no Person shall become an "Acquiring Person":
(i) as a result of the acquisition of shares of Common Stock by the
Company which, by reducing the number of shares of Common Stock
outstanding, increases the proportional number of shares beneficially
owned by such Person together with all Affiliates and Associates of such
Person; provided, however, that if (A) a Person would be or become an
Acquiring Person (but for the operation of this subparagraph (i)) as a
result of the acquisition of shares of Common Stock by the Company, and
(B) after such share acquisition by the Company, such Person, or an
Affiliate or Associate of such Person, becomes the Beneficial Owner of
additional shares of Common Stock
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constituting one percent (1%) or more of the then outstanding shares of
Common Stock, then such Person shall be deemed an Acquiring Person; or
(ii) if the Board of Directors determines in good faith that a Person who
would otherwise be an "Acquiring Person" has become such inadvertently,
and such Person (A) does not attempt to exercise any control over the
business affairs or management of the Company, including by means of a
proxy solicitation, and (B) divests as promptly as practicable a
sufficient number of shares of Common Stock so that such Person would no
longer be an "Acquiring Person", then such Person shall not be deemed an
"Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
promulgated under the Exchange Act, as in effect on the date hereof.
(c) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or Associates
beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or Associates,
directly or indirectly, has (A) the right to acquire (whether such right
is exercisable immediately or only after the passage of time or the
fulfillment of a condition or both) pursuant to any agreement, arrangement
or understanding (whether or not in writing), or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights),
warrants or options, or otherwise; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, securities
tendered pursuant to a tender offer or exchange offer made by or on behalf
of such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange; or (B) the
right to vote pursuant to any agreement, arrangement or understanding
(whether or not in writing); provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any security if
the agreement, arrangement or understanding to vote such security (x)
arises solely from a revocable proxy given in response to a public proxy
or consent solicitation made pursuant to, and in accordance with, the
applicable rules and regulations under the Exchange Act and (y) 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 the Person whose
beneficial ownership is being determined (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or understanding
(whether or not in writing), other than customary
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agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities, for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy as
described in the proviso to clause (B) of subparagraph (ii) of this
paragraph (d)) or disposing of any voting securities of the Company.
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.
(d) "Board of Directors" shall mean the Board of Directors of the Company.
(e) "Business Day" shall mean any day other than a Saturday, Sunday,
Federal holiday or a day on which banking institutions in New York City are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M., New York
City time, on such date; provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the next succeeding Business
Day.
(g) "Common Stock," when used with respect to the Company, shall mean the
common stock, $.01 par value, of the Company or, in the event of a subdivision,
combination, or consolidation with respect to such shares of Common Stock, the
shares of Common Stock resulting from such subdivision, combination or
consolidation. "Common Stock," when used with reference to any Person other than
the Company, shall mean the capital stock (or equity interests) with the
greatest voting power of such other Person, or if such other Person is a
Subsidiary of another Person, the Person or Persons that ultimately control such
first-mentioned Person.
(h) The "current market price" shall have the meaning set forth in Section
11(d) hereof.
(i) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(k) "Expiration Date" shall mean the earlier of the Final Expiration Date
or the date on which the Rights are redeemed as provided in Section 23 hereof.
(l) "Final Expiration Date" shall mean September 12, 2009.
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(m) "Permitted Offer" shall mean a tender or exchange offer which is for
all outstanding shares of Common Stock at a price and on terms determined, prior
to the purchase of shares under such tender or exchange offer, by resolution
adopted the Board of Directors to be adequate (taking into account all factors
that such directors deem relevant) and otherwise in the best interests of the
Company and its stockholders (other than the Person or any Affiliate or
Associate thereof on whose behalf the offer is being made) taking into account
all factors that such directors may deem relevant.
(n) "Person" shall mean any individual, firm, corporation, partnership,
limited liability company, trust, association, joint venture, group (as such
term is used in Rule 13d-5 under the Exchange Act) or other entity, and shall
include any successor (by merger or otherwise) of such entity.
(o) "Preferred Stock" shall mean shares of Junior Participating Cumulative
Preferred Stock, $.01 par value per share, of the Company, having the rights,
preferences and limitations set forth in the Certificate of Designation filed
with the Secretary of State of the State of Delaware on August 13, 1989, as
amended by the Certificate of Amendment to the Certificate of Designation in
substantially the form attached as Exhibit A hereto.
(p) "Principal Party" shall have the meaning set forth in Section 12(c)
hereof.
(q) "Right Certificates" shall have the meaning set forth in Section 3(a)
hereof.
(r) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(s) "Section 11(a)(ii) Event" shall mean any event described in Section
11(a)(ii) hereof.
(t) "Section 12(a) Event" shall mean any event described in clauses (x),
(y) or (z) of Section 12(a) hereof.
(u) "Securities Act" means the Securities Act of 1933, as amended and as
in effect on the date of this Agreement.
(v) "Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such; provided, however,
that if such Person is determined not to have become an Acquiring Person
pursuant to Section 1(a)(ii) hereof, then no Stock Acquisition Date shall be
deemed to have occurred.
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(w) "Subsidiary" of any Person shall mean any corporation or other entity
of which a majority of the voting power of the voting equity securities or
equity interests is owned, directly or indirectly, by such Person.
(x) "Summary of Rights" shall have the meaning set forth in Section 3(b)
hereof.
(y) "Transfer" shall mean any sale, assignment, transfer or other
disposition.
(z) "Triggering Event" shall mean any Section 11(a)(ii) Event or any
Section 12 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 co-Rights Agents as it may deem
necessary or desirable upon ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to supervise, and shall in no event
be liable for, the acts or omissions of any such co-Rights Agent.
Section 3. Issue of Right Certificates.
(a) Until the earlier of (i) the Stock Acquisition Date or (ii) the Close
of Business on the tenth Business Day (or such later date as may be determined
by resolution of the Board of Directors) after the date of the commencement by
any Person (other than the Company, any Subsidiary of the Company, or any entity
holding Common Stock for or pursuant to the terms of any Benefit Plan) of a
tender or exchange offer the consummation of which would result in any Person
becoming an Acquiring Person (including, in the case of both (i) and (ii), any
such date which is after the date of this Agreement and prior to the issuance of
the Rights), the earlier of (i) and (ii) being herein referred to as the
"Distribution Date", (x) the Rights will be evidenced (subject to the provisions
of Section 3(b) hereof) by the certificates for shares of Common Stock
registered in the names of the holders thereof (which certificates shall also be
deemed to be Right Certificates (as defined below)) and not by separate Right
Certificates, and (y) the right to receive Right Certificates will be
transferable only simultaneously with and together with the transfer of the
underlying shares of Common Stock; provided, however, that if a tender or
exchange offer is terminated prior to the occurrence of a Distribution Date,
then no Distribution Date shall occur as a result of such tender or exchange
offer. Until the Distribution Date, the surrender for transfer of any
certificate for shares of Common Stock outstanding on the Record Date shall also
constitute the transfer of the Rights associated with such shares of Common
Stock. The Company shall give the Rights Agent prompt written notice of the
Distribution Date. As soon as is practicable after the Distribution Date, and
receipt of written notice of the Distribution Date from the Company, the Company
will prepare and execute, the Rights Agent will countersign, and the Company
will send or cause to be sent (and the Rights Agent will, at the Company's
expense, if requested, send), by first-class, postage prepaid mail, to each
record holder of shares of Common Stock as of the Close of Business on the
Distribution Date, at the
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address of such holder shown on the records of the Company, one or more right
certificates, in substantially the form attached hereto as Exhibit B (the "Right
Certificates"), evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. As of and after the Distribution Date,
the Rights will be evidenced solely by such Right Certificates.
(b) As promptly as practicable following the Record Date, the Company will
send a copy of a Summary of Rights to Purchase Preferred Stock in the form of
Exhibit C hereto (the "Summary of Rights"), by first-class, postage-prepaid
mail, to each record holder of shares of Common Stock as of the Close of
Business on the Record Date, at the address of such holder shown on the records
of the Company. With respect to certificates for shares of Common Stock
outstanding as of the Record Date, until the Distribution Date, the Rights
associated with the shares of Common Stock represented by such certificates
shall be evidenced by such certificates together with a copy of the Summary of
Rights attached thereto.
(c) Certificates for shares of Common Stock which become outstanding
(including, without limitation, reacquired shares of Common Stock referred to in
the last sentence of this Section 3(c)) after the Record Date but prior to the
earlier of the Distribution Date and the Expiration Date shall be deemed also to
be certificates for Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder hereof
to certain rights as set forth in a Rights Agreement between The
Genlyte Group Incorporated (the "Company") and The Bank of New York,
dated as of September 13, 1999 (the "Rights Agreement"), the terms
of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of the Company.
Under certain circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. The Company will mail to
the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. Under
certain circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or becomes an
Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement) and certain related Persons, whether currently
held by or on behalf of such Person or by any subsequent holder, may
become null and void.
With respect to such certificates containing the foregoing legend,
until the Distribution Date, the Rights associated with the shares of Common
Stock represented by such certificates shall be evidenced by such certificates
alone and registered owners of shares of Common Stock shall also be the
registered holders of the associated Rights; and the surrender for transfer of
any such certificate shall also constitute the transfer of the Rights associated
with the
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shares of Common Stock represented thereby. In the event that the Company
purchases or acquires any shares of Common Stock after the Record Date but prior
to the Distribution Date, any Rights associated with such shares of Common Stock
shall be deemed canceled and retired so that the Company shall not be entitled
to exercise any Rights associated with the shares of Common Stock which are no
longer outstanding.
Section 4. Form of Right Certificates
(a) The Right Certificates (and the forms of election to purchase shares
and of assignment to be printed on the reverse thereof ) shall be substantially
in the form set forth as Exhibit A to this Agreement and may have such marks of
identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or regulation of any stock
exchange on which the Rights may from time to time be listed, or to conform to
usage. The Right Certificates shall be in a machine printable format and in a
form reasonably satisfactory to the Rights Agent. Subject to the provisions of
Section 11 and Section 22 hereof, the Right Certificates, whenever distributed,
shall be dated as of the Record Date, show the date of countersignature, and
shall entitle the holders thereof to purchase such number of one-hundredths of a
share of Preferred Stock as shall be set forth therein at the price per one
one-hundredth of a share of Preferred Stock set forth therein (the "Purchase
Price"), but the amount and type of securities purchasable upon the exercise of
each Right and the Purchase Price shall be subject to adjustment as provided
herein.
(b) Any Right Certificate issued pursuant to Section 3(a) or Section 22
hereof that represents Rights which are null and void pursuant to Section 7(e)
of this Agreement and any Right Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement or adjustment of any
other Right Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement). Accordingly, this Right
Certificate and the Rights represented hereby are null and void.
The Company shall identify to the Rights Agent in writing the Rights
that should be so legended that are known to it.
The provisions of Section 7(e) of this Rights Agreement shall be
operative whether or not the foregoing legend is contained on any such Right
Certificate.
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Section 5. Countersignature and Registration The Right Certificates shall
be executed on behalf of the Company by its President or any Vice President,
either manually or by facsimile signature, and have affixed thereto the
Company's seal or a facsimile thereof, and shall be attested by the Secretary or
an Assistant Secretary of the Company, either manually or by facsimile
signature. The Right Certificates shall be manually countersigned by the Rights
Agent and shall not be valid for any purpose unless so countersigned. In case
any officer of the Company whose manual or facsimile signature is affixed to the
Right Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates may nevertheless be countersigned by the Rights Agent,
issued and delivered with the same force and effect as though the person who
signed such Right Certificates had not ceased to be such officer of the Company.
Any Right Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to be
kept, at its office or offices designated as the appropriate place for surrender
of Right Certificates upon exercise or transfer, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the right Certificates, the
number of Rights evidenced on the face of each of the Right Certificates, the
date of each of the Right Certificates and the Right Certificate number.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates 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 or the Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of one one-hundredths of a share of Preferred Stock (or
following a Triggering Event, Common Stock, other securities, cash or other
assets, as the case may be) as the Right Certificate or Right 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 Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at the
office of the Rights Agent designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action whatsoever with respect to
the transfer of any such surrendered Right Certificates until the registered
holder shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and shall have provided
such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall countersign and deliver to
the Person entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested. The Company may
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require payment by the holders of Rights of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
Upon (i) receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them (a) of the loss, theft, destruction or
mutilation of a Right Certificate, and, (b) in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, (ii) at
the request of the Company, reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and (iii) in case of mutilation of a
Right Certificate, surrender to the Rights Agent and cancellation of such Right
Certificate, the Company will issue and deliver a new Right Certificate of like
tenor to the Rights Agent for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights
(a) Subject to Section 7(e) hereof, the registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly executed to the Rights
Agent at the office or offices of the Rights Agent designated for each purpose,
together with payment of the aggregate Purchase Price for the total number of
one one-hundredths of a share of Preferred Stock (or other securities, as the
case may be) as to which the surrendered Rights are exercised, at or prior to
the Close of Business on the Expiration Date.
(b) The Purchase Price for each one one-hundredth of a share of Preferred
Stock pursuant to the exercise of a Right shall initially be $105, shall be
subject to adjustment from time to time as provided in Section 11 and Section 12
hereof and shall be payable in accordance with paragraph (c) of this Section 7,
except to the extent otherwise provided in Section 12(f).
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per one one-hundredth of a share of Preferred Stock (or other securities,
cash or other assets, as the case may be) to be purchased as set forth below and
an amount equal to any applicable tax or charge required to be paid by the
holder of such Right Certificate in accordance with Section 6 of this Agreement,
by certified check, cashier's check or money order payable to the order of the
Company, the Rights Agent shall thereupon promptly (i)(A) requisition from any
transfer agent of the Preferred Stock (or make available, if the Rights Agent is
the transfer agent) certificates for the number of shares of Preferred Stock to
be purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or, (B) if the Company in its sole discretion
shall have elected to deposit the shares of Preferred Stock issuable upon
exercise of the Rights into a depository, requisition from the depositary agent
depositary receipts representing such number of one one-hundredths of a share of
Preferred Stock as are to be purchased (in which case
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<PAGE>
certificates for the shares of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company hereby directs the depositary agent to comply with such request, (ii)
requisition from the Company, when appropriate, the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such requisitioned certificates or depository receipts,
promptly cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after receipt of such
cash, promptly deliver that cash to or upon the order of the registered holder
of such Right Certificate. In the event that the Company is obligated to issue
other securities (including Common Stock) of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof, the Company will
make all arrangements necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if and when
appropriate.
(d) In addition, in the case of an exercise of the Rights by a holder
pursuant to Section 11(a)(ii), the Rights Agent shall return such Right
Certificate to the registered holder thereof after imprinting, stamping or
otherwise indicating thereon that the rights represented by such Right
Certificate no longer include the rights provided by Section 11(a)(ii) of the
Rights Agreement and if less than all the Rights represented by such Right
Certificate were so exercised, the Rights Agent shall indicate on the Right
Certificate the number of Rights represented thereby which continue to include
the rights provided by Section 11(a)(ii).
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially
owned by (i) an Acquiring Person, or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to insure 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 other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or any of their respective
Affiliates, Associates or transferees hereunder.
(f) In case the registered holder of any Right Certificate shall exercise
fewer than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights
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<PAGE>
remaining unexercised shall be issued by the Rights Agent to the registered
holder of such Right Certificate or to his duly authorized assigns, subject to
the provisions of Section 14 hereof, or the Rights Agent shall place an
appropriate notation on the Right Certificate with respect to those Rights
exercised.
(g) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have (i)
properly completed and signed the certificate contained in the form of election
to purchase set forth on the reverse side of the Right 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.
Section 8. Cancellation of Right Certificates All Right Certificates
surrendered for the purpose of exercise (other than an exercise pursuant to
Section 11(a)(ii)), transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered to the Rights
Agent, shall be canceled by it, and no Right Certificates shall be issued in
lieu thereof except as expressly permitted by this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights
Agent shall so cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all canceled Right Certificates to the Company.
Section 9. Reservation and Availability of Capital Stock
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued shares of Preferred Stock the
number of shares of Preferred Stock that, prior to the occurrence of a
Triggering Event, will be sufficient to permit the exercise in full of all
outstanding Rights. The Company covenants and agrees that at all times after the
occurrence of a Triggering Event it will, to the extent reasonably practicable,
cause to be reserved and kept available out of its authorized and unissued
shares of Common Stock (and/or other securities), or any authorized and issued
shares of Common Stock (and/or other securities) held in its treasury, the
number of shares of Common Stock (and/or other securities, as the case may be)
that will be sufficient to permit the exercise in full of all outstanding Rights
pursuant to this Agreement.
(b) So long as the Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock or other securities) issuable upon the exercise
of Rights may be listed on any national securities exchange, the Company shall
use its best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
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(c) The Company shall use its best efforts to (i) file, as soon as is
practicable following the Shares Acquisition Date (or, if required by law, such
earlier date following the Distribution Date as is so required), a registration
statement under the Securities 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 Securities Act and the rules and
regulations thereunder) until the date of the expiration of the rights provided
by Section 11(a)(ii). 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 Rights Agent may assume that the issuance of securities upon the exercise of
any Right is permitted under applicable securities and blue sky laws and shall
have no liability for acting in reliance upon such assumption in the absence of
any written notice or instruction from the Company to the contrary.
(d) The Company covenants and agrees that it will take all such action as
may be necessary to insure that all one one-hundredths of a share of Preferred
Stock (and, following the occurrence of a Triggering Event, Common Stock or
other securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable securities.
(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 Right Certificates or of
any one one-hundredths of a share of Preferred Stock (or shares of Common Stock
and/or other securities, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any tax or charge which may be
payable in respect to any transfer or delivery of Right Certificates to a person
other than, or the issuance or delivery of certificates or depositary receipts
for a number of one one-hundredths of a share of Preferred Stock (or shares of
Common Stock and/or other securities, as the case may be) in a name other than
that of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise, or to issue or deliver any certificates for a number
of one one-hundredths of a share of Preferred Stock (or shares of Common Stock
and/or other securities, as the case may be) upon the exercise of any Rights
until any such tax has been paid (any such tax being payable by the holder of
such Right Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each person in whose name any
certificate for a number of one one-hundredths of a share of Preferred Stock (or
shares of Common Stock and/or other securities, as the case may be) is issued
upon the exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Preferred Stock (or Common Stock or other securities, as
the case may be) represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered
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<PAGE>
and payment of the Purchase Price (and any applicable taxes or charges) was
made; provided, however, that if the date of such surrender and payment is a
date upon which the Preferred Stock (or Common Stock and/or other securities, as
the case may be) transfer books of the Company are closed, such person shall be
deemed to have become the record holder of such shares (fractional or otherwise)
on, and such certificate shall be dated, the next succeeding Business Day on
which the Preferred Stock (or Common Stock and/or other securities, as the case
may be) transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a stockholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number of
Rights The Purchase Price, the number and kind of shares, or fractions thereof,
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 that the Company shall at any time after the date of
this Agreement (A) declare a dividend on the Preferred Stock payable in shares
of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine
the outstanding Preferred Stock into a smaller number of shares, or (D) issue
any shares of its capital stock in a reclassification of the Preferred 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 under this Section 11(a) and 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 Preferred Stock or capital stock, as the case may
be, issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of Preferred Stock or capital stock, as the
case may be, which, if such Right had been exercised immediately prior such date
and at a time when the Preferred 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 classification. If an event
occurs which would require an adjustment under both 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 any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring Person, then proper
provision shall be made so that each holder of a Right, except as provided below
and in Section 7(e) hereof, shall thereafter have the right to receive, upon
exercise thereof at the then-current Purchase Price in accordance with the terms
of this Agreement, in lieu of the number of one one-hundredths of a share of
Preferred Stock for which such Right was otherwise then exercisable, such number
of shares of Common
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Stock of the Company as shall equal the result obtained by (x) multiplying the
then-current Purchase Price by the then number of one one-hundredths of a share
of Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of such Section 11(a)(ii) Event, and (y) dividing that product
by 50% of the current market price per share of the Common Stock of the Company
(determined pursuant to Section 11(d) hereof) on the date of such first
occurrence (such number of shares being hereinafter referred to as the
"Adjustment Shares") provided, however, that if the transaction that would
otherwise give rise to the foregoing adjustment is also subject to the
provisions of Section 12 hereof, then only the provisions of Section 12 hereof
shall apply and no adjustment shall be made pursuant to this Section 11(a)(ii).
The Company shall notify the Rights Agent as to any Persons who are deemed by
the Company to be Acquiring Persons or any Associates or Affiliates of the
Acquiring Persons and shall identify any Rights pertaining thereto. The Rights
Agent shall have no responsibility to itself identify an Acquiring Person or any
Associate or Affiliate of the Acquiring Person, but shall rely solely on the
Company's identification.
(iii) In the event that the number of shares of Common Stock which
are authorized by the Company's Restated Certificate of Incorporation, as
amended, but not outstanding or reserved for issuance for purposes other than
upon exercise of the Rights are not sufficient to permit the exercise in full of
the Rights in accordance with the foregoing subparagraph (ii) of this Section
11(a)), the Company shall: (A) determine the excess of (1) the value of the
Adjustment Shares issuable upon the exercise of a Right (the "Current Value"),
over (2) the Purchase Price attributable to a Right (such excess, the "Spread")
and (B) with respect to each Right, make adequate provision to substitute for
the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash,
(2) a reduction in the Purchase Price, (3) other equity securities of the
Company (including, without limitation, shares, or units of shares, of Preferred
Stock which the Board of Directors has determined to have the same value as
shares of Common Stock (such shares of Preferred Stock, "common stock
equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing having an aggregate value equal to the Current
Value, where such aggregate value has been determined by action of the Board of
Directors; provided, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within thirty (30) days
following the first occurrence of a Section 11(a)(ii) Event, then the Company
shall be obligated to deliver, upon the surrender for exercise of a Right
Certificate and without requiring payment of the Purchase Price, shares of
Common Stock (to the extent available) and, if necessary, cash, securities
and/or assets that in the aggregate are equal to the Spread. If the Board of
Directors shall determine in good faith that it is likely that sufficient
additional shares of Common Stock could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than one hundred twenty (120)
days after the first occurrence of a Section 11(a)(ii) Event, in order that the
Company may seek stockholder approval for the authorization of such additional
shares (such period as it may be extended, the "Substitution Period"). To the
extent that the Company determines as provided above that some action is to be
taken pursuant to the terms of this Section 11(a)(iii) contained above, the
Company (x) shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly
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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 the first sentence of this Section
11(a)(iii) and to determine the value thereof. In the event of any such
suspension, the Company shall deliver notice to the Rights Agent and issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as deliver notice to the Rights Agent and issue a
public announcement at such time as the suspension is no longer in effect. For
purposes of this Section 11(a)(iii), the value of the Common Stock shall be the
current per share market price of Common Stock (as determined pursuant to
Section 11(d) hereof) on the date of the first occurrence of the event described
in Section 11(a)(ii) hereof, and the value of any "common stock equivalents"
shall be deemed to have the same value as the Common Stock on such date.
(b) In the event the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Stock entitling them for
a period expiring within 45 calendar days after such record date to subscribe
for or purchase Preferred Stock (or shares having the same rights, privileges or
preferences as the shares of Preferred Stock ("equivalent preferred stock") or
securities convertible into Preferred Stock or equivalent preferred stock) at a
price per share of Preferred Stock or per share of equivalent preferred stock
(or having a conversion or exercise price per share, if a security convertible
into or exercisable for Preferred Stock or equivalent preferred stock) less than
the "current market price" per share of Preferred Stock (as defined in Section
11(d) hereof) 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 Preferred Stock outstanding on such record date
plus the number of shares of Preferred Stock which the aggregate offering price
of the total number of shares of Preferred Stock and/or equivalent preferred
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 Preferred
Stock outstanding on such record date, plus the number of additional shares of
Preferred Stock and/or equivalent preferred 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 Rights be less than the aggregate
par value of the shares of capital stock of the Company issuable upon exercise
of such Rights. In case such subscription price may be paid in a consideration,
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of Directors,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding upon the Rights Agent. Shares of Preferred 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 if 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.
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(c) In the event the Company shall fix a record date for the making of a
distribution to all holders of Preferred Stock (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of indebtedness, cash or other
assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Stock, but including any dividend payable on stock other than
Preferred Stock) or convertible securities, 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 per share of the Preferred
Stock (as defined in Section 11(d) hereof) on such record date less the fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent and
shall be binding upon the Rights Agent, of the portion of such evidences of
indebtedness, cash or other assets or convertible securities, subscription
rights or warrants applicable to one share of Preferred Stock and the
denominator of which shall be such current market price) per share of Preferred
Stock provided, however, that in no event shall the consideration to be paid
upon the exercise of Rights be less than the aggregate par value of the shares
of capital stock of the Company issuable upon exercise of such Rights. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Purchase Price shall
again be adjusted to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(d) (i) For the purpose of any computation hereunder, the "current market
price" per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock for the 30
consecutive Trading Days (as such term is hereinafter defined) immediately prior
to such date; provided, however, that if the current market price per share of
Common Stock is determined during a period following the announcement by the
issuer of such Common Stock of (x) a dividend or distribution on such Common
Stock payable in shares of such Common Stock or securities convertible into
shares of such Common Stock or (y) any subdivision, combination or
reclassification of such Common Stock and prior to the expiration of thirty (30)
Trading Days after the ex-dividend date for such dividend or distribution, or
the record date for such subdivision, combination or reclassification, then, and
in each such case, the current market price per share of Common Stock shall be
appropriately adjusted to reflect the current market price per share equivalent
of Common Stock. 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 shares
of Common Stock 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 Common Stock is listed or admitted to trading or, if the shares of
Common Stock are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by the NASDAQ
Stock Market ("NASDAQ") or such
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other system then in use, or, if on any such date the shares of Common Stock 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
Stock selected by the Board of Directors. If on any such date no market maker is
making a market in the Common Stock, the fair value of such shares on such date,
as determined in good faith by the Board of Directors, shall be used. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares of Common Stock are listed or admitted to trading
is open for the transaction of business or, if the shares of Common Stock are
not listed or admitted to trading on any national securities exchange, a
Business Day. If the Common Stock is not publicly held or not so listed or
traded, "current market price" per share shall mean the fair value per share as
determined in good faith by the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes. If on any such date the Common Stock is not publicly held or not
so listed or traded, "current market price" per share shall mean the fair value
per share as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "current
market price" per share of Preferred Stock shall be determined in the same
manner as set forth for the Common Stock in Section 11(d)(i) hereof (other than
the last sentence thereof). If the current market price per share of Preferred
Stock cannot be determined in the manner provided above or if the Preferred
Stock is not publicly held or listed or traded in a manner described in Section
11(d)(i) hereof, the "current market price" per share of Preferred Stock shall
be conclusively deemed to be an amount equal to 100 (as such number may be
appropriately adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date of
this Agreement) multiplied by the current market price per share of the Common
Stock. If neither the Common Stock nor the Preferred Stock is publicly held or
so listed or traded, "current market price" per share of the Preferred Stock
shall mean the fair value per share as determined in good faith by the Board of
Directors, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding (except the last
sentence of this Section 11(e)), no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such 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 ten-thousandth of
a share of Common Stock or other security or one-millionth of a share of
Preferred Stock, as the case may be. Notwithstanding the first sentence of this
Section 11(e), any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the transaction which
mandates such adjustment or (ii) the Expiration Date.
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(f) If, as a result of an adjustment made pursuant to Section 11(a)(ii) or
Section 12(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than Preferred Stock,
thereafter the Purchase Price and the number of such other shares so receivable
upon exercise of any Right and the number of Rights outstanding 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 Preferred Stock contained in
Section 11(a), (b) and (c) and the provisions of Sections 7, 9, 10, 12 and 14
hereof with respect to the Preferred Stock shall apply on like terms to any such
other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of one one-hundredths of a
share of Preferred Stock purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in
Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one one-hundredths of a
share of Preferred Stock (calculated to the nearest one-millionth) obtained by
(i) multiplying (x) the number of one one-hundredths of a share covered by a
Right immediately prior to such adjustment to the Purchase Price by (y) the
Purchase Price in effect immediately prior to such adjustment of the Purchase
Price and (ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any adjustment of the
Purchase Price, to adjust the number of Rights, in substitution for any
adjustment in the number of shares of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of one one-hundredths of a
share of Preferred Stock for which such Right was exercisable immediately prior
to such adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the nearest
one ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company shall
make a public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter but, if the Right
Certificates have been issued, shall be at least ten days later than the date of
the public announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i) the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Right Certificates on such record date Right Certificates evidencing, subject
to Section 14 hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and
replacement for the Right
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Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right Certificates evidencing
all the Rights to which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and 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 Right Certificates on the record date specified in
the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of shares of Preferred Stock, or fraction thereof, issuable upon the
exercise of the Rights, the Right Certificates theretofore and thereafter issued
may continue to express the Purchase Price and the number of one one-hundredths
of a share which were expressed in the initial Right Certificates issued
hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, of the one one-hundredths of a
share of Preferred Stock, Common Stock or other securities issuable upon
exercise of the Rights, the Company shall take any corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable such number of one
one-hundredths of a share of Preferred Stock, Common Stock or other securities
at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment
in the Purchase Price be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such event the
issuing to the holder of any Right exercised after such record date the shares
of Preferred Stock, or fraction thereof, and any other capital stock or
securities of the Company, if any, issuable upon such exercise, over and above
the shares of Preferred Stock, or fraction thereof, 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 Board
of Directors shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to be advisable in
order that any (i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any Preferred Stock at less than the current market
price, (iii) issuance wholly for cash of Preferred Stock or securities which by
their terms are convertible into or exchangeable for Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to the holders of its Preferred Stock
shall not be taxable to such stockholders.
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(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 or more
transactions, assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole), to any
other Person or Persons (other than the Company and/or any of its Subsidiaries)
in one or more transactions each of which complies with Section 11(o) hereof),
if at the time of or immediately after such consolidation, merger or sale there
are any charter or by-law provisions, securities outstanding (including but not
limited to rights, warrants or other instruments), agreements in effect or other
actions taken which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or prior to, simultaneously with
or immediately after such consolidation, merger or sale, the stockholders of the
Person who constitutes, or would constitute, the "Principal Party" for purposes
of Section 12(a) hereof shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and Associates. The Company shall
not consummate any such consolidation, merger, sale or transfer unless prior
thereto the Corporation and such other Person shall have executed and delivered
to the Rights Agent a supplemental agreement evidencing compliance with this
Section 11(n).
(o) The Company covenants and agrees that, after the Distribution Date, it
will not, except as permitted by Section 23 or Section 27 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is taken it
is reasonably foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the Rights.
(p) In the event that any time after the date of this Agreement and prior
to the Distribution Date, the Company shall (i) declare or pay any dividend on
the Common Stock payable in shares of Common Stock or (ii) effect a subdivision,
combination or consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in any such case (x) the number
of one one-hundredths of a Preferred Share purchasable after such event upon
exercise of each Right shall be determined by multiplying the number of one
one-hundredths of a Preferred Share so purchasable immediately before such event
by a fraction, the numerator of which is the number of shares of Common Stock
outstanding immediately before such event and the denominator of which is the
number of shares of Common Stock outstanding immediately after such event, and
(y) each share of Common Stock outstanding immediately after such event shall
have issued with respect to it that number of Rights which each Common Share
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) The exercise of Rights under Section 11(a)(ii) shall only result in
the loss of rights under Section 11(a)(ii) to the extent so exercised and shall
not otherwise affect the rights
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represented by the Rights under this Rights Agreement, including the rights
represented by Section 12.
Section 12. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power
(a) In the event that, on or following the Stock Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person, and the Company shall not be the continuing or
surviving corporation of such consolidation or merger, (y) any Person shall
consolidate with the Company or merge with and into the Company, and the Company
shall be the continuing or surviving corporation of such consolidation or
merger, other than, in the case of any transaction described in (x) or (y), a
merger or consolidation which results in all of the securities generally
entitled to vote in the election of directors ("voting securities") of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into securities of the continuing or
surviving entity) all of the voting securities of the Company or such continuing
or surviving entity outstanding immediately after such merger or consolidation
and the holders of such securities not having changed as a result of such merger
or consolidation), 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 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 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
provision 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 at the then-current Purchase Price in accordance with the terms
of this Agreement, such number of shares of validly authorized and issued, fully
paid and non-assessable Common Stock of the Principal Party (as defined below),
not subject to any liens, encumbrances, rights of call or first refusal or other
adverse claims, as shall be equal to the result obtained by (A) multiplying the
then-current Purchase Price by the then number of one one-hundredths of a share
of Preferred Stock for which a Right was exercisable immediately prior to the
first occurrence of such Section 12(a) Event (or, if a Section 11(a)(ii) Event
had occurred prior to such Section 12(a) Event, multiplying the number of such
one one-hundredths of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of such Section 11(a)(ii)
Event by the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product by (2) 50% of the current market price
per share of the Common Stock of such Principal Party (determined in the manner
described in Section 11(d) on the date of consummation of such Section 12(a)
Event); (ii) the Principal Party shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the term
"Company" shall thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof shall apply to
such Principal Party following the first occurrence of a Section 12(a) Event;
and (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
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with Section 9 hereof) in connection with such consummation as may be necessary
to assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to the shares of its Common Stock thereafter
deliverable upon the exercise of the Right.
(b) "Principal Party" shall mean
in the case of any transaction described in (x) or (y) of the
first sentence of Section 12(a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company are converted
in such merger or consolidation, and if no securities are so issued, the
Person that is the other party to such merger or consolidation (including,
if applicable, the Corporation if it is the surviving corporation); and
in the case of any transaction described in (z) of the first
sentence of this Section 12, 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, (x) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person, the Common Stock of which is
and has been so registered, "Principal Party" shall refer to such other Person;
(y) in case such Person is a Subsidiary, directly or indirectly, of more than
one Person, the Common Stock of all 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 market value of shares held by the public; and
(z) in case such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or indirectly, by the
same Person, the rules set forth in (x) and (y) above shall apply to each of the
chains of ownership having an interest in such joint venture as if such party
were a "Subsidiary" of both or all of such joint venturers and the Principal
Parties in each such chain shall bear the obligation set forth in this Section
12 in the same ratio as their direct or indirect interests in such Person bear
the total of such interests.
(c) The Company shall not consummate any such consolidation, merger, sale
or transfer unless the Principal Party shall have a sufficient number of its
authorized shares of 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 12 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 Sections 12(a) and (b) hereof and
confirming that all rights of first refusal or preemptive rights in respect of
the issuance of shares of Common Stock of such Principal Party upon exercise of
outstanding Rights have been waived and that such transactions shall not result
in a default by such Principal Party under the Rights Agreement, and further
providing that, as soon as practicable after the date of any consolidation,
merger or sale or transfer of assets or earning power referred to in Section
12(a) hereof, such Principal Party will:
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(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; use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing; and use its best efforts to cause such registration statement
to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the date of expiration of the Rights, and
similarly comply with applicable state securities laws;
(ii) use its best efforts to list (or continue the listing of) the
Rights and the securities purchasable upon exercise of the Rights on a
national securities exchange or to meet the eligibility requirements for
quotation on the Nasdaq National Market;
(iii) use its best efforts to qualify or register the rights and the
securities purchasable upon exercise of the Rights under the blue sky laws
of such jurisdictions as may be necessary or appropriate; and
(iv) 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 (or any
successor form) under the Exchange Act.
The provisions of this Section 12 shall similarly apply to successive mergers or
consolidations or sales or other transfers. The rights under this Section 12
shall be in addition to the rights to exercise Rights and adjustments under
Section 11(a)(ii) and shall survive any exercise thereof.
(d) Notwithstanding anything in this Agreement to the contrary, this
Section 12 shall not be applicable to a transaction described in subparagraph
(x) or (y) of Section 12(a) if: (i) such transaction is consummated with a
Person or Persons which acquired shares of Common Stock pursuant to a Permitted
Offer (or a wholly owned Subsidiary of any such Person or Persons); (ii) the
price per share of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of shares of Common Stock
whose shares were purchased pursuant to such Permitted Offer; and (iii) the form
of consideration offered in such transaction is the same as the form of
consideration paid pursuant to such Permitted Offer. Upon consummation of any
such transaction contemplated by this Section 12(d), all Rights hereunder shall
expire.
(e) Notwithstanding anything in this Agreement to the contrary, the prior
written consent of the Rights Agent must be obtained in connection with any
supplemental agreement which alters the rights or duties of the Rights Agent in
any material respect.
Section 13. Certificate of Adjusted Purchase Price or Number of Shares
Whenever an adjustment is made as provided in Section 11 or Section 12 of this
Agreement, the Company shall (a) promptly prepare a certificate setting forth
such adjustment, and a brief statement of the
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facts accounting for such adjustment, (b) promptly file with the Rights Agent,
and with each transfer agent for the Common Stock and Preferred Stock, a copy of
such certificate and (c) mail a brief summary thereof to each holder of a Right
Certificate (or if prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock in accordance with Section 26 of
this Agreement). Notwithstanding the foregoing sentence, the failure of the
Company to make such certificates or give such notice shall not affect the
validity or the force or effect of the requirement for such adjustment, and,
prior to the earlier to occur of the Distribution Date and the Stock Acquisition
Date, the Company may, in its discretion, satisfy the obligation set forth in
clause (c) above by including such summary in its next regular report to
stockholders or in its most recent periodic report filed under Section 12 of the
Exchange Act or any report filed on Form 8-K (or any successor form) with
respect to the events giving rise to such adjustment. The Rights Agent shall be
fully protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of such adjustment unless
and until it shall have received such certificate. Any adjustment to be made
pursuant to Sections 11 and 12 of this Agreement shall be effective as of the
date of the event giving rise to such adjustment.
Section 14. Fractional Rights and Fractional Shares
(a) Except as provided in Section 11(i), the Company shall not be required
to issue fractions of Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, at the election of the
Company, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractions of Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Rights
are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
Rights are listed or admitted to trading or, if the Rights are not listed or
admitted to trading on any national securities exchange, the last quoted price,
or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker (selected by the Board of Directors) making a market in the Rights.
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, shall be used.
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(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon exercise of the Rights, or to
distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). Fractions of shares of Preferred Stock in integral
multiples of one one-hundredth of a share of Preferred Stock may, at the
election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such depositary
receipts shall have all the rights, privileges and preferences to which they are
entitled as beneficial owners of the shares of Preferred Stock. With respect to
fractional shares of Preferred Stock that are not integral multiples of one
one-hundredth of a share of Preferred Stock, if the Company does not issue
fractional shares of depositary receipts in lieu thereof, the Company shall pay
to the registered holders of Right Certificates at the time such Right
Certificates are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one one-hundredth of a share of
Preferred Stock. For purposes of this Section 14(b), the current market value of
one one-hundredth of a share of Preferred Stock shall be one one-hundredth of
the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii)) for the Trading Day immediately prior to the date of such
exercise.
(c) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights pursuant to Sections 11(a)(ii) or 12(a)
hereof or to distribute certificates which evidence fractional shares of Common
Stock. In lieu of fractional shares of Common Stock, the Company may pay to the
registered holders of Right Certificates at the time such Rights are exercised
as herein provided an amount in cash equal to the same fraction of the current
market value of one share of Common Stock. For the purposes of this Section
14(c), the current market value of one share of Common Stock shall be the
closing price of a share of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such
exercise.
(d) The holder of a Right, by the acceptance of such Right, expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right except as permitted by this Section 14.
Section 15. Rights of Action All rights of action in respect of this
Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of
Common Stock); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, any registered holder of the Common Stock), without the
consent of the Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the Common Stock), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate in the manner
provided in such Right Certificate and in this Agreement. Without limiting the
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foregoing or any remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to specific performance
of the obligations hereunder, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders Every holder of a Right, by
accepting such Right, 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 shall be evidenced by the
certificates for shares of Common Stock registered in the name of the holders of
such shares (which certificates for shares of Common Stock shall also constitute
certificates for Rights) and each Right will be transferable only in connection
with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the office or
offices of the Rights Agent designated for such purpose, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate form and
certificates fully executed;
(c) subject to Section 6 and Section 7(f) hereof, the Company and the
Rights Agent may deem and treat the person in whose name the Right Certificate
(or, prior to the Distribution Date, the associated certificate for Common
Stock) is registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on the Right
Certificate or the associated certificate for Common Stock made by anyone other
than the Company or the Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last sentence of Section 7(e)
hereof, shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, that prohibits or otherwise restrains the
performance of such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
Section 17. Right Holder and Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right or Right Certificate shall be
entitled to vote, receive dividends or be deemed for any purpose the holder of
Preferred Stock or any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby,
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nor shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right or Right Certificate, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in Section
25), or to receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent (a) The Company agrees to pay to
the Rights Agent such compensation as shall be agreed to in writing between the
Company and the Rights Agent for all services rendered by it hereunder and, from
time to time, on demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to hold it harmless
against, any loss, liability, or expense incurred to the extent not arising out
of or relating to gross negligence, bad faith or willful misconduct on the part
of the Rights Agent for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim (whether asserted by the
Company, a holder of Rights, or any other Person) of liability in the premises,
including reasonable attorney's fees and expenses. The provisions of this
Section 18(a) shall survive the expiration of the Rights and the termination of
this Agreement.
(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 Agreement in reliance upon any Right Certificate or
certificate for Preferred Stock or Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, instruction, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed or executed by the proper Person or Persons or otherwise upon the advice
of counsel as set forth in Section 20 hereof, and, where necessary to be
verified or acknowledged.
Section 19. Merger or Consolidation or Change of Name of Rights Agent
(a) Any Person 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 Person succeeding to all or substantially
all of the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto, provided that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights
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<PAGE>
Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the counter signature of the predecessor Rights Agent and
deliver such Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificate either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and in
all such cases such Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent The Rights Agent undertakes the duties
and obligations expressly imposed by this Agreement, and no implied duties or
obligations shall be read into this Agreement against the Rights Agent upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel of its selection
(which may be legal counsel for the Company), and the opinion of such counsel
shall be full and complete authorization and protection to the Rights Agent as
to any action taken or omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(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 proven and established by a certificate signed or
reasonably believed by the Rights Agent to be signed by any one of the Chairman
of the Board, the Chief Executive Officer, the President, any Vice President,
the Treasurer or the Secretary of the Company and delivered to the Rights Agent;
and such certificate shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
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<PAGE>
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Rights
Certificate (except its countersignature thereof) or be required to verify the
same, and all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of
the validity of this Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights or any
adjustment required under the provisions of Sections 11 or 12 or responsible for
the manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustments (except with respect
to the exercise of Rights evidenced by Right Certificates after the Rights
Agent's actual receipt of the certificate described in Section 12 hereof); nor
shall it by any act hereunder be deemed to make any representation or warranty
as to the authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any Right Certificate
or as to whether any shares of Common Stock or Preferred Stock will, when
issued, be validly authorized and issued, fully paid and nonassessable, nor
shall the Rights Agent be responsible for the legality of the terms hereof in
its capacity as an administrative agent.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Secretary or the Treasurer of the Company, and to apply to such
officers in writing 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 waiting for such instructions. The Rights Agent shall have no
obligation to take any action with respect to which it has requested
instructions if the Company does not provide such instructions.
(h) The Rights Agent and any stockholder, director, officer or employee of
the Rights Agent may buy, sell or deal in any of the Rights or other securities
of the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Company or for any other legal entity.
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(i) The Rights Agent may execute and exercise any of the rights or powers
hereby vested in it or perform any duty hereunder either itself or by or through
its attorneys, or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys,
or agents, or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
it believes in good faith that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to it.
(k) 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 not been
completed, the Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting with the Company.
(l) In addition to the foregoing, the Rights Agent shall be protected and
shall incur no liability for, or in respect of, any action taken or omitted by
it in connection with its administration of this Agreement if such acts or
omissions are in reliance upon (i) the proper execution of the certification
concerning beneficial ownership appended to the form of assignment and the form
of election to purchase attached hereto unless the Rights Agent shall have
actual knowledge that, as executed, such certification is untrue, or (ii) any
refusal to honor any otherwise permissible assignment or election by reason of
the non-execution of such certification.
(m) The Company agrees to give the Rights Agent prompt written notice of
any event or ownership that would prohibit the exercise or transfer of the Right
Certificates of which any senior officer of the Company has actual knowledge.
Section 21. Change of Rights Agent The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company. The Company may remove
the Rights Agent or any successor Rights Agent upon 30 days notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock or Preferred Stock by registered or
certified mail, and, subsequent to the Distribution Date, to the holders of the
Right Certificates by first-class mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company shall appoint
a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the Rights Agent or registered
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<PAGE>
holder of any Right Certificate may (at the expense of the Company, in the case
of the Rights Agent), 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 one of the States thereof, in
good standing, which is authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision or examination by federal
or state authority and which has at the time of its appointment as Rights Agent,
a combined capital and surplus of at least $50 million. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock or Preferred Stock, and, subsequent
to the Distribution Date, mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Right Certificates evidencing Rights in such form as
may be approved by resolution of its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind of class of
shares of stock or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement.
Section 23. Redemption
(a) At any time prior to the earlier of (i) the time that any Person
becomes an Acquiring Person, or (ii) the Final Expiration Date, the Board of
Directors may, at its option, redeem all, but not less than all, the then
outstanding Rights at a redemption price of $.01 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 Company may, at its
option, pay the Redemption Price either in shares of Common Stock (based on the
"current market price" per share as defined in Section 11(d) hereof, of the
shares of Common Stock at the time of redemption) or cash; provided, however,
that if the Company elects to pay the Redemption Price in shares of Common
Stock, the Company shall not be required to issue any fractional shares of
Common Stock and the number of shares of Common Stock issuable to each holder of
Rights shall be rounded down to the next whole share. The redemption of the
Rights by the Board of Directors may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its sole discretion
may establish.
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(b) Immediately upon the action of the Board of Directors ordering the
redemption of the Rights in accordance with Section 23(a) 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 Company 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 in the manner set forth in Section 26, 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 and other
than in connection with the purchase of shares of Common Stock prior to the
Distribution Date.
Section 24. Exchange
(a) Subject to Section 24 (c) and 24(d), the Board of Directors may, at
any time after the time that any Person becomes an Acquiring Person, exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of Section 7(e))
for shares of Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"). Notwithstanding the foregoing,
the Board of Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of the Company,
any Benefit Plan, any entity holding shares of Common Stock for or pursuant to
the terms of any Benefit Plan, or any trustee, administrator or fiduciary of any
Benefit Plan), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Common Stock then
outstanding.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights in accordance with Section 24 and without
any further action and without any notice, the right to exercise such rights
shall terminate and the only right thereafter of a holder of such Rights shall
be to receive that number of shares of Common Stock equal to the number of such
rights held by such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided, however, that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such exchange to
all of the holders of such Rights at their last addresses as they appear upon
the registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the exchange
of shares of Common Stock for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata
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<PAGE>
based on the number of Rights (other than Rights which have become void pursuant
to the provisions of Section 7(e)) held by each holder of Rights.
(c) In the event that there shall not be sufficient shares of Common Stock
issued but not outstanding or authorized but unissued (and not reserved for
issuance other than upon exercise of the Rights) to permit any exchange of
Rights as contemplated in accordance with this Section 24, the (i) Company shall
take all such action as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights, or (ii) the Board of
Directors may determine to exchange shares of Common Stock for then outstanding
and exercisable Rights at such exchange ratio of less than one share of Common
Stock per Right, appropriately adjusted as set forth in Section 24(a) above, so
that all (and not less than all) of the shares of Common Stock issued but not
outstanding or authorized but unissued (and not reserved for issuance other than
upon exercise of the Rights) are issued in the exchange contemplated by this
Section 24.
(d) In any exchange pursuant to this Section 24, the Corporation, at its
option, may substitute common stock equivalents (as defined in Section
11(a)(iii)) for shares of Common Stock exchangeable for Rights, at the initial
rate of one common stock equivalent for each share of Common Stock, as
appropriately adjusted to reflect adjustments in dividend liquidation and voting
rights of common stock equivalents pursuant to the terms thereof, so that each
common stock equivalent delivered in lieu of each share of Common Stock shall
have essentially the same dividend, liquidation and voting rights as one share
of Common Stock.
Section 25. Notice of Certain Events
(a) In case the Company propose, at any time after the Distribution Date,
(i) to declare or pay any dividend payable in stock of any class to the holders
of its Preferred Stock or to make any other distribution to the holders of its
Preferred Stock (other than a regular quarterly cash dividend out of earnings on
retained earnings of the Company) or (ii) to offer to the holders of its
Preferred Stock options, rights or warrants to subscribe for or to purchase any
additional Preferred Stock or shares of stock of any class or any other
securities, rights or options, or (iii) to effect any reclassification of its
Preferred Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger with or into 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 more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(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 Right Certificate and to the Rights Agent, in
accordance with Section 26 hereof, a notice of such proposed action to the
extent feasible and file a certificate with the Rights Agent to that effect,
which shall specify the record date for the purposes of such stock dividend, or
distribution of rights or warrants, or the date on which such
33
<PAGE>
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of record of the shares of Preferred 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 Preferred 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 Preferred Stock, whichever
shall be the earlier. The failure to give notice required by this Section 25 or
any defect therein shall not affect the legality or validity of the action taken
by the Company or the vote upon any such action.
(b) Notwithstanding anything in this Agreement to the contrary, prior to
the Distribution Date, a filing by the Company with the Securities and Exchange
Commission containing the information called for in Section 25(a) shall
constitute sufficient notice to the holders of the securities of the Company,
including the Rights, for purposes of this Agreement and no other notice need be
given to such holders.
(c) In case any Section 11(a)(ii) Event shall occur, then, in any such
case, (i) the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate and to the Rights Agent, in accordance with
Section 26 hereof, notice of the occurrence of such event, which notice shall
specify the event and the consequences thereof to holders of Rights under
Section 11(a)(ii) hereof, and (ii) all references in Section 25(a) hereof to
Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Right Certificate to
or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
The Genlyte Group Incorporated
4360 Brownsboro Road
Louisville, Kentucky 40207
Attention: Daniel R. Fuller, Esq.
with a copy to:
Robert Cantone, Esq.
Proskauer Rose LLP
1585 Broadway
New York, NY 10036
Subject to the provisions of Section 21, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or
34
<PAGE>
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:
The Bank of New York
101 Barclay Street -- 12W
New York, New York 10286
Attention: Stock Transfer Department
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements and Amendments Prior to the Distribution Date, the
Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the approval of any holders of
certificates representing shares of Common Stock. From and after the
Distribution Date, the Company and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Right Certificates in order (i) to cure any ambiguity, (ii) to correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) to shorten or lengthen any time period
hereunder or (iv) to change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and which shall not adversely
affect the interests of the holders of Right Certificates (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring Person); provided,
this Agreement may not be supplemented or amended to lengthen, pursuant to
clause (iii) of this sentence, (A) a time period relating to when the Rights may
be redeemed at such time as the Rights are not then redeemable, or (B) any other
time period unless such lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to, the holders of Rights. 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 27, the Rights Agent shall execute such supplement or amendment,
provided that the proposed supplement or amendment does not adversely affect the
rights or obligations of the Rights Agent under Section 18 or Section 20. Prior
to the Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
Section 28. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board of Directors. The
Board of Directors of the Company shall have the exclusive power and authority
to administer this Agreement and to exercise all rights and powers specifically
granted to the Board or to the Company, or as may be necessary or advisable in
the administration of this Agreement,
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<PAGE>
including, without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement (including, without
limitation, a determination to redeem or not redeem the Rights or to amend the
Agreement) and whether any proposed amendment adversely affects the interests of
the holders of Rights Certificates. All such actions, calculations,
interpretations and determinations (including, for purpose of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith, (x) shall be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Right Certificates and all other parties, and
(y) shall not subject the Board to any liability to the holders of the Right
Certificates.
Section 30. Benefits of this Agreement Nothing in this Agreement shall be
construed to give to any person or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, 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 Right Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock).
Section 31. 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;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth day following the date of such determination by the Board of Directors.
Section 32. Governing Law. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Delaware and for all purposes shall be governed by and
construed in accordance with the laws of the State of Delaware applicable to
contracts to be made and performed entirely within the State of Delaware,
provided, however, that the rights and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of New York.
The parties hereto waive the right to a jury trial in any action arising out of
this Agreement. Any dispute arising out of this Agreement may be litigated in
any federal or state court sitting in the borough of Manhattan, New York City,
New York having subject matter jurisdiction, and the parties hereby submit to
the personal jurisdiction of such courts, and the Company and the Rights Agent
acknowledge that such courts are a convenient forum.
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Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
[Remainder of Page is Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first written above.
THE GENLYTE GROUP INCORPORATED
By: /s/ Daniel R. Fuller
--------------------------------------
Name: Daniel R. Fuller
Title: Assistant Secretary and
General Counsel
THE BANK OF NEW YORK, as Rights Agent
By: /s/ Diane M. Ajjan
--------------------------------------
Name: Diane M. Ajjan
Title: Vice President
38
<PAGE>
Exhibit A
FORM OF
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION OF
JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
Par Value $.01 Per Share
OF
THE GENLYTE GROUP INCORPORATED
----------------------------------------
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
----------------------------------------
WE THE UNDERSIGNED, Larry K. Powers and Donna R. Ratliff, being
respectively the President and Chief Executive Officer and the Senior Vice
President and Corporate Secretary of The Genlyte Group Incorporated (the
"Corporation"), do hereby certify:
1. The name of the Corporation is THE GENLYTE GROUP INCORPORATED
2. The Certificate of Incorporation of the Corporation (the "Certificate
of Incorporation") was filed with the Secretary of State of the State of
Delaware on August 30, 1989.
3. The Certificate of Incorporation is hereby amended by the amendment of
Section 1 of the Certificate of Designation of Junior Participating Cumulative
Preferred Stock, par value $0.01, of the Corporation (the "Certificate of
Designation") filed on August 30, 1989 to read in its entirety as follows:
"Section Designation and Amount.
The shares of such series shall be designated as Junior
Participating Cumulative Preferred Stock, $.01 Par Value (the "Preferred
Stock") and the number of shares constituting such series shall be
400,000. Such number of shares may be increased or decreased by resolution
of the Board of Directors; provided, however, that no decrease
A-1
<PAGE>
shall reduce the number of shares of Preferred Stock to a number less than
the number of shares then outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding options, rights or warrants
to purchase, or upon the conversion of any outstanding securities issued
by the Corporation convertible into, Preferred Stock."
4. The amendment referred to herein was authorized by resolution duly
adopted by the Board of Directors of the Corporation at a meeting thereof duly
called and held on September 13, 1999, at which a quorum was present and acting
throughout.
IN WITNESS WHEREOF, we have signed this Certificate this ___ day of
September, 1999, and we affirm the statements contained herein are true under
the penalties of perjury.
------------------------------------
Name: Larry K. Powers
Title: President and Chief Executive Officer
------------------------------------
Name: Donna R. Ratliff
Title: Senior Vice President and Corporate
Secretary
A-2
<PAGE>
Exhibit B
[Form of Right Certificate]
Certificate No. R- ____ Rights
NOT EXERCISABLE AFTER THE EARLIER OF SEPTEMBER 12, 2009 AND THE DATE ON WHICH
THE RIGHTS EVIDENCED HEREBY ARE REDEEMED OR EXCHANGED BY THE COMPANY AS SET
FORTH IN THE RIGHTS AGREEMENT. AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
ISSUED TO, OR HELD BY, ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT), WHETHER CURRENTLY HELD BY OR ON BEHALF OF SUCH PERSON OR BY ANY
SUBSEQUENT HOLDER, MAY BE NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHT
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BE OR MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]1
RIGHT CERTIFICATE
THE GENLYTE GROUP INCORPORATED
This certifies that , or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights Agreement, dated
as of September 13, 1999 (the "Rights Agreement"), between The Genlyte Group
Incorporated (the "Company"), and The Bank of New York, a New York banking
corporation (the "Rights Agent"), to purchase from the Company at any time after
the Distribution Date (as defined in the Rights Agreement) and prior to the
Expiration Date, one one-hundredth of a fully paid, nonassessable share of the
Series A Junior Participating Cumulative Preferred Stock, par value of $.01 (the
"Preferred Stock"), of the Company, at a purchase price of $105 per one
one-hundredth of a share of Preferred Stock (the "Purchase Price") upon
presentation and surrender of this Right Certificate with the Form of Election
to Purchase and related Certificate duly executed.
Terms used herein and not otherwise defined herein have the meanings
assigned to them in the Rights Agreement.
- ------------------
1 If applicable, insert this portion of the legend and delete the preceding
sentence.
B-1
<PAGE>
The number of Rights evidenced by this Right Certificate (and the number
and kind of shares issuable upon exercise of each Right) set forth above and the
Purchase Price set forth above, are as of September 17, 1999; they may have
been, or in the future may be, adjusted as a result of the occurrence of certain
events, as more fully set forth in the Rights Agreement.
Upon the occurrence of a Section 11(a)(ii) Event (as set forth in the
Rights Agreement), if the Rights evidenced by this Right Certificate are
beneficially owned by (i) an Acquiring person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined in the Rights Agreement),
(ii) a transferee of any such Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee of a
person who, after such transfer, became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, such Rights shall become null and void and no
holder thereof shall have any right with respect to such Rights from and after
the occurrence of such Section 11(a)(ii) Event.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates, which
limitations of Rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Upon surrender at the office or offices of the Rights Agent designated for
such purpose and subject to the terms and conditions set forth in the Rights
Agreement, any Rights Certificate or Certificates may be transferred or
exchanged for another Rights Certificate or Certificates evidencing a like
number of Rights as the Rights Certificate or Certificates surrendered.
Subject to the provisions of the Rights Agreement, the Board of Directors
of the Company may, at its option,
(a) 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 the then outstanding Rights at a redemption price of
$.01 per Right (subject to adjustment); or
(b) at any time after the time that any Person becomes an Acquiring
Person (but before such Person, together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of
the Common Shares then outstanding), exchange all or part of the then
outstanding Rights (other than Rights held by the Acquiring Person and
certain related Persons) for Common Shares at an exchange ratio of one
Common Share per Right (subject to adjustment).
B-2
<PAGE>
No fractional shares of Preferred Stock will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-hundredth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts); but in lieu
thereof, a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate as such shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of Preferred Stock or
of any other securities of the Company which may at any time be issuable upon
the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors upon any matter submitted to stockholders at any meeting thereof, or
to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Rights evidenced by this Right Certificate have been exercised as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it has been countersigned by an authorized signatory of the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal. Dated as of ______________.
THE GENLYTE GROUP INCORPORATED
By: ______________________________________
Name:
Title:
Attest:
By: _____________________________
Secretary
Countersigned:
THE BANK OF NEW YORK, AS RIGHTS AGENT
By: _____________________________ Date: _____________________
Authorized Signatory
B-3
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _________________________ hereby sells, assigns and transfers
unto ___________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint Attorney, to transfer the Right
Certificate on the books of the Company named within, with full power of
substitution.
Dated: ________________________________ Signature __________________________
Signature Guaranteed:
B-4
<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of any Acquiring Person.
Dated: ________________________________ Signature __________________________
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond to the
name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
B-5
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented by the Right
Certificate.)
To: THE GENLYTE GROUP INCORPORATED
The undersigned hereby irrevocably elects to exercise ___________________
Rights represented by this Right Certificate to purchase the one one-hundredths
of a share of Preferred Stock (or such other number or kind of securities of the
Company or of any other person which may be issuable upon the exercise of such
Rights) and requests that certificates for such shares be issued in the name of:
Please insert social security or other identifying number
(Please print name and address)
Should the number of Rights being exercised hereunder not be all the Rights
evidenced by this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and delivered to:
Please insert social security or other identifying number
(Please print name and address)
Dated: ________________________ Signature
(Signature must conform in all respects to
the name of the holder as specified on the
face of this Right Certificate)
Signature Guaranteed:
B-6
<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Right Certificate from any
Person who is, was or subsequently became an Acquiring Person or an Affiliate or
Associate of any Acquiring Person.
Dated:
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without alterati0on or enlargement or any change whatsoever.
B-7
<PAGE>
Exhibit C
---------
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On September 13, 1999, the Board of Directors of The Genlyte Group
Incorporated (the "Company") declared a dividend distribution of one preferred
stock purchase right (a "Right") for each outstanding share of Common Stock,
$.01 par value, of the Company (the "Common Stock"), payable to the stockholders
of record at the close of business on September 17, 1999 (the "Record Date").
The Board of Directors also authorized and directed the issuance of one Right
with respect to each Share of Common Stock issued thereafter until the
Distribution Date (as defined below) and, in certain circumstances, with respect
to shares of Common Stock issued after the Distribution Date.
Except as set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase one one-hundredth of a share of
Junior Participating Cumulative Preferred Stock, $.01 par value (the "Preferred
Stock"), at a price of $105, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and The Bank of New York, as Rights
Agent (the "Rights Agent"), dated as of September 13, 1999.
Initially, the Rights will be attached to all certificates representing
shares of Common Stock then outstanding, and no separate Right Certificates will
be distributed. The Rights will separate from the shares of Common Stock upon
the earliest to occur of (i) a person or entity (a "Person") or group of
affiliated or associated Persons (a "Group") having acquired beneficial
ownership of 20% or more of the outstanding shares of Common Stock (except
pursuant to a Permitted Offer, as hereinafter defined); or (ii) 10 business days
(or such later date as the Board of Directors may determine) following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in a Person or Group
becoming an Acquiring Person (as hereinafter defined) (the earliest of such
dates being called the "Distribution Date"). A Person or Group whose acquisition
of shares of Common Stock causes a Distribution Date pursuant to clause (i)
above is an "Acquiring Person." The date that a Person or Group becomes an
Acquiring Person is the "Stock Acquisition Date."
Notwithstanding the foregoing, a Person who acquires shares of Common
Stock pursuant to a tender or exchange offer which is for all outstanding shares
of Common Stock at a price and on terms which the Board of Directors determines
(prior to acquisition) to be adequate and in the best interests of the Company
and its stockholders (other than such Person, its affiliates and associates) (a
"Permitted Offer") will not be deemed to be an Acquiring Person and such
Person's ownership will not constitute a Distribution Date.
The shares of Preferred Stock purchasable upon exercise of the Rights
will have a minimum preferential quarterly dividend of $25.00 per share, but
will be entitled to receive, in the aggregate, a dividend of 100 times the
dividend declared on the shares of Common Stock. In
C-1
<PAGE>
the event of liquidation, the holders of the shares of Preferred Stock will be
entitled to receive a minimum liquidation payment of $100 per share, but will be
entitled to receive an aggregate liquidation payment equal to 100 times the
payment made per share of Common Stock. Each share of Preferred Stock will have
one hundred votes, voting together with the shares of Common Stock. In the event
of any merger, consolidation or other transaction in which shares of Common
Stock are exchanged, each share of Preferred Stock will be entitled to receive
100 times the amount and type of consideration received per share of Common
Stock. The rights of the shares of Preferred Stock as to dividends and
liquidation, and in the event of mergers and consolidation, are protected by
customary anti-dilution provisions.
The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the shares of Common Stock. Until
the Distribution Date (or earlier redemption or expiration of the Rights), new
Common Stock certificates issued after the Record Date upon the transfer or new
issuance of shares of Common Stock will contain a notation incorporating the
Rights Agreement by reference. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for transfer of any
certificates for shares of Common Stock outstanding as of the Record Date, even
without such notation or a copy of this Summary of Rights being attached
thereto, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Stock
as of the close of business on the Distribution Date (and to each initial record
holder of certain shares of Common Stock issued after the Distribution Date),
and such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date, and will
expire at the close of business on September 12, 2009, unless earlier redeemed
by the Company as described below.
In the event that any person becomes an Acquiring Person, each holder of
Rights (other than Rights that have become null and void as described below)
will thereafter have the right (the "Flip-In Right") to receive, upon exercise
of such Rights, the number of shares of Common Stock (or, in certain
circumstances, other securities of the Company) having a then current market
value (determined in accordance with the Rights Agreement) equal to two times
the aggregate exercise price of such Rights. For example, if a Person became an
Acquiring person at a time when the current per share market price of the
Company's Common Stock was $21 and the Purchase Price was $105, each holder of a
Right (other than a Right which has become null and void as described herein)
would have the right to receive 10 shares of Common Stock upon exercise of the
Right and payment of the Purchase Price.
The Board, at its option, may exchange each Right (other than those that
have become null and void as described below) for one share of Common Stock in
lieu of the Flip-In Right, provided no Person is the beneficial owner of 50% or
more of the shares of Common Stock at the time of such exchange. Notwithstanding
the foregoing, following the occurrence of the event
C-2
<PAGE>
described above, all Rights that are or (under certain circumstances specified
in the Rights Agreement) were beneficially owned by any Acquiring Person or any
affiliate or associate thereof or certain transferees thereof will be null and
void.
In the event that, at any time following the Stock Acquisition Date, (i)
the Company shall merge or consolidate with or into any entity and the holders
of all of the outstanding shares of Common Stock immediately prior to the
consummation of the transaction are not the holders of all of the surviving
corporation's voting power, or (ii) more than 50% of the Company's assets or
earning power is sold or transferred (subject to certain exceptions), then each
holder of Rights (except Rights which previously have been voided as set forth
above) shall thereafter have the right (the "Flip-Over Right") to receive, upon
exercise of such Rights, shares of Common Stock of the acquiring company (or in
certain circumstances, its parent) having a value equal to two times the
aggregate exercise price of the Rights. The Flip-Over Right shall not apply to
any transaction described in clause (i) if such transaction is with a Person or
Persons (or a wholly owned subsidiary of any such Person or Persons) that
acquired shares of Common Stock pursuant to a Permitted Offer and the price and
form of consideration offered in such transaction is the same as that paid to
all holders of Common Stock whose shares were purchased pursuant to the
Permitted Offer. The holder of a Right will continue to have the Flip-Over Right
whether or not such holder exercises the Flip-In Right.
The aggregate Purchase Price payable, and the number of shares of Common
Stock or other securities issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of a stock
dividend on, or a subdivision, combination or reclassification 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% in
such Purchase Price. No fractional shares of Common Stock will be issued and, in
lieu thereof, an adjustment in cash will be made based on the market price of
the Common Stock on the last trading day prior to the date of exercise.
At any time prior to the earlier to occur of (i) a person becoming an
Acquiring Person or (ii) the expiration of the Rights, the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right (the
"Redemption Price"), which redemption shall be effective at such time, on such
basis and with such conditions as the Board of Directors may establish in its
sole discretion. The Company may, at its option, pay the Redemption Price in
Common Stock.
All of the provisions of the Rights Agreement may be amended by the Board
of Directors prior to the Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the Board in order to cure
any ambiguity, defect or inconsistency, to make changes which do not adversely
affect the interests of holders of Rights (excluding the interests of any
Acquiring Person), or, subject to certain limitations, to shorten or lengthen
any time period under the Rights Agreement.
C-3
<PAGE>
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders of the Company, stockholders may, depending upon the
circumstances, recognize taxable income should the Rights become exercisable or
upon the occurrence of certain events thereafter.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
C-4
<PAGE>
INDEX
Section 1. Certain Definitions.............................................1
Section 2. Appointment of Rights Agent.....................................5
Section 3. Issue of Right Certificates.....................................5
Section 4. Form of Right Certificates......................................7
Section 5. Countersignature and Registration...............................8
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates....................................................8
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights9
Section 8. Cancellation of Right Certificates ............................11
Section 9. Reservation and Availability of Capital Stock..................11
Section 10. Preferred Stock Record Date....................................12
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights ...........................................13
Section 12. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power..........................................................21
Section 13. Certificate of Adjusted Purchase Price or Number of Shares.....23
Section 14. Fractional Rights and Fractional Shares........................24
Section 15. Rights of Action...............................................25
Section 16. Agreement of Right Holders.....................................26
Section 17. Right Holder and Right Certificate Holder Not
Deemed a Stockholder...........................................26
Section 18. Concerning the Rights Agent ...................................27
Section 19. Merger or Consolidation or Change of Name of Rights Agent......27
(i)
<PAGE>
Section 20. Duties of Rights Agent.........................................28
Section 21. Change of Rights Agent.........................................30
Section 22. Issuance of New Right Certificates.............................31
Section 23. Redemption.....................................................31
Section 24. Exchange.......................................................32
Section 25. Notice of Certain Events.......................................33
Section 26. Notices........................................................34
Section 27. Supplements and Amendments.....................................35
Section 28. Successors.....................................................35
Section 29. Determinations and Actions by the Board of Directors...........35
Section 30. Benefits of this Agreement ....................................36
Section 31. Severability...................................................36
Section 32. Governing Law..................................................36
Section 33. Counterparts...................................................37
Section 34. Descriptive Headings...........................................37
Exhibit A Form of Certificate of Amendment of Certificate of
Designation...................................................A-1
Exhibit B Form of Right Certificate.....................................B-1
Exhibit C Summary of Rights to Purchase Preferred Stock.................C-1
(ii)
<PAGE>
<PAGE>
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF DESIGNATION OF
JUNIOR PARTICIPATING CUMULATIVE PREFERRED STOCK
Par Value $.01 Per Share
OF
THE GENLYTE GROUP INCORPORATED
----------------------------------------
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
----------------------------------------
WE THE UNDERSIGNED, Larry K. Powers and Daniel R. Fuller, being
respectively the President and Chief Executive Officer and the Assistant
Secretary and General Counsel of The Genlyte Group Incorporated (the
"Corporation"), do hereby certify:
1. The name of the Corporation is THE GENLYTE GROUP INCORPORATED
2. The Certificate of Designation of the Corporation was filed with the
Secretary of State of the State of Delaware on August 30, 1989.
3. Section 1 of the Certificate of Designation of the Corporation is
hereby amended as follows:
"Section 1. Designation and Amount.
The shares of such series shall be designated as Junior Participating
Cumulative Preferred Stock, $.01 Par Value (the "Preferred Stock") and the
number of shares constituting such series shall be 400,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, however, that no decrease shall reduce the number of shares of
Preferred Stock to a number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise of outstanding
options, rights or warrants to purchase, or upon the conversion of any
outstanding securities issued by the Corporation convertible into, Preferred
Stock."
<PAGE>
4. The amendment referred to herein was authorized by resolution duly
adopted by the Board of Directors of the Corporation at a meeting thereof duly
called and held on September 13, 1999, at which a quorum was present and acting
throughout.
IN WITNESS WHEREOF, we have signed this Certificate this 13th day of
September, 1999, and we affirm the statements contained herein are true under
the penalties of perjury.
/s/ Larry K. Powers
--------------------------------------------
Name: Larry K. Powers
Title: President and Chief Executive Officer
/s/ Daniel R. Fuller
--------------------------------------------
Name: Daniel R. Fuller
Title: Assistant Secretary and General
Counsel
