SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) July 9, 1997
MEDIMMUNE, INC.
(Exact name of registrant as specified in its charter)
Delaware 0-19131 52-1555759
(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification No.)
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
(Address of Principal
Executive Offices) (Zip Code)
Registrant's telephone number, including area code (301) 417-0770
No Change
(Former name or former address, if changed since last report)
Item 5. Other Events
On July 9, 1997, the Board of Directors of
MedImmune, Inc. (the "Company") declared a dividend
distribution of one preferred stock purchase right (a
"Right") for each outstanding share of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company.
Each Right entitles the registered holder to purchase from
the Company one one-hundredth of a share of Series B Junior
Preferred Stock, par value $.01 per share (the "Preferred
Stock") at a price of $100 per one one-hundredth of a share
( the "Exercise Price"), subject to adjustment. The
description and terms of the Rights are set forth in a
Rights Agreement, dated as of July 9, 1997 (the "Rights
Agreement"), between the Company and American Stock Transfer
& Trust Company, as Rights Agent ("Rights Agent").
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding and no separate Rights Certificate will be
distributed. The Rights will separate from the Common Stock
and a "Distribution Date" will occur upon the day which is
the earlier of (i) the tenth day following a public
announcement that a person or group of affiliated or
associated persons, with certain exceptions set forth below,
has acquired beneficial ownership of 20% or more of any
class of the outstanding voting stock of the Company (an
"Acquiring Person") and (ii) the tenth business day after
the date of the commencement or announcement of a person's
or group's intention to commence a tender or exchange offer
the consummation of which would result in the ownership of
20% or more of any class of the Company's outstanding voting
stock (even if no shares are actually purchased pursuant to
such offer), or such later date as may be determined by a
majority of the Board of Directors and the Continuing
Directors (as defined below).
An Acquiring Person does not include the Company,
any subsidiary of the Company, any employee benefit plan or
employee stock plan of the Company or any person or group
whose ownership of 20% or more of the shares of any class of
voting stock of the Company then outstanding results solely
from (i) any action or transaction or transactions approved
by a majority of the Board of Directors and the Continuing
Directors before such person or group became an Acquiring
Person or (ii) a reduction in the number of issued and
outstanding shares of voting stock of the Company pursuant
to a transaction or transactions approved by a majority of
the Board of Directors and the Continuing Directors.
Page 2
The term Continuing Directors means any member of
the Board of Directors of the Company who was a member of
the Board prior to the adoption of the Rights Plan and any
person who is subsequently elected to the Board if such
person is recommended or approved by a majority of the
Continuing Directors, but does not include an Acquiring
Person, or an affiliate or associate of an Acquiring Person,
or any representative of the foregoing entities.
In the event that, without the approval of the
Board of Directors (and the Continuing Directors), an
Acquiring Person becomes the beneficial owner of 20% or more
of the then outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer
for all outstanding shares of the Company, at a price
determined by a majority of the independent directors of the
Company who are not representatives, nominees, Affiliates or
Associates of an Acquiring Person to be fair and otherwise
in the best interest of the Company and its stockholders),
each holder of a Right will thereafter have the right to
receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or to the securities of the
Company) having a value equal to two times the Exercise
Price. Notwithstanding any of the foregoing, following the
occurrence of the event set forth in this paragraph (the
"Flip-In Event"), all Rights that are or (under certain
circumstances specified in the Rights Agreement) were
beneficially owned by any Acquiring Person will be null and
void. However, Rights are not exercisable following the
occurrence of the Flip-In Event set for the above until such
time as the Rights are no longer redeemable by the Company
as set forth below.
In the event that following the Stock Acquisition
Date, without the approval of the Board of Directors (and
the Continuing Directors), (i) the Company engages in a
merger or business combination transaction in which the
Company is not the surviving corporation (other than a
merger that follows a tender offer determined to be fair to
the stockholders of the Company, as described in the
preceding paragraph); (ii) the Company engages in a merger
or business combination transaction in which the Company is
the surviving corporation and the Common Stock is changed or
exchanged; or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right
(except Rights which have previously been voided as set
forth above) shall thereafter have the right to receive,
upon exercise of the Right, common stock of the acquiring
company having a value equal to two times the Exercise
Price.
Page 3
The Exercise Price and the number of Units of
Preferred 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 Preferred Stock, (ii) if holders of
the Preferred Stock are granted certain rights or warrants
to subscribe for Preferred Stock or convertible securities
at less than the Current Market Price of the Preferred
Stock, or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of
subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights and the number of
Units of Preferred Stock issuable upon exercise of each
Right are also subject to adjustment in the event of a stock
split of the Common Stock or a dividend on the Common Stock
payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such
case, prior to the Distribution Date.
Fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth
of a share) may, at the election of the Company, be
evidenced by depositary receipts. The Company may also
issue cash in lieu of fractional shares which are not
integral multiples of one one-hundredth of a share.
The Rights are not exercisable until the
Distribution Date. The Rights will expire at the close of
business on July 9, 2007, unless earlier redeemed or
exchanged by the Company, in each case as described below.
Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates
issued after July 21, 1997 will contain a legend
incorporating the Rights Agreement by reference. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Rights Certificates")
will be mailed to holders of record of the Common Stock as
of the close of business on the Distribution Date and such
separate certificates alone will evidence the Rights from
and after the Distribution Date.
The Company may redeem the Right in whole, but not
in part, any time on or prior to the close of business on
the earlier of (i) the tenth day after the time that a
person (or group of affiliated or associated persons) has
become an Acquiring Person (or such later date as a majority
of the Board of Directors and the Continuing Directors may
determine) or (ii) July 9, 2007, at a price of $.01 per
Page 4
Right (the "Redemption Price"), with the approval of the
Continuing Directors. Immediately upon the effective time
of the action of the Board of Directors of the Company
authorizing redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders
of Rights will be to receive the Redemption Price.
For as long as the Rights are then redeemable, the
Company may 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 materially adversely affect the interests of
holders of the Rights as such. Amendments to the Rights
Agreement require the approval of the Continuing Directors.
The Company may exchange, in whole or in part, the
Rights (other than Rights owned by an Acquiring Person) at
any time after a person (or group of affiliated or
associated persons) becomes an Acquiring Person and prior to
the acquisition by any such person or group of 50% or more
of any class of outstanding voting stock of the Company, at
an exchange ratio of one share of Common Stock per Right
(subject to adjustment).
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.
Item 7. Financial Statements, Pro Forma
Financial Information and Exhibits.
(a) Not applicable
(b) Not applicable
(c) Exhibit 1
Rights Agreement, dated as of
July 9, 1997, between
MedImmune, Inc. and American
Stock Transfer & Trust
Company, as Rights Agent. The
Rights Agreement includes the
Form of Certificate of
Designations of Series B
junior Preferred Stock as
Exhibit A, the Summary of
Rights as Exhibit B and the
form of Rights Certificate as
Exhibit C.
Page 5
SIGNATURES
Pursuant to the requirements of Section 13 or
15(d) of the Securities Exchange Act of 1934, the registrant
has duly caused this Report to be signed on its behalf by
the undersigned thereunto duly authorized.
MEDIMMUNE, INC.
Dated: July 9, 1997 /s/ David M. Mott
President and Chief Operating
Officer (Principal financial and
accounting officer)
Page 6
EXHIBIT INDEX
Sequentially
Exhibit No. Description Numbered Page
1 Rights Agreement, dated as of July 8
9, 1997, between MedImmune, Inc.
and American Stock Transfer & Trust
Company, as Rights Agent. The
Rights Agreement includes the Form
of Certificate of Designations of
Series B Junior Preferred Stock as
Exhibit A, the Summary of Rights as
Exhibit B and the form of Rights
Certificate as Exhibit C.
Page 7
MEDIMMUNE, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
Rights Agreement
Dated as of July 9, 1997
Page 8
TABLE OF CONTENTS
Section Page
1. Certain Definitions 2
2. Appointment of Rights Agent 12
3. Issuance of Rights Certificates 12
4. Form of Rights Certificates 15
5. Countersignature and Registration 16
6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or
Stolen Rights Certificates 17
7. Exercise of Rights; Exercise Price; Expiration
Date of Rights 19
8. Cancellation and Destruction of Rights
Certificates 24
9. Reservation and Availability of Shares of
Preferred Stock 25
10. Preferred Stock Record Date 28
11. Adjustment of Exercise Price, Number and Kind of
Shares or Number of Rights 29
12. Certification of Adjusted Exercise Price or Number
of Shares 46
13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power 46
14. Fractional Rights and Fractional Shares 54
15. Rights of Action 55
16. Agreement of Right Holders 56
17. Rights Certificate Holder Not Deemed a Stockholder 58
18. Concerning the Rights Agent 58
19. Merger or Consolidation of, or Change in Name of,
the Rights Agent 59
20. Duties of Rights Agent 61
21. Change of Rights Agent 65
24. Exchange 69
25. Notice of Proposed Actions 73
26. Notices 75
27. Supplements and Amendments 76
28. Successors 77
29. Benefits of this Rights Agreement.
30. Determinations and Actions by the Board; etc. 77
31. Delaware Contract 78
32. Counterparts 79
33. Descriptive Headings 79
34. Severability 79
Exhibit A -- Form of Certificate of
Designations of Series B Junior
Preferred Stock
Exhibit B -- Summary of Rights
Exhibit C -- Form of Rights Certificate
RIGHTS AGREEMENT
Agreement, dated as of July 9, 1997 by and between
MEDIMMUNE, INC., a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company (the "Rights
Agent").
W I T N E S S E T H :
WHEREAS, on July 9, 1997, the Board of Directors
of the Company authorized the issuance, and declared a
dividend, of one right (a "Right") for each share of Common
Stock, $.01 par value per share, of the Company outstanding
as of the close of business on July 21, 1997 (the "Record
Date"), each such Right representing the right to purchase
one one-hundredth of a share of Series B Junior Preferred
Stock of the Company ("Preferred Stock") having the rights
and preferences set forth in the form of Certificate of
Designations attached hereto as Exhibit A authorized by the
Board of Directors on July 9, 1997 upon the terms and
subject to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company
further authorized the issuance of one Right (subject to
adjustment) with respect to each share of Common Stock which
may be issued between the Record Date and the earlier to
occur of the Redemption Date or the Final Expiration Date
(as such terms are hereinafter defined);
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 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 and
Associates (as such terms are hereinafter defined)
of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 20% or more
of the shares of any class of Voting Stock (as
such term is hereinafter defined) of the Company
then outstanding; provided that, an Acquiring
Person shall not include (i) an Exempt Person (as
such term is hereinafter defined) or (ii) any
Person, together with all Affiliates and
Associates of such Person, who or which would be
an Acquiring Person solely by reason of (x) being
the Beneficial Owner of shares of Voting Stock of
the Company, the Beneficial Ownership of which was
acquired by such Person pursuant to any action or
transaction or series of related actions or
transactions approved by the Board of Directors
before such Person otherwise became an Acquiring
Person or (y) a reduction in the number of issued
and outstanding shares of Voting Stock of the
Company pursuant to a transaction or a series of
related transactions approved by the Board of
Directors of the Company (upon approval, in the
case of subclauses (x) and (y), by a majority of
the Continuing Directors (as such term is
hereinafter defined)). Notwithstanding the
foregoing, if the Board of Directors of the
Company determines in good faith (upon approval by
a majority of the Continuing Directors) that a
Person who would otherwise be an "Acquiring
Person" as defined pursuant to the foregoing
provisions of this paragraph (a) has become such
inadvertently, and such Person divests as promptly
as practicable a sufficient number of shares of
Common Stock so that such Person would no longer
be an "Acquiring Person" as defined pursuant to
the foregoing provisions of this paragraph (a),
then such Person shall not be deemed an "Acquiring
Person" for any purposes of this Rights Agreement.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule
12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended ("Exchange
Act"), as in effect on the date of this Rights
Agreement.
(c) A person shall be deemed the "Beneficial
Owner" of, or to "Beneficially Own", any securities
(and correlative terms shall have correlative
meanings);
(i) which such Person or any
of such Person's Affiliates or Associates,
directly or indirectly, "beneficially owns" (as
determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act); or
(ii) which such Person or any
of such Person's Affiliates or Associates,
directly or indirectly, has (A) the right to
acquire (whether such right is exercisable
immediately or only after the passage of time or
the fulfillment of a condition or both) pursuant
to any agreement, arrangement or understanding, or
upon the exercise of conversion rights, exchange
rights, other rights (other than these Rights),
warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own",
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 (B) the right to vote, alone or in
concert with others, 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 proxy or
consent solicitation made pursuant to, and in
accordance with, the applicable rules and
regulations under the Exchange Act and (2) is not
at the time reportable by such Person on a
Schedule 13D report 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 (c)) or
disposing of any securities of the Company.
Notwithstanding anything in this
paragraph (c) to the contrary, if a Person, who
together with any other stockholders of the
Company holds, in the aggregate, greater than 50%
of the Voting Stock of the Company, approves any
action of the stockholders by written consent in
lieu of a stockholders meeting, such Person shall
be deemed to be the "Beneficial Owner" of all of
the Voting Stock that is voted pursuant to such
written consent. Further, notwithstanding
anything in this paragraph (c) 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.
Notwithstanding anything in this
paragraph (c) to the contrary, the phrase "then
outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the
Company, shall mean the number of such securities
then issued and outstanding together with the
number of such securities not then actually issued
and outstanding which such Person would be deemed
to own beneficially hereunder.
(d) "Business Day" shall mean any day other than
a Saturday, Sunday, or a day on which banking
institutions in the State of New York are authorized or
obligated by law or executive order to close.
(e) "Close of Business" on any given date shall
mean 5:00 P.M., New York time, on such date; provided,
however, that if such date is not a Business Day it
shall mean 5:00 P.M., New York time, on the next
succeeding Business Day.
(f) "Common Stock" when used with reference to
the Company shall mean the Common Stock (presently $.01
par value) 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 or, if
such other Person is a Subsidiary of another Person,
the Person or Persons which ultimately control such
first-mentioned 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 or, if such other Person is a Subsidiary of
another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(g) "Continuing Director" shall mean any member
of the Board of Directors, while such person is a
member of the Board of Directors, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative or nominee of an
Acquiring Person or of any such Affiliate or Associate,
and who either (i) was a member of the Board of
Directors on the date of this Agreement or
(ii) subsequently became a member of the Board of
Directors, and whose nomination for election or
election to the Board of Directors was recommended or
approved by a majority of the Continuing Directors then
on the Board of Directors.
(h) "Distribution Date" shall have the meaning
set forth in Section 3(b) hereof.
(i) "Exchange Act" shall have the meaning set
forth in Section 1(b) hereof.
(j) "Exempt Person" shall mean (i) the Company,
(ii) any Subsidiary of the Company or (iii) any
employee benefit plan or employee stock plan of the
Company or any Subsidiary of the Company, or any trust
or other entity organized, appointed, established or
holding Common Stock for or pursuant to the terms of
any such plan.
(k) "Exercise Price" shall have the meaning set
forth in Section 4 and 7(b) hereof.
(l) "Fair Market Value" of any property shall
mean the fair market value of such property as
determined in accordance with Section 11(d) hereof.
(m) "Final Expiration Date" shall have the
meaning set forth in Section 7(a) hereof.
(n) "Person" shall mean any individual, firm,
corporation or other entity and shall include any
successor (by merger of otherwise) of such entity.
(o) "Preferred Stock" shall mean shares of Series
B Junior Preferred Stock, $.01 par value, of the
Company and, to the extent that there is not a
sufficient number of shares of Series B Junior
Preferred Stock authorized to permit the full exercise
of the Rights, any other series of Preferred Stock,
$.01 par value, of the Company designated for such
purpose containing terms substantially similar to the
terms of the Series B Junior Preferred Stock.
(p) "Principal Party" shall have the meaning set
forth in Section 13(b) hereof.
(q) "Record Date" shall have the meaning set
forth in the recital.
(r) "Redemption Date" shall have the meaning set
forth in Section 7(a) hereof.
(s) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(t) "Rights Certificate" shall have the meaning
set forth in Section 3(d) hereof.
(u) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(v) "Stock Acquisition Date" shall mean the first
date on which there shall be a public announcement by
the Company or an Acquiring Person that an Acquiring
Person has become such (which, for purposes of this
definition, shall include, without limitation, a report
filed pursuant to Section 13(d) of the Exchange Act) or
such earlier date as a majority of the Continuing
Directors shall become aware of the existence of an
Acquiring Person.
(w) "Subsidiary" of a Person shall mean any
corporation or other entity of which securities or
other ownership interests having 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 or by any corporation or other entity that is
otherwise controlled by such Person.
(x) "Summary of Rights" shall have the meaning
set forth in Section 3(a) hereof.
(y) "Trading Day" shall have the meaning set
forth in Section 11(d) hereof.
(z) "Transfer Tax" shall mean any tax or charge,
including any documentary stamp tax, imposed or
collected by any governmental or regulatory authority
in respect of any transfer of any security, instrument
or right, including Rights, shares of Common Stock and
Shares of Preferred Stock.
(aa) "Triggering Event" shall mean any event
described in Section 11(a)(ii) or Section 13(a).
(abb) "Voting Stock" shall mean (i) the Common
Stock of the Company and (ii) any other shares of
capital stock of the Company entitled to vote generally
in the election of directors or entitled to vote
together with the Common Stock in respect of any
merger, consolidation, sale of all or substantially all
of the Company's assets, liquidation, dissolution or
winding up.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such
Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issuance of Rights Certificates.
(a) On the Record Date (or as soon as practicable
thereafter), the Company or the Rights Agent shall send a
copy of a Summary of Rights, in substantially the form
attached hereto as Exhibit B (the "Summary of Rights"), by
first class mail, postage prepaid, to each record holder of
the Common Stock as of the close of business on the Record
Date, at the address of such holder shown on the records of
the Company.
(b) Until the Close of Business on the day (or
such later date as may be determined by action of the Board
of Directors, upon approval by a majority of the Continuing
Directors) which is the earlier of (i) the tenth day after
the Stock Acquisition Date or (ii) the tenth business day
after the date of 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 any class of the then outstanding shares of
Voting Stock of the Company (irrespective of whether any
shares are actually purchased pursuant to any such offer)
(the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights shall be evidenced by
the certificates for Common Stock registered in the name of
the holders of Common Stock (together with, in the case of
certificates for Common Stock outstanding as of the Record
Date, the Summary of Rights) and not by separate Rights
Certificates and the record holders of such certificates for
Common Stock shall be the record holders of the Rights
represented thereby and (y) each Right shall be transferable
only simultaneously and together with the transfer of a
share of Common Stock (subject to adjustment as hereinafter
provided). Until the Distribution Date (or, if earlier, the
Redemption Date or Final Expiration Date), the surrender for
transfer of any certificate for Common Stock shall
constitute the surrender for transfer of the Right or Rights
associated with the Common Stock evidenced thereby, whether
or not accompanied by a copy of the Summary of Rights.
(c) Rights shall be issued in respect of all
shares of Common Stock that become outstanding after the
Record Date but prior to the earliest of the Distribution
Date, the Redemption Date or the Final 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 for
Common Stock issued (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 earliest of
the Distribution Date, the Redemption Date, or the Final
Expiration Date (or, in certain circumstances as provided in
Section 22 hereof, after the Distribution Date) shall have
impressed, printed, written or stamped thereon or otherwise
affixed thereto the following legend:
This certificate also
evidences and entitles the holder hereof
to the same number of Rights (subject to
adjustment) as the number of shares of
Common Stock represented by this
certificate, such Rights being on the
terms provided under the Rights
Agreement between MedImmune, Inc. and
American Stock Transfer & Trust Company
(the "Rights Agent"), dated as of July
9, 1997, as it may be amended from time
to time (the "Rights Agreement"), the
terms of which are incorporated herein
by reference and a copy of which is on
file at the principal executive offices
of MedImmune, Inc. Under certain
circumstances, as set forth in the
Rights Agreement, such Rights shall be
evidenced by separate certificates and
shall no longer be evidenced by this
certificate. MedImmune, Inc. shall mail
to the registered holder of this
certificate a copy of the Rights
Agreement without charge after receipt
of a written request therefor. Under
certain circumstances as provided in
Section 7(e) of the Rights Agreement,
Rights issued to or Beneficially Owned
by Acquiring Persons or their Affiliates
or Associates (as such terms are defined
in the Rights Agreement) or any
subsequent holder of such Rights shall
be null and void and may not be
transferred to any Person.
(d) As soon as practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent
will countersign, and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send), by
first class mail, postage prepaid, 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
certificate in the form provided by Section 4 hereof (a
"Rights Certificate"), evidencing one Right (subject to
adjustment as provided herein) for each share of Common
Stock so held. As of and after the Distribution Date, the
rights shall be evidenced solely by Rights Certificates and
may be transferred by the transfer of the Rights Certificate
as permitted hereby, separately and apart from any transfer
of one or more shares of Common Stock.
Section 4. Form of Rights Certificates.
The Rights Certificates (and the forms of election to
purchase shares, certificate and assignment to be printed on
the reverse thereof), when, as and if issued, shall be
substantially in the form set forth in Exhibit C hereto and
may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon 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 Common Stock
or the Rights may from time to time be listed or as the
Company may deem appropriate to conform to usage or
otherwise and as are not inconsistent with the provisions of
this Rights Agreement. Subject to the provisions of Section
22 hereof, Rights Certificates evidencing Rights whenever
issued (i) shall be dated as of the date of issuance of the
Rights they represent and (ii) subject to adjustment from
time to time as provided herein, on their face shall entitle
the holders thereof to purchase such number of shares
(including fractional shares which are integral multiples of
one-hundredth of a share) of Preferred Stock as shall be set
forth therein at the price payable upon exercise of a Right
provided by Section 7(b) hereof as the same may from time to
time be adjusted as provided herein (the "Exercise Price").
Section 5. Countersignature and Registration.
(a) Each Rights Certificate shall be executed on
behalf of the Company by its Chairman of the Board,
President, any Vice President or its Treasurer, either
manually or by facsimile signature. Each Rights Certificate
shall be countersigned by the Rights Agent manually and
shall not be valid for any purpose unless so countersigned.
In case any officer of the Company who shall have signed any
Rights Certificate shall cease to be such officer of the
Company before countersignature by the Rights Agent and
issuance and delivery of the certificate by the Company,
such Rights Certificate, nevertheless, may be countersigned
by the Rights Agent and issued and delivered with the same
force and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the
Company. Any Rights Certificate may be signed on behalf of
the Company by any person who, on the date of the execution
of such Rights Certificate, shall be a proper officer of the
Company to sign such Rights 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
or one or more offices designated as the appropriate place
for surrender of Rights Certificates upon exercise or
transfer, and in such other locations as may be required by
law, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by
each of the Rights Certificates and the date of each of the
Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed, Lost
or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 7(e),
7(f), 14 and 24 hereof, at any time after the Close of
Business on the Distribution Date, and at or prior to the
Close of Business on the earlier of the Redemption Date or
the Final Expiration Date, any Rights Certificate may be (i)
transferred or (ii) split up, combined or exchanged for one
or more other Rights Certificates, entitling the registered
holder to purchase a like number of shares of Preferred
Stock as the Rights Certificate or Rights Certificates
surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer any Rights
Certificate shall surrender the Rights Certificate at the
office of the Rights Agent designated for the surrender of
Rights Certificates with the form of certificate and
assignment on the reverse side thereof duly endorsed (or
enclosed with such Rights 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 Rights
Certificate shall make such request in writing delivered to
the Rights Agent, and shall surrender the Rights Certificate
to be split up, combined or exchanged at the office of the
Rights Agent designated therefor. Thereupon, the Rights
Agent shall countersign and deliver to the person entitled
thereto a Rights Certificate or Rights Certificates, as the
case may be, as so requested. The Company may require
payment of a sum sufficient to cover any Transfer Tax that
may be imposed in connection with any transfer, split up,
combination or exchange of any Rights Certificates.
(b) Subject to the provisions of Sections 7(e),
7(f), 14 and 24 hereof, upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them of
the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to them and,
if requested by the Company, reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, or upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the
Company shall issue and deliver a new Rights Certificate of
like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price;
Expiration Date of Rights.
(a) The Rights shall not be exercisable until,
and shall become exercisable on, the Distribution Date
(unless otherwise provided herein, including, without
limitation, the restrictions on exercisability set forth in
Sections 7(e), 23 and 24 hereof). Except as otherwise
provided herein, the Rights may be exercised, in whole or in
part, at any time commencing with the Distribution Date upon
surrender of the Rights Certificate, with the form of
election to purchase and certificate on the reverse side
thereof duly executed (with signatures duly guaranteed), to
the Rights Agent at the principal office of the Rights Agent
in New York, New York, together with payment of the Exercise
Price for each Right exercised, subject to adjustment as
hereinafter provided, at or prior to the Close of Business
on the earliest of (i) July 9, 2007 (the "Final Expiration
Date"), (ii) the date on which the Rights are redeemed as
provided in Section 23 hereof (the "Redemption Date"), (iii)
the date on which such Rights are exchanged as provided in
Section 24 hereof or (iv) the time at which the Rights
expire pursuant to Section 13(e) hereof.
(b) The Exercise Price shall initially be $100
for each one one-hundredth (1/100) of a share of Preferred
Stock issued pursuant to the exercise of a Right. The
Exercise Price and the number of shares of Preferred Stock
or other securities to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided
in Sections 11 and 13 hereof. The Exercise Price shall be
payable in lawful money of the United States of America, in
accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon
receipt of a Rights Certificate representing exercisable
Rights with the form of election to purchase and the
certificate contained therein duly executed, accompanied by
payment by certified check, cashier's check, bank draft or
money order payable to the Company of the Exercise Price for
the shares to be purchased and an amount equal to any
applicable Transfer Tax required to be paid by the holder of
the Rights Certificate in accordance with Section 9(e)
hereof, the Rights Agent shall thereupon promptly (i)
requisition from any transfer agent of the Preferred Stock
of the Company one or more certificates representing the
number of shares of Preferred Stock to be so purchased, and
the Company hereby authorizes such transfer agent to comply
with all such requests, (ii) as provided in Section 14(b),
at the election of the Company, cause depositary receipts to
be issued in lieu of fractional shares of Preferred Stock,
(iii) if the election provided for in the immediately
preceding clause (ii) has not been made, requisition from
the Company the amount of cash to be paid in lieu of the
issuance of fractional shares in accordance with section
14(b) hereof, (iv) after receipt of such Preferred Stock
certificates and, if applicable, depositary receipts, cause
the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder and
(v) when appropriate, after receipt, promptly deliver such
cash to or upon the order of the registered holder of such
Rights Certificate; provided, however, that in the case of a
purchase of securities, other than Preferred Stock, pursuant
to Section 13 hereof, the Rights Agent shall promptly take
the appropriate actions corresponding in such case to that
referred to in the foregoing clauses (i) through (v) of this
Section 7(c). Notwithstanding the foregoing provisions of
this Section 7(c), the Company may suspend the
exercisability of the Rights for a period not in excess of
ninety (90) days, during which the Company seeks to register
under the Securities Act of 1933, as amended (the "Act"),
and any applicable securities law of any other jurisdiction,
the shares of Preferred Stock to be issued pursuant to the
Rights.
(d) In case the registered holder of any Rights
Certificate shall exercise less than all the Rights
evidenced thereby, a new Rights Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall
be issued by the Rights Agent to the registered holder of
such Rights Certificate or his assign, subject to the
provisions of Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights
Agreement to the contrary, from and after the time (the
"invalidation time") when any Person first becomes an
Acquiring Person, 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 Section 7(e) (upon approval by a
majority of the Continuing Directors) and subsequent
transferees of such Persons referred to in clause (y) and
(z) above, 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 efforts to ensure that the provisions of this
Section 7(e) are complied with, but shall have no liability
to any holder of Rights Certificates or any other Person as
a result of its failure to make any determination with
respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder. No Rights 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 Section 7(e) or
any Associate or Affiliate hereof; no Rights 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 Section 7(e) or any Associate or
Affiliate thereof or to any nominee of such Acquiring
Person, Associate or Affiliate; and any Rights Certificate
delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the provisions
of this Section 7(e) shall be cancelled.
(f) Notwithstanding anything in this Agreement to
the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such
registered holder shall have (i) completed and signed the
certificate following the form of election to purchase set
forth on the reverse side of the Rights Certificate
surrendered for such exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or
exchange shall, if surrendered to the Company or 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 Rights
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
cancel and retire, any Rights Certificate purchased or
acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled
Rights Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Rights
Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares
of Preferred Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its author
ized and unissued shares of Preferred Stock or out of its
authorized and issued shares of Preferred Stock held in its
treasury, such number of shares of Preferred Stock as will
from time to time be sufficient to permit the exercise in
full of all outstanding Rights and, after the occurrence of
a Triggering Event, shall, to the extent reasonably
practicable, so reserve and keep available a sufficient
number of shares of Common Stock (and/or other securities)
which may be required to permit the exercise in full of all
outstanding Rights.
(b) If the Preferred Stock (or, following the
occurrence of a Triggering Event, the Common Stock and/or
other securities) is at any time listed on a national
securities exchange or included for quotation on any
transaction reporting system, then so long as the Preferred
Stock (and, following the occurrence of any such Triggering
Event, Common Stock and/or other securities) issuable and
deliverable upon exercise of the Rights may be listed on
such exchange or included for quotation on any such
transaction reporting system, the Company shall use its best
efforts to cause, from and after such time as the Rights
become exercisable (but only to the extent that it is
reasonably likely that the Rights will be exercised), all
shares reserved for such issuance to be listed on such
exchange or included for quotation on any such transaction
reporting system upon official notice of issuance upon such
exercise.
(c) The Company covenants and agrees that it will
take all such action as may be necessary to insure that all
shares of Preferred Stock delivered upon the exercise of
Rights (or, following the occurrence of a Triggering Event,
shares of Common Stock and/or other securities) shall, at
the time of delivery of the certificates for such shares or
other securities (subject to payment of the Exercise Price
in respect thereof), be duly and validly authorized and
issued and fully paid and nonassessable.
(d) The Company shall use its best efforts to (i)
file, as soon as practicable following the occurrence of an
event described in Section 11(a)(ii), or as soon as is
required by law following the Distribution Date, as the case
may be, a registration statement under the Act, with respect
to the securities purchasable upon exercise of the Rights on
an appropriate form, (ii) cause such registration statement
to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date
as of which the Rights are no longer exercisable for such
securities, and (b) the date of the expiration of the
Rights. The Company may temporarily suspend, for a period
of time not to exceed ninety (90) days, the exercisability
of the Rights in order to prepare and file a registration
statement under the Act and permit it to become effective.
The Company will also take such action as may be appropriate
under, or to ensure compliance with, the securities or "blue
sky" laws of the various states in connection with the
exercisability of the Rights. Notwithstanding any provision
of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction unless the requisite
qualification is such jurisdiction shall have been obtained
and until a registration statement under the Act (if
required) shall have been declared effective.
(e) The Company covenants and agrees that it will
pay when due and payable any and all U.S. federal and state
Transfer Taxes which may be payable in respect of the
issuance or delivery of the Rights Certificates or of any
shares of Preferred Stock (or, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
issued or delivered 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 a Rights Certificate to a Person other than, or
the issuance or delivery of certificates for Preferred Stock
(or, following the occurrence of a Triggering Event, Common
Stock and/or other securities) upon exercise of Rights in a
name other than that of, the registered holder of the Rights
Certificate, and the Company shall not be required to issue
or deliver a Rights Certificate or certificate for Preferred
Stock (or, following the occurrence of a Triggering Event,
Common Stock and/or other securities) to a Person other than
such registered holder until any such Transfer Tax shall
have been paid (any such Transfer Tax being payable by the
holder of such Rights Certificate at the time of surrender)
or until it has been established to the Company's
satisfaction that no such Transfer Tax is due.
Section 10. Preferred Stock Record Date. Each
Person in whose name any certificate for shares of Preferred
Stock (or Common Stock and/or other securities, as the case
may be) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of
the securities represented thereby on, and such certificate
shall be dated as of, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and
payment of the Exercise Price (and any applicable Transfer
Taxes) was made; provided, however, that, if the date of
such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as
the case may be) transfer books of the Company are closed,
such Person shall be deemed to have become the record holder
of such shares on, and such certificate shall be dated as
of, the next succeeding Business Day on which the applicable
transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a
Rights Certificate, as such, shall not be entitled to any
rights of a stockholder of the Company with respect to
shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends
or other distributions or to exercise any preemptive rights,
and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Exercise Price, Number
and Kind of Shares or Number of Rights. The Exercise Price,
the number and kind of shares which may be purchased upon
exercise of a Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in this
Section 11.
(a)(i) In the event the Company shall
at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable
in Preferred Stock, (B) subdivide the outstanding
Preferred Stock, (C) combine the outstanding
Preferred Stock into a smaller number of shares of
Preferred Stock or (D) issue any shares of its
capital stock in a reclassification of the
Preferred Stock (including any such reclassifi
cation 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 Exercise Price
in effect at the time of the record date for such
dividend or of the effective date of such subdivi
sion, combination or reclassification, and the
number and kind of shares of capital stock
issuable on such date, shall be proportionately
adjusted so that the holder of any Right exercised
after such time shall be entitled to receive the
aggregate number and kind of shares of capital
stock which, if such Right had been exercised
immediately prior to such date and at a time when
the Preferred Stock transfer books of the Company
were open, he would have owned upon such exercise
and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassifi
cation; provided, however, that in no event shall
the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of
the shares of capital stock of the Company
issuable upon exercise of one Right. If an event
occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii)
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 this Section 11(a)(ii).
(ii) Subject to Section 24 of this
Agreement, in the event that any Person (other
than an Exempt Person), alone or together with its
Affiliates and Associates, shall become an
Acquiring Person, unless the event causing such
Person to become an Acquiring Person is an
acquisition of shares of Common Stock pursuant to
a cash tender offer made pursuant to Section 14(d)
of the Exchange Act for all outstanding shares of
Common Stock (other than shares of Voting Stock
beneficially owned by the Person making the offer
or by its Affiliates or Associates) at a price and
on terms determined by at least a majority of the
Continuing Directors to be (a) at a price which is
fair to stockholders (taking into account all
factors which such members of the Board deem
relevant, including, without limitation, prices
which could reasonably be achieved if the Company
or its assets were sold on an orderly basis
designed to realize maximum value) and (b)
otherwise in the best interests of the Company and
its stockholders, then, except as otherwise
provided in this Section 11, each holder of a
Right, except as provided in Section 7(e) hereof,
shall thereafter have the right to receive, upon
exercise of such Right at a price equal to the
then current Exercise Price multiplied by the
number of one one-hundredths of a share of
Preferred Stock for which a Right is then exercis
able, in accordance with the terms of this
Agreement and in lieu of Preferred Stock, such
number of shares of Common Stock of the Company as
shall equal the result obtained by (x) multiplying
the then current Exercise Price by the number of
one one-hundredths of a share of Preferred Stock
for which a Right is then exercisable and dividing
that product by (y) 50% of the Fair Market Value
of the Company's Common Stock (determined pursuant
to Section 11(d) hereof) on the date of the
occurrence of such event; provided, however, 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).
(iii) In lieu of issuing Common
Stock in accordance with Section 11(a)(ii) hereof,
the Company may, if the Board of Directors of the
Company, upon approval by a majority of the
Continuing Directors, determines that such action
is necessary or appropriate and not contrary to
the interest of holders of Rights (and, in the
event that the number of shares of Common Stock
which are authorized by the Company's Restated
Certificate of Incorporation but not outstanding
or reserved for issuance for purposes other than
upon exercise of the Rights are not sufficient to
permit the exercise in full of the Rights, the
Company shall): (A) determine the excess of (1)
the value of the Common Stock issuable upon the
exercise of a Right (the "Current Value") over (2)
the Exercise Price (such excess being referred to
as the "Spread") and (B) with respect to each
Right, make adequate provision to substitute for
such Common Stock, upon exercise of the Rights,
(1) cash, (2) a reduction in the Exercise Price,
(3) other equity securities of the Company
(including, without limitation, shares or units of
shares of any series of preferred stock which the
Board of Directors of the Company, upon approval
by a majority of the Continuing Directors, has
deemed to have the same value as Common Stock
(such shares or units of shares of preferred stock
are herein called "common stock equivalents")),
(4) debt securities of the Company, (5) other
assets or (6) any combination of the foregoing,
having an aggregate value equal to the Current
Value, where such aggregate value has been
determined by the Board of Directors of the
Company, upon approval by a majority of the
Continuing Directors; provided, however, if the
Company shall not have made adequate provision to
deliver value pursuant to clause (B) above within
thirty (30) days following the occurrence of an
event described in Section 11(a)(ii), then the
Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without
requiring payment of the Exercise Price, Common
Stock (to the extent available), and then, if
necessary, cash, which shares and/or cash have an
aggregate value equal to the Spread. If the Board
of Directors, upon approval by a majority of the
Continuing Directors, shall determine in good
faith that it is likely that sufficient additional
Common Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the
extent necessary, but not more than ninety (90)
days after the occurrence of an event described in
Section 11(a)(ii), in order that the Company may
seek stockholder approval for the authorization of
such additional shares. To the extent that the
Company determines that some action need be taken
pursuant to the preceding sentences of this
Section 11(a)(iii), the Company may suspend the
exercisability of the Rights until the expiration
of any such period, as extended, in order to seek
any authorization of additional shares and/or to
decide the appropriate form of distribution to be
made pursuant to this Section 11(a)(iii) and to
determine the value thereof. In the event of any
such suspension, the Company shall issue a public
announcement stating that the exercisability of
the Rights has been temporarily suspended, as well
as a public announcement at such time as the
suspension is no longer in effect and shall
promptly notify the Rights Agent of such suspen
sion. For purposes of this Section 11(a)(iii),
the value of the Common Stock shall be the Fair
Market Value (as determined pursuant to Section
11(d) hereof) per share of the Common Stock at the
Close of Business on the date of the occurrence of
an event described in Section 11(a)(ii) and the
value of any "common stock equivalent" shall be
deemed to have the same value as the Common stock
on such date.
(b) In the event that the Company shall, after
the Record Date, fix a record date for the issuance of
rights, options or warrants to all holders of Preferred
Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Preferred Stock (or shares having the same rights,
privileges and preferences as the Preferred Stock
("equivalent preferred stock")) or securities convertible
into Preferred Stock or equivalent preferred stock at a
price per share of Preferred Stock or equivalent preferred
stock (or having a conversion price per share, if a security
convertible into Preferred Stock or equivalent preferred
stock) less than the Fair Market Value per share of the
Preferred Stock (as defined in Section 11(d)) on such record
date, the Exercise Price to be in effect after such record
date shall be determined by multiplying the Exercise Price
in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Preferred Stock outstanding on such record date
plus the number of shares of Preferred Stock which the
aggregate offering price of the total number of shares of
Preferred Stock and/or the equivalent preferred stock so to
be offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase
at such Fair Market Value and the denominator of which shall
be the number of shares of Preferred Stock outstanding on
such record date plus the number of additional shares of
Preferred Stock and/or equivalent preferred stock to be
offered for subscription or purchase (or into which the
convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the
consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right.
Preferred Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in
the event that such rights, options or warrants are not so
issued, the Exercise Price shall be adjusted to be the
Exercise Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date
for the making of a distribution to all holders of the
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) or
evidences of indebtedness or assets (other than a regular
quarterly cash dividend or a dividend payable in Preferred
Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Exercise Price to
be in effect after such record date shall be determined by
multiplying the Exercise Price in effect immediately prior
to such record date by a fraction, the numerator of which
shall be the Fair Market Value per share of the Preferred
Stock on such record date, less the Fair Market Value of the
portion of the assets or evidences of indebtedness so to be
distributed or of such subscription rights or warrants
applicable to one share of Preferred Stock and the
denominator of which shall be the Fair Market Value per
share of the Preferred Stock; provided, however, that in no
event shall the consideration to be paid upon the exercise
of one Right be less than the aggregate par value of the
shares of capital stock of the Company to be issued upon
exercise of one Right. Such adjustments shall be made
successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the
Exercise Price shall again be adjusted to be the Exercise
Price which would then be in effect if such record date had
not been fixed.
(d) For the purpose of this Rights Agreement, the
"Fair Market Value" of any share of Preferred Stock, Common
Stock or any other stock or any Rights or other security or
any other property on any date shall be determined as
provided in this Section 11(d). In the case of a publicly-
traded stock or other security, the Fair Market Value on any
date shall be deemed to be the average of the daily closing
prices per share of such stock or per unit of such other
security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the Fair Market
Value per share of any security is determined during a
period which includes any date that is within 30 Trading
Days after (i) the ex-dividend date for a dividend or
distribution on such security payable in shares of such
security or securities convertible into shares of such
security, or (ii) the effective date of any subdivision,
split, combination, consolidation, reverse stock split or
reclassification of such security, then, and in each such
case, the Fair Market Value shall be appropriately adjusted
by the Board of Directors of the Company to take into
account ex-dividend or post-effective date trading. The
closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices,
regular way (in either case, as reported in the applicable
transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock
Exchange), or, if the securities are not listed or admitted
to trading on the New York Stock Exchange, as reported in
the applicable transaction reporting system with respect to
securities listed on the principal national securities
exchange on which such security is listed or admitted to
trading; or, if not listed or admitted to trading on any
national securities exchange, the last quoted price (or, if
not so quoted, the average of the high bid and low asked
prices) in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in
use; or, if no bids for such security are 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 such security selected by the Board of Directors
of the Company (upon approval by a majority of the
Continuing Directors). The term "Trading Day" shall mean a
day on which the principal national securities exchange on
which such security is listed or admitted to trading is open
for the transaction of business or, if such security is not
listed or admitted to trading on any national securities
exchange, a Business Day. If a security is not publicly
held or not so listed or traded, "Fair Market Value" shall
mean the fair value per share of stock or per other unit of
such other security, as determined in good faith by the
Board of Directors of the Company (upon approval by a
majority of the Continuing Directors); provided, however,
that, if the Preferred Stock is not publicly traded, the
Fair Market Value of a share of Preferred Stock shall be
conclusively deemed to be the Fair Market Value of a share
of Common Stock (appropriately adjusted to reflect any stock
split, stock dividend or similar transaction occurring after
the date hereof), multiplied by one hundred. In the case of
property other than securities, the "Fair Market Value"
thereof shall be determined in good faith by the Board of
Directors of the Company (upon approval by a majority of the
Continuing Directors). Any such determination of Fair
Market Value shall be described in a statement filed with
the Rights Agent and shall be binding upon the Rights Agent
and the holders of the Rights.
(e) All calculations under this Section 11 shall
be made to the nearest cent or to the nearest one one-
hundredth of a share, as the case may be. No adjustment in
the Exercise Price shall be required unless adjustment would
require an increase or decrease of at least 1% in such
price; provided, however, that any adjustments which by
reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any
subsequent adjustment. Notwithstanding the preceding
sentence, 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 the adjustment or
(ii) the date of the expiration of the right to exercise the
Rights.
(f) Irrespective of any adjustment or change in
the Exercise Price or the number of shares of Preferred
Stock issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue
to express the Exercise Price and the number of shares to be
issued upon exercise of the Rights as in the initial Rights
Certificates issued hereunder but, nevertheless, shall
represent the Rights as so adjusted.
(g) Before taking any action that would cause an
adjustment reducing the purchase price per whole share of
Preferred Stock upon exercise of the Rights below the then
par value, if any, of the shares of Preferred Stock, the
Company shall use its best efforts to take any corporate
action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally
issue fully paid and non-assessable shares of such Preferred
Stock at such adjusted purchase price per share.
(h) If as a result of an adjustment made pursuant
to Section 11(a) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than
Preferred Stock, thereafter the number of such other shares
so receivable upon exercise of any Right shall be subject to
adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a),
(b), (c), (e), (f), (g), (i), (j) and (k), and the
provisions of Sections 7, 9, 10, 13 and 14 with respect to
the Preferred Stock shall apply on like terms to any such
other shares.
(i) Unless the Company shall have exercised its
election as provided in Section 11(j), upon each adjustment
of the Exercise Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Exercise Price, that number of one one-hundredth of a share
of Preferred Stock (calculated to the nearest one one-
millionth of a share) obtained by (i) multiplying (x) the
number of one one-hundredths of a share covered by a Right
immediately prior to this adjustment by (y) the Exercise
Price in effect immediately prior to such adjustment of the
Exercise Price and (ii) dividing the product so obtained by
the Exercise Price in effect immediately after such
adjustment of the Exercise Price.
(j) The Company may elect on or after the date of
any adjustment of the Exercise Price to adjust the number of
Rights, in substitution for any adjustment in the number of
one one-hundredths of a share of Preferred Stock purchasable
upon the exercise of a Right. Each of the Rights
outstanding after such adjustment of the number of Rights
shall be exercisable for the number of one one-hundredths of
a share of Preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held of
record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the
Exercise Price in effect immediately prior to adjustment of
the Exercise Price by the Exercise Price in effect
immediately after adjustment of the Exercise Price. The
Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on
which the Exercise Price is adjusted or any day thereafter,
but, if the Rights Certificates have been issued, shall be
at least 10 days later than the date of the public
announcement. If Rights Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(j), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein and
shall be registered in the names of the holders of record of
Rights Certificates on the record date specified in the
public announcement.
(k) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Exercise Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it, in its sole discretion, shall determine
to be advisable in order that any consolidation or
subdivision of the Preferred Stock, issuance wholly for cash
of any Preferred Stock at less than the current market
price, issuance wholly for cash of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for Preferred Stock, dividends on Preferred
Stock payable in Preferred Stock or issuance of rights,
options or warrants referred to hereinabove in Section
11(b), hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such stockholders.
(l) In the event that at any time after the date
of this Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common
Stock payable in Common Stock or (ii) effect a subdivision,
combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends
in Common Stock) into a greater or lesser number of shares
of Common Stock, then in any such case (A) the number of one
one-hundredths of a share of Preferred Stock purchasable
after such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-hundredths
of a share of Preferred Stock so purchasable immediately
prior to such event by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
before such event and the denominator of which is the number
of shares of Common Stock outstanding immediately after such
event, and (B) each share of Common Stock outstanding
immediately after such event shall have issued with respect
to it that number of Rights which each share of Common Stock
outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section
11(l) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or
consolidation is effected.
Section 12. Certification of Adjusted Exercise
Price or Number of Shares. Whenever an adjustment is made
as provided in Section 11 or Section 13, 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 Preferred Stock a copy
of such certificate and (c) mail a brief summary thereof to
each holder of a Rights Certificate in accordance with
Section 25. Notwithstanding the foregoing sentence, the
failure of the Company to make such certification or give
such notice shall not affect the validity of or the force or
effect of the requirement for such adjustment. Any
adjustment to be made pursuant to Section 11 or Section 13
of this Rights Agreement shall be effective as of the date
of the event giving rise to such adjustment. The Rights
Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and
shall not be deemed to have knowledge of any adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) Except for any transaction approved by the Board
of Directors (upon approval by a majority of the Continuing
Directors), in the event that, at any time on or after the
Stock Acquisition Date, (x) the Company shall, directly or
indirectly, consolidate with, or merge with and into, any
other Person or Persons and the Company shall not be the
surviving or continuing corporation of such consolidation or
merger, or (y) any Person or Persons shall, directly or
indirectly, consolidate with, or merge with and into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger and,
in connection with such consolidation or merger, all or part
of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of any other
Person or of the Company or cash or any other property, or
(z) the Company or one or more of its Subsidiaries shall,
directly or indirectly, 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
Persons 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(e) hereof),
proper provision shall be made so that (i) each holder of
record of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof and payment of the Exercise Price in
accordance with the terms of this Rights Agreement, such
number of shares of validly issued, fully paid, non-
assessable 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, based on the Fair Market Value of
the Common Stock of the Principal Party on the date of the
consummation of such consolidation, merger, sale or
transfer, equal twice the Exercise Price; (ii) such
Principal Party shall thereafter be liable for, and shall
assume, by virtue of such consolidation, merger, sale or
transfer, all the obligations and duties of the Company
pursuant to this Rights Agreement; (iii) the term "Company"
for all purposes of this Rights Agreement shall thereafter
be deemed to refer to such Principal Party; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares
of its Common Stock in accordance with the provisions of
Section 9 hereof) in connection with such consummation as
may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the
provisions of Section 11(a)(ii) hereof shall be of no effect
following the occurrence of any event described in clause
(x), (y) or (z) above of this Section 13(a). The provisions
of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers.
(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 changed or otherwise exchanged or converted in such
merger or consolidation, or, if there is more than one such
issuer, the issuer of the Common Stock of which has the
greatest market value or (B) if no securities are so issued,
(x) the Person that is the other party to the merger or
consolidation and that survives such merger or
consolidation, or, if there is more than one such Person,
the Person the Common Stock of which has the greatest market
value or (y) if the Person that is the other party to the
merger or consolidation does not survive the merger or
consolidation, the Person that does survive the merger or
consolidation (including the Company if its survives); and
(ii) in the case of any transaction
described in (z) of the first sentence in Section 13(a), the
Person that is the party receiving the greatest portion of
the assets or earning power transferred pursuant to such
transaction or transactions, 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
market value of shares outstanding; provided, however, that
in any such case, if the Common Stock of such Person is not
at such time and has not been continuously over the
preceding 12-month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is
and has been so registered, the term "Principal Party" shall
refer to such other Person, or 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 market value of shares outstanding.
(c) The Company shall not consummate any
consolidation, merger or sale or transfer of assets or
earning power referred to in Section 13(a) unless the
Principal Party shall have a sufficient number of authorized
shares of its Common Stock that have not been issued or
reserved for issuance to permit exercise in full of all
Rights in accordance with this Section 13 and 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 Principal Party shall, upon
consummation of such consolidation, merger or sale or
transfer of assets or earning power, assume this Rights
Agreement in accordance with Section 13(a) hereof and that
all rights of first refusal or preemptive rights in respect
of the issuance of shares of Common Stock of the Principal
Party upon exercise of outstanding Rights have been waived
and that such transaction shall not result in a default by
the Principal Party under this Rights Agreement, and further
providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets or
earning power referred to in Section 13(a) hereof, the
Principal Party will:
(i) prepare and file a registration
statement under the act with respect to the Rights
and the securities purchasable upon exercise of
the Rights on an appropriate form, use its best
efforts to cause such registration statement to
become effective as soon as practicable after such
filing and use its best efforts to cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements
of the Act) until the date of expiration of the
Rights, and similarly comply with applicable state
securities laws;
(ii) use its best efforts to list (or
continue the listing of) the Rights and the securi
ties purchasable upon exercise of the Rights on a
national securities exchange or to meet the
eligibility requirements for quotation on NASDAQ;
and
(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. 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, subject to
the provisions of Section 7(e) hereof, thereafter
be exercisable in the manner described in Section
13(a).
(d) 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
Fair Market Value per share (determined pursuant to Section
11(b) hereof) or securities exercisable for, or convertible
into, Common Stock of such Principal Party at less than such
then Fair Market Value (other than to holders of Rights
pursuant to this Section 13) or (ii) providing for any
special tax or similar payment in connection with the
issuance to any holder of a Right of Common Stock of such
Principal Party pursuant to the provisions of this
Section 13, then, in such event, the Company 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 canceled, waived or amended, or that
the authorized securities shall be redeemed, so that the
applicable provision will have no effect on the benefits
intended to be afforded by the Rights in connection with, or
as a consequence of, the consummation of the proposed
transaction.
(e) Notwithstanding anything in this Agreement to
the contrary, Section 13 shall not be applicable to a
transaction described in subparagraphs (x) and (y) of
Section 13(a) if (i) such transaction is consummated with a
Person or Persons (or a wholly-owned subsidiary of any such
Person or Persons) who acquired shares of Common Stock
pursuant to a cash tender offer for all outstanding shares
of Common Stock which complies with the provisions of
Section 11(a)(ii) hereof relating to fair price
determination by a majority of the Continuing Directors,
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of Common
Stock paid to all holders of Common Stock whose shares were
purchased pursuant to such cash tender offer and (iii) the
form of consideration being offered to the remaining holders
of shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to such
cash tender offer. Upon consummation of any such
transaction contemplated by this Section 13(e), all Rights
hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to issue
fractions of Rights or to distribute Rights Certificates
which evidence fractional Rights (i.e., Rights to acquire
less than one one-hundredth of a share of Preferred Stock).
If the Company shall determine not to issue such fractional
Rights, then, in lieu of such fractional Rights, there shall
be paid to the holders of record of the Rights Certificates
with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of
the Fair Market Value of a whole Right.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than fractions
which are integral multiples of one-hundredth of a share)
upon exercise of the Rights or to distribute certificates
which evidence fractional shares (other than fractions which
are integral multiples of one-hundredth of a share). In
lieu of issuing fractions of shares of Preferred Stock, the
Company may, at its election, issue depositary receipts
evidencing fractions of shares pursuant to an appropriate
agreement between the Company and a depositary selected by
it, provided that such agreement shall provide that the
holders of such depositary receipts shall have all of the
rights, privileges and preferences to which they would be
entitled as owners of the Preferred Stock. With respect to
fractional shares that are not integral multiples of one-
hundredth of a share, if the Company does not issue such
fractional shares or depositary receipts in lieu thereof,
there shall be paid to the holders of record of Rights
Certificates at the time such Rights Certificates are
exercised as herein provided an amount in cash equal to the
same fraction of the Fair Market Value of a share of
Preferred Stock.
(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 Preferred Stock (other
than fractions which are integral multiples of one one-
hundredth of a share) upon exercise of a Right.
Section 15. Rights of Action. All rights of
action in respect of this Rights Agreement, except the
rights of action given to the Rights Agent in Section 18
hereof, are vested in the respective registered holders of
the Rights Certificates (and, prior to the Distribution
Date, the holders of record of the Common Stock); and any
holder of record of any Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his or her own behalf and for his or
her own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce,
or otherwise act in respect of, his or her right to exercise
the Rights evidenced by such Rights Certificate in the
manner provided in such Rights Certificate and in this
Rights 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
Rights Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief
against actual or threatened violations of, the obligations
of any Person subject to this Rights Agreement.
Section 16. Agreement of Right Holders. Each
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
shall be evidenced by the certificates for Common Stock
registered in the name of the holders of Common Stock
(together, as applicable, with the Summary of Rights),
which certificates for Common Stock shall also
constitute certificates for Rights, and not by separate
Rights Certificates, and each Right shall be
transferable only simultaneously and together with the
transfer of shares of Common Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the office
of the Rights Agent designated for such purpose, 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 Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing
on the Rights Certificates or the associated Common
Stock certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent 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.
Section 17. Rights Certificate Holder Not Deemed
a Stockholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends or
be deemed for any purpose the holder of Preferred Stock or
any other securities which may at any time be issuable on
the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a stockholder of
the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at
any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in
Section 25 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights
Agent, its reasonable expenses and counsel fees and 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 gross
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
relating to the Rights or this Rights Agreement.
(b) The Rights Agent shall be protected against,
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 Rights Certificate or certificate for Preferred Stock or
for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate,
statement or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary,
verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation of, or Change
in Name of, the 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 21 hereof. In case at the time such successor
Rights Agent shall succeed to the agency created by this
Rights Agreement any of the Rights 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 Rights
Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Rights Certificates either in the name of the
predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights
Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so
countersigned; in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its
prior name or in its changed name; in all such cases such
Rights Certificates shall have the full force provided in
the Rights 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 Rights
Certificates by their acceptance thereof shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any
action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties
under this 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 any one of the Chairman of the Board,
the President, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent.
Any 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 gross negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or
by reason of any of the statements of fact or recitals
contained in this Rights Agreement or in the Rights
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 Rights Certificate (except
its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition
contained in this Rights Agreement or in any Rights
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 Rights Certificates
after receipt of a certificate describing 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 Preferred Stock to be issued
pursuant to this Rights Agreement or any Rights Certificate
or as to whether any shares of Preferred 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 the
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, the President or any Vice President or the Secretary
or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(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
lend money to the Company 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 legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any 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 Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate following the form of election to purchase
set forth on the reverse side of such Rights Certificate has
either not been completed or indicates an affirmative
response to clause 1 and/or 2 thereof, the Rights Agent
shall not take further action with respect to the requested
exercise or 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 and the Preferred Stock
by registered or certified 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 and the Preferred
Stock by registered or certified 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 Rights Certificate (who
shall, with such notice, submit his Rights Certificate for
inspection by the Company), then the incumbent Rights Agent
or the holder of record of any Rights Certificate may apply
to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (a) a
corporation organized and doing business under the laws of
the United States or of 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 in the conduct of its corporate trust or
stock transfer business by federal or state authorities 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 Preferred Stock, and mail a notice thereof
in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be. Notwithstanding
the foregoing provisions, in the event of resignation,
removal or incapacity of the Rights Agent, the Company shall
have the authority to act as the Rights Agent until a
successor Rights Agent shall have assumed the duties of the
Rights Agent hereunder.
Section 22. Issuance of New Rights 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 Rights Certificates evidencing
Rights in such form as may be approved by its Board of
Directors or Executive Committee thereof to reflect any
adjustment or change in the Exercise Price per share and the
number or kind or class of shares of stock or other
securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this
Rights Agreement.
Section 23. Redemption.
(a) The Company may, at its option, but only by
the vote of a majority of the Board of Directors (upon
approval by a majority of the Continuing Directors) redeem
all but not less than all of the then outstanding Rights, at
any time prior to the Close of Business on the earlier of
(i) the tenth day following the Stock Acquisition Date;
provided, however, that, during the time period relating to
when the Rights may be redeemed, the Board of Directors of
the Company (upon approval of a majority of the Continuing
Directors) may extend the time during which the Rights may
be redeemed to be at any time as may be determined by the
Board of Directors of the Company and the Continuing
Directors or (ii) the Final Expiration Date, at a redemption
price of $.01 per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction after
the date hereof (the "Redemption Price"). Notwithstanding
anything contained in this Agreement to the contrary, the
Rights shall not be exercisable after the first occurrence
of the event described in Section 11(a)(ii) until such time
as the Company's right of redemption hereunder has expired.
(b) Without any further action and without any
notice, the right to exercise the Rights will terminate at
the effective time of the action of the Board of Directors
and the Continuing Directors ordering the redemption of the
Rights and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within 10
days after the effective time of the action of the Board of
Directors and the Continuing 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 for the Common Stock.
Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives
the notice; provided, however, that the failure to give, or
any defect in, any such notice shall not affect the validity
of such redemption. Each notice of redemption will state
the method by which the payment of the Redemption Price will
be made. At the option of the Board of Directors, the
Redemption Price may be paid in cash to each Rights holder
or by the issuance of shares (and, at the Company's election
pursuant to Section 14(b) hereof, cash or depositary
receipts in lieu of fractions of shares other than fractions
which are integral multiples of one one-hundredth (1/100) of
a share) of Preferred Stock having a Fair Market Value equal
to such cash payment.
Section 24. Exchange.
(a) By the vote of a majority of the Board of
Directors (upon approval by a majority of the Continuing
Directors), the Company may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all
or part of the then outstanding and exercisable Rights
(which shall not include Rights which have become void
pursuant to Section 7(e) hereof) for shares of Common Stock
at an exchange rate of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other
than an Exempt Person), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of
50% or more of any class of voting stock of the Company then
outstanding.
(b) Without any further action and without any
notice, the right to exercise the Rights to be so exchanged
will terminate at the effective time of the action of the
Board of Directors and the Continuing Directors ordering the
exchange and the only right thereafter of each holder of
such Rights shall be to receive that number of shares of
Common Stock equal to the number of such rights held by such
holder multiplied by the Exchange Ratio. The Company shall
promptly give notice of the exchange to the holders of such
Rights then outstanding 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 for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or
not the holder receives the notice; provided, however, that
the failure to give, or any defect in, any such notice shall
not affect the validity of such exchange. Each such notice
shall state the method by which the exchange for rights will
be effected and, in the event of a partial exchange, the
number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of
Rights (other than Rights which have become void pursuant to
Section 7(e) hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24,
the Company, at its option, may substitute shares of
Preferred Stock for shares of Common Stock exchangeable for
the Rights, at the initial rate of one one-hundredth of a
share of Preferred Stock for each share of Common Stock, as
appropriately adjusted to reflect adjustments in the voting
rights of the Preferred Stock pursuant to the terms thereof,
so that the fraction of a share of Preferred Stock delivered
in lieu of each share of Common Stock shall have the same
voting rights as one share of Common Stock.
(d) In the event that there shall not be
sufficient shares of Common Stock or Preferred Stock issued
but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this
Section 24, the Company shall either take such action as may
be necessary to authorize additional Common Stock or
Preferred Stock for issuance upon exchange of the Rights or,
alternatively, by the vote of a majority of the Board of
Directors (upon approval by a majority of the Continuing
Directors with respect to each Right, (i) pay cash in an
amount equal to the Exercise Price, in lieu of issuing
Common Stock or Preferred Stock in exchange therefor, or
(ii) issue debt or equity securities, or a combination
thereof, having a value equal to the Current Value (as
hereinafter defined) of the Common Stock or Preferred Stock
exchangeable for each such Right, where the value of such
securities shall be determined in good faith by the Board of
Directors (upon approval by a majority of the Continuing
Directors), or (iii) deliver any combination of cash,
property, Common Stock, Preferred Stock and/or other
securities having a value equal to the Current Value in
exchange for each Right. The term "Current Value," for
purposes of this Section 24, shall mean the product of the
per share market price of the Common Stock (determined
pursuant to Section 11(d) on the date of the occurrence of
the event described above in subparagraph (a)), multiplied
by the number of shares of Common Stock for which the Right
otherwise would be exchangeable if there were sufficient
shares available. To the extent that the Company determines
that some action need be taken pursuant to clauses (i), (ii)
or (iii) of this Section 24(d), the Board of Directors (upon
approval by a majority of the Continuing Directors) may
temporarily suspend the exercisability of the Rights for a
period of up to sixty (60) days following the date on which
the event described in Section 24(a) shall have occurred, in
order to seek any authorization of additional Common Stock
or Preferred Stock and/or to decide the appropriate form of
distribution to be made pursuant to the above provision 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.
(e) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock,
the Company shall pay to each registered holder of a Rights
Certificate with regard to which a fractional share of
Common Stock would otherwise be issuable, an amount in cash
equal to the same fraction of the fair market value of a
whole share of Common Stock. For the purposes of this
paragraph (e), the fair market value of a whole share of
Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to Section 11(d) hereof) for
the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
(a) In case the Company, after the Distribution
Date, shall propose (i) to pay any dividend payable in stock
of any class to the holders of its Preferred Stock or to
make any other distribution to the holders of its Preferred
Stock (other than a regular quarterly cash dividend),
(ii) to offer to the holders of its Preferred Stock rights
or warrants to subscribe for or to purchase any additional
Preferred Stock or shares of stock of any class or any other
securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding Preferred Stock), (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 Rights Certificate, in accordance with
Section 26, notice of such proposed action, which shall
specify the record date for the purposes of such stock
dividend or distribution of rights or warrants, or the date
on which such reclassification, consolidation, merger, sale
or transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the
holders of record of Common Stock or Preferred Stock, if any
such date is to be fixed, and such notice shall be so given
in the case of any action covered by clause (i) or (ii)
above at least 10 days prior to the record date for
determining holders of record of the Preferred 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 or Preferred Stock,
whichever shall be the earlier. The failure to give notice
required by this Section 25 or any defect therein shall not
affect the legality or validity of the action taken by the
Company or the vote upon any such action.
(b) In case an event described in Section
11(a)(ii) hereof shall occur, then the Company shall, as
soon as practicable thereafter, give to each holder of a
Rights Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event, which notice shall
describe such event and the consequences of such event to
holders of Rights under Section 11(a)(ii) hereof.
Section 26. Notices. Notices or demands
authorized by this Rights Agreement to be given or made by
the Rights Agent or by the holder of record of any Rights
Certificate to or on the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Rights Agent) as follows:
MedImmune, Inc.
35 West Watkins Mill Road
Gaithersburg, Maryland 20878
Attention: Secretary
Subject to the provisions of Section 21, 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 Rights
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:
American Stock Transfer & Trust Company
40 Wall Street - 46th Floor
New York, N.Y. 10005
Attention: Corporate Trust Department
Notices or demand authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to the
holder of record of any Rights 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 shown on the registry books of the Company.
Section 27. Supplements and Amendments. For as
long as the Rights are then redeemable and except as
provided in the last sentence of this Section 27, 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. At any time when the Rights
are not then redeemable and except as provided in the last
sentence of this Section 27, the Company may, and the Rights
Agent shall if the Company so directs, supplement or amend
this Rights Agreement without the approval of any holders of
Rights Certificates (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
pursuant to this clause (iii) shall materially adversely
affect the interest of the holders of Rights Certificates.
Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of
this Section 27, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained
in this Rights Agreement to the contrary, supplements or
amendments may be made only upon approval by a majority of
the Continuing Directors.
Section 28. 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 29. 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 Rights
Certificates (and, prior to the Distribution Date, the
holders of Common Stock in their capacity as holders of the
Rights) 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 Rights
Certificates (and, prior to the Distribution Date, the
holders of Common Stock in their capacity as holders of the
Rights).
Section 30. Determinations and Actions by the
Board; etc. The Board of Directors (upon approval by a
majority of the Continuing Directors) shall have the
exclusive power and authority to administer this Agreement
and to exercise all rights and powers specifically granted
to the Board, or to the Company, or as may be necessary or
advisable in the administration of this Agreement,
including, without limitation, the right and power to
(i) interpret the provisions of this Agreement and (ii) make
all determinations deemed necessary or advisable for the
administration of this Agreement. All such actions,
calculations, interpretations and determinations (including,
for purposes of clause (y) below, all omissions with respect
to the foregoing) which are done or made by the Board of
Directors in good faith (and with the approval of a majority
of the Continuing Directors then in office) in accordance
with the preceding sentence, shall (x) be final, conclusive
and binding on the Company, the Rights Agent, the holders of
the Rights and all other parties and (y) not subject any
director to any liability to the holders of the Rights.
Notwithstanding anything contained in this Agreement to the
contrary, whenever any action, calculation, interpretation
or determination made pursuant to this Agreement requires
the approval of a majority of the Continuing Directors, and
no Continuing Directors are then in office, such action,
calculation, interpretation or determination may not be
made.
Section 31. Delaware Contract. This Rights
Agreement and each Rights 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 and enforced in accordance with the laws of such
state applicable to contracts to be made and performed
entirely within such state.
Section 32. 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 33. 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 34. 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, void 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.
MEDIMMUNE, INC.
Attest:/s/David LeBuhn By:David M. Mott
Treasurer President
AMERICAN STOCK TRANSFER &
TRUST COMPANY
Attest:/s/Susan Silber By:/s/Herbert J. Lemmer
Asst. Secretary Vice President
EXHIBIT A
FORM
of
CERTIFICATE OF DESIGNATIONS
of
SERIES B JUNIOR PREFERRED STOCK
of
MEDIMMUNE, INC.
(Pursuant to Section 151 of the
Delaware General Corporation Law)
MEDIMMUNE, INC., a corporation organized and
existing under the General Corporation Law of the State of
Delaware (hereinafter called the "Corporation"), DOES HEREBY
CERTIFY that pursuant to the authority vested in the Board
of Directors by the Restated Certificate of Incorporation of
the Corporation and in accordance with the provisions of
Section 151 of the General Corporation Law of the State of
Delaware, the Board of Directors on July 9, 1997 adopted a
resolution providing for the authorization of a series of
Preferred Stock, as follows:
RESOLVED, that pursuant to the authority granted
to and vested in the Board of Directors of the Corporation
(hereinafter called the "Board of Directors" or the "Board")
in accordance with the provisions of the Restated
Certificate of Incorporation, the Board of Directors hereby
creates a series of Preferred Stock, par value $.01 per
share (the "Preferred Stock"), of the Corporation and hereby
states the designation and number of shares, and fixes the
relative rights, preferences, and limitations thereof as
follows:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series B Junior Preferred
Stock" (the "Series B Junior Preferred Stock") and the
number of shares constituting the Series B Junior Preferred
Stock shall be six hundred thousand (600,000). Such number
of shares may be increased or decreased by resolution of the
Board of Directors; provided, that no decrease shall reduce
the number of shares of Series B Junior Preferred Stock to a
number less than the number of shares then outstanding plus
the number of shares reserved for issuance upon the exercise
of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the
Corporation convertible into Series B Junior Preferred
Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock (or any similar stock) ranking
prior and superior to the Series B Junior Preferred Stock
with respect to dividends, the holders of shares of Series B
Junior Preferred Stock, in preference to the holders of
Common Stock, par value $.01 per share (the "Common Stock"),
of the Corporation, and of any other junior stock, shall be
entitled to receive, when, as and if declared by the Board
of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such
date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction
of a share of Series B Junior Preferred Stock, in an amount
per share (rounded to the nearest cent) equal to the greater
of (a) $1.00 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in
shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the
first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series B
Junior Preferred Stock. In the event the Corporation shall
at any time declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount to which holders of shares of
Series B Junior Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series B Junior Preferred Stock as
provided in paragraph (A) of this Section immediately after
it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the
next subsequent Quarterly Dividend Payment Date, a dividend
of $1.00 per share on the Series B Junior Preferred Stock
shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Junior Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date
of issue of such shares, unless the date of issue of such
shares is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series B Junior
Preferred Stock entitled to receive a quarterly dividend and
before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series B Junior Preferred
Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among
all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series B Junior Preferred Stock
entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than
60 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series
B Junior Preferred Stock shall have the following voting
rights:
(A) Subject to the provision for adjustment hereinafter set
forth, each share of Series B Junior Preferred Stock shall
entitle the holder thereof to 100 votes on all matters
submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend
in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number
of votes per share to which holders of shares of Series B
Junior Preferred Stock were entitled immediately prior to
such event shall be adjusted by multiplying such number by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other
Certificate of Designations creating a series of Preferred
Stock or any similar stock, or by law, the holders of shares
of Series B Junior Preferred Stock and the holders of shares
of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together
as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as set forth herein, or as otherwise provided by
law, holders of Series B Junior Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series B Junior Preferred Stock
as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions,
whether or not declared, on shares of Series B Junior
Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Junior
Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Junior
Preferred Stock, except dividends paid ratably on the
Series B Junior Preferred Stock and all such parity
stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Junior
Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares
of any such junior stock in exchange for shares of any
stock of the Corporation ranking junior (as to
dividends and upon dissolution, liquidation and winding
up) to the Series B Junior Preferred Stock; or
(iv) redeem or purchase or otherwise acquire for
consideration any shares of Series B Junior Preferred
Stock, or any shares of stock ranking on a parity
(either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Junior
Preferred Stock, except in accordance with a purchase
offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates
and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Company unless the
Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and
in such manner.
Section 5. Reacquired Shares. Any shares of Series B
Junior Preferred Stock purchased or otherwise acquired by
the Company in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as
part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in
the Restated Certificate of Incorporation, or in any other
Certificate of Designations creating a series of Preferred
Stock or any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the
Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to
the Series B Junior Preferred Stock unless, prior thereto,
the holders of shares of Series B Junior Preferred Stock
shall have received $100 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon,
whether or not declared, to the date of such payment,
provided that the holders of shares of Series B Junior
Preferred Stock shall be entitled to receive an aggregate
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of shares of
Common Stock, or (2) to the holders of shares of stock
ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B
Junior Preferred Stock, except distributions made ratably on
the Series B Junior Preferred Stock and all such parity
stock in proportion to the total amounts to which the
holders of all such shares are entitled upon such
liquidation, dissolution or winding up. In the event the
Corporation shall at any time declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the aggregate amount to which
holders of shares of Series B Junior Preferred Stock were
entitled immediately prior to such event under the proviso
in clause (1) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any
such case each share of Series B Junior Preferred Stock
shall at the same time be similarly exchanged or changed
into an amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100 times the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in
each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of
Series B Junior Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is
the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section 8. No Redemption. The shares of Series B Junior
Preferred Stock shall not be redeemable.
Section 9. Rank. The Series B Junior Preferred Stock shall
rank, with respect to the payment of dividends and the
distribution of assets, junior to all series of any other
class of the Corporation's Preferred Stock.
Section 10. Amendment. The Restated Certificate of
Incorporation of the Corporation shall not be amended in any
manner which would materially alter or change the powers,
preferences or special rights of the Series B Junior
Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least a majority of
the outstanding shares of Series B Junior Preferred Stock,
voting together as a single class.
IN WITNESS WHEREOF, this Certificate of
Designations is executed on behalf of the Corporation by its
Chairman of the Board and Chief Executive Officer and
attested by its Secretary this ___ day of July __, 1997.
MEDIMMUNE, INC.
By: _________________________
Name:
Title:
Attest:
By:________________________
Name:
Title:
EXHIBIT B
UNDER CERTAIN CIRCUMSTANCES AS PROVIDED IN THE
RIGHTS AGREEMENT (AS REFERRED TO BELOW), RIGHTS
ISSUED TO OR BENEFICIALLY OWNED BY ACQUIRING
PERSONS OR THEIR AFFILIATES OR ASSOCIATES (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND
VOID AND MAY NOT BE TRANSFERRED TO ANY PERSON.
MEDIMMUNE, INC.
SUMMARY OF RIGHTS TO PURCHASE
SERIES B JUNIOR PREFERRED STOCK
On July 9, 1997, the Board of Directors of
MedImmune, Inc. (the "Company") declared a dividend
distribution of one preferred stock purchase right (a
"Right") for each outstanding share of Common Stock, par
value $.01 per share (the "Common Stock"), of the Company.
The distribution is payable as of July 21, 1997 to
stockholders of record on that date. Each Right entitles
the registered holder to purchase from the Company one one-
hundredth (1/100) of a share of preferred stock of the
Company, designated as Series B Junior Preferred Stock (the
"Preferred Stock") at a price of $100 per one one-hundredth
(1/100) of a share ("Exercise Price"), subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement, dated as of July 9, 1997 (the
"Rights Agreement"), between the Company and American Stock
Transfer & Trust Company, as Rights Agent (the "Rights
Agent").
As discussed below, initially the Rights will not
be exercisable, certificates will not be sent to
stockholders and the Rights will automatically trade with
the Common Stock.
The Rights become exercisable upon the close of
business on the day (the "Distribution Date") which is the
earlier of (i) the tenth day following a public announcement
that a person or group of affiliated or associated persons,
with certain exceptions set forth below, has acquired
beneficial ownership of 20% or more of any class of the
outstanding voting stock of the Company (an "Acquiring
Person") and (ii) the tenth business day after the date of
the commencement or announcement of a person's or group's
intention to commence a tender or exchange offer the
consummation of which would result in the ownership of 20%
or more of any class of the Company's outstanding voting
stock (even if no shares are actually purchased pursuant to
such offer), or such later date as may be determined by a
majority of the Board of Directors and the Continuing
Directors (as defined in the Rights Agreement); prior
thereto, the Rights will not be exercisable, will not be
represented by a separate certificate, and will not be
transferable apart from the Company's Common Stock, but will
instead be evidenced, with respect to any of the Common
Stock certificates outstanding as of July 21, 1997, by such
Common Stock certificate with a copy of this Summary of
Rights attached thereto. An Acquiring Person does not
include (A) the Company, (B) any subsidiary of the Company,
(C) any employee benefit plan or employee stock plan of the
Company or of any subsidiary of the Company, or any trust or
other entity organized, appointed, established or holding
Common Stock for or pursuant to the terms of any such plan
or (D) any person or group whose ownership of 20% or more of
the shares of any class of voting stock of the Company then
outstanding results solely from (i) any action or
transaction or transactions approved by a majority of the
Board of Directors and the Continuing Directors before such
person or group became an Acquiring Person or (ii) a
reduction in the number of issued and outstanding shares of
voting stock of the Company pursuant to a transaction or
transactions approved by a majority of the Board of
Directors and the Continuing Directors (provided that, in
the case of the person set forth in clause (D) does not
become an Acquiring Person by reason of clause (i) or (ii)
above, such persons set forth in clause (D) shall
nonetheless become an Acquiring Person upon acquisition of
any additional shares of the Company's voting stock unless
such acquisition of additional voting stock will not result
in such person or group becoming an Acquiring Person by
reason of such clause (i) or (ii)).
Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Stock certificates
issued after July 21, 1997 will contain a legend
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of
the Rights), the surrender for transfer of any of the Common
Stock certificates outstanding as of July 21, 1997 with or
without a copy of this Summary of Rights attached thereto,
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 certificates evidencing the Rights ("Rights
Certificates") will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution
Date and such separate certificates alone will evidence the
Rights from and after the Distribution Date.
The Rights are not exercisable until the
Distribution Date. The Rights will expire at the close of
business on July 9, 2007, unless earlier redeemed or
exchanged by the Company, in each case as described below.
The Preferred Stock is nonredeemable and, unless
otherwise provided in connection with the creation of a
subsequent series of preferred stock, subordinate to any
other series of the Company's preferred stock. Each share
of Preferred Stock will be entitled to a minimum quarterly
dividend payment of $1.00 per share but will be entitled to
an aggregate dividend of 100 times the dividend declared on
the Company's Common Stock. In the event of the liquidation
of the Company, the holders of Preferred Stock will be
entitled to receive a payment of the greater of (i) $100.00
per share or (ii) 100 times the payment made per share of
Common Stock. Each share of Preferred Stock will have 100
votes, voting together with the Common Stock. In the event
of any merger, consolidation or other transaction in which
Common Stock is exchanged, each share of Preferred Stock
will be entitled to receive 100 times the amount received
per share of Common Stock. The rights of Preferred Stock as
to dividends, liquidation and voting are protected by anti-
dilution provisions.
The Exercise Price payable, and the number of
shares of Preferred 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 Preferred Stock, (ii) upon the
grant to holders of the Preferred Stock of certain rights or
warrants to subscribe for or purchase Preferred Stock at a
price, or securities convertible into Preferred Stock with a
conversion price, less than the then current market price of
the Preferred Stock or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness
or assets (excluding regular periodic cash dividends paid
out of earnings or retained earnings or dividends payable in
Preferred Stock) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of
one one-hundredths of a share of Preferred Stock issuable
upon exercise of each Right are also subject to adjustment
in the event of a stock split of the Common Stock or a
dividend on the Common Stock payable in Common Stock or
subdivisions, consolidations or combinations of the Common
Stock occurring, in any such case, prior to the Distribution
Date.
Unless the transaction is approved by a majority
of the Board of Directors and the Continuing Directors, in
the event that, after the time the Rights become
exercisable, the Company were to be acquired in a merger or
other business combination (in which any shares of Common
Stock are changed into or exchanged for other securities or
assets) (other than a merger that follows a cash tender
offer for all outstanding shares of the Company, at a price
determined by a majority of the Continuing Directors to be
fair and otherwise in the best interests of the Company and
its stockholders) 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 will 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 Exercise 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 Exercise Price. In addition, in the event that a
person or group of affiliated or associated persons becomes
an Acquiring Person (unless such acquisition is made
pursuant to a cash tender offer determined to be fair to the
stockholders of the Company, as described in the preceding
sentence), the Rights Agreement provides that proper
provision will be made so that each holder of record of a
Right, other than the Acquiring Person (whose Rights will
thereupon become null and void), will thereafter have the
right to receive, upon payment of the Exercise Price, that
number of shares of the Common Stock (or cash, other
securities or property) having a market value at the time of
the transaction equal to two times the Exercise Price (such
market value to be determined with reference to the market
value of the Company's Common Stock as provided in the
Rights Agreement).
Fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth
of a share) may, at the election of the Company, be
evidenced by depositary receipts. The Company may also
issue cash in lieu of fractional shares which are not
integral multiples of one one-hundredth of a share.
At any time on or prior to the close of business
on the earlier of (i) the tenth day after the time that a
person (or group of affiliated or associated persons) has
become an Acquiring Person (or such later date as a majority
of the Board of Directors and the Continuing Directors may
determine) or (ii) July 9, 2007, the Company may redeem the
Rights in whole, but not in part, at a price of $.01 per
Right (the "Redemption Price"), with the approval of the
Continuing Directors. Immediately upon the effective time
of the action of the Board of Directors of the Company
authorizing redemption of the Rights, the right to exercise
the Rights will terminate and the only right of the holders
of Rights will be to receive the Redemption Price.
For as long as the Rights are then redeemable, the
Company may 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 materially adversely affect the interests of
holders of the Rights as such. Amendments to the Rights
Agreement require the approval of the Continuing Directors.
At any time after a person (or group of affiliated
or associated persons) becomes an Acquiring Person and prior
to the acquisition by any such person or group of 50% or
more of any class of outstanding voting stock of the
Company, the Board of Directors of the Company (with the
approval of the Continuing Directors) may exchange the
Rights (other than Rights owned by such person or group
which have become void), in whole or in part, at an exchange
ratio of one share of Common Stock (or a fraction of a share
of Preferred Stock or other consideration having equivalent
market value) per Right (subject to adjustment).
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.
A copy of the Rights Agreement has been filed with
the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated July 9, 1997. A
copy of the Rights Agreement is available free of charge
from the Company. This summary description of the Rights
does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement which is
incorporated herein by reference.
EXHIBIT C
[Form of Rights Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER JULY 9, 2007 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT
TO REDEMPTION AT THE OPTION OF THE COMPANY AT $.01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES AS
PROVIDED IN THE RIGHTS AGREEMENT (AS REFERRED TO
BELOW), RIGHTS ISSUED TO OR BENEFICIALLY OWNED BY
ACQUIRING PERSONS OR THEIR AFFILIATES OR ASSOCIATES (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR ANY
SUBSEQUENT HOLDER OF SUCH RIGHTS SHALL BE NULL AND VOID
AND MAY NOT BE TRANSFERRED TO ANY PERSON.
Rights Certificate
MEDIMMUNE, 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 July 9, 1997 (the "Rights
Agreement") between MedImmune, Inc., a Delaware corporation
(the "Company"), and American Stock Transfer & Trust Company
(the "Rights Agent"), to purchase from the Company at any
time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 P.M. (New York time)
on July 9, 2007 at the office of the Rights Agent designated
in the Rights Agreement for such purpose, or its successor
as Rights Agent, one one-hundredth (1/100) of a fully paid
nonassessable share of Series B Junior Preferred Stock (the
"Preferred Stock") of the Company at a purchase price of
$100, as the same may from time to time be adjusted in
accordance with the Rights Agreement (the "Exercise Price"),
upon presentation and surrender of this Rights Certificate
with the Form of Election to Purchase attached hereto duly
executed.
As provided in the Rights Agreement, the Exercise
Price and the number of shares of Preferred Stock which may
be purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and
adjustment upon the happening of certain events and, upon
the happening of certain events, securities other than
shares of Preferred Stock, or other property, may be
acquired upon exercise of the Rights evidenced by this
Rights Certificate, as provided in the Rights Agreement.
This Rights 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 Rights Certificates.
Copies of the Rights Agreement are on file at the principal
executive office of the Company.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the office of the
Rights Agent designated in the Rights Agreement for such
purpose, may be exchanged for another Rights Certificate or
Rights Certificates of like tenor and date evidencing Rights
entitling the holder of record to purchase a like aggregate
number of shares of Preferred Stock as the Rights evidenced
by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights
Certificate shall be exercised in part, the holder shall be
entitled to receive upon surrender hereof, another Rights
Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Certificate (i) may be redeemed
by the Company at a redemption price of $.01 per Right,
subject to adjustment or (ii) may be exchanged in whole or
in part for shares of the Company's Common Stock, par value
$.01 per share, shares of Preferred Stock or substantially
equivalent rights or other consideration as determined by
the Company.
No fractional shares of Preferred Stock (other
than fractions which are integral multiples of one one-
hundredth (1/100) of a share) are required to be issued upon
the exercise of any Right or Rights evidenced hereby, and in
lieu thereof the Company may cause depositary receipts to be
issued and/or a cash payment may be made, as provided in the
Rights Agreement.
No holder of this Rights Certificate, as such,
shall be entitled to vote or receive dividends or be deemed
for any purpose the holder of Preferred Stock or of any
other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to
confer upon the holder hereof, as such, any of the rights of
a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at meeting thereof, or to give or withhold
consent to any corporate action or to receive notice of
meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends
or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company. Dated as of ____________.
MEDIMMUNE, INC.
By: _________________________
Name:
Title:
Countersigned:
[RIGHTS AGENT]
By: __________________________
Name:
Title:
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Rights Certificates.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
Rights evidenced by this Rights Certificate, together with
all right, title and interest therein, and does hereby
irrevocably constitute and appoint
Attorney to transfer the within Rights Certificate on the
books of the within-named Company, with full power of
substitution.
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is
not being sold, assigned or transferred by or on behalf of a
Person who is or was an Acquiring Person or an Associate or
an Affiliate thereof (as such terms are defined in the
Rights Agreement); and
(2) after due inquiry and to the best knowledge
of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate thereof (as such terms
are defined in the Rights Agreement).
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder
desires to exercise the Rights Certificate.)
TO MEDIMMUNE, INC.:
The undersigned hereby irrevocably elects to
exercise ________________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock (or
other securities) issuable upon the exercise of such Rights
and requests that certificates for such share(s) be issued
in the following name:
Please insert social security
or other identifying number:
(Please print name and address)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights
Certificate for the balance remaining of such Rights shall
be registered in the name of and delivered to:
Please insert social security
or other identifying number:
(Please print name and address)
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is
not being exercised by or on behalf of a Person who is or
was an Acquiring Person or an Associate or an Affiliate
thereof (as such terms are defined in the Rights Agreement);
and
(2) after due inquiry and to the best knowledge
of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate thereof (as such terms
are defined in the Rights Agreement).
Dated:
Signature
(Signature must conform in all
respects to name of holder as
specified on the face of this
Rights Certificate)
