FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12 (b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MATLACK SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 51-0310173
(State or other jurisdiction of incorporation) (I.R.S. Employer
Identification No.)
One Rollins Plaza, 2200 Concord Pike, Wilmington, Delaware 19803
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12 (b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock Purchase Rights New York Stock Exchange, Inc.
If this form relates to the registration of a class of securities
pursuant to Section 12 (b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), check the following box. [X]
If this form relates to the registration of a class of securities
pursuant to Section 12 (g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box. [ ]
Securities to be registered pursuant to Section 12 (g) of the Act:
None
(Title of Class)
ITEM 1. Description of Securities to be Registered
The Board of Directors of Matlack Systems, Inc. (the "Company")
declared a dividend distribution of one Common Stock Purchase Right for
each outstanding share of Common Stock of the Company. The
distribution is payable as of June 30, 1999 to stockholders of record
on that date. Each Right entitles the registered holder to purchase
from the Company one share of Common Stock at a Purchase Price of $60
per share. The description and terms of the Rights are set forth in a
Rights Agreement between the Company and Registrar and Transfer
Company, as Rights Agent.
Until the close of business on the Distribution Date, which will
only occur on the earlier of (i) the tenth day following a public
announcement that a person or group of affiliated or associated persons
("Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the outstanding Common Stock of
the Company (the "Stock Acquisition Date") or (ii) a date fixed by the
Board of Directors of the Company which is not later than the
nineteenth business day after the commencement of a tender offer or
exchange offer which would result in the ownership of 20% or more of
the outstanding Common Stock, the Rights will be represented by and
transferred with, and only with, the Common Stock. Until the
Distribution Date, new certificates issued for Common Stock after June
30, 1999 will contain a legend incorporating the Rights Agreement by
reference, and the surrender for transfer of any of the Company's
Common Stock certificates will also constitute the transfer of the
Rights associated with the Common Stock represented by such
certificate. As soon as practicable following the Distribution Date,
separate Right Certificates will be mailed to holders of record of the
Company's Common Stock as of the close of business on the Distribution
Date, and thereafter the separate certificates alone will evidence the
Rights.
The Rights are not exercisable until an event occurs which gives
rise to a Distribution Date. The Rights will expire at the close of
business on June 30, 2009, unless earlier redeemed by the Company as
described below. All Common Stock certificates issued prior to the
Distribution Date will be issued with Rights. Common Stock issued
after the Distribution Date will be issued with Rights if such Common
Stock certificates are issued pursuant to the exercise of stock options
or under an employee benefit plan.
The Purchase Price payable, and the number of shares of Common
Stock or other securities or property issuable, upon exercise of the
Rights, are subject to adjustment from time to time to prevent dilution
(i) in the event of a stock dividend on, or a subdivision, combination
or reclassification of the Common Stock, (ii) upon the grant to holders
of the Common Stock of certain rights or warrants to subscribe for
Common Stock or convertible securities at less than the current market
price of the Common Stock at the time of grant or (iii) upon the
distribution to holders of the Common Stock of evidences of
indebtedness or assets (excluding regular cash dividends and dividends
payable in Common Stock) or of subscription rights or warrants (other
than those referred to above).
Unless the Rights are earlier redeemed, in the event that, after
the Stock Acquisition Date, the Company were to be acquired in a merger
or other business combination (in which any shares of the Company's
Common Stock are changed into or exchanged for other securities or
assets) or more than 50% of the assets or earning power of the Company
and its subsidiaries (taken as a whole) were to be sold or transferred
in one or a series of related transactions, the Rights Agreement
provides that proper provision shall be made so that each holder of
record of a Right will from and after such date have the right to
receive, upon payment of the Purchase Price, that number of shares of
common stock of the acquiring company having a market value at the time
of such transaction equal to two times the Purchase Price.
In the event (i) any Person becomes the beneficial owner of 20% or
more of the then outstanding shares of Common Stock, other than
pursuant to an all-cash tender offer on the same terms for all
outstanding shares of Common Stock pursuant to which no purchases of
Common Stock are made for at least 60 days from the date of
commencement thereof and which is accepted by holders of not less than
the number of shares of Common Stock that, when aggregated with the
number of shares of Common Stock owned by the person making the offer
(and its affiliates or associates), equals or exceeds 75% of the
outstanding Common Stock, (a "Permitted Tender Offer"), or (ii) any
Acquiring Person or any of its affiliates or associates engages in one
or more "self-dealing" transactions as described in the Rights
Agreement, then each holder of a Right, other than the Acquiring
Person, will have the right to receive, upon payment of the Purchase
Price, a number of shares of Common Stock having a market value equal
to twice the Purchase Price. This same right will be available to each
holder of record of a Right, other than the Acquiring Person, if, while
there is an Acquiring Person, there occurs any reclassification of
securities, any recapitalization of the Company, or any merger or
consolidation or other transaction involving the Company or any of its
subsidiaries which has the effect of increasing by more than 1% the
proportionate ownership interest in the Company or any of its
subsidiaries which is owned or controlled by the Acquiring Person. To
the extent that insufficient shares of Common Stock are available for
the exercise in full of the Rights, holders of Rights will receive upon
exercise, shares of Common Stock to the extent available and then cash,
property or other securities of the Company (which may be accompanied
by a reduction in the Purchase Price), in proportions determined by the
Company, so that the aggregate value received is equal to twice the
Purchase Price. Rights are not exercisable following the occurrence of
the events described in this paragraph until the expiration of the
period during which the Rights may be redeemed as described below.
Notwithstanding the foregoing, following the occurrence of the events
described in this paragraph, Rights that are (or, under certain
circumstances, Rights that were) beneficially owned by an Acquiring
Person will be null and void.
No fractional shares of Common Stock or other Company securities
will be issued upon exercise of the Rights and, in lieu thereof, a
payment in cash will be made to the holder of such Rights equal to the
same fraction of the current market value of a share of Common Stock or
other Company securities.
At any time until ten days following the Stock Acquisition Date
(subject to extension by the Board of Directors), the Board of
Directors may cause the Company to redeem the Rights in whole, but not
in part, at a price of $.01 per Right, subject to adjustment.
Immediately upon the action of the Board of Directors authorizing
redemption of the Rights, the right to exercise the Rights will
terminate, and the holders of Rights will only be entitled to receive
the Redemption Price without any interest thereon.
For as long as the Rights are then redeemable, the Company may,
except with respect to the redemption price or date of expiration of
the Rights, amend the Rights in any manner, including an amendment to
extend the time period in which the Rights may be redeemed. At any
time when the Rights are not then redeemable, the Company may amend the
Rights in any manner that does not adversely affect the interests of
holders of the Rights as such.
Until a Right is exercised, the holder, as such, will have no
rights as a stockholder of the Company, including, without limitation,
the right to vote or to receive dividends.
The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights
Agreement, which has been filed as an Exhibit to this Registration
Statement and is incorporated in this summary description by reference.
Item 2. Exhibits
1. Rights Agreement dated as of June 1, 1999 between
Matlack Systems, Inc. and Registrar and Transfer
Company, as Rights Agent. The Rights Agreement
includes as Exhibit A the form of Right
Certificate. Pursuant to the Rights Agreement,
Right Certificates will not be distributed until
after the Distribution Date (as defined therein).
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized.
MATLACK SYSTEMS, INC.
(Registrant)
By: /s/ Patrick J. Bagley
Patrick J. Bagley
Vice President - Finance
and Treasurer
Dated: June 30, 1999
INDEX TO EXHIBITS
1. Rights Agreement dated as of June 1,
1999 between Matlack Systems, Inc. and
Registrar and Transfer Company, as
Rights Agent. The Rights Agreement
includes as Exhibit A the form of Right
Certificate. Pursuant to the Rights
Agreement, Right Certificates will not
be distributed until after the
Distribution Date (as defined therein on
page 7).
6/1/99
RIGHTS AGREEMENT
This agreement ("Rights Agreement"), dated as of June 1, 1999,
between MATLACK SYSTEMS, INC., a Delaware corporation (the "Company"),
and Registrar and Transfer Company (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (i) authorized
the issuance and declared a dividend of one right (a "Right") for each
share of the common stock, par value $1.00 per share ("Common Stock"),
of the Company outstanding as of the close of business on June 30, 1999
(the "Record Date"), each Right representing the right to purchase one
share (subject to adjustment) of Common Stock of the Company upon the
terms and subject to the conditions hereinafter set forth, and (ii)
further authorized the issuance of one Right (subject to adjustment)
with respect to each share of Common Stock of the Company that shall
become outstanding (whether originally issued or delivered from the
Company's treasury) between the Record Date and the Distribution Date
(as defined herein);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) of such Person,
shall be the Beneficial Owner (as such term is hereinafter
defined) of 20% or more of the outstanding Common Stock;
provided, however, that an Acquiring Person shall not include an
Exempt Person (as such term is hereinafter defined).
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as a result of an acquisition of shares of
Common Stock by the Company which, by reducing the number of
such shares then outstanding, increases the proportionate number
of shares beneficially owned by such person to 20% or more of
the outstanding Common Stock; provided that if a Person (other
than an Exempt Person) becomes the Beneficial Owner of 20% or
more of the outstanding Common Stock by reason of share
purchases by the Company and, after such share purchases by the
Company, becomes the Beneficial Owner of any additional shares
of Common Stock, such Person shall be deemed to be an "Acquiring
Person." The word "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
issued and outstanding which such Person would be deemed to own
beneficially hereunder.
(b) "Adjustment Shares" shall have the meaning set forth
in Section 11(a)(ii) hereof.
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as in effect on the date of
this Rights Agreement.
(d) 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 has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding, whether or not in writing,
or upon the exercise of conversion rights, exchange
rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", (x)
securities tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange or (y) securities which such Person
has a right to acquire on the exercise of Rights at any
time prior to the occurrence of a Section 11(a)(ii) Event
or a Section 13 Event or (z) securities issuable upon
exercise of Rights from and after the occurrence of a
Section 11(a)(ii) Event or a Section 13 Event, provided
such Rights were acquired by such Person or any of such
Person's Affiliates or Associates prior to the
Distribution Date or pursuant to Section 3(a) or Section
22 hereof ("original Rights") or pursuant to Section 11(i)
with respect to an adjustment to original Rights; 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 securities if the
agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or
consent given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations of the Exchange Act and
(2) is not also then reportable by such Person 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 with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding, whether or not in
writing, for the purpose of acquiring, holding, voting
(except as described in clause (B) of subparagraph (ii) of
this paragraph (d)) or disposing of any securities of the
Company. Notwithstanding anything in this paragraph (d)
to the contrary, a Person engaged in the business of
underwriting securities shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", any
securities acquired in good faith in a firm commitment
underwriting until the expiration of forty days after the
date of such acquisition.
(e) "NYSE" shall have the meaning set forth in Section
9(b) hereof.
(f) "Board of Directors" shall mean the Board of Directors
of the Company or any duly authorized committee thereof.
(g) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
City of New York are authorized or obligated by law or executive
order to close.
(h) "close of business" on any given date shall mean 5:00
P.M., New York 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.
(i) "Common Stock" when used with reference to the Company
shall mean the common stock (currently $1.00 par value per
share) of the Company. "Common Stock" when used with reference
to any Person other than the Company which shall be organized in
corporate form shall mean the capital stock or other equity
security with the greatest per share voting power of such
Person. "Common Stock" when used with reference to any Person
other than the Company which shall not be organized in corporate
form shall mean units of beneficial interest which shall
represent the right to participate in profits, losses,
deductions and credits of such Person and which shall be
entitled to exercise the greatest voting power per unit of such
Person.
(j) "common stock equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(k) "Current Market Price" shall have the meaning set
forth in section 11(d) hereof.
(l) "Current Value" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(m) "Distribution Date" shall have the meaning set forth
in Section 3(a) hereof.
(n) "equivalent common stock" shall have the meaning set
forth in Section 11(b) hereof.
(o) "Exchange Act" shall have the meaning set forth in
Section 1(c) hereof.
(p) "Exempt Person" shall mean the Company, any Subsidiary
of the Company, any employee benefit plan or employee stock
plan, including, but not limited to, a Stock Option Plan, of the
Company or of any Subsidiary of the Company, or any person or
entity organized, appointed, established or holding Common stock
for or pursuant to the terms of any such plan.
(q) "Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(r) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(s) "invalidation time" shall have the meaning set forth
in Section 11(a)(ii) hereof.
(t) "NASDAQ"shall have the meaning set forth in Section
11(d) hereof.
(u) "Permitted Tender Offer" shall mean an all cash tender
offer for all outstanding shares of Common Stock of the Company
on the same terms (i) which is made pursuant to schedule 14D-1
filed with the Securities and Exchange Commission, (ii) pursuant
to which no purchases of Common Stock are made for at least 60
days from the date the offer is first published, sent or given
within the meaning of Rule 14d-2(a) under the Exchange Act and
(iii) which is accepted by the holders of not less than the
number of shares of Common Stock that, when aggregated with the
number of shares of Common Stock owned by the person making the
offer) and its Affiliates or Associates) equals or exceeds 75%
of the then outstanding shares of Common Stock.
(v) "Person" shall mean any individual, firm, corporation,
partnership or other entity.
(w) "Principal Party" shall have the meaning set forth in
Section 13(b) hereof.
(x) "Purchase Price" shall have the meaning set forth in
Section 4(a) hereof.
(y) "Redemption Price" shall have the meaning set forth in
Section 23(a) hereof.
(z) "Right Certificate" shall have the meaning set forth
in Section 3(a) hereof.
(aa) "Section 11(a)(ii) Event" shall mean any event
described in Section 11(a)(ii) (A), (B) or (C) hereof, provided
however that a Section 11 (a) (ii) Event shall not include an
Exempt Transaction.
(bb) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) hereof.
(cc) "Section 13 Event" shall mean any event described in
clause (x), (y) or (z) of Section 13(a) hereof, provided however
that a Section 13 Event shall not include an Exempt Transaction.
(dd) "Securities Act" shall mean the Securities Act of
1933, as amended.
(ee) "Stock Acquisition Date" shall mean the first date
of public announcement by the Company or an Acquiring Person
that Acquiring Person has become such or such earlier date as a
majority of the Board of Directors of the Company shall become
aware of the existence of an Acquiring Person.
(ff) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(gg) "Subsidiary" of a Person shall mean any corporation
or other entity of which securities or other ownership interests
having ordinary voting power sufficient to elect a majority of
the board of directors or other persons performing similar
functions are beneficially owned, directly or indirectly, by
such Person and any corporation or other entity that is
otherwise controlled by such Person.
(hh) "Summary of Rights" shall have the meaning set forth
in Section 3(b) hereof.
(ii) "Trading Day" shall have the meaning set forth in
Section 11(d) hereof.
(jj) "Triggering Event" shall mean any event described in
Section 11(a)(ii)(A), (B), or (C) or Section 13 hereof.
(kk) "Exempt Transaction" shall mean a share exchange,
consolidation, merger or other transaction in respect of which
the Board of Directors has waived the application of either
Section 13 or Section 11 (a) (ii), whichever is applicable,
pursuant to the provisions of Section 23 (c). Any Exempt
Transaction under the Rights Agreement between the Company and
the Rights Agent dated June 14, 1989 shall continue to be an
Exempt Transaction under this Agreement.
Any determination required by the definitions contained or referred to
in this Section 1 shall be made by the Board of Directors in good
faith, and any such determination shall be binding on the Rights Agent
and the holders of the Rights.
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 change Rights Agents at its
discretion. The Company may from time to time appoint such Co-Rights
Agents as it may deem necessary or desirable.
Section 3. Issuance of Right Certificates.
(a) Until the close of business on the day (the "Distribution
Date") which is the earlier of (i) the tenth day after the Stock
Acquisition Date or (ii) such date as the Board of Directors may fix
following the commencement by any Person (other than an Exempt Person)
of, or the first public announcement of the intent of any Person (other
than an Exempt Person) to commence, a tender or exchange offer upon the
successful consummation of which such Person, together with its
Affiliates and Associates, would be the Beneficial Owner of 20% or more
of the outstanding Common Stock (irrespective of whether any shares are
actually purchased pursuant to any such offer), provided that such date
fixed by the Board of Directors shall not be later than the nineteenth
Business Day after the date of such commencement or public announcement
(the date specified in clauses (i) and (ii) being subject to extension
by the Board of Directors pursuant to Section 25 hereof), (x) the
Rights will be evidenced (subject to the provisions of Section 3(c)
hereof) by the certificates for the Common Stock registered in the
names of the holders of the Common Stock and not by separate Right
certificates, and (y) each Right will be transferable only in
connection with the transfer of a share (subject to adjustment as
hereinafter provided) of Common Stock; provided that if the
Distribution Date would be prior to the Record Date, the Record date
shall be the Distribution Date; and provided, further, that if a tender
or exchange offer referred to in clause (ii) above is cancelled or
withdrawn prior to the Distribution Date, such offer shall be deemed,
for purposes of this Rights Agreement, never to have been made. As
soon as practicable after the Distribution Date, the Rights Agent will
mail, by first-class, postage prepaid mail, to each record holder of
the Common Stock as of the close of business on the Distribution Date,
as shown by the records of the Company, at the address of such holder
shown on such records, a Right certificate in substantially the form of
Exhibit A hereto ("Right Certificate") evidencing one Right for each
share of Common Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to Section 11(p) hereof,
at the time of distribution of the Right Certificates, the Company
shall make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Right Certificates
representing only whole numbers of Rights are distributed and cash is
paid in lieu of any fractional Rights. As of and after the
Distribution Date the rights will be evidenced solely by such Right
Certificates.
(b) On the Record Date or as soon as practicable thereafter,
the Company will send a copy of a Summary of Rights to Purchase Common
Stock, substantially in the form attached hereto as Exhibit B ("Summary
of Rights"), by first-class, postage prepaid mail, to each record
holder 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.
(c) With respect to certificates for Common Stock outstanding
as of the Record Date, until the Distribution Date (or, if earlier, the
Expiration Date), the Rights will be evidenced by such certificates for
Common Stock registered in the names of the holders thereof together
with a copy of the Summary of Rights. Until the Distribution Date (or,
if earlier, the Expiration Date), the surrender for transfer of any
certificate for Common Stock outstanding on the Record Date, with or
without a copy of the Summary of Rights, shall also constitute the
surrender for transfer of the Rights associated with the Common Stock
represented thereby.
(d) Rights shall be issued in respect of all shares of Common
Stock that become outstanding after the Record Date but prior to the
earlier of the Distribution Date or the expiration Date and, in certain
circumstances provided in Section 22 hereof, may be issued in respect
of shares of Common Stock that become outstanding after the
Distribution Date. Certificates issued for Common Stock (including,
without limitation, certificates issued upon original issuance,
disposition from the Company's treasury or transfer or exchange of
Common Stock) after the Record date but prior to the earlier of the
Distribution Date, the Expiration Date or the Final Expiration Date
(or, in certain circumstances as provided in Section 22 hereof, after
the Distribution Date) shall have impressed on, printed on, written on
or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Rights Agreement between
Matlack Systems, Inc. and Registrar and Transfer Company, as
Rights Agent, dated as of June 1, 1999 (the "Rights Agreement"),
the terms of which are incorporated herein by reference and a
copy of which is on file at the principal executive office of
Matlack Systems, Inc. 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. Matlack Systems, Inc. will mail to the holder of
this certificate a copy of the Rights Agreement without charge
within five days after receipt by it of a written request
therefor. Under certain circumstances as provided in the Rights
Agreement, Rights issued to or beneficially owned by Acquiring
Persons or their Associates or Affiliates (as such terms are
defined in the Rights Agreement) or any subsequent holder of
such Rights may become null and void as provided in Section
11(a)(ii) of the Rights Agreement.
With respect to such certificates containing the foregoing legend, the
Rights associated with the Common Stock represented by such
certificates shall, until the Distribution Date, be evidenced by such
certificates alone, and the surrender for transfer of any such
certificate shall also constitute the surrender for transfer of the
Rights associated with the Common Stock represented thereby.
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), when, as and if issued, shall be substantially in the
form set forth in Exhibit A hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this Rights
Agreement, or as may be required to comply with any law or with
any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to usage. Subject to the
provisions of Sections 11 and 22 hereof, the Right Certificates
evidencing the Rights, whenever issued, shall be dated as of the
Record Date, and on their face Right Certificates shall entitle
the holders thereof to purchase one share of Common Stock, or
other securities or property as provided herein, as the same may
from time to time be adjusted as provided herein, at the price
per share set forth therein, as the same may from time to time
be adjusted as provided herein (the "Purchase Price").
(b) Notwithstanding any other provision of this Rights
Agreement, any Right Certificate that represents Rights that are
beneficially owned by (i) an Acquiring Person or any Affiliate
or Associate thereof, (ii) a transferee of an Acquiring Person
(or any such Affiliate or Associate) who becomes a transferee
after the Acquiring Person became such or (iii) a transferee of
an Acquiring Person who becomes a transferee prior to or
concurrently with the Acquiring Person's becoming such pursuant
to either (A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of its equity securities or to
any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or
(B) a transfer (whether or not for consideration) which the
Board of Directors has determined is part of a plan, arrangement
or understanding which has the purpose or effect of avoiding the
provisions of Section 11(a)(ii) hereof, and subsequent
transferees of such Persons (or of any transferee of such
Rights), and any Right Certificate issued pursuant to Section 6
hereof upon transfer, exchange, replacement or adjustment of any
other Right Certificate referred to in this sentence, shall have
impressed on, printed on, written on or otherwise affixed to it
(if the Company or the Rights Agent has knowledge that such
Person is an Acquiring Person or an Associate or Affiliate
thereof or transferee of such Persons or a nominee of any of the
foregoing) the following legend:
The beneficial owner of the Rights represented by this Right
Certificate is an Acquiring Person or an Affiliate or Associate
(as defined in the Rights Agreement) of an Acquiring Person or
a subsequent holder of such Right Certificates beneficially
owned by such Persons. Accordingly, under certain circumstances
as provided in the Rights Agreement, this Right Certificate and
the Rights represented hereby may become null and void as
provided in Section 11(a)(ii) of the Rights Agreement.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its
President or any Vice President, either manually or by facsimile
signature, and have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by
facsimile signature. The 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 who shall have signed any of 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, nevertheless, may 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;
and any Right Certificates 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.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at its principal office,
books for registration and transfer of the Right Certificates
issued hereunder. Such books shall show the names and addresses
of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right
Certificates, the date of each of the Right Certificates, and
the certificate numbers for each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates.
(a) Subject to the provisions hereof, at any
time after the close of business on the Distribution Date and at
or prior to the close of business on the Expiration Date, any
Right Certificate or Certificates may be (i) transferred or (ii)
split up, combined or exchanged for another Right Certificate or
Right Certificates, entitling the registered holder to purchase
a like number of shares of Common Stock as the Right Certificate
or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer any Right
Certificate shall surrender the Right Certificate at the
shareholder services office of the Rights Agent with the form of
assignment on the reverse side thereof duly endorsed (or enclose
with such Right Certificate a written instrument of transfer in
form satisfactory to the Company and the Rights Agent), duly
executed by the registered holder thereof or his attorney duly
authorized in writing, and with such signature duly guaranteed.
Any registered holder desiring to 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 split up, combined or
exchanged at the shareholder services office of the Rights
Agent. Thereupon the Rights Agent, subject to the provisions
hereof, shall countersign (by manual signature) and deliver to
the person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Right
Certificates.
(b) Upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss,
theft, destruction or mutilation or a Right Certificate, and, in
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and, if requested by the
Company, reimbursement to the Company of all reasonable
expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Right Certificate if mutilated,
the Company will execute 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 to lost, stolen,
destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date
of Rights.
(a) Except as otherwise provided herein, the
Rights shall become exercisable at the close of business on the
Distribution Date, and may be exercised in whole or in part at
any time after the Distribution Date upon surrender of the Right
Certificates, with the form of election to purchase on the
reverse side thereof duly executed (with such signature duly
guaranteed), to the Rights Agent at its principal office in New
York, New York, together with payment of the aggregate Purchase
Price, subject to adjustment as hereinafter provided, with
respect to the number of shares of Common Stock (except as
otherwise provided herein) as to which such surrendered Rights
are then being exercised, at or prior to the close of business
on the date (the "Expiration Date") which is the earlier of (i)
June 30, 2009 (the "Final Expiration Date"), or (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof.
(b) The Purchase Price shall initially be $60
for each share of Common Stock issued pursuant to the exercise
of a Right. The Purchase Price shall be subject to adjustment
from time to time as provided in Sections 11 and 13 hereof. The
Purchase Price shall be payable in lawful money of the United
States of America, in accordance with Section 7(c) hereof.
(c) Except as provided in Section 7(d) hereof,
upon receipt of a Right Certificate representing exercisable
Rights with the form of election to purchase duly executed,
accompanied by payment of the aggregate Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax, by cash, certified or official bank check or draft
payable to the order of the Company or the Rights Agent, the
Rights Agent shall, subject to Section 20(j) hereof, thereupon
promptly (i) provide itself or requisition from any transfer
agent of the Common Stock certificates for the number of shares
of Common Stock so elected to be purchased and the Company will
comply and hereby authorizes and directs such transfer agent to
comply with all such requests, (ii) requisition from the Company
the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 14(b) hereof, and (iii)
promptly after receipt of such Common Stock certificates cause
the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or
names as may be designated by such holder, and, when
appropriate, after receipt promptly deliver such cash to or upon
the order of the registered holder of such Right Certificate;
provided, however, that in the case of a purchase of securities,
other than Common Stock of the Company, pursuant to Section 13
hereof, the Rights Agent shall promptly take the appropriate
actions corresponding to the foregoing clauses (i) through
(iii). In the event that the Company is obligated to issue
other securities of the Company, pay cash and/or distribute
other property pursuant to Section 11(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 case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of
Section 14 hereof.
(e) Notwithstanding 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) 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 and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination or exchange shall, if surrendered to
the Company or to any of its agents, be delivered to the Rights Agent
for cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be cancelled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent
shall so cancel and retire, any Right Certificate purchased or acquired
by the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such cancelled
Right Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Common
Stock.
(a) The Company covenants and agrees that at all
times it will cause to be reserved and kept available, out of
and to the extent of its authorized and unissued shares of
Common Stock not reserved for another purpose or shares held in
its treasury, the number of shares of Common Stock (and,
following the occurrence of a Triggering Event, other
securities) that, as provided in this Agreement, including
Section 11(a)(ii) hereof, will be sufficient to permit the
exercise in full of all outstanding Rights; provided, however,
that the Company shall not be required to reserve and keep
available shares of Common Stock or other securities sufficient
to permit the exercise in full of all outstanding Rights
pursuant to the adjustments set forth in Section 11(a)(ii),
Section 11(a)(iii) or Section 13 hereof unless the Rights become
exercisable pursuant to such adjustments, and then only to the
extent the Rights become exercisable pursuant to such
adjustments.
(b) The Company shall (i) use its best efforts
to cause, from and after such times as the Rights become
exercisable, the Rights and all shares of Common Stock (and
following the occurrence of a Triggering Event, other
securities) issued or reserved for issuance upon exercise
thereof to be listed on the New York Stock Exchange (the "NYSE")
upon official notice of issuance upon such exercise and (ii) if
then necessary to permit the offer and issuance of such shares
of Common Stock (and, following the occurrence of a Triggering
Event, other securities), register and qualify such shares of
Common Stock (and, following the occurrence of a Triggering
Event, other securities) under the Securities Act and any
applicable state securities or "blue sky" laws (to the extent
exemptions therefrom are not available), cause such registration
statement and qualifications to become effective as soon as
possible after such filing and keep such registration and
qualifications effective until the earlier of the date as of
which the Rights are no longer exercisable for such securities
or the Expiration Date of the Rights. The Company may
temporarily suspend, for a period of time not to exceed ninety
days, the exercisability of the Rights in order to prepare and
file a registration statement under the Securities Act and
permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is
no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable
in any jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained and until a registration
statement under the Securities Act (if required) shall have been
declared effective.
(c) The Company covenants and agrees that it
will take all such actions as may be necessary to insure that
all shares of Common Stock (and following the occurrence of a
Triggering Event, other securities) delivered upon exercise of
Rights shall, to the extent applicable, at the time of delivery
of the certificates for such shares (subject to payment of the
Purchase Price in respect thereof), be duly and validly
authorized and issued and fully paid and non-assessable shares
in accordance with applicable law.
(d) 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
shares of common Stock (or other securities, as the case may be)
upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect
of any transfer or delivery of Right Certificates to a Person
other than the registered holder of the Right Certificate, or
the issuance or delivery of certificates for Common Stock (or
other securities, as the case may be) upon exercise of Rights in
a name other than that of, the registered holder of the Right
Certificate, and the Company shall not be required to issue or
deliver a Right Certificate or certificate for Common Stock (or
other securities, as the case may be) to a person other than
such registered holder until any such tax shall have been paid
(any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is
due.
Section 10. Common Stock Record Date. Each Person in whose name
any certificate for shares of Common Stock (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 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 and payment of
the Purchase Price (and any applicable transfer taxes) was made.
Section 11. Adjustments to Number and Kind of Shares, Number of
Rights or Purchase Price.
The number and kind of shares subject to purchase upon the
exercise of each Right, the number of Rights outstanding and the
Purchase Price are subject to adjustment from time to time as provided
in this Section 11.
(a) (i) In the event the Company shall at any
time after the Record Date (A) declare or pay any dividend on
Common Stock payable in shares of Common Stock, (B) subdivide or
split the outstanding shares of Common Stock into a greater
number of shares, (C) combine or consolidate the outstanding
shares of Common Stock into a smaller number of shares or effect
a reverse split of the outstanding shares of Common Stock or (D)
issue any shares of its capital stock in a reclassification of
the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company
is the continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect
immediately prior to 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 Common Stock or capital stock, as the case may be,
issuable upon exercise of a Right on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive, upon
payment of an amount equal to (x) the Purchase Price in effect
immediately prior to the record date or effective date of such
dividend, subdivision , combination or reclassification
multiplied by (y) the number of shares of Common Stock or
capital stock, as the case may be, as to which a Right was
exercisable immediately prior to such date, the aggregate number
and kind of shares of Common Stock or capital stock, as the case
may be, which, if such Right had been exercised immediately
prior to such date, the holder thereof would have owned upon
such exercise and been entitled to receive, or would be deemed
to have owned, by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event, at any time after the
date of this Agreement
(A) any Acquiring Person, directly or indirectly,
other than pursuant to any transaction set forth in
Section 13(a) hereof, (1) shall merge with and into
the Company or any of its Subsidiaries or otherwise
combine with the Company or any of its Subsidiaries
and the Company or such Subsidiary shall be the
continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall
remain outstanding and no shares thereof shall be
changed into or exchanged for stock or other
securities of the Company or of any other Person or
cash or any other property, or (2) shall, in one or
more transactions, other than in connection with the
exercise of a Right or Rights and other than in
connection with the exercise or conversion of
securities exercisable for or convertible into
securities of the Company or of any Subsidiary of the
Company (which securities were outstanding prior to
the time the Acquiring Person became such), transfer
any assets or property to the Company or any of its
Subsidiaries in exchange (in whole or in part) for any
shares of any class of capital stock of the Company or
any of its Subsidiaries or any securities exercisable
for or convertible into shares of any class of capital
stock of the Company or any of its Subsidiaries, or
otherwise obtain from the Company or any of its
Subsidiaries, with or without consideration, any
additional shares of any class of capital stock of the
Company or any of its Subsidiaries or any securities
exercisable for or convertible into shares of any
class of capital stock of the Company or any of its
Subsidiaries (other than as part of a pro rata offer
or distribution by the Company or such Subsidiary to
all holders of such shares), or (3) shall sell,
purchase, lease, exchange, mortgage, pledge, transfer
or otherwise acquire (other than as a pro rata
dividend) or dispose, in one transaction or a series
of transactions, to, from or with, as the case may be,
the Company or any of its Subsidiaries, assets
(including securities) on terms and conditions less
favorable to the Company or such Subsidiary than the
Company or such Subsidiary would be able to obtain in
arm's-length negotiation with an unaffiliated third
party, or (4) shall receive any compensation from the
Company or any of its Subsidiaries for services other
than compensation for employment as a regular or part
time employee, or fees for serving as a director, at
rates in accordance with the Company's (or its
Subsidiaries') past practices, or (5) shall receive
the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans,
advances, guarantees, pledges or other financial
assistance or any tax credits or tax advantage
provided by the Company or any of its Subsidiaries, or
(6) shall sell, purchase, lease, exchange, mortgage,
pledge, transfer or otherwise acquire (other than as
a pro rata dividend) or dispose, in one transaction or
a series of transactions, to, from or with, as the
case may be, the Company or any of its subsidiaries
(other than in connection with the lines of business,
if any, engaged in between the Company and the
Acquiring Person or Associate or Affiliate thereof
prior to the time the Acquiring Person became such)
assets having an aggregate fair market value of more
than $50,000,000; or
(B) any Person, alone or together with its
Affiliates and Associates, shall become an Acquiring
Person; other than pursuant to a Permitted Tender
Offer; or
(C) during such time as there is an Acquiring
Person, there shall be any reclassification of
securities (including any reverse stock split), or any
recapitalization of the Company, or any merger or
consolidation of the Company with any of its
Subsidiaries or any other transaction or series of
transactions involving the Company or any of its
Subsidiaries (whether or not with or into or otherwise
involving an Acquiring Person or any Affiliate or
Associate of such Acquiring Person) which has the
effect, directly or indirectly, of increasing by more
than 1% the proportionate share of the outstanding
shares of any class of equity securities of the
Company or any of its Subsidiaries, or securities
exercisable for or convertible into equity securities
of the Company or any of its Subsidiaries, which is
directly or indirectly beneficially owned by any
Acquiring Person or any Affiliate or Associate of any
Acquiring Person;
then, subject to the last sentence of Section 23(a)
hereof, and except as otherwise provided in this Section 11,
each holder of a Right shall thereafter have the right to
receive, upon exercise of a Right in accordance with the terms
of this Rights Agreement and payment of the aggregate Purchase
Price with respect to the total number of shares of Common Stock
for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, such number of shares
of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by
the number of shares of Common Stock for which a Right was
exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that product by 50% of
the Current Market Price per share of Common Stock on the date
of such first occurrence (such number of shares is herein called
the "Adjustment Shares"); provided that the number of Adjustment
Shares shall be further appropriately adjusted to reflect any
events described in Sections 11(a)(i), (b) or (c) hereof
occurring after the date of such first occurrence; and provided,
further, that if the transaction that would otherwise give rise
to the foregoing adjustment is also subject to the provisions of
Section 13 hereof, then only the provisions of Section 13 hereof
shall apply and no adjustment shall be made pursuant to this
Section 11(a)(ii).
Notwithstanding anything in this Rights Agreement to the
contrary, from and after the time (the "invalidation time") when (A)
any Person first becomes an Acquiring Person, other than through a
Permitted Tender Offer or (B) there occurs any event described in
Section 11(a)(ii)(A) or (C) in respect of any Acquiring Person who
became such through a Permitted Tender Offer, any Rights that are
beneficially owned by (x) such Acquiring Person (or any Associate or
Affiliate of such Acquiring Person), (y) a transferee of such Acquiring
Person (or any such Associate or Affiliate) who becomes a transferee
after the invalidation time or (z) a transferee of such Acquiring
Person (or any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the invalidation time pursuant to either
(I) a transfer from the Acquiring Person to holders of its equity
securities or to any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (II)
a transfer which the Board of Directors has determined is part of a
plan, arrangement or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent transferees
of such Persons, shall be void without any further action and any
holder of such Rights shall thereafter have no rights whatsoever with
respect to such rights under any provision of this Rights Agreement.
The Company shall use all reasonable effort to insure that the
provisions of this Section 11(a)(ii) and of Section 4(b) hereof are
complied with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder. No Right Certificate shall be
issued pursuant to Section 3 hereof that represents Rights beneficially
owned by an Acquiring Person whose Rights would be void pursuant to the
provisions of this paragraph or any Associate or Affiliate thereof; no
Right Certificate shall be issued at any time upon the transfer of any
Rights to an Acquiring Person whose Rights would be void pursuant to
the provisions of this paragraph or any Associate or Affiliate thereof
or to any nominee of such Acquiring Person, Associate or Affiliate; and
any Right Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the provisions
of this paragraph shall be cancelled.
(iii) In the event that the number of shares of Common
Stock which are authorized by the Company's certificate of
incorporation but not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in
accordance with Section 11(a)(ii) and the Rights shall become so
exercisable, the Company shall, to the extent permitted by
applicable law and any material agreements in effect on the date
hereof to which the Company is a party:
(A) determine the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current
Value") and (B) with respect to each Right, upon exercise
of such Right, issue shares of Common Stock to the extent
available for the exercise in full of such Right and, to
the extent shares of Common Stock are not so available,
make adequate provision to substitute for the Adjustment
Shares not received upon exercise of such Right (1) cash,
(2) other equity securities of the Company (including,
without limitation, shares or units of shares of preferred
stock which, by virtue of having dividend, voting and
liquidation rights substantially comparable to those of
the Common Stock, are deemed in good faith by the Board of
Directors to have substantially the same value as shares
of Common Stock (such shares or units of shares of
preferred stock are herein called "common stock
equivalents")), (3) debt securities of the Company, (4)
other assets, (5) a reduction of the Purchase Price or (6)
any combination of the foregoing, having a value which,
when added to the value of the shares of Common Stock
actually issued upon exercise of such Right, shall have an
aggregate value equal to the Current Value, where such
aggregate value has been determined in good faith by the
Board of Directors based upon the advice of a nationally
recognized independent investment banking firm selected in
good faith by the Board of Directors; provided, however,
if the Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within thirty
days following the date (the "Section 11(a)(ii) Trigger
Date") which is the later of (x) the first occurrence of
a Section 11(a)(ii) Event and (y) the date on which the
Company's right of redemption pursuant to Section 23(a)
expires, then the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without
requiring payment of the Purchase Price, shares of Common
Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value
equal to the excess of (x) the Current Value over (y) the
Purchase Price times the number of shares of Common Stock
for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event. If the
Board of Directors shall determine in good faith that it
is likely sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of
the Rights, the thirty day period set forth above may be
extended to the extent necessary, but not more than ninety
days after the Section 11(a)(ii) Trigger Date, in order
that the Company may seek shareholder approval for the
authorization of such additional shares (such thirty day
period, as it may be extended, is herein called the
"Substitution Period"). To the extent that the Company
determines that some action must be taken pursuant to the
first and/or second sentence of this Section 11(a)(iii),
the Company (x) shall provide, subject to Section
11(a)(ii) hereof and the last sentence of this Section
11(a)(iii), that such action shall apply uniformly to all
outstanding Rights until the expiration of the
Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of
distribution to be made pursuant to such first sentence
and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer
in effect. For purposes of this Section 11(a)(iii), the
value of the Common Stock shall be the Current Market
Price per share of the Common Stock on the Section
11(a)(ii) Trigger Date and the per share or per unit value
of any "common stock equivalent" shall be deemed to equal
the Current Market Price per share of the Common Stock on
such date. The Board of Directors may, but shall not be
required to, establish procedures to allocate the right to
receive Common Stock upon the exercise of the Rights among
holders of rights pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the
issuance of rights (other than the Rights), options or warrants
to all holders of Common Stock entitling them to subscribe for
or purchase (for a period expiring within forty-five calendar
days after such record date) Common Stock, shares having the
same rights, privileges and preferences as the Common Stock
("equivalent common stock") or securities convertible into
Common Stock or equivalent common stock at a price per share of
Common Stock or equivalent common stock (or having a conversion
price per share, if a security convertible into Common Stock or
equivalent common stock) less than the Current Market Price per
share of Common Stock on such record date, the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on such record
date, plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of
Common Stock and/or equivalent common stock (and/or the
aggregate initial conversion price of the convertible securities
so to be offered, including the price required to be paid to
purchase such convertible security) would purchase at such
current Market Price, and the denominator of which shall be the
number of shares of Common Stock outstanding on such record
date, plus the number of additional shares of Common Stock
and/or equivalent common stock to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid by delivery of consideration part or all of
which may be in a form other than cash, the value of such
non-cash consideration shall be as determined in good faith by
the Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent. Shares
of Common stock owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Purchase Price shall
be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all holders of Common Stock (including any such
distribution made in connection with a consolidation or merger
in which the Company is the continuing corporation) of evidences
of indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Common Stock,
but including any dividend payable in stock other than Common
Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the Current Market Price per share of Common Stock on such
record date, less the fair market value (as described in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the
Rights Agent) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights
or warrants applicable to a share of Common Stock and the
denominator of which shall be such Current Market Price per
share of Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the
event that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would have been
in effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder
(including computations pursuant to Section 14 hereof), other
than computations made pursuant to Section 11(a)(iii) hereof,
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 the Common Stock for the thirty consecutive Trading
Days (as such term is hereinafter defined) immediately prior to
such date, and for purpose of computations made pursuant to
Section 11(a)(iii) hereof, the "Current Market Price" per share
of the Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of the Common
Stock for the ten consecutive Trading Days immediately following
such date; provided, however, that in the event that the Current
Market Price per share of the Common Stock is determined during
a period following the announcement by the issuer of the Common
Stock of (i) any dividend or distribution on the Common Stock
(other than a regular quarterly cash dividend) or (ii) any
subdivision, combination or reclassification of the Common
Stock, and prior to the expiration of the requisite thirty
Trading Day or ten Trading Day period, as set forth above, the
ex-dividend date for such dividend or distribution, or the
effective date of such subdivision, combination or
reclassification occurs, then, and in each such case, the
current Market Price shall be properly adjusted to take into
account ex-dividend trading. The closing price for each day
shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the NYSE or, if
the shares of common stock are not listed or admitted to trading
on the NYSE, as reported in the principal consolidated
transaction reporting system with respect to securities listed
on the principal national securities exchange on which the
shares of Common Stock are 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 sale price
or, if not so quoted, the average of the high bid and low asked
price in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then is 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 of the Company. 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 of the Company, 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, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest ten-thousandth of a share, as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which mandates such adjustment, or (ii) one month
prior to the Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(i) or (ii) or Section 13(a) hereof, the holder of
any Right thereafter exercised shall become entitled to receive
any shares of capital stock other than Common Stock, thereafter
the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof shall be subject to
adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the applicable provisions with
respect to the shares of common stock contained in Sections 7,
9, 10, 11, 13, and 14 hereof, and such provisions shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of shares of Common Stock purchasable from time to
time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its election
as provided in Section 11(i), upon each adjustment of the
Purchase Price as a result of the calculations made in Sections
11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to
purchase that number of shares of Common Stock (calculated to
the nearest ten-thousandth) obtained by (i) multiplying (x) the
number of shares covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price, and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect, on or after the date of any
adjustment of the Purchase Price, to adjust the number of
Rights, in addition to the adjustment provided in Section 11(p)
hereof. Each of the Rights outstanding after the adjustment in
the number of Rights shall be exercisable for a number of shares
of Common Stock equal to the number of shares of Common Stock
for which a Right was exercisable immediately prior to such
adjustment multiplied by a fraction the numerator of which shall
be the total number of Rights outstanding immediately prior to
such adjustment and the denominator of which shall be the total
number of Rights outstanding immediately following such
adjustment. 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 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 Common Stock issuable
upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of shares 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
of the shares of Common Stock issuable upon exercise of the
Rights, the Company shall take any corporate action, including
using its best efforts to obtain any required shareholder
approvals, which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally
issue fully paid and nonassessable shares of Common Stock at
such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of
a record date for a specified event, the Company may elect to
defer until the occurrence of such event the issuance to the
holder of any Right exercised after such record date the shares
of Common Stock and cash, other capital stock or securities of
the Company, if any, issuable upon such exercise over and above
the shares of Common Stock and cash, 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
of Common Stock and cash, other capital stock or securities upon
the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that in their good faith judgment the Board of Directors
of the Company shall determine to be advisable in order that any
(i) consolidation or subdivision of the Common Stock, (ii)
issuance for cash of any shares of Common Stock at less than the
current market price, (iii) issuance for cash of shares of
Common Stock or securities which by their terms are convertible
into or exchangeable for shares of Common Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the Company to
holders of its Common Stock shall not be taxable to such
shareholders. No reduction in the Purchase Price shall be made
as a consequence of the exercise of qualified or unqualified
stock options by employees of the Company to whom stock options
have been granted.
(n) The Company covenants and agrees that it shall not,
at any time after the earlier of the Distribution Date or the
Stock Acquisition Date, (i) consolidate with any other Person,
(ii) merge with or into any other Person, (iii) sell or transfer
(or permit any Subsidiary to sell or transfer), in one
transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to,
any other Person or Persons, or (iv) engage in any transaction
described in Section 11(a)(ii) (A) or (C) hereof if (x) at the
time of or immediately after such consolidation, merger, sale or
other transaction there are any rights, warrants or other
instruments or securities outstanding or agreements in effect
which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights, (y) prior to,
simultaneously with or immediately after such consolidation,
merger, sale or other transactions, the shareholders of the
Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) hereof shall have received
a distribution of Rights previously owned by such Person or any
of its Affiliates and Associates or (z) the form or nature of
organization of the Principal Party would preclude or limit the
exercisability of the Rights.
(o) The Company covenants and agrees that, after the
earlier of the Distribution Date or the Stock Acquisition Date,
it will not, except as permitted by Section 23 or Section 26
hereof, take (or permit any Subsidiary to take) any action if at
the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or eliminate the
benefits intended to be afforded by the Rights.
(p) Anything in this Rights Agreement to the contrary
notwithstanding, in the event that the Company shall at anytime
after the Record Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number of
shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered
thereafter, shall be proportionately adjusted so that the number
of Rights thereafter associated with each share of Common Stock
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common stock outstanding immediately following the
occurrence of such event.
Section 12. Certification of Adjustments. Whenever an
adjustment is made as provided in Sections 11 and 13 hereof, the
Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts giving rise to such
adjustment, (b) promptly file with the Rights Agent and with each
transfer agent for the Common Stock a copy of such certificate and (c)
mail a brief summary thereof to each record holder of a Right (or, if
prior to the Distribution Date, to each holder of Common Stock) in
accordance with Section 25 hereof.
Notwithstanding the foregoing sentence, the failure of the Company to
give such notice shall not affect the validity of or the force or
effect of or the requirement for such adjustment. The Rights Agent
shall be fully protected in relying on any certificate prepared by the
Company pursuant to Sections 11 and 13 and on any adjustment therein
contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power.
(a) In the event that, at anytime on or after the Stock
Acquisition Date, directly or indirectly, (x) the Company shall
consolidate with any other Person or Persons or shall merge with
and into any other Person or Persons and the Company shall not
be the surviving or continuing corporation of such merger, or
(y) any Person or Persons shall merge with and into the Company,
and the Company shall be the continuing or surviving corporation
of such merger and, in connection with such merger, all or part
of the outstanding shares of Common stock shall be changed into
or exchanged for stock or other securities of any other Person
or of the Company or cash or any other property, or (z) the
Company or one or more of its subsidiaries shall sell or
otherwise transfer to any other Person or any Affiliate or
Associate of such Person, in one or more transactions, or the
Company or one or more of its Subsidiaries shall sell or
otherwise transfer to any Person in one or a series of related
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole), then, on the first occurrence
of any such event, except as may be contemplated by Section
13(d), proper provision shall be made so that (i) each holder of
record of a Right, other than as provided in Section 11(a)(ii),
shall thereafter have the right to receive, upon the exercise
thereof and payment of the aggregate Purchase Price with respect
to the total number of shares for which a Right was exercisable
immediately prior to the first occurrence of a Section 13 Event
(or, if earlier, the first occurrence of a Section 11(a)(ii)
Event) in accordance with the terms of this Rights Agreement,
such number of shares of validly issued, fully paid and
nonassessable and freely tradeable Common Stock of the Principal
Party (as defined herein) not subject to any liens,
encumbrances, rights of first refusal or other adverse claims,
as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the number of shares of Common
Stock for which a Right was exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first occurrence of a
Section 13 Event, multiplying the Purchase Price in effect
immediately prior to the first occurrence of a Section 11(a)(ii)
Event by the number of shares of Common Stock for which a Right
was exercisable immediately prior to such first occurrence of a
Section 11(a)(ii) Event) and (2) dividing that product by 50% of
the Current Market Price (determined as provided in Section
11(d) hereof with respect to the Common Stock) per share of the
Common Stock of such Principal Party on the date of consummation
of such Section 13 Event; provided that the Purchase Price and
the number of shares of Common Stock of such Principal Party
issuable upon exercise of each Right shall be further adjusted
as provided in this Agreement to reflect any events occurring
after the date of the first occurrence of a Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Rights
Agreement; (iii) the term "Company" for all purposes of this
Rights Agreement shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; 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 with Section
9 hereof) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; provided, however,
that, upon the subsequent occurrence of any merger,
consolidation, sale of all or substantially all of the assets,
recapitalization, reclassification of shares, reorganization or
other extraordinary transaction in respect of such Principal
Party, each holder of a Right shall thereupon be entitled to
receive, upon exercise or a Right and payment of the Purchase
Price, such cash, shares, rights, warrants and other property
which such holder would have been entitled to receive had he, at
the time of such transaction, owned the shares of Common Stock
of the Principal Party purchasable upon the exercise of a Right,
and such Principal Party shall take such steps (including, but
not limited to, reservation of shares of stock) as may be
necessary to permit the subsequent exercise of the Rights in
accordance with the terms hereof for such cash, shares, rights,
warrants and other property and (v) the provisions of Section
11(a)(ii) hereof shall be of no effect following the occurrence
of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (x)
or (y) of the first sentence of Section 13(a) hereof;
(A) the Person that is the issuer of the securities into
which shares of Common stock of the Company are
converted in such merger or consolidation, or, if there
is more than one such issuer, the issuer the Common
Stock of which has the greatest aggregate market value
of shares outstanding or (B) if no securities are so
issued, (x) the Person that is the other party to the
merger, if such Person survives said merger or, if there
is more than one such Person, the Person the Common
Stock of which has the greatest aggregate market value
of shares outstanding or (y) if the Person that is the
other party to the merger does not survive the merger,
the Person that does survive the merger (including the
Company if it survives) or (x) the Person resulting from
the consolidation; and
(ii) in the case of any transaction described in (z)
of the first sentence in Section 13(a) hereof, the
Person that is the party receiving the greatest portion
of the assets or earning power transferred pursuant to
such transaction or transactions, or, if each Person
that is a party to such transaction or transactions
receives the same portion of the assets or earning power
so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be
determined, whichever of such Persons as is the issuer
of Common Stock having the greatest aggregate market
value of shares outstanding.
provided, however, that in any such case described in the
foregoing (b)(i) or (b)(ii), if the Common Stock of such Person
is not at such time or has not been continuously over the
preceding 12-month period registered under Section 12 of the
Exchange Act, and (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and
has been so registered, the term "Principal Party" shall refer
to such other Person, or (2) if such Person is a Subsidiary,
directly or indirectly, of more than one Person, the Common
stocks of all of which are and have been so registered, the term
"Principal Party" shall refer to whichever of such Persons is
the issuer of the Common Stock having the greatest aggregate
market value of shares outstanding or (3) if 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 clauses (1) and (2)
above shall apply to each of the owners having an interest in
the venture as if the Person owned by the joint venture was a
Subsidiary of both or all of such joint venturers, and the
Principal Party in each such case shall bear the obligations set
forth in this Section 13 in the same ratio as its interest in
such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation,
merger, sale or transfer referred to in Section 13(a) unless
prior thereto the Company and the Principal Party involved
therein shall have executed and delivered to the Rights Agent an
agreement confirming that the requirements of Sections 13(a) and
(b) hereof shall promptly be performed in accordance with their
terms and that such consolidation, merger, sale or transfer of
assets shall not result in a default by the Principal Party
under this Rights Agreement as the same shall have been assumed
by the Principal Party pursuant to Sections 13(a) and (b) hereof
and further providing that, as soon as practicable after
executing such agreement pursuant to this Section 13, the
Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, 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 Securities Act) until the Expiration Date, and
similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Common Stock of the
Principal Party shall become listed on a national
securities exchange, to list (or continue the listing of)
the Rights and the securities purchasable upon exercise of
the Rights on such securities exchange and, if the Common
Stock of the Principal Party shall not be listed on a
national securities exchange, to cause the Rights and the
securities purchasable upon exercise of the Rights to be
reported by NASDAQ or such other system then in use;
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply
in all respects with the requirements for registration on
Form 10 (or any successor form) under the Exchange Act;
and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the shares of Common Stock
of the Principal Party subject to purchase upon exercise
of outstanding Rights.
In the event that any of the transactions described in Section
13(a) hereof shall occur at any time after the occurrence of a
transaction described in Section 11(a)(ii) hereof, the Rights
which have not theretofore been exercised shall thereafter be
exercisable in the manner described in Section 13(a).
(d) Furthermore, in case the Principal Party which is to
be a party to a transaction referred to in this Section 13 has
provision in any of its authorized securities or in its
Certificate of Incorporation or By-laws or other instrument
governing its corporate affairs, which provision would have the
effect of (i) causing such Principal Party to issue, in
connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, shares of Common
stock of such Principal Party at less than the then Current
Market Price per share (determined pursuant to Section 11(d)
hereof) or securities exercisable for, or convertible into,
Common Stock of such Principal Party at less than such then
Current Market Price (other than to holders of Rights pursuant
to this Section 13) or (ii) providing for any special payment,
tax or similar provisions in connection with the issuance of the
Common Stock of such Principal Party pursuant to the provisions
of Section 13; then, in such event, the Company hereby agrees
with each holder of Rights that it shall not consummate any such
transaction unless prior thereto the Company and such Principal
Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question
of such Principal Party shall have been cancelled, waived or
amended, or that the authorized securities shall be redeemed, so
that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed
transaction.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions
of Rights or to distribute Right Certificates which evidence
fractional Rights. If the Company shall not issue fractions of
Rights, in lieu of such fractional Rights, there shall be paid
to the holders of record of the Right Certificates with regard
to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the then current
market value of a whole Right. For the purposes of this Section
14(a), the then current market value of a Right shall be the
closing price of the Rights for the Trading Day immediately
prior to the date on which fractional Rights would have been
issuable, determined in the same manner as the closing price of
a share of Common Stock shall be determined pursuant to Section
11(d) hereof.
(b) The Company shall not be required to issue fractions
of shares of Common Stock or other securities of the Company
upon exercise of the Rights or to distribute certificates which
evidence fractional shares. In lieu of issuing fractions of
shares of Common Stock or other securities of the Company, there
shall be paid to the holders of record 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
then current market value of a share of Common Stock or other
securities of the Company. For purposes of this Section 14(b),
the then current market value of a share of Common Stock or
other securities of the Company shall be the closing price
thereof for the Trading Day immediately prior to the date of
such exercise, as determined pursuant to Section 11(d) hereof or
in the same manner as the closing price of a share of Common
Stock shall be determined pursuant to Section 11(d) hereof, as
the case may be.
(c) The holder of a Right by the acceptance of a Right
expressly waives his right to receive any fractional Right or
any fractional shares of Common Stock or other securities of the
Company upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect
of this Agreement are vested in the respective holders of record of the
Right Certificates (and, prior to the Distribution Date, the holders of
record of the Common Stock); and any holder of record of any Right
Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other
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 or any other Person to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right Certificate in
the manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders
of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this
Agreement and, accordingly, that they will be entitled to specific
performance of the obligations under, and injunctive relief against
actual or threatened violations of, the obligations of any Person
subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right
by accepting the same consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will not be
evidenced by a Right Certificate and will be transferable only
in connection with the transfer of Common Stock;
(b) after the Distribution Date, the Right Certificates
will be transferable only on the registry books of the Rights
Agent if surrendered at the shareholder services office of the
Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer;
(c) the Company and the Rights Agent may deem and treat
the person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificate or the associated Common Stock
certificate made by anyone other than the Company or the Rights
Agent or the transfer agent of the Common stock) for all
purposes whatsoever, and neither the Company nor the Rights
Agent 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, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 17. Right Certificate Holder Not Deemed a Shareholder.
No holder of a Right, as such, shall be entitled to vote,
receive dividends in respect of or be deemed for any purpose to be the
holder of Common stock or any other securities of the Company which may
at any time be issuable upon the exercise of the Rights, nor shall
anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the
rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions affecting
shareholders, or to receive dividends or subscription rights in respect
of any such stock or securities, 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
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss, liability
or expense incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent for anything done or
omitted to be done by the Rights Agent in connection with the
acceptance and administration of this Rights Agreement,
including the cost and expenses of defending against any claim
of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or
omitted by it in connection with its administration of this
Rights Agreement in reliance upon any Right Certificate,
certificate for Common Stock or other securities of the Company,
instrument or assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it
to be genuine and to be signed, executed and, where necessary,
guaranteed, verified or acknowledged, by the proper person or
Persons.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust or stock transfer business of the Rights Agent
or any successor Rights Agent, shall be the successor to the
Rights Agent under this Rights 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 31 hereof. In case at the time such
successor Rights Agent shall succeed to the agency created by
the Rights Agreement, any of the Right Certificates shall have
been countersigned but not delivered, any such successor Rights
Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and
in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have
the full force provided in the Right Certificates and in this
Rights 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 such
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 Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Rights Agreement upon the
following terms and conditions, by all of which the Company and the
holders of Right Certificates, by their acceptance thereof, shall be
bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted to be
taken by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Rights Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by
the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman
of the Board, the President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any
Assistant Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the
Rights Agent for any action taken or suffered in good faith by
it under the provisions of this Rights Agreement in reliance
upon such certificate.
(c) The Rights Agent shall be liable hereunder only for
its own negligence, bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Rights Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Rights 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 Rights Agreement or in
any Right Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or 13
hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Common Stock
to be issued pursuant to this Rights Agreement or any Right
Certificate or as to whether any shares of Common Stock will,
when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Rights 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 or the President
or any Vice President or the Secretary or any Assistant
Secretary or the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be
liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or otherwise act as fully
and freely as though it were not the Rights Agent under this
Rights Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for
any other entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any
such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
(j) If, with respect to any Rights Certificates
surrendered to the Rights Agent for exercise or transfer, the
certificate contained in the form of assignment or the form of
election to purchase set forth on the reverse thereof, as the
case may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights
Agent shall not take any further action with respect to such
requested exercise of transfer without first consulting with the
Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties
under this Rights Agreement upon 30 days' notice in writing mailed to
the Company and to each transfer agent of the Common Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent (with or without cause) upon 30
days' notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common
Stock by registered or certified mail, and to the holders of the Right
Certificates by first class mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. Notwithstanding the
foregoing provisions of this Section 21, in no event shall the
resignation or removal of a Rights Agent be effective until a successor
Rights Agent shall have been appointed and have accepted such
appointment. 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 incumbent Rights Agent or the holder of record
of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court,
shall be (a) a corporation organized and doing business under the laws
of the United States or any State 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 $50,000,000 or
(b) an Affiliate controlled by a corporation described in clause (a) of
this sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and transfer to
the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance, conveyance,
act or deed necessary for the purpose. Not later than the effective
date of any such appointment the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of
the Common Stock, and mail a notice thereof in writing to the
registered holders of the Right Certificates. Failure to give any
notice provided for in this Section 21, however, or any defect therein,
shall not affect the legality or validity of the resignation or removal
of the Rights Agent or the appointment of the successor Rights Agent,
as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this Rights 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 the Board of
Directors to reflect any adjustment or change in the Purchase Price and
the number or kind or class of shares of stock or other securities or
property purchasable under the Right Certificates made in accordance
with the provisions of this Rights Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company may, with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, or upon the
exercise, conversion or exchange of securities hereafter issued by the
Company, or in any other case, if deemed necessary or appropriate by
the Board of Directors, issue Right Certificates representing the
appropriate number of Rights in connection with such issuance or sale;
provided, however, that (i) no such Right Certificate shall be issued
if, and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material adverse
tax consequences to the Company or the Person to whom such Rights
Certificate would be issued, and (ii) no such Rights Certificate shall
be issued, if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its
option, at any time prior to the earlier of (i) the close of
business on the tenth day following the Stock Acquisition Date,
subject to extension by the Board of Directors as provided in
Section 26 hereof, or (ii) the close of business on the Final
Expiration Date, cause the Company to redeem all but not less
than all of the then outstanding Rights at a redemption price of
$0.01 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").
Notwithstanding anything contained in this Rights Agreement to
the contrary, the Rights shall not be exercisable after the
first occurrence of any of the transactions referred to in
Section 11(a)(ii) hereof until such time as the Board of
Directors' right of redemption hereunder has expired.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the redemption of the Rights, 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, without any interest thereon. Within 10 days after the
action of the Board of Directors ordering the redemption of the
Rights, the Company shall give notice of such redemption to the
holders of the then outstanding Rights by mailing such notice to
all such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent of the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made and the
time for such payment. The failure to give notice required by
this Section 23(b) or any defect therein shall not affect the
legality or validity of the action taken by the Company.
(c) The Board of Directors may, until a Triggering Event
shall have occurred, upon written notice (including notice by
telecopy) to the Rights Agent, determine to waive the
application of either Section 13 or Section 11 (a) (ii),
whichever is applicable, to a Triggering Event.
Section 24. Notice of Proposed Actions.
(a) In case the Company, after the earlier of the
Distribution Date or the Stock Acquisition Date, shall propose
(i) to effect any of the transactions referred to in Section
11(a)(i) or to pay any dividend to the holders of record of its
Common Stock payable in stock of any class or to make any other
distribution to the holders of record of its Common Stock (other
than a regular quarterly cash dividend), or (ii) to offer to the
holders of record of its Common Stock options, warrants, or
other rights to subscribe for or to purchase shares of Common
Stock (including any security convertible into or exchangeable
for Common Stock) or shares of stock of any class or any other
securities, options, warrants, convertible or exchangeable
securities or other rights, or (iii) to effect any
reclassification of its Common Stock or any recapitalization or
reorganization of the Company, or (iv) to effect any
consolidation or merger with or into, or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to
effect any sale or other transfer), in one or more transactions,
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, 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 record of a Right Certificate, in
accordance with Section 25 hereof, notice of such proposed
action, which shall specify the record date for the purpose of
such transaction referred to in Section 11(a)(i), or such
dividend or distribution, or the date on which such
reclassification, recapitalization, reorganization,
consolidation, merger, sale or transfer of assets, liquidation,
dissolution, or winding up is to take place and the record date
for determining participation therein by the holders of record
of Common Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of record of the Common Stock for
purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of record of Common Stock, whichever shall be the
earlier. The failure to give notice required by this Section 24
or any defect therein shall not affect the legality or validity
of the action taken by the Company or the vote upon any such
action.
(b) In case any of the transactions referred to in Section
11(a)(ii)(A) or (C) or Section 13 of this Rights Agreement are
proposed after the earlier of the Distribution Date or the Stock
Acquisition Date, then, in any such case, the Company shall give
to each holder of Rights, in accordance with Section 25 hereof,
notice of the proposal of such transaction, which notice shall
specify the proposed event and the consequences of the event to
holders of Rights under Section 11(a)(ii)(A) or (C) or Section
13 hereof, as the case may be, and, upon consummating such
transaction, shall similarly give notice thereof to each holder
of Rights.
Section 25. Notices. Notices or demands authorized by this
Rights Agreement to be given or made by the Rights Agent or by the
holder of record of any Right Certificate or Right 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:
MATLACK SYSTEMS, INC.
2200 Concord Pike
Wilmington, DE 19803
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand
authorized by this Rights Agreement to be given or made by the Company
or by the holder of record of any Right Certificate or Right to or on
the Rights Agent shall be sufficiently given or made if sent by first
class mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
Registrar and Transfer Company
10 Commerce Drive
Cranford, NJ 07016
Notices or demands authorized by this Rights Agreement to be given or
made by the Company or the Rights Agent to the holder of record of any
Right Certificate or Right 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 it appears upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books
of the Transfer Agent.
Section 26. Supplements and Amendments. For as long as the
Rights are then redeemable and except as provided in the penultimate
sentence of this Section 26, the Company may in its sole and absolute
discretion, 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 the Rights or the Common Stock. At any time
when the Rights are not then redeemable and except as provided in the
penultimate sentence of this Section 26, the Company may, and the
Rights Agent shall if the Company so directs, supplement or amend this
Agreement without the approval of any holders of 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, or (iii) to change or supplement the
provisions hereunder in any manner which the Company may deem necessary
or desirable; provided, that no such supplement or amendment shall
adversely affect the interests of the holders of Right Certificates as
such (other than any Acquiring Person who became such other than
pursuant to a Permitted Tender Offer or has participated in a Section
11(a)(ii) Event or an Affiliate or Associate of such an Acquiring
Person); provided, further, that this Rights 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
or this Agreement amended at the sole and absolute discretion of the
Company 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 as such (other than any Acquiring Person who
became such other than pursuant to a Permitted Tender Offer or has
participated in a Section 11(a)(ii) or an Affiliate or Associate of
such an Acquiring Person). Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this Section
26, the Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Rights Agreement to the
contrary, no supplement or amendment shall be made which changes the
Redemption Price, the Final Expiration Date or the number of shares of
Common Stock for which a Right is exercisable. 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 27. Successors. All of the covenants and provisions of
this Rights 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 28. Benefits of this Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any person or
corporation other than the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date,
the Common Stock) any legal or equitable right, remedy or claim under
this Rights Agreement; but this Rights Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the holders
of record of the Right Certificates (and, prior to the Distribution
Date, the Common Stock).
Section 29. Delaware Contract. This Rights Agreement and each
Right Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such
state.
Section 30. Counterparts. This Rights 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 31. Descriptive Headings. Descriptive headings of the
several sections of this Rights Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any
of the provisions hereof.
Section 32. Severability. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other authority to be invalid, illegal, or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Rights Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first above
written.
Attest: MATLACK SYSTEMS, INC.
By: /s/ Klaus M. Belohoubek By: /s/ John W. Rollins, Jr.
Klaus M. Belohoubek John W. Rollins, Jr.
Assistant Secretary Chairman of the Board
Attest: Registrar and Transfer Company
By: /s/ William P. Tatler By: /s/ Thomas L. Montrone
William P. Tatler Thomas L. Montrone
Vice President & President
Assistant Secretary
<PAGE>
EXHIBIT A
[Form of Right Certificate]
Certificate No. Rights
NOT EXERCISABLE AFTER JUNE 30, 2009 OR EARLIER IF REDEEMED.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.01 PER RIGHT (SUBJECT TO ADJUSTMENT) ON THE
TERMS SET FORTH IN THE RIGHTS AGREEMENT. IN THE EVENT THAT
THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE ISSUED TO A
PERSON WHO IS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE
OF AN ACQUIRING PERSON OR A TRANSFEREE OF THE RIGHTS
PREVIOUSLY OWNED BY SUCH PERSONS, THIS RIGHT CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 11(a)(ii) OF THE RIGHTS
AGREEMENT.
Right Certificate
MATLACK SYSTEMS, INC.
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
June 1, 1999 ("Rights Agreement") between MATLACK SYSTEMS, INC., a
Delaware corporation ("Company"), and Registrar and Transfer Company
("Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and
prior to 5:00 P.M. (New York City time) on June 30, 2009 at the
principal office of the Rights Agent, or its successors as Rights
Agent, in New York, New York, one fully paid and non-assessable share
of Common Stock, par value $1.00 per share ("Common stock"), of the
Company at a purchase price of $60 as the same may from time to time be
adjusted in accordance with the Rights Agreement ("Purchase Price"),
upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed.
As provided in the Rights Agreement, the Purchase Price and the
number of shares of Common Stock which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain events
and, upon the happening of certain events, securities other than shares
of Common Stock, or other property, may be acquired upon exercise of
the Rights evidenced by this Right Certificate, as provided by the
Rights Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are 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 of the Rights Agent, the Company and
the holders of record of this Right Certificate. Copies of the Rights
Agreement are on file at the principal executive office of the Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the shareholder services office of the
Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder of record to purchase a like aggregate number of shares of
Common Stock as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase.
If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive, upon surrender hereof, another Right
Certificate or Right Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company by the
action of the Board of Directors at its option at a redemption price of
$0.01 per Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition date (as
such time period may be extended pursuant to the Rights Agreement) and
(ii) the Final Expiration Date.
No fractional shares of Common Stock or other securities of the
Company are required to be issued upon the exercise of any Right or
Rights evidenced hereby, and in lieu thereof, as provided in the Rights
Agreement, a cash payment will be made.
No holder of this Right Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of Common
Stock or of any other securities of the Company which may at any time
be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action or to receive notice of
meetings or other actions affecting shareholders or to receive
dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised as
provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of , 19 .
ATTEST: MATLACK SYSTEMS, INC.
By:
Secretary Title:
Countersigned:
REGISTRAR AND TRANSFER COMPANY, as Rights Agent
By:
Authorized signature
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to
transfer this Right Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
Rights
evidenced by this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
Attorney to transfer the within Right Certificate on the books
of the within-named Company, with full power of substitution.
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Right Certificate [ ] are
[ ] are not being sold, assigned and transferred by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, I, we or it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person or
any transferee of such Persons.
Dated: ,
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment 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.
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder desires to
exercise the Right Certificate.)
TO: MATLACK SYSTEMS, INC.
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the shares of
Common Stock issuable upon the exercise of such Rights and requests
that certificates for such share(s) be issued in the name:
(Please print name and address)
Please insert social security or other identifying number
If such number of Rights shall not be all the Rights evidenced by this
Right Certificate, a new Right Certificate for the balance remaining of
such Rights shall be registered in the name of and delivered to:
(Please print name and address)
Please insert social security or other identifying number
Dated: ,
Signature
(Signature must conform in all
respects to name/s of holder/s as
specified on the face of this Right
Certificate)
Signature Guaranteed:
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 such Acquiring
Person (as such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, I, we or it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring Person or
any transferee of such Persons.
Dated: ,
Signature
Signature Guaranteed:
