SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
EXCHANGE NATIONAL BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
MISSOURI 43-1626350
(State of incorporation (I.R.S. Employer
of or organization) Incorporation No.)
132 EAST HIGH STREET, JEFFERSON CITY, MISSOURI 65101
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
TITLES OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
None None
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective
pursuant to General Instruction A.(c), check the following box.[ ]
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box. [X]
Securities to be registered pursuant to Section 12(g) of the Act:
PREFERRED STOCK PURCHASE RIGHTS
(Title of class)
<PAGE>
On May 24, 2000, the Board of Directors of Exchange
National Bancshares, Inc. (the "Company") declared a dividend
distribution of one right (a "Right") for each outstanding share
of the Company's common stock, par value $1.00 per share (the
"Common Stock"), payable to stockholders of record at the close
of business on June 5, 2000 (the "Record Date") and with respect
to the Common Stock issued thereafter until the Distribution Date
(defined below) and, in certain circumstances, with respect to
the Common Stock issued after the Distribution Date. Except as
set forth below, each Right, when it becomes exercisable,
entitles the registered holder to purchase from the Company a
unit consisting initially of one one-thousandth of a share (a
"Unit") of Series A Preferred Stock, $0.01 par value (the
"Preferred Stock"), of the Company, at a purchase price of $150
per Unit, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights
Agreement, dated as of May 24, 2000, between the Company and The
Exchange National Bank of Jefferson City, as Rights Agent (the
"Rights Agreement").
Initially, the Rights will be attached to all
certificates representing shares of Common Stock then
outstanding, and no separate certificates evidencing the Rights
("Rights Certificates") will be distributed. The Rights will
separate from the Common Stock and a Distribution Date will occur
upon the earlier of (i) ten business days following public
announcement or disclosure that a person has become an "Acquiring
Person" (defined below) or of facts indicating that such person
has become an Acquiring Person, or (ii) ten business days (or
such later date as the Board shall determine) following the
commencement of, or an announcement of an intention to commence,
a tender or exchange offer that would result in a person or group
becoming an "Acquiring Person." Except as set forth below, an
"Acquiring Person" is collectively a person, together with all
Affiliates (defined below) and Associates (defined below) of such
person who or which has acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock except pursuant to
a Qualifying Offer (defined below). The term "Acquiring Person"
excludes (i) the Company, (ii) any subsidiary of the Company,
(iii) any employee benefit plan of the Company or any subsidiary
of the Company, (iv) any person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan, and (v) any person, together with such person's
Affiliates and Associates, who or which becomes a beneficial
owner of 15% or more of the outstanding shares of Common Stock as
a result of acquiring such shares directly from the Company.
An "Affiliate" of a person is a person that directly,
or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified. An "Associate" of a person is (i) any corporation or
organization (other than the Company or any majority-owned
subsidiary of the Company) of which such person is an officer or
partner or is, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities, (ii) any trust or
other estate in which such person has a substantial beneficial
interest or as to which such person serves as trustee or in a
similar fiduciary capacity, and (iii) any relative or spouse of
such person, or any relative of such spouse, who has the same
home as such person or who is a director or officer of such
person or any of its parents or subsidiaries.
No person shall become an "Acquiring Person" either:
(i) as the result of an acquisition of Common Stock by the
Company which, by reducing the number of such shares then
outstanding, increases the proportionate number of shares
beneficially owned by such person, together with all Affiliates
and Associates of such person, unless such persons, after such
<PAGE> share purchases by the Company, becomes the beneficial
owner of additional shares of Common Stock constituting 1% or
more of the then outstanding shares of Common Stock (other than
pursuant to a Qualifying Offer); or (ii) the Board of Directors
of the Company determines in good faith that a person who would
otherwise be an "Acquiring Person" 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.
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the
occurrence of a Triggering Event (defined below) that, upon any
exercise of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock will be issued.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will
represent the Rights. Except in certain circumstances specified
in the Rights Agreement or as otherwise determined by the Board
of Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
The Rights are not exercisable until after the
Distribution Date and until the Rights are no longer redeemable.
The Rights will expire at the close of business on May 23, 2010,
unless extended or earlier redeemed by the Company as described
below.
In the event that, at any time following the
Distribution Date, a person becomes an Acquiring Person, except
pursuant to an offer for all outstanding shares of Common Stock
which a majority of the directors determine, after receiving
advice from one or more nationally recognized investment banking
firms, to be fair to the stockholders and otherwise in the best
interests of the Company and its stockholders (other than the
Acquiring Person on whose behalf the offer is being made) (a
"Qualifying Offer"), each holder of a Right will thereafter have
the right to receive, upon exercise of the Right, Common Stock
(or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the Purchase
Price of the Right. However, at the option of the Board of
Directors of the Company, during such time as an Acquiring Person
holds an amount of stock less than 50% of the outstanding Common
Stock, the Company may exchange, in whole or in part, each right
of each holder (other than the Acquiring Person) for one share of
Common Stock. Notwithstanding any of the foregoing, following
the occurrence of the event set forth in this paragraph, all
Rights that are, or (under certain circumstances specified in the
Rights Agreement) were, beneficially owned by any Acquiring
Person (or any Affiliate or Associate of an Acquiring Person)
will be null and void and nontransferable and any holder of any
such Right (including any purported transferee or subsequent
holder) will be unable to exercise or transfer any such right.
<PAGE>
For example, at the initial Purchase Price of $150.00
per Right, each Right not owned by an Acquiring Person following
an event set forth in the preceding paragraph would entitle its
holder to purchase $300.00 worth of Common Stock (or other
consideration, as noted above) for $150.00. Assuming that the
Common Stock had a per share value of $60.00 at such time, the
holder of each valid Right would be entitled to purchase five shares
of Common Stock for $150.00.
In the event that, at any time following the date on
which there has been public announcement or disclosure that a
person has become an Acquiring Person or of facts indicating that
such person has become an Acquiring Person (the "Stock
Acquisition Date") (which, for purposes of this paragraph also
includes the date on which there has been a public announcement
that any person has acquired 15% or more of the outstanding
shares of Common Stock pursuant to a Qualifying Offer), (i) the
Company merges or consolidates with another corporation or
association in a transaction in which the holders of all of the
outstanding shares of Common Stock immediately prior to the
consummation of the transaction are not the holders of all of the
surviving corporation's voting power, or (ii) more than 50% of
the Company's assets or earning power is sold or transferred, in
either case with or to an Acquiring Person or any Affiliate or
Associate or any other person in which such Acquiring Person,
Affiliate or Associate has an interest or any person acting on
behalf of or in concert with such Acquiring Person, Affiliate or
Associate, or, if in such transaction all holders of Common Stock
are not treated alike, any other person, then each holder of a
Right (except Rights which previously have 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 Purchase Price of the
Right. The events set forth in this paragraph and in the
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable, 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 or purchase
Preferred Stock at a price, or convertible into Preferred Stock
with a conversion price, 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 or of
subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
Unit of Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of Common Stock.
Shares of Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Preferred Stock will be
entitled to a quarterly dividend payment of 1000 times the
dividend declared per share of Common Stock. Preferred Stock
will only be entitled to receive dividends when concurrently
declared with the Common Stock and then at a rate equal to 1000
times the amount per share to be received by holders of Common
Stock. In the event of liquidation, the holders of shares of
Preferred Stock will be entitled to receive the greater of (i)
$1,000.00 per share, plus accrued <PAGE> dividends to the date of
distribution; or (ii) an amount per share equal to the product of
1,000 times the aggregate amount to be distributed per share to
holders of Common Stock. Each share of Preferred Stock will have
1000 votes, voting together with the shares of Common Stock.
These rights are protected by customary antidilution provisions.
At any time until ten business days following the Stock
Acquisition Date (or such later date as the Board of Directors
may determine), the Company may redeem the Rights in whole, but
not in part, at a price (the "Redemption Price") of $0.01 per
Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Board of Directors) by resolution of
the Board of Directors. Immediately upon such action of the
Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income upon
the Distribution Date.
Any of the provisions of the Rights Agreement may be
amended by resolution of the Company's Board of Directors for so
long as the Rights are redeemable, except that the Redemption
Price cannot be changed. After the Rights cease to be
redeemable, the provisions of the Rights Agreement, may be
amended from time to time by resolution of the Company's Board of
Directors in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person or its
affiliates or associates), or to shorten or lengthen any time
period under the Rights Agreement; PROVIDED, HOWEVER, that no
amendment may cause the Rights again to become redeemable or to
be amendable more broadly than contemplated by this sentence.
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.
Item 2. EXHIBITS.
The following exhibit is filed as a part of this
Registration Statement:
1. Rights Agreement dated as of May 24, 2000, between
Exchange National Bancshares, Inc. and The
Exchange National Bank of Jefferson City, as
Rights Agent, which includes as Exhibit A, the
Certificate of Designation of Series A Preferred
Stock, and as Exhibit B, the Form of Rights
Certificate, and as Exhibit C, a Summary of the
Rights.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the
undersigned, thereto duly authorized.
EXCHANGE NATIONAL BANCSHARES, INC.
Date: May 24, 2000 By: /s/ Donald L. Campbell
Donald L. Campbell
Chairman of the Board
<PAGE>
Exhibit 1
RIGHTS AGREEMENT
BETWEEN
EXCHANGE NATIONAL BANCSHARES, INC.
AND
THE EXCHANGE NATIONAL BANK OF JEFFERSON CITY,
AS RIGHTS AGENT
DATED AS OF MAY 24, 2000
<PAGE>
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS 1
SECTION 2. APPOINTMENT OF RIGHTS AGENT 7
SECTION 3. EVIDENCE OF RIGHTS; ISSUANCE OF RIGHTS CERTIFICATES.7
(a) Evidence of Rights Prior to Distribution Date 7
(b) Common Stock Outstanding as of the Record Date 8
(c) Common Stock Issued After the Record Date 8
(d) Issuance of Rights Certificates 9
SECTION 4. FORM OF RIGHTS CERTIFICATES. 9
(a) Form of Rights Certificates 9
(b) Legend to be Included in Certain Rights Certificates 9
SECTION 5. EXECUTION, COUNTERSIGNATURE AND REGISTRATION OF
RIGHTS CERTIFICATES. 10
(a) Execution and Countersignature 10
(b) Registration 10
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHTS CERTIFICATES; LOST, STOLEN, DESTROYED OR MUTILATED
RIGHTS CERTIFICATES. 11
(a) Transfer, Split Up, Combination and Exchange of Rights
Certificates 11
(b) Lost, Stolen, Destroyed or Mutilated Rights
Certificates 11
SECTION 7. EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS;
PURCHASE PRICE. 12
(a) Exercise of Rights; Expiration Date of Rights 12
(b) Purchase Price 12
(c) Deliveries Upon Exercise of Rights 12
(d) New Rights Certificate Issued for Unexercised Rights 13
(e) Rights Owned by an Acquiring Person To Become Null and
Void 13
(f) Certification and Evidence of Identity Required 14
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES 14
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK. 14
(a) Reservation and Availability of Capital Stock 14
(b) Reserved Shares To Be Listed Upon Issuance 14
(c) Registration of Securities to be Acquired Upon Exercise
of Rights 15
(d) Stock To Be Validly Issued 15
(e) Transfer Taxes 15
SECTION 10. PREFERRED STOCK RECORD DATE 16
<PAGE>
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF
SHARES AND NUMBER OF RIGHTS 16
(a) Adjustment of Purchase Price Upon Declaration of Stock
Dividend or Subdivision, Combination or Reclassification of
Preferred Stock; Adjustment of Number and Kind of Shares
Upon Person Becoming an Acquiring Person; Substitution for
Adjustment Shares. 16
(b) Adjustment of Purchase Price Upon Issuance of Rights,
Options or Warrants to Holders of Preferred Stock 19
(c) Adjustment of Purchase Price Upon Distributions to
Holders of Preferred Stock 19
(d) Definition of Current Market Price. 20
(e) Limitation on Adjustments to Purchase Price 21
(f) Applicability of Certain Provisions to Shares of Capital
Stock Other Than Preferred Stock 22
(g) Purchase Price for Rights Issued After Adjustment to
Purchase Price 22
(h) Adjustment of Number of Shares of Preferred Stock
Covered By a Right 22
(i) Election To Adjust the Number of Rights 22
(j) Rights Certificates Need Not Reflect Certain Adjustments23
(k) Stock To Be Fully Paid and Non-Assessable 23
(l) Election to Defer Issuance of Certain Shares Until After
Record Date for Adjustment Event 23
(m) Reductions in Purchase Price to Avoid Taxable Events 24
(n) No Consolidation, Merger or Sale of More Than 50% of
Assets or Earning Power 24
(o) No Actions That Diminish Benefits of Rights 24
(p) Adjustment in Number of Rights Associated With Each
Share of Common Stock 24
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES 25
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS
OR EARNING POWER. 25
(a) Section 13 Events 25
(b) Definition of Principal Party 26
(c) Obligations of Principal Party 27
(d) Section 13 Not Applicable to Certain Transactions
Following a Qualifying Offer 28
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES. 29
(a) Fractional Shares of Preferred Stock 29
(b) Fractional Shares of Common Stock 30
(c) Waiver by Record Holder of Rights 30
SECTION 15. RIGHTS OF ACTION 30
SECTION 16. AGREEMENT OF RIGHTS HOLDERS 30
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER 31
SECTION 18. CONCERNING THE RIGHTS AGENT. 31
(a) Compensation and Indemnification 31
(b) Limitation of Liability 32
<PAGE>
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT. 32
(a) Merger or Consolidation of Rights Agent 32
(b) Change of Name of Rights Agent 32
SECTION 20. DUTIES OF RIGHTS AGENT 32
SECTION 21. CHANGE OF RIGHTS AGENT 35
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES 35
SECTION 23. REDEMPTION AND TERMINATION. 36
(a) Redemption of Rights 36
(b) Termination of Exercise Rights; Notice of Redemption 36
SECTION 24. EXCHANGE. 37
(a) Exchange 37
(b) Termination of Exercise Right 37
(c) Substitution of Preferred Stock 37
(d) Fractional Shares of Common Stock 38
SECTION 25. NOTICE OF CERTAIN EVENTS. 38
(a) Notice of Dividend Payment, Distribution of Rights or
Warrants, Reclassification, Consolidation, Merger, Sale,
Liquidation, Etc 38
(b) Notice of Section 11(a)(ii) Event 39
SECTION 26. NOTICES 39
SECTION 27. SUPPLEMENTS AND AMENDMENTS 39
SECTION 28. SUCCESSORS 40
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS 40
SECTION 30. BENEFITS OF THIS AGREEMENT 40
SECTION 31. SEVERABILITY 41
SECTION 32. GOVERNING LAW 41
SECTION 33. COUNTERPARTS 41
SECTION 34. DESCRIPTIVE HEADINGS 41
EXHIBIT A - FORM OF CERTIFICATE OF DESIGNATION OF SERIES A
PREFERRED STOCK
EXHIBIT B - FORM OF RIGHTS CERTIFICATE
EXHIBIT C - FORM OF SUMMARY OF RIGHTS TO PURCHASE PREFERRED
STOCK
<PAGE>
RIGHTS AGREEMENT
THIS RIGHTS AGREEMENT (this "AGREEMENT") is entered into as
of May 24, 2000 between Exchange National Bancshares, Inc., a
Missouri corporation (the "COMPANY"), and The Exchange National
Bank of Jefferson City, a national banking association, as agent
(the "RIGHTS AGENT").
WHEREAS, on May 24, 2000 (the "RIGHTS DIVIDEND DECLARATION
DATE"), the Board of Directors of the Company authorized and
declared a dividend distribution of one Right for each share of
Common Stock of the Company outstanding at the Close of Business
on June 5, 2000 (the "RECORD DATE"), and has authorized the
issuance of one (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) Right for
each share of Common Stock issued between the Record Date
(whether originally issued or delivered from the Company's
treasury) and the Distribution Date, and, in certain
circumstances provided in Section 22 of this Agreement, after the
Distribution Date, each Right initially representing the right to
purchase one one-thousandth of a share of Preferred Stock of the
Company having the rights, powers and preferences set forth in
the form of Certificate of Designation attached hereto as EXHIBIT
A, upon the terms and subject to the conditions hereinafter set
forth ("RIGHTS"); and
WHEREAS, on May 24, 2000 the Board of Directors adopted and
approved this Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
SECTION 1. DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "ACQUIRING PERSON" shall mean collectively any Person
who or which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of 15% or more of the
shares of Common Stock then outstanding (other than as a result
of a Qualifying Offer) or was such a Beneficial Owner at any time
after the date hereof, whether or not such Person together with
all Affiliates or Associates of such Person continues to be the
Beneficial Owner of 15% or more of the then outstanding Common
Stock. Notwithstanding the foregoing, (A) the term "Acquiring
Person" shall not include (i) the Company, (ii) any Subsidiary of
the Company (including with respect to any shares of Common Stock
held in trust), (iii) any employee benefit plan of the Company or
of any Subsidiary of the Company, (iv) any Person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan, (v) any Person together
with all Affiliates and Associates of such Person who or which
becomes the Beneficial Owner of 15% or more of the then
outstanding shares of Common Stock as a result of the acquisition
of Common Stock directly from the Company (each of (i) through
(v), an "EXEMPTED PERSON"); (B) no Person shall become an
"Acquiring Person" as a result of an acquisition of Common Stock
by the Company which, by reducing the number of such shares then
outstanding, increases the proportionate number of shares
beneficially owned by such Person together with all Affiliates
and Associates of such Person to 15% or more of the outstanding
Common Stock, except that if such Person, <PAGE> after such share
purchases by the Company, becomes the Beneficial Owner of
additional shares of Common Stock constituting 1% or more of the
then outstanding shares of Common Stock other than pursuant to a
Qualifying Offer, such Person shall be deemed to be an "Acquiring
Person"; and (C) if the Board of Directors of the Company
determines in good faith that a Person, together with all
Affiliates and Associates of such Person, who would otherwise be
an "Acquiring Person" has become such inadvertently, and such
Person, together with all Affiliates and Associates of such
Person, divests as promptly as practicable a sufficient number of
shares of Common Stock so that such Person, together with all
Affiliates and Associates of such Person, would no longer be an
Acquiring Person, then such Person shall not be deemed to be an
"Acquiring Person." The term "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 beneficially own hereunder.
(b) "ACT" shall mean the Securities Act of 1933, as amended
and in effect on the date hereof.
(c) "ADJUSTMENT SHARES" shall have the meaning set forth in
Section 11(a)(ii) of this Agreement.
(d) "AFFILIATE" shall have the meaning set forth in Rule
12b-2 of the General Rules and Regulations under the Exchange
Act, as amended and in effect on the date hereof.
(e) "ASSOCIATE" shall have the meaning set forth in Rule
12b-2 of the General Rules and Regulations under the Exchange
Act, as amended and in effect on the date hereof.
(f) A Person shall be deemed the "BENEFICIAL OWNER" of, and
shall be deemed to "BENEFICIALLY OWN," any securities:
(i) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire
(whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of
conversion rights, exchange rights, rights (other than the
Rights), warrants or options, or otherwise; PROVIDED, HOWEVER,
that a Person shall not be deemed the "Beneficial Owner" of, or
to "beneficially own," (A) securities tendered pursuant to a
tender or exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates until such tendered
securities are accepted for purchase or exchange, or (B)
securities issuable upon exercise of Rights at any time prior to
the occurrence of a Triggering Event, or (C) securities issuable
upon exercise of Rights from and after the occurrence of a
Triggering Event to the extent such Rights were acquired by such
Person or any of such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 22 <PAGE> hereof
("ORIGINAL RIGHTS") or pursuant to Section 11(i) hereof in
connection with an adjustment made with respect to any Original
Rights;
(ii) that such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to vote or
dispose of or has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the Exchange Act, as amended and in effect on the date hereof),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; PROVIDED, HOWEVER, that
a Person shall not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this subparagraph (ii) as
a result of an agreement, arrangement or understanding to vote
such security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules
and Regulations under the Exchange Act, as amended and as in
effect on the date hereof, and (B) is not also then reportable by
such Person on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) that are beneficially owned, directly or indirectly, by
any other Person (or any Affiliate or Associate thereof) 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 pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this paragraph
(f)) or disposing of any voting securities of the Company;
PROVIDED, HOWEVER, that nothing in this paragraph (f) shall
cause a person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
person's participation in good faith in a bona fide firm
commitment underwriting until the expiration of forty days
after the date of such acquisition. Notwithstanding
anything in this definition of Beneficial Owner to the
contrary, a Person who, prior to the Distribution Date, is a
member of the Board of Directors or an officer of the
Company or who is an Affiliate or Associate of a member of
the Board of Directors or officer of the Company (each, an
"EXCLUDED PERSON") shall not be deemed to "beneficially own"
shares of Common Stock held by another Excluded Person
solely by reason of any agreement, arrangement or
understanding, written or otherwise, entered into in
opposition to any transaction or in support of a Qualifying
Offer.
(g) "BOARD OF DIRECTORS" shall mean the Board of Directors
of the Company as constituted from time to time.
(h) "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in the
State of Missouri or the state in which the principal office of
the Rights Agent is located are authorized or obligated by law or
executive order to close.
<PAGE>
(i) "CLOSE OF BUSINESS" on any given date shall mean 5:00
p.m., central time, on such date; PROVIDED, HOWEVER, that if such
date is not a Business Day it shall mean 5:00 p.m., central time,
on the next succeeding Business Day.
(j) "COMMON STOCK" shall mean the common stock, par value
$1.00 per share, of the Company (or in the event of a
subdivision, combination or reclassification with respect to such
shares of common stock, the shares of common stock resulting from
such subdivision, combination or reclassification), except,
subject to the proviso in Section 13(b) of this Agreement, that
"Common Stock" when used with reference to any Person other than
the Company shall mean the capital stock (or other equity
securities or equity interests) of such Person with the greatest
voting power to control or direct the management of such Person,
or if such Person is a Subsidiary of another Person, the Person
or Persons that ultimately control such first-mentioned Person.
(k) "COMMON STOCK EQUIVALENTS" shall have the meaning set
forth in Section 11(a)(iii) of this Agreement.
(l) "COMPANY" shall have the meaning set forth in the
introductory paragraph of this Agreement, subject to Section
13(a) hereof.
(m) "CURRENT MARKET PRICE" shall have the meaning set forth
in Section 11(d).
(n) "CURRENT VALUE" shall have the meaning set forth in
Section 11(a)(iii) of this Agreement.
(o) "DISTRIBUTION DATE" shall have the meaning set forth in
Section 3(a) of this Agreement.
(p) "EQUIVALENT PREFERRED STOCK" shall have the meaning set
forth in Section 11(b) of this Agreement.
(q) "EXCHANGE ACT" shall mean the Securities Exchange Act
of 1934, as amended and in effect on the date hereof.
(r) "EXCHANGE RATIO" shall have the meaning set forth in
Section 24(a) hereof.
(s) "EXCLUDED PERSON" shall have the meaning set forth in
Section 1(f) of this Agreement.
(t) "EXEMPTED PERSON" shall have the meaning set forth in
Section 1(a) of this Agreement.
(u) "EXPIRATION DATE" shall have the meaning set forth in
Section 7(a) of this Agreement.
(v) "FINAL EXPIRATION DATE" shall have the meaning set
forth in Section 7(a) of this Agreement.
<PAGE>
(w) "NASDAQ" shall have the meaning set forth in Section
4(a) of this Agreement.
(x) "ORIGINAL RIGHTS" shall have the meaning set forth in
Section 1(f)(i) of this Agreement.
(y) "PERSON" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity.
(z) "PREFERRED STOCK" shall mean shares of Series A
Preferred Stock, $0.01 par value per share, of the Company (or in
the event of a subdivision, combination or reclassification with
respect to such shares of Series A Preferred Stock, the shares of
preferred stock resulting from such subdivision, combination or
reclassification), and, to the extent that there is not a
sufficient number of shares of Series A Preferred Stock
authorized to permit the full exercise of the Rights, any other
series of preferred stock of the Company designated for such
purpose containing terms substantially similar to the terms of
the Series A Preferred Stock.
(aa) "PRINCIPAL PARTY" shall have the meaning set forth in
Section 13(b) of this Agreement.
(bb) "PURCHASE PRICE" shall have the meaning set forth in
Section 4(a) of this Agreement, subject to Section 11(a)(ii)
hereof.
(cc) "QUALIFYING OFFER" shall mean an acquisition of shares
of Common Stock pursuant to a tender offer or an exchange offer
for all outstanding shares of Common Stock at a price and on
terms determined by at least a majority of the members of the
Board of Directors, after receiving advice from one or more
nationally recognized investment banking firms selected by the
Board of Directors, to be (a) fair to shareholders (taking into
account all factors that the Board of Directors may deem relevant
including, without limitation, prices that 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 shareholders (other than
the Person or any Affiliate or Associate thereof on whose behalf
the offer is being made) taking into account all factors that the
Board of Directors may deem relevant; PROVIDED, HOWEVER, that
(i) such determination is made by the Board of Directors prior to
the purchase of shares under such tender offer or exchange offer,
and (ii) a majority of the members of the Board of Directors are
not Acquiring Persons or Affiliates, Associates, nominees or
representatives of an Acquiring Person.
(dd) "RECORD DATE" shall have the meaning set forth in the
first "WHEREAS" clause at the beginning of this Agreement.
(ee) "REDEMPTION DATE" shall have the meaning set forth in
Section 7(a) of this Agreement.
(ff) "REDEMPTION PRICE" shall have the meaning set forth in
Section 23 of this Agreement.
<PAGE>
(gg) "RIGHTS" shall have the meaning set forth in the first
"WHEREAS" clause at the beginning of this Agreement.
(hh) "RIGHTS AGENT" shall have the meaning set forth in the
introductory paragraph of this Agreement.
(ii) "RIGHTS CERTIFICATES" shall have the meaning set forth
in Section 3(d) of this Agreement.
(jj) "RIGHTS DIVIDEND DECLARATION DATE" shall have the
meaning set forth in the first "WHEREAS" clause at the beginning
of this Agreement.
(kk) "SECTION 11(A)(II) EVENT" shall have the meaning set
forth in Section 11(a)(ii) of this Agreement.
(ll) "SECTION 11(A)(II) TRIGGER DATE" shall have the meaning
set forth in Section 11(a)(iii) of this Agreement.
(mm) "SECTION 13 EVENT" shall mean any event described in
clauses (x), (y) or (z) of Section 13(a) of this Agreement.
(nn) "SPREAD" shall have the meaning set forth in Section
11(a)(iii) of this Agreement.
(oo) "STOCK ACQUISITION DATE" shall mean the earlier of the
date of (i) the public announcement (which, for purposes of this
definition, shall include, without limitation, a report filed
under the Exchange Act) by the Company or an Acquiring Person
that an Acquiring Person has become such or (ii) the public
disclosure of facts by the Company or an Acquiring Person
indicating that an Acquiring Person has become an Acquiring
Person; PROVIDED, HOWEVER, that if such Person is determined not
to have become an Acquiring Person pursuant to Section 1(a)(C)
hereof, then no Stock Acquisition Date shall be deemed to have
occurred.
(pp) "SUBSIDIARY" shall mean, with reference to any Person,
any corporation or other Person of which an amount of voting
securities sufficient to elect at least a majority of the
directors or others having similar authority over such
corporation or other Person is beneficially owned, directly or
indirectly, by such first-named Person, or otherwise controlled
by such first-named Person.
(qq) "SUBSTITUTION PERIOD" shall have the meaning set forth
in Section 11(a)(iii) of this Agreement.
(rr) "SUMMARY OF RIGHTS" shall have the meaning set forth in
Section 3(b) of this Agreement.
(ss) "TRADING DAY" shall have the meaning set forth in
Section 11(d)(i) of this Agreement.
<PAGE>
(tt) "TRANSACTION" shall mean any merger, consolidation or
sale of assets or earning power described in Section 13(a) hereof
or any acquisition of Common Stock which, without regard to any
required approval of the Company, would result in a Person
becoming an Acquiring Person.
(uu) "TRIGGERING EVENT" shall mean any Section 11(a)(ii)
Event or any Section 13 Event.
(vv) "VOTE" shall mean, with respect to any entity, the
ability to cast a vote at a shareholders', members' or comparable
meeting of such entity with respect to the election of directors,
managers or other members of such entity's governing body, or the
ability to cast a general partnership or comparable vote.
(ww) "VOTING POWER" shall mean, with respect to any entity
as of any date, the aggregate number of Votes outstanding as of
such date in respect of such entity.
(xx) "VOTING SECURITIES" shall mean the Common Stock and any
other securities of the Company the holders of which are
ordinarily, in the absence of contingencies, entitled to Vote,
even if the right to such Vote has been suspended by the
happening of such a contingency.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the
record holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date also be the record
holders of Common Stock) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
SECTION 3. EVIDENCE OF RIGHTS; ISSUANCE OF RIGHTS
CERTIFICATES.
(a) EVIDENCE OF RIGHTS PRIOR TO DISTRIBUTION DATE. Until
the earlier of (i) the Close of Business on the tenth Business
Day after the Stock Acquisition Date (or, if the tenth Business
Day after the Stock Acquisition Date occurs before the Record
Date, the Close of Business on the Record Date), or (ii) the
Close of Business on the tenth Business Day (or such later date
as the Board of Directors shall determine) after the date of the
earlier of commencement by any Person (other than an Exempted
Person) of, or the first public announcement of the intention of
any Person (other than an Exempted Person) to commence, a tender
or exchange offer the consummation of which would result in any
Person becoming an Acquiring Person (the earlier of (i) and (ii)
being herein referred to as the "DISTRIBUTION DATE"), (x) the
Rights will be evidenced (subject to the provisions of Section
3(d) of this Agreement) by the certificates for the Common Stock
registered in the names of the record holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company); PROVIDED, HOWEVER, that if a tender or
exchange offer is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a
result of such tender or <PAGE> exchange offer. The Board of
Directors may defer the date set forth in clause (ii) of the
preceding sentence to a specified later date or to an unspecified
later date, each to be determined by action of the Board of
Directors.
(b) COMMON STOCK OUTSTANDING AS OF THE RECORD DATE. With
respect to the Common Stock outstanding as of the Record Date,
until the earlier of the Distribution Date or the Expiration
Date, the Rights will be evidenced by the certificates for such
Common Stock and the record holders of the Common Stock shall
also be the record holders of the associated Rights, and the
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with such shares of Common
Stock. As promptly as practicable following the Record Date, the
Company will send a copy of a Summary of Rights to Purchase
Preferred Stock, in substantially the form attached hereto as
EXHIBIT C (the "SUMMARY OF RIGHTS"), by first-class, postage
prepaid mail, to each record holder of the Common Stock as of the
Close of Business on the Record Date, at the address of such
holder shown on the records of the Company.
(c) COMMON STOCK ISSUED AFTER THE RECORD DATE. Rights
shall be issued in respect of all shares of Common Stock that are
issued (whether originally issued or from the Company's treasury)
after the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date, and, in certain
circumstances provided in Section 22 of this Agreement, after the
Distribution Date. Certificates representing such shares of
Common Stock shall also be deemed to be certificates for Rights
and shall bear the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in
the Rights Agreement between Exchange National
Bancshares, Inc. (the "Company") and The Exchange
National Bank of Jefferson City (the "Rights
Agent"), dated as of May 24, 2000 (the "Rights
Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of
which is on file at the principal offices of the
Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no
longer be evidenced by this certificate. The
Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge,
promptly after receipt of a written request
therefor. Under certain circumstances set forth
in the Rights Agreement, Rights issued to, or held
by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement),
whether currently held by or on behalf of such
Person or by any subsequent holder, may become
null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of the Distribution Date or the
Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone and record holders of Common Stock shall
also be the record holders of the associated Rights, and the
transfer of any of such certificates shall also constitute
the transfer of the Rights <PAGE> associated with the Common
Stock represented by such certificates. In the event the
Company purchases or acquires any Common Stock after the
Record Date but prior to the Distribution Date, any Rights
associated with such Common Stock shall be deemed canceled
and retired so that the Company shall not be entitled to
exercise any Rights associated with the Common Stock that is
no longer outstanding. Notwithstanding the provisions of
this Section 3(c), the omission of a legend shall not affect
the enforceability of any part of this Agreement or the
rights of any holder of the Rights.
(d) ISSUANCE OF RIGHTS CERTIFICATES. As soon as
practicable after the Distribution Date, the Company shall
prepare and execute, and the Rights Agent will countersign and,
at the Company's expense, send by first-class, insured, postage
prepaid mail, to each record holder of the Common Stock as of the
Close of Business on the Distribution Date, at the address of
such holder shown on the registry books for the Common Stock of
the Company, one or more rights certificates, in substantially
the form of EXHIBIT B hereto (the "RIGHTS CERTIFICATES"),
evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common Stock has
been made pursuant to Section 11(p) hereof, at the time of
distribution of the Rights Certificates, the Company shall make
the necessary and appropriate rounding adjustments (in accordance
with Section 14(a) hereof) so that Rights Certificates
representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by
such Rights Certificates.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) FORM OF RIGHTS CERTIFICATES. The Rights Certificates
(and the form of election to purchase and form of assignment to
be printed on the reverse thereof) shall each be substantially in
the form set forth in EXHIBIT B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate
and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable
law or with any rule or regulation made pursuant thereto, or with
any rule or regulation of any stock exchange or the National
Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ") on which or with whom the Rights may from time
to time be listed or quoted, or to conform to usage. Subject to
the provisions of Section 11 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall entitle the record
holders thereof to purchase such number of one one-thousandths of
a share of Preferred Stock as shall be set forth therein at the
exercise price set forth therein (such exercise price per one one-
thousandth of a share, the "PURCHASE PRICE"), but the amount and
the type of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) LEGEND TO BE INCLUDED IN CERTAIN RIGHTS CERTIFICATES.
Any Rights Certificate issued pursuant to Section 3(d) or Section
22 hereof that represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an <PAGE>
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom such Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer that the Board of Directors
of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance
of Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights Certificate
are or were beneficially owned by a Person who is
or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms
are defined in the Rights Agreement between
Exchange National Bancshares, Inc. and The
Exchange National Bank of Jefferson City, dated as
of May 24, 2000 (the "Rights Agreement")).
Accordingly, this Rights Certificate and the
Rights represented hereby may become, or may have
already become, null and void in the circumstances
specified in Section 7(e) of the Rights Agreement.
The provisions of Section 7(e) of this Agreement shall be
operative whether or not the foregoing legend is contained
in any such Rights Certificate.
SECTION 5. EXECUTION, COUNTERSIGNATURE AND REGISTRATION OF
RIGHTS CERTIFICATES.
(a) EXECUTION AND COUNTERSIGNATURE. The Rights
Certificates shall be executed on behalf of the Company by its
Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and shall have affixed
thereto the Company's seal or a facsimile thereof, which shall be
attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned by an authorized signatory of
the Rights Agent, either manually or by facsimile signature, and
shall not be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any of the
Rights Certificates shall cease to be such officer of the Company
before countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates, nevertheless,
may be countersigned by an authorized signatory of the Rights
Agent and issued and delivered by the Company with the same force
and effect as though the person who signed such Rights
Certificates had not ceased to be such officer of the Company.
Any Rights Certificates may be signed on behalf of the Company by
any person who, at the actual date of the execution of such
Rights Certificate, shall be a proper officer of the Company to
sign such Rights Certificate, although at the date of the
execution of this Agreement any such person was not such an
officer.
(b) REGISTRATION. Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its principal
office or offices designated as the appropriate place for <PAGE>
surrender of Rights Certificates upon exercise or transfer, books
for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the
respective record 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.
The Company and Rights Agent may deem and treat the person in
whose name any Rights Certificate (or prior to the Distribution
Date, the associated certificate of Common Stock) is recorded on
the books for the registration and transfer of Rights (or, prior
to the Distribution Date, Common Stock) as the absolute owner
thereof, for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF
RIGHTS CERTIFICATES; LOST, STOLEN, DESTROYED OR MUTILATED RIGHTS
CERTIFICATES.
(a) TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS
CERTIFICATES. Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, at any time after the Close of
Business on the Distribution Date, and at or prior to the Close
of Business on the Expiration Date, any Rights Certificate or
Certificates may be transferred, split up, combined or exchanged
for another Rights Certificate or Certificates, entitling the
record holder to purchase a like number of one one-thousandths of
a share of Preferred Stock (or, following a Triggering Event,
Common Stock, other securities, cash or other assets, as the case
may be) as the Rights Certificate or Certificates surrendered
then entitles such holder (or former holder in the case of a
transfer) to purchase. Any record holder desiring to transfer,
split up, combine or exchange any Rights Certificate or
Certificates shall make such request in writing to the Rights
Agent in a form acceptable to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the office or
offices of the Rights Agent designated for such purpose. Neither
the Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the record holder shall have
completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and
shall have provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates
or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 4(b),
Section 7(e) and Section 14 hereof, countersign and deliver to
the Person entitled thereto a Rights Certificate or Certificates,
as the case may be, as so requested. The Company may require
payment by the record holder of a Rights Certificate of a sum
sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or
exchange of Rights Certificates.
(b) LOST, STOLEN, DESTROYED OR MUTILATED RIGHTS
CERTIFICATES. Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, upon receipt by the Rights Agent of
(i) evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of a Rights Certificate, (ii) in the
case of loss, theft or destruction of a Rights Certificate,
indemnity or security to the Rights Agent and the Company
reasonably satisfactory to the Rights Agent and (iii)
reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and in the case of
mutilation of a <PAGE> Rights Certificate, upon surrender of the
Rights Certificate to the Rights Agent and cancellation of the
Rights Certificate, the Company will execute and deliver a new
Rights Certificate of like tenor to the Rights Agent for
countersignature and delivery to the record holder in lieu of the
Rights Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS;
PURCHASE PRICE.
(a) EXERCISE OF RIGHTS; EXPIRATION DATE OF RIGHTS. Subject
to Section 7(e) hereof, the record holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii), Section 23(a) and Section 24(b) hereof) in whole or
in part at any time after the Distribution Date upon surrender of
the Rights Certificate, with the form of election to purchase and
the related certification set forth on the reverse side thereof
duly executed, to the Rights Agent at the office or offices of
the Rights Agent designated for such purpose, along with a
signature guarantee and such other and further documentation as
the Rights Agent may reasonably request, together with payment of
the aggregate Purchase Price with respect to the total number of
one one-thousandths of a share of Preferred Stock (or, following
the occurrence of a Triggering Event, Common Stock or other
securities, cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior to the
earlier of (i) the Close of Business on May 23, 2010 (the "FINAL
EXPIRATION DATE"), (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "REDEMPTION DATE"), (iii)
the time at which such Rights are exchanged as provided in
Section 24 hereof, or (iv) the consummation of a transaction
contemplated by Section 13(d) hereof (the earliest of (i), (ii),
(iii) and (iv) being herein referred to as the "EXPIRATION
DATE").
(b) PURCHASE PRICE. The Purchase Price for each one one-
thousandth of a share of Preferred Stock to be purchased pursuant
to the exercise of a Right shall initially be $150, and shall
be subject to adjustment from time to time as provided in
Sections 11 and 13(a) hereof and shall be payable in accordance
with Section 7(c).
(c) DELIVERIES UPON EXERCISE OF RIGHTS. Upon receipt of a
Rights Certificate representing exercisable Rights, with the form
of election to purchase and the related certification set forth
on the reverse side thereof duly executed along with a signature
guarantee and such other and further documentation as the Rights
Agent may reasonably request, together with payment of the
aggregate Purchase Price with respect to the total number of one
one-thousandths of a share of Preferred Stock (or, following the
occurrence of a Triggering Event, Common Stock or other
securities, cash or other assets, as the case may be) to be
purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Rights Certificate in
accordance with Section 9(e) hereof, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly
(i) (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is the
transfer agent for such shares) certificates for the total number
of one one-thousandths of a share of Preferred Stock to be
purchased, and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of shares
of Preferred Stock issuable upon exercise of the Rights hereunder
with a depositary agent, <PAGE> requisition from the depositary
agent depositary receipts representing such number of one one-
thousandths of a share of Preferred Stock as are to be purchased
(in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer
agent with the depositary agent), and the Company will direct the
depositary agent to comply with such request, (ii) requisition
from the Company the amount of cash, if any, to be paid in lieu
of fractional shares in accordance with Section 14 hereof, (iii)
promptly after receipt of such aforementioned certificates or
depositary receipts, cause the same to be delivered to or upon
the order of the record holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, promptly deliver such
aforementioned cash, if any, to or upon the order of the record
holder of such Rights Certificate. The payment of the Purchase
Price (as such amount may be reduced pursuant to Section
11(a)(iii) hereof) shall be made in cash or by certified bank
check or bank draft payable to the order of the Company. In the
event that the Company is obligated to issue other securities
(including Common Stock) of the Company, pay cash and/or
distribute other property upon exercise of the Rights pursuant to
Section 11(a) hereof, the Company will make all arrangements
necessary so that such other securities, cash and/or other
property are available for distribution by the Rights Agent, if
and when appropriate. The Company reserves the right to require,
prior to the occurrence of a Triggering Event that, upon any
exercise of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock would be issued.
(d) NEW RIGHTS CERTIFICATE ISSUED FOR UNEXERCISED RIGHTS.
In case the record holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to,
or upon the order of, the record holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section
14 hereof.
(e) RIGHTS OWNED BY AN ACQUIRING PERSON TO BECOME NULL AND
VOID. Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring
Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer that the Board of Directors
has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this
Section 7(e), shall become null and void without any further
action, and no record holder of such Rights shall have any rights
whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise. The Company shall use
all reasonable efforts to ensure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with, but
neither the Rights Agent nor the Company shall have <PAGE> any
liability to any record holder of Rights Certificates or other
Person as a result of the Company's failure to make any
determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. The Company may
require (or cause the Rights Agent or any transfer agent of the
Company to require) any Person who submits a Rights Certificate
(or a certificate representing shares of Common Stock that
evidences, or but for the provisions of this Section 7(e) would
evidence, Rights) for transfer on the registry books or to
exercise the Rights represented thereby to establish to the
satisfaction of the Company in its sole discretion that such
Rights have not become null and void pursuant to the provisions
of this Section 7(e).
(f) CERTIFICATION AND EVIDENCE OF IDENTITY REQUIRED.
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 record holder upon the
occurrence of any purported exercise as set forth in this Section
7 unless such holder shall have (i) completed and signed the
certification contained in the form of election to purchase set
forth on the reverse side of the Rights Certificate surrendered
for such exercise, and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial Owner)
or Affiliates or Associates thereof as the Company shall
reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS
CERTIFICATES. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any Rights Certificates purchased or acquired by the
Company. The Rights Agent shall deliver a certificate of
cancellation to the Company with respect to each canceled Rights
Certificate and shall destroy such canceled Rights Certificates
in accordance with applicable law and regulations.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL STOCK.
(a) RESERVATION AND AVAILABILITY OF CAPITAL STOCK. The
Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares of
Preferred Stock (and, following the occurrence of a Triggering
Event, out of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and issued
shares of Common Stock and/or other securities held in its
treasury), the number of shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) that, as provided in this Agreement,
including Section 11(a)(iii) hereof, will be sufficient to permit
the exercise in full of all outstanding Rights.
(b) RESERVED SHARES TO BE LISTED UPON ISSUANCE. So long as
the shares of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities) issuable
and deliverable upon the exercise of the Rights may be listed on
any national securities exchange or national automated quotation
system, the <PAGE> 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 authorized to be quoted on such
quotation system upon official notice of issuance upon such
exercise.
(c) REGISTRATION OF SECURITIES TO BE ACQUIRED UPON EXERCISE
OF RIGHTS. The Company shall use its best efforts to (i) file,
as soon as practicable following the earliest date after the
first occurrence of a Section 11(a)(ii) Event on which the
consideration to be delivered by the Company upon exercise of the
Rights has been determined in accordance with Section 11(a)(ii)
and 11(a)(iii) hereof, 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 Expiration Date. The Company also will take such
action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed
ninety (90) days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of the
Rights in order to prepare and file such registration statement
and permit it to become effective. Upon any such suspension, the
Company shall make a public announcement, and shall give
simultaneous written notice to the Rights Agent, 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. In addition, if the Company shall determine
that a registration statement is required following the
Distribution Date, the Company may temporarily suspend the
exercisability of the Rights until such time as a registration
statement has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not
be exercisable in any jurisdiction if the requisite qualification
in such jurisdiction shall not have been obtained, the exercise
thereof shall not be permitted under applicable law or a
registration statement shall not have been declared effective.
(d) STOCK TO BE VALIDLY ISSUED. The Company covenants and
agrees that it will take all such action as may be necessary to
ensure that all one one-thousandths of a share of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock and/or other securities, as the case may be) delivered upon
exercise of Rights shall, at the time of delivery of the
certificates for such Preferred Stock, Common Stock, or other
securities, as the case may be (subject to payment of the
Purchase Price), be duly and validly authorized and issued, and
fully paid and nonassessable including, without limitation,
effecting such changes to the accounts of the Company as may be
necessary to accomplish the foregoing purposes.
(e) TRANSFER TAXES. The Company covenants and agrees that
it will pay when due and payable any and all U.S. federal and
state transfer taxes and charges that may be payable in respect
of the issuance or delivery of the Rights Certificates and any
<PAGE> certificates for a number of one one-thousandths of a
share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) upon the exercise of the Rights.
The Company shall not, however, be required to pay any transfer
tax that may be payable in respect of any transfer or delivery of
Rights Certificates to a Person other than, or the issuance or
delivery of certificates or depositary receipts for a number of
one one-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in respect of
a name other than that of, the record holder of the Rights
Certificates evidencing Rights surrendered for exercise or to
issue or deliver any certificates for a number of one one-
thousandths of a share of Preferred Stock (or, following the
occurrence of a Triggering Event, Common Stock and/or other
securities, as the case may be) in a name other than that of the
record holder upon the exercise of any Rights until such tax
shall have been paid (any such tax being payable by the holder of
such Rights Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax
is due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each person in whose
name any certificate for a number of one one-thousandths of a
share 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 such fractional shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the aggregate Purchase Price (and all
applicable transfer taxes) was made; PROVIDED, HOWEVER, that if
the date of such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are closed, such
Person shall be deemed to have become the record holder of such
shares (fractional or otherwise) on, and such certificate shall
be dated, the next succeeding Business Day on which the Preferred
Stock (or Common Stock and/or other securities, as the case may
be) transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the record holder of a
Rights Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND OF
SHARES AND NUMBER OF RIGHTS. The Purchase Price, the number and
kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) ADJUSTMENT OF PURCHASE PRICE UPON DECLARATION OF STOCK
DIVIDEND OR SUBDIVISION, COMBINATION OR RECLASSIFICATION OF
PREFERRED STOCK; ADJUSTMENT OF NUMBER AND KIND OF SHARES UPON
PERSON BECOMING AN ACQUIRING PERSON; SUBSTITUTION FOR ADJUSTMENT
SHARES.
(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 shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the <PAGE> outstanding
Preferred Stock into a smaller number of shares, or (D) issue any
shares of its capital stock in a reclassification of the
Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e) hereof, the
Purchase Price in effect at the time of the record date for such
dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of
shares of Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that
the record holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred
Stock (or Common Stock and/or other securities, as the case may
be), 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, such record holder would have owned
upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an
event occurs which would require an adjustment under both this
Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment
provided for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii) hereof.
(ii) Subject to Section 24 hereof, in the event any Person,
alone or together with its Affiliates and Associates, shall, at
any time after the Rights Dividend Declaration Date, become an
Acquiring Person (such an event being referred to herein as a
"SECTION 11(A)(II) EVENT"), then, promptly following the
occurrence of such Section 11(a)(ii) Event, proper provision
shall be made by the Company so that each holder of a Right
(except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof at
the then current Purchase Price in accordance with the terms of
this Agreement, in lieu of a number of one one-thousandths of a
share 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 Purchase Price by the then number of
one one-thousandths of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event, and (y) dividing that product
(which, following such first occurrence, shall thereafter be
referred to as the "PURCHASE PRICE" for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per share of
Common Stock on the date of such first occurrence (such number of
shares being referred to as the "ADJUSTMENT SHARES"); PROVIDED,
HOWEVER, that if the transaction that would otherwise give rise
to the foregoing adjustment is also subject to the provisions of
Section 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) Subject to such limitations existing as of the date
hereof as are necessary to prevent a default under any agreement
to which the Company is a party, in the event that the number of
shares of Common Stock that are authorized <PAGE> by the
Company's articles 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 in accordance with Section 11(a)(ii), the Company,
acting by resolution of its Board of Directors shall (A)
determine the excess of (x) the value of the Adjustment Shares
issuable upon the exercise of a Right determined as set forth
below (the "CURRENT VALUE"), over (y) the Purchase Price (such
excess, the "SPREAD"), and (B) with respect to each Right
(subject to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the exercise of a
Right and payment of the applicable Purchase Price, (1) cash, (2)
a reduction in the Purchase Price, (3) Common Stock or other
equity securities of the Company (including, without limitation,
shares or units of shares of preferred stock, such as the
Preferred Stock, which the Board of Directors has deemed to have
essentially the same value or economic rights as shares of Common
Stock (such shares of preferred stock or other equity securities
being referred to as "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 based upon the advice of a nationally
recognized investment banking firm selected by the Board of
Directors; PROVIDED, HOWEVER, that if the Company shall not have
made adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the date on which the
Company's right of redemption pursuant to Section 23(a) expires
(such date being referred to herein as the "SECTION 11(A)(II)
TRIGGER DATE"), then the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring
payment of the Purchase Price (other than an amount equal to the
par value of the shares of Common Stock to be issued), shares of
Common Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to
the Spread. If the Board of Directors determines in good faith
that it is likely that sufficient additional shares of Common
Stock could be authorized for issuance upon exercise in full of
the Rights, the thirty (30) day period set forth above may be
extended to the extent necessary, but not more than ninety (90)
days after the Section 11(a)(ii) Trigger Date, in order that the
Company may seek shareholder approval for the authorization of
such additional shares (such thirty (30) day period, as it may be
extended, is herein called the "SUBSTITUTION PERIOD"). To the
extent that action is to be taken pursuant to the first and/or
second sentences of this Section 11(a)(iii), the Company (1)
shall provide, subject to Section 7(e) hereof, that such action
shall apply uniformly to all outstanding Rights, and (2) may
suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek such shareholder
approval for such authorization of additional shares and/or to
decide the appropriate form of distribution to be made pursuant
to such first sentence and to determine the value thereof. In
the event of any such suspension, the Company shall make a public
announcement and shall give simultaneous written notice to the
Rights Agent stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes
of this Section <PAGE> 11(a)(iii), the Current Value of each
Adjustment Share shall be the Current Market Price per share of
the Common Stock on the Section 11(a)(ii) Trigger Date, and the
per share or per unit value of any Common Stock Equivalent shall
be deemed to equal the Current Market Price per share of the
Common Stock on such date.
(b) ADJUSTMENT OF PURCHASE PRICE UPON ISSUANCE OF RIGHTS,
OPTIONS OR WARRANTS TO HOLDERS OF PREFERRED STOCK. In case the
Company shall fix a record date for the issuance of rights,
options or warrants to all record holders of Preferred Stock
entitling them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred Stock
("EQUIVALENT PREFERRED STOCK")) or securities convertible into
Preferred Stock or Equivalent Preferred Stock at a price per
share of Preferred Stock or per share of Equivalent Preferred
Stock (or having a conversion price per share, if a security
convertible into Preferred Stock or Equivalent Preferred Stock)
less than the Current Market Price (determined pursuant to
Section 11(d)(ii) hereof) per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred
Stock and Equivalent Preferred Stock outstanding on such record
date plus the number of shares of Preferred Stock and Equivalent
Preferred Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or Equivalent Preferred
Stock so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would
purchase at such Current Market Price, and the denominator of
which shall be the number of shares of Preferred Stock and
Equivalent 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). In case such subscription
price may be paid by delivery of consideration part or all of
which may be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board
of Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights. Shares of Preferred
Stock and Equivalent 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 or warrants are not so issued, the
Purchase Price shall be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(c) ADJUSTMENT OF PURCHASE PRICE UPON DISTRIBUTIONS TO
HOLDERS OF PREFERRED STOCK. In case the Company shall fix a
record date for a distribution to all record holders of Preferred
Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness, cash (other
than a regular quarterly cash dividend out of the earnings or
retained earnings of the Company), assets (other than a dividend
payable in Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights or
warrants (excluding those referred to in <PAGE> Section 11(b)
hereof), the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per share of
Preferred Stock on such record date less the fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent and the
holders of the Rights) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to a share of
Preferred Stock, and the denominator of which shall be the
Current Market Price per share of Preferred Stock on such record
date. Such adjustments shall be made successively whenever such
a record date is fixed, and in the event that such distribution
is not so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such record
date had not been fixed.
(d) DEFINITION OF CURRENT MARKET PRICE.
(i) For the purpose of any computation hereunder other than
computations made pursuant to Section 11(a)(iii) hereof, the
"CURRENT MARKET PRICE" per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the thirty (30) consecutive
Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii) hereof, the
Current Market Price per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices per share
of such Common Stock for the ten (10) consecutive Trading Days
immediately following such date; PROVIDED, HOWEVER, that in the
event that the Current Market Price per share of Common Stock is
determined during a period following the announcement by the
issuer of such Common Stock of (A) a dividend or distribution on
such Common Stock payable in shares of such Common Stock or
securities convertible into shares of such Common Stock (other
than the Rights), or (B) any subdivision, combination or
reclassification of such Common Stock, and the ex-dividend or ex-
distribution date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification
shall not have occurred prior to the commencement of the
requisite thirty (30) Trading Day or ten (10) Trading Day period,
as set forth above, then, and in each such case, the Current
Market Price shall be properly adjusted to reflect the current
market per share equivalent. The closing price for each day
shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock
Exchange or, if the shares of Common Stock are not listed or
admitted to trading on the New York Stock Exchange, as reported
in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not
listed or admitted to trading on any national securities
exchange, the last sale price, regular way, or, if such last sale
price is not reported, the average of the high bid and low asked
<PAGE> prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use, or, if on any such date
the shares of Common Stock are not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Common Stock selected by the Board of Directors. If on any such
date no market maker is making a market in the Common Stock, the
fair value of such shares on such date as determined in good
faith by the Board of Directors shall be used. The term "TRADING
DAY" shall mean a day on which the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading is open for the transaction of business or,
if the shares of Common Stock are not listed or admitted to
trading on any national securities exchange, a Business Day.
Notwithstanding the first sentence of this Section 11(d)(i), if
the Common Stock is not publicly held or not so listed or traded,
Current Market Price per share of the Common Stock shall mean the
fair value per share as determined in good faith by the Board of
Directors, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all
purposes.
(ii) For the purpose of any computation hereunder, the
Current Market Price per share of Preferred Stock shall be
determined in the same manner as set forth for the Common Stock
in Section 11(d)(i) (other than the last sentence thereof). If
the Current Market Price per share of Preferred Stock cannot be
determined in the manner provided above or if the Preferred Stock
is not publicly held or listed or traded in a manner described in
Section 11(d)(i), the Current Market Price per share of Preferred
Stock shall be conclusively deemed to be an amount equal to 1000
(as such number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect
to the Common Stock occurring after the date of this Agreement)
multiplied by the Current Market Price per share of the Common
Stock. If neither the Common Stock nor the Preferred Stock is
publicly held or so listed or traded, Current Market Price per
share of the Preferred Stock shall mean the fair value per share
as determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. For all
purposes of this Agreement, the Current Market Price of one one-
thousandth of a share of Preferred Stock shall be equal to the
Current Market Price of one share of Preferred Stock divided by
1000.
(e) LIMITATION ON ADJUSTMENTS TO PURCHASE PRICE. Anything
herein to the contrary notwithstanding, no adjustment in the
Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least one percent (1%) in
the Purchase Price; PROVIDED, HOWEVER, that any adjustments which
by reason of this Section 11(e) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest hundred-thousandth of a
share of Common Stock or other share or one-millionth of a share
of Preferred Stock, as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by
this Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which mandates
such adjustment, or (ii) the Expiration Date.
<PAGE>
(f) APPLICABILITY OF CERTAIN PROVISIONS TO SHARES OF
CAPITAL STOCK OTHER THAN PREFERRED STOCK. If as a result of an
adjustment made pursuant to Section 11(a)(ii) or Section 13(a)
hereof the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other than
Preferred Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms to any
such other shares.
(g) PURCHASE PRICE FOR RIGHTS ISSUED AFTER ADJUSTMENT TO
PURCHASE PRICE. All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of one one-thousandths of a share of Preferred
Stock purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) ADJUSTMENT OF NUMBER OF SHARES OF PREFERRED STOCK
COVERED BY A RIGHT. Unless the Company shall have exercised its
election to adjust the number of Rights as provided in
Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each
Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase, at
the adjusted Purchase Price, that number of one one-thousandths
of a share of Preferred Stock (calculated to the nearest one-
millionth) obtained by (i) multiplying (x) the number of one one-
thousandths of a share covered by a Right immediately prior to
this adjustment, by (y) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price, and (ii) dividing
the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) ELECTION TO ADJUST THE NUMBER OF RIGHTS. The Company
may elect on or after the date of any adjustment of the Purchase
Price to adjust the number of Rights in lieu of any adjustment in
the number of one one-thousandths of a share of Preferred Stock
purchasable upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights shall be
exercisable for the number of one one-thousandths 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-millionth) obtained by
dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company
shall make a public announcement and shall give simultaneous
written notice to the Rights Agent of its election to adjust the
number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten (10) days
later than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of the number
of Rights <PAGE> pursuant to this Section 11(i), the Company
shall, as promptly as practicable, cause to be distributed to
holders 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 in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) RIGHTS CERTIFICATES NEED NOT REFLECT CERTAIN
ADJUSTMENTS. Irrespective of any adjustment or change in the
Purchase Price or the number by one one-thousandths of a share of
Preferred Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per one one-thousandths of
a share and the number of one one-thousandths of a share which
were expressed in the initial Rights Certificates issued
hereunder.
(k) STOCK TO BE FULLY PAID AND NON-ASSESSABLE. Before
taking any action that would cause an adjustment reducing the
Purchase Price below the then par value, if any, of the one one-
thousandths of a share of Preferred Stock issuable upon exercise
of the Rights, or the par value, if any, of any shares of any
other capital stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion
of its counsel, be necessary in order that the Company may
validly and legally issue fully paid and non-assessable one one-
thousandths of a share of Preferred Stock, or other shares of
capital stock, as the case may be, at such adjusted Purchase
Price. If upon any exercise of the Rights, a holder is to
receive a combination of Common Stock and Common Stock
Equivalents, a portion of the consideration paid upon such
exercise, equal to at least the then par value of a share of
Common Stock, shall be allocated as the payment for each share of
Common Stock so received.
(l) ELECTION TO DEFER ISSUANCE OF CERTAIN SHARES UNTIL
AFTER RECORD DATE FOR ADJUSTMENT EVENT. In any case in which
this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified
event, the Company may elect to defer, until the occurrence of
such event, the issuance to the record holder of any Right
exercised after such record date the number of one one-
thousandths of a share of Preferred Stock and other capital stock
or securities of the Company, if any, issuable upon such exercise
over and above the number of one one-thousandths of a share of
Preferred Stock, and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; PROVIDED,
HOWEVER, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares (fractional or otherwise) or
securities upon the occurrence of the event requiring such
adjustment.
<PAGE>
(m) REDUCTIONS IN PURCHASE PRICE TO AVOID TAXABLE EVENTS.
Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by
this Section 11, as and to the extent that in their good faith
judgment the Board of Directors shall determine to be advisable
in order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any shares of
Preferred Stock at less than the Current Market Price thereof,
(iii) issuance wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividends,
or (v) issuance of rights, options or warrants referred to in
this Section 11, hereafter made by the Company to holders of its
Preferred Stock shall not be taxable to such holders.
(n) NO CONSOLIDATION, MERGER OR SALE OF MORE THAN 50% OF
ASSETS OR EARNING POWER. The Company covenants and agrees that
it shall not, at any time after the Distribution Date and so long
as the Rights have not been redeemed pursuant to Section 23
hereof or exchanged pursuant to Section 24 hereof, (i)
consolidate with any other Person (other than a Subsidiary of the
Company in a transaction that complies with this Section 11(n)),
(ii) merge with or into any other Person (other than a Subsidiary
of the Company in a transaction that complies with this Section
11(n)), or (iii) sell or transfer (or permit any Subsidiary to
sell or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries in one or
more transactions, each of which complies with this Section
11(n)), if (x) at the time of or immediately after such
consolidation, merger or sale there are any articles of
incorporation or bylaw provisions or any rights, warrants or
other instruments or securities outstanding or agreements in
effect or other actions taken which would substantially diminish
or otherwise eliminate the benefits intended to be afforded by
the Rights or (y) prior to, simultaneously with or immediately
after such consolidation, merger or sale, the shareholders of the
Person who constitutes, or would constitute, the Principal Party
for purposes of Section 13(a) hereof shall have received a
distribution of Rights previously owned by such Person or any of
its Affiliates and Associates. The Company shall not consummate
any such consolidation, merger, sale or transfer unless prior
thereto the Company and such other Person shall have executed and
delivered to the Rights Agent a supplemental agreement evidencing
compliance with this Section 11(n).
(o) NO ACTIONS THAT DIMINISH BENEFITS OF RIGHTS. The
Company covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 23, Section 24 or
Section 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably
foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the
Rights.
(p) ADJUSTMENT IN NUMBER OF RIGHTS ASSOCIATED WITH EACH
SHARE OF COMMON STOCK. Anything in this Agreement to the
contrary notwithstanding, in the event that the Company shall at
any time after the Rights Dividend Declaration Date and prior to
the Distribution Date (i) declare or pay any dividend on the
outstanding shares of Common Stock payable in shares of Common
Stock, (ii) subdivide or split the outstanding shares <PAGE> of
Common Stock into a greater number of shares, or (iii) combine or
consolidate the outstanding shares of Common Stock into a smaller
number of shares or effect a reverse split of the outstanding
shares of Common Stock, then, and in each such event, the number
of Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the
number of Rights thereafter associated with each share of Common
Stock following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common Stock outstanding immediately following the
occurrence of such event.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER
OF SHARES. Whenever an adjustment is made as provided in Section
11 or Section 13 hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such certificate,
and (c) mail a brief summary thereof to each record holder of a
Rights Certificate (or, if prior to the Distribution Date, to
each record holder of a certificate representing shares of Common
Stock) in accordance with Section 26 hereof. The Rights Agent
shall be fully protected in relying on any such certificate and
on any adjustment therein contained and shall not be deemed to
have knowledge of such adjustment unless and until it shall have
received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
(a) SECTION 13 EVENTS. In the event that, following the
Stock Acquisition Date (which for purposes of this Section 13(a)
only shall also include the date of the first public announcement
(including, without limitation, a report filed pursuant to
Section 13(d) under the Exchange Act) that any Person (other than
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the
Company for or pursuant to the terms of any such plan), together
with any of such Person's Affiliates and Associates, has become
the Beneficial Owner of 15% or more of the shares of Common Stock
then outstanding pursuant to a Qualifying Offer), directly or
indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a Subsidiary of the
Company in a transaction that complies with Section 11(n)
hereof), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person
(other than a Subsidiary of the Company in a transaction that
complies with Section 11(n) hereof) shall consolidate with, or
merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or
merger and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning
power of the Company and its <PAGE> Subsidiaries (taken as a
whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of
which complies with Section 11(n) hereof), then, upon the first
occurrence of such event (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price, in
accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable and
freely tradable shares of Common Stock of the Principal Party (as
such term is hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then
current Purchase Price by the number of one one-thousandths of a
share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of such
one one-thousandths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section 11(a)(ii)
Event by the Purchase Price in effect immediately prior to such
first occurrence), and (2) dividing that product (which,
following the first occurrence of a Section 13 Event, shall be
referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per share of the
Common Stock of such Principal Party on the date of consummation,
provided that the Purchase Price and the number of shares of
Common Stock of such Principal Party issuable upon exercise of
each Right shall be further adjusted as provided in Section 11(f)
of this Agreement to reflect any events occurring in respect of
such Principal Party after the date of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to
such Principal Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13
Event; (iv) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof shall
be of no effect following the first occurrence of any Section 13
Event.
(b) DEFINITION OF PRINCIPAL PARTY. "PRINCIPAL PARTY" shall
mean:
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a): (A) the Person
that is the issuer of any securities into which shares of Common
Stock of the Company are converted in such merger or
consolidation, or if there is more than one such issuer, the
issuer that has the greatest aggregate market value of shares of
its Common Stock outstanding, or (B) if no securities are so
issued, (1) the Person that is the other party to the merger, if
such Person survives said merger, or, if there is more than one
such Person, the Person that has the greatest aggregate market
value of shares of its <PAGE> Common Stock outstanding or (2) if
the Person that is the other party to the merger does not survive
the merger, the Person that does survive the merger (including
the Company if it survives) or (3) the Person resulting from the
consolidation; and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions
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 has the greatest aggregate market value
of shares of its Common Stock outstanding;
PROVIDED, HOWEVER, that in any such case, (1) if the Common
Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person
the Common Stock of which is and has been so registered,
"PRINCIPAL PARTY" shall refer to such other Person; (2) in
case such Person is a Subsidiary, directly or indirectly, of
more than one Person, the Common Stocks of two or more of
which are and have been so registered, "PRINCIPAL PARTY"
shall refer to whichever of such Persons is the issuer
having the greatest aggregate market value of shares of its
Common Stock outstanding; and (3) in case such Person is
owned, directly or indirectly, by a joint venture formed by
two or more Persons that are not owned, directly or
indirectly, by the same Person, the rules set forth in (1)
and (2) above shall apply to each of the chains of ownership
having an interest in such joint venture as if such party
were a "Subsidiary" of both or all of such joint venturers
and the Principal Parties in each such chain shall bear the
obligations set forth in this Section 13 in the same ratio
as their direct or indirect interests in such Person bear to
the total of such interests.
(c) OBLIGATIONS OF PRINCIPAL PARTY. The Company shall not
consummate any consolidation, merger, sale or transfer described
in Section 13(a) unless the Principal Party covenants and agrees
that it will cause to be reserved and kept available out of its
authorized and unissued shares of Common Stock or out of its
authorized and issued shares of Common Stock held in its
treasury, the number of shares of its Common Stock that will be
sufficient to permit the exercise in full of all outstanding
Rights under this Section 13 and unless prior thereto the Company
and such Principal Party shall have executed and delivered to the
Rights Agent a supplemental agreement confirming that the
requirements set forth in paragraphs (a) and (b) of this Section
13 shall be promptly performed in accordance with their terms and
further providing that, as soon as practicable after executing
such agreement pursuant to this Section 13, the Principal Party
will:
(i) prepare and file a registration statement under the
Act, with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use
its best efforts to cause such registration statement to (A)
become effective as soon as practicable after such filing and (B)
remain <PAGE> effective (with a prospectus at all times meeting
the requirements of the Act) until the Expiration Date and
similarly comply with applicable state securities laws;
(ii) use its best efforts, if the shares of Common Stock of
the Principal Party shall be listed or admitted to trading on a
national securities exchange or NASDAQ to list or admit to
trading (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on such
securities exchange or NASDAQ and, if the shares of Common Stock
of the Principal Party shall not be listed or admitted to trading
on a national securities exchange or NASDAQ, to cause the Rights
and the securities purchasable upon exercise of the Rights to be
reported by such other system then in use;
(iii) deliver to record holders of the Rights historical
financial statements for the Principal Party and each of its
Affiliates that comply in all respects with the requirements for
registration on Form 10 under the Exchange Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the shares of Common Stock of the
Principal Party subject to purchase upon exercise of outstanding
Rights.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur
at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights that have not theretofore been exercised
shall thereafter become exercisable in the manner described
in Section 13(a). If, for any reason, the Rights cannot be
exercised for Common Stock of the Company or such Principal
Party, then a holder of Rights will have the right to
exchange such Rights for cash from the Company or such
Principal Party in an amount equal to the number of shares
of such Common Stock such holder would otherwise be entitled
to purchase times 50% of the then Current Market Price, as
determined pursuant to Section 11(d)(i) hereof, of such
stock of such Principal Party or the Company. If, for any
reason, including, without limitation, such Principal Party
is an individual, private partnership or private company,
the foregoing formulation cannot be applied to determine the
cash amount into which the Rights are exchangeable, then the
Board of Directors, based upon advice from one or more
nationally recognized investment banking firms, shall
determine such amount reasonably and with utmost good faith
to the holders of Rights. Any such determination shall be
binding and final.
(d) SECTION 13 NOT APPLICABLE TO CERTAIN TRANSACTIONS
FOLLOWING A QUALIFYING OFFER. 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 who acquired shares of Common Stock pursuant to a
Qualifying Offer (or a wholly owned Subsidiary of any such Person
or Persons), (ii) the price per share of Common Stock offered in
such transaction is not less than the price per share of Common
Stock paid to all record holders of shares of Common Stock whose
shares were purchased pursuant to such Qualifying Offer, and
(iii) the form of consideration being offered to the remaining
record holders of shares of Common Stock pursuant to such
transaction is the same as the form of <PAGE> consideration paid
pursuant to such Qualifying Offer. Upon consummation of any such
transaction contemplated by this Section 13(d), all Rights
hereunder shall expire.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) FRACTIONAL RIGHTS. The Company shall not be required
to issue fractions of Rights, except prior to the Distribution
Date as provided in Section 11(p) hereof, or to distribute Rights
Certificates that evidence fractional Rights. In lieu of such
fractional Rights, the Company may pay to the record holders 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 current market value of a whole Right.
For purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights
are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities
exchange, the last sale price or, if such last sale price is not
reported, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker
making a market in the Rights selected by the Board of Directors.
If on any such date no such market maker is making a market in
the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors shall be used
to determine the current market value of the whole Right.
(b) FRACTIONAL SHARES OF PREFERRED STOCK. The Company
shall not issue fractions of shares of Preferred Stock (other
than, except as provided in Section 7(c), fractions that are
integral multiples of one one-thousandth of a share of Preferred
Stock) upon exercise of the Rights or to distribute certificates
that evidence fractional shares of Preferred Stock (other than
fractions that are integral multiples of one one-thousandth of a
share of Preferred Stock). Fractions of shares of Preferred
Stock in integral multiples of one one-thousandth of a share of
Preferred Stock may, at the election of the Company, be evidenced
by depositary receipts, pursuant to an appropriate agreement
between the Company and a depositary selected by it; PROVIDED,
HOWEVER, that such agreement shall provide that the holders of
such depositary receipts shall have the rights, privileges and
preferences to which they are entitled as beneficial owners of
the shares of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-thousandth of a share of
Preferred Stock, the Company shall pay to the record holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the Current Market Price per share of Preferred Stock as of the
Trading Day immediately <PAGE> prior to the date of such
exercise.
(c) FRACTIONAL SHARES OF COMMON STOCK. The Company shall
not issue fractions of shares of Common Stock or distribute
certificates that evidence fractional shares of Common Stock upon
the exercise of Rights by any record holder thereof following the
occurrence of a Triggering Event. In lieu of fractional shares
of Common Stock, the Company shall pay to the record holders of
Rights Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the Current Market Price per share of Common Stock as of the
Trading Day immediately prior to the date of such exercise.
(d) WAIVER BY RECORD HOLDER OF RIGHTS. The record holder
of a Right by the acceptance of the Rights expressly waives his
right to receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in respect
of this Agreement, excepting the rights of action given to the
Rights Agent, are vested in the respective record holders of the
Rights Certificates (and, prior to the Distribution Date, the
record holders of the Common Stock); and any record holder of any
Rights Certificate (or, prior to the Distribution Date, of the
Common Stock), without the consent of the Rights Agent or of the
record holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his own behalf
and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights Certificate in the manner provided in
such Rights Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the record holders of
Rights, it is specifically acknowledged that such holders of
Rights would not have an adequate remedy at law for any breach of
this Agreement and shall be entitled to specific performance of
the obligations hereunder and injunctive relief against actual or
threatened violations of the obligations hereunder of any Person
subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights Certificates
are transferable only on the transfer books of the Rights Agent
if surrendered at the principal office or offices of the Rights
Agent designated for such purposes, duly endorsed or accompanied
by a proper instrument of transfer and with the appropriate forms
and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the
Company and the Rights Agent may deem and treat the person in
whose name a Rights Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered on
the transfer books of the Rights Agent as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Rights Certificates
<PAGE> or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent, subject
to the last sentence of Section 7(e) hereof, shall be required to
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 obligations; PROVIDED, HOWEVER, the Company must use its
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A
SHAREHOLDER. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of one one-thousandths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, 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
shareholder of the Company or any right to vote for the election
of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting shareholders (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) COMPENSATION AND INDEMNIFICATION. The Company agrees
to pay to the Rights Agent such compensation as shall be agreed
to in writing between the Company and the Rights Agent for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and disbursements and other disbursements incurred in the
administration and execution of this Agreement and the exercise
and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent, including its members, directors,
officers, employees, shareholders and agents, 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 by the
Rights Agent in connection with the acceptance and administration
of this Agreement, including, without limitation, the costs and
expenses of defending against any claim of liability in the
premises (including reasonable counsel fees and expenses). The
indemnity provided for herein shall survive the expiration of the
Rights and the termination of this Agreement.
<PAGE>
(b) LIMITATION OF LIABILITY. The Rights Agent shall be
protected and shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Stock or for other
securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed,
and where necessary, verified, guaranteed or acknowledged, by the
proper Person or Persons.
SECTION 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF
RIGHTS AGENT.
(a) MERGER OR CONSOLIDATION OF RIGHTS AGENT. Any
corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which
the Rights Agent or any successor Rights Agent shall be a party,
or any corporation succeeding to the corporate trust or
shareholder services business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, PROVIDED, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of
Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered; any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver such
Rights Certificates so 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 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 Agreement.
(b) CHANGE OF NAME OF RIGHTS AGENT. In case at any time
the name of the Rights Agent shall be changed and at such time
any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent
undertakes the specific duties and obligations expressly imposed
by this Agreement, and no implied duties or obligations shall be
read into this Agreement against the Rights Agent, upon the
following terms and conditions, by 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 <PAGE> authorization and
protection to the Rights Agent as to any action taken or omitted
by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of
"Current Market Price") be proved or established by the Company
prior to taking or omitting any action hereunder, such fact or
matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a certificate signed by the Chairman of the
Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent for
any action taken or omitted in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Rights Certificates or be required to verify
the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Agreement or the execution and
delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any 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 Agreement or in any Rights
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 hereof
or responsible for the manner, method or amount of any such
adjustment 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 actual
notice of any such adjustment); nor shall it by any act hereunder
be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or
Preferred Stock to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Common Stock,
Preferred Stock or other securities, will when so issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this 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, <PAGE> the President,
any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and to apply
to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with
instructions of any such officer or for any delay in acting while
waiting for those instructions.
(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 Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such
act, default, neglect or misconduct, PROVIDED, that reasonable
care was exercised in the selection and continued employment
thereof.
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed or
indicates an affirmative response to clause 1 and/or 2 thereof,
the Rights Agent shall not take any further action with respect
to such requested exercise or transfer without first consulting
with the Company.
(l) The Rights Agent shall have no responsibility to the
Company, any holders of Rights or any holders of shares of Common
Stock for interest or earnings on any moneys held by the Rights
Agent pursuant to this Agreement.
(m) The Rights Agent shall not be required to take notice
or be deemed to have notice of any event or condition hereunder,
including, but not limited to, a Distribution Date, a Redemption
Date, any adjustment of the Purchase Price of the Common Stock,
and adjustment to the Purchase Price of the Preferred Stock, the
existence of an Acquiring Person or any other event or condition
that may require action by the Rights Agent, unless the Rights
Agent shall be specifically notified in writing of such event or
condition by the Company, and all notices or other instruments
required by this Agreement to be delivered to the Rights Agent
must, in order to be effective, be received by the Rights Agent
as specified in Section 26 hereof, and in the absence of such
notice <PAGE> so delivered, the Rights Agent may conclusively
assume no such event or condition exists.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing to the Company and shall provide notice thereof to each
transfer agent of the Common Stock or Preferred Stock by
registered or certified mail and to the holders of the Rights
Certificates in accordance with Section 26 hereof, (or if prior
to the Distribution Date, to the holders of Rights through any
filing made by the Company pursuant to the Exchange Act). The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing to the Rights Agent or
successor Rights Agent, as the case may be, and shall provide
notice thereof to each transfer agent of the Common Stock and
Preferred Stock by registered or certified mail and to the
holders of the Rights Certificates in accordance with Section 26
hereof (or, if prior to the Distribution Date, to the holders of
Rights through any filing made by the Company pursuant to the
Exchange Act). If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the record holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then the Company
shall become the Rights Agent until a successor Rights Agent has
been appointed, and any record holder of any Rights Certificate
or the Rights Agent may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation or banking association
organized and doing business under the laws of the United States
or of the State of Missouri (or of any other state of the United
States so long as such corporation is authorized to do business
as a banking institution in the State of Missouri), in good
standing, which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $25,000,000. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed and the rights
and obligations of the predecessor shall cease and terminate, 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 the
Preferred Stock, and mail a notice thereof in writing to the
holders of the Rights Certificates in accordance with Section 26
hereof (or, if prior to the Distribution Date, give notice to the
holders of Rights through any filing made by the Company pursuant
to the Exchange Act). Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect
the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, <PAGE>
issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price or the number or kind
or class of shares or other securities or property purchasable
under the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with
the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption or expiration of
the Rights, the Company (a) shall, with respect to shares of
Common Stock so issued or sold pursuant to the exercise of stock
options or under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the exercise,
conversion or exchange of securities hereinafter issued by the
Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors, issue Rights Certificates
representing the appropriate number of Rights in connection with
such issuance or sale; PROVIDED, HOWEVER, that (i) no such Rights
Certificates shall be issued and this sentence shall be null and
void ab initio if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant
risk of material adverse tax consequences to the Company or the
Person to whom such Rights Certificate would be issued, and (ii)
no such Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof.
SECTION 23. REDEMPTION AND TERMINATION.
(a) REDEMPTION OF RIGHTS. The Board of Directors, at its
option, at any time prior to the earlier of (i) the Close of
Business on the tenth Business Day following the Stock
Acquisition Date (or, if the Stock Acquisition Date shall have
occurred prior to the Record Date, the Close of Business on the
tenth Business Day following the Record Date), or (ii) the Final
Expiration Date, redeem all but not less than all the then
outstanding Rights at a redemption price of $.01 per Right (such
redemption price being hereinafter referred to as the "REDEMPTION
PRICE"). Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after the first
occurrence of a Section 11(a)(ii) Event until such time as the
Company's right of redemption hereunder has expired. The Company
may, at its option, pay the Redemption Price in cash, shares of
Common Stock (based on the Current Market Price of the Common
Stock at the time of redemption) or any other form of
consideration deemed appropriate by the Board of Directors. The
redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in
its sole discretion may establish.
(b) TERMINATION OF EXERCISE RIGHTS; NOTICE OF REDEMPTION.
Immediately upon the action of the Board of Directors ordering
the redemption of the Rights pursuant to Section 23(a) hereof
(or at such later time as the Board of Directors may establish
for the effectiveness of such redemption) and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each Right so
held. Promptly after the action by the Board of Directors
ordering the redemption of the Rights becoming effective, the
Company shall provide notice of such redemption to the Rights
Agent and the holders of the then outstanding Rights in
accordance with Section 26 (provided that the failure to provide,
or any defect in, such notice shall not affect the validity of
such redemption). Any notice that is provided in the manner
herein provided shall be deemed <PAGE> given, whether or not the
record holder receives the notice. Each such notice of
redemption will state the method by which the payment of the
Redemption Price will be made.
SECTION 24. EXCHANGE.
(a) EXCHANGE. The Board of Directors may, at its option,
at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for shares of
Common Stock at an exchange ratio of one share of Common Stock
per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date
hereof (such exchange ratio being hereinafter referred to as the
"EXCHANGE RATIO"), provided that the shares of Common Stock so
exchanged shall be of the same class or series which the holders
of such Rights would have been entitled to receive upon the
exercise thereof. Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than an Exempted Person), together
with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of Voting Securities of the Company then
outstanding representing 50% or more of the Voting Power of the
Company.
(b) TERMINATION OF EXERCISE RIGHT. Immediately upon the
action of the Board of Directors ordering the exchange of any
Rights pursuant to Section 24(a) hereof and without any further
action and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio, provided that the shares of Common Stock
so exchanged shall be of the same class or series which the
holder of such Rights would have been entitled to receive upon
the exercise thereof. The Company shall promptly make a public
announcement of any such exchange; PROVIDED, HOWEVER, that the
failure to make, or any defect in, such public announcement shall
not affect the validity of such exchange. Promptly after the
action of the Board of Directors ordering the exchange of the
Rights becoming effective, the Company shall provide notice of
such exchange to the Rights Agent and all of the holders of the
then outstanding Rights in accordance with Section 26 hereof
(provided that the failure to give, or any defect in, such notice
shall not affect the validity of such exchange). Any notice that
is mailed in the manner provided in Section 26 hereof shall be
deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the
exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of
Rights that will be exchanged. Any partial exchange shall be
effected based on the number of Rights (other than Rights that
have become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
(c) SUBSTITUTION OF PREFERRED STOCK. In the event that
there shall not be authorized and unissued shares of the
applicable class or series of Common Stock and/or authorized and
issued shares of the applicable class or series of Common Stock
held in its treasury sufficient to permit any exchange of Rights
as contemplated in accordance with this <PAGE> Section 24, the
Company shall take all such action as may be necessary to
authorize additional shares of the applicable class or series of
Common Stock for issuance upon exchange of the Rights. In the
event the Company shall, after good faith effort, be unable to
take all such action as may be necessary to authorize such
additional shares of the applicable class or series of Common
Stock, the Company shall substitute, for each share of such class
or series of Common Stock that would otherwise be issuable upon
exchange of a Right, a number of shares of the applicable series
of Preferred Stock or fraction thereof (subject to Section 14(b)
hereof) such that the Current Market Price per share of the
applicable series of Preferred Stock multiplied by such number or
fraction is equal to the Current Market Price per share of such
class or series of Common Stock as of the date of issuance of
such shares of such series of Preferred Stock or fraction
thereof.
(d) FRACTIONAL SHARES OF COMMON STOCK. The Company shall
not issue fractions of shares of Common Stock or distribute
certificates that evidence fractional shares of Common Stock upon
an exchange of Rights for Common Stock pursuant to this Section
24. In lieu of such fractional shares of Common Stock, the
Company shall pay to the registered holders of the Right
Certificates with regard to which fractional shares of Common
Stock would otherwise be issuable an amount in cash equal to the
same fraction of the Current Market Price per share of the
applicable class or series of Common Stock as of the Trading Day
immediately prior to the record date of exchange pursuant to this
Section 24.
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) NOTICE OF DIVIDEND PAYMENT, DISTRIBUTION OF RIGHTS OR
WARRANTS, RECLASSIFICATION, CONSOLIDATION, MERGER, SALE,
LIQUIDATION, ETC. In case the Company shall propose, at any time
after the Distribution Date, (i) to pay any dividend payable in
stock of any class to the holders of Preferred Stock or to make
any other distribution to the holders of Preferred Stock (other
than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the
holders of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or shares of
stock of any class or any other securities, rights or options, or
(iii) to effect any reclassification of its Preferred Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any
consolidation or merger into or with any other Person (other than
a Subsidiary of the Company in a transaction that complies with
Section 11(n) hereof), or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one transaction or a series of related
transactions, of more than 50% of the assets or earning power of
the Company and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies
with Section 11(n) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Rights
Certificate and to the Rights Agent, to the extent feasible and
in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of
such stock dividend, distribution of rights or warrants, or the
date on which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take
<PAGE> place and the date of participation therein by the holders
of the shares of Preferred Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least twenty (20)
days prior to the record date for determining holders of the
shares of Preferred Stock for purposes of such action, and in the
case of any such other action, at least twenty (20) days prior to
the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred
Stock, whichever shall be the earlier.
(b) NOTICE OF SECTION 11(A)(II) EVENT. In the event that a
Section 11(a)(ii) Event shall occur, then in any such case (i)
the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate and to the Rights Agent, to the
extent feasible and in accordance with Section 26 hereof, a
notice of the occurrence of such event, which shall specify the
event and the consequences of the event to holders of Rights
under Section 11(a)(ii) hereof, and (ii) all references in
Section 25(a) to Preferred Stock shall be deemed thereafter to
refer to Common Stock and/or, if appropriate, other securities of
the Company.
SECTION 26. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the
holder of any 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:
Exchange National Bancshares, Inc.
132 E. High Street
Jefferson City, MO 65101
Attention: President
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made upon receipt by the
Rights Agent, if sent by registered or certified mail, postage
prepaid, addressed (until another address is filed in writing
with the Company) as follows:
The Exchange National Bank of Jefferson City, as
Rights Agent
132 E. High Street
Jefferson City, MO 65101
Attention: President
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) shall
be sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Rights Agent (or, if
prior to the Distribution Date, on the registry books of the
transfer agent for the Common Stock of the Company).
SECTION 27. SUPPLEMENTS AND AMENDMENTS. Except as provided in
the penultimate sentence of this Section 27, for so long as the
Rights are then redeemable, the Company may in <PAGE> 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 no longer redeemable, except as
provided in the penultimate sentence of this Section 27, the
Company may, and the Rights Agent shall if the Company so
directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order to (i) cure any
ambiguity, (ii) correct or supplement any provision contained
herein that may be defective or inconsistent with any other
provisions herein, (iii) shorten or lengthen any time period
hereunder, or (iv) change or supplement the provisions hereunder
in any manner that the Company may deem necessary or desirable;
provided that no such supplement or amendment adversely affects
the interests of the holders of Rights as such (other than an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person) and no such amendment may cause the Rights again to
become redeemable or cause the Agreement again to become
amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes
the Redemption Price. Upon the delivery of a certificate from an
appropriate officer of the Company that states that the proposed
supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or
amendment; PROVIDED, HOWEVER, that the Rights Agent may, but
shall not be obligated to, enter into any such supplement or
amendment that adversely affects the Rights Agent's own rights,
duties or immunities under this Agreement. Prior to the
Distribution Date, the interests of the holders of Rights shall
be deemed coincident with the interests of the holders of Common
Stock.
SECTION 28. SUCCESSORS. All the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective
successors and assigns hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS. For all purposes of this Agreement, any calculation
of the number of shares of Common Stock outstanding at any
particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act, as amended
and in effect on the date hereof. The Board of Directors, except
as otherwise specifically provided for herein, shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board
of Directors 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 (including a determination to redeem or not redeem the
Rights or to amend the 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 shall (x) be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights Certificates
(and, prior to the Distribution Date, record holders of the
Common Stock) and all other parties, and (y) not subject the
Board of Directors to any liability to the holders of the Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the record holders of the <PAGE>
Rights Certificates (and, prior to the Distribution Date, record
holders of the Common Stock) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for
the sole and exclusive benefit of the Company, the Rights Agent
and the record holders of the Rights Certificates (and, prior to
the Distribution Date, record holders of the Common Stock).
SECTION 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose
or effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the Close of Business on the tenth Business Day (or such longer
period of time as permitted pursuant to Section 27 of this
Agreement) following the date of such determination by the Board
of Directors. Without limiting the foregoing, if any provision
requiring that a determination be made by less than the entire
Board of Directors (or at a time or with the concurrence of a
group of directors consisting of less than the entire Board of
Directors) is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, such
determination shall then be made by the Board of Directors in
accordance with applicable law and the Company's Articles of
Incorporation and Bylaws.
SECTION 32. GOVERNING LAW. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Missouri and for all
purposes shall be governed by and construed in accordance with
the laws of such State applicable to contracts made and to be
performed entirely within such State.
SECTION 33. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of such counterparts shall for
all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
SECTION 34. DESCRIPTIVE HEADINGS. Descriptive headings of the
Sections of this Agreement are inserted for convenience of
reference only and shall not control or affect the meaning or
construction of any of the provisions hereof.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
EXCHANGE NATIONAL BANCSHARES, INC.
[SEAL]
By: /s/ Donald L. Campbell
Donald L. Campbell
Chairman of the Board and
President
ATTEST:
By: /s/ Kathleen L. Bruegenhemke
Kathleen L. Bruegenhemke
Secretary
THE EXCHANGE NATIONAL BANK OF
JEFFERSON CITY, as Rights Agent
[SEAL]
By: /s/ David T. Turner
David T. Turner
President
ATTEST:
By: /s/ Gary Collins
Gary Collins
Senior Vice President
<PAGE>
EXHIBIT A
FORM OF CERTIFICATE OF DESIGNATION
OF SERIES A PREFERRED STOCK
OF
EXCHANGE NATIONAL BANCSHARES, INC.
Pursuant to Section 351.180.7 of the
General and Business Corporation Law of Missouri
We, Donald L. Campbell, President, and Kathleen L.
Bruegenhemke, Secretary of Exchange National Bancshares, Inc., a
corporation organized and existing under the General and Business
Corporation Law of Missouri (the "Corporation"), in accordance
with the provisions of Section 351.180.7 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Articles of Incorporation, as amended, of the
Corporation, the Board of Directors on May 24, 2000, adopted the
following resolution creating a series of Ten Thousand
(10,000) shares of Preferred Stock designated as Series A
Preferred Stock, $0.01 par value:
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation in
accordance with the provisions of its Articles of
Incorporation, as amended (the "Articles of
Incorporation"), a series of Preferred Stock, $0.01 par
value, of the Corporation be and it hereby is created,
and that the designation and amount thereof and the
voting powers, preferences and relative, participating,
optional and other special rights of the shares of such
series, and the qualifications, limitations and
restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares
of such series shall be designated as "Series A
Preferred Stock" and the number of shares constituting
such series shall be Ten Thousand (10,000). 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 A
Preferred Stock to a number less than the number of
shares outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding rights to
purchase or convert into shares of Series A Preferred
Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior rights
of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the
shares of Series A Preferred Stock with respect to
dividends, the holders of shares of Series A
Preferred Stock, in preference to the holders of
Common Stock, par value $1.00 per share (the
"Common Stock"), of the Corporation and of any
other class of stock ranking junior (either as to
dividends or upon liquidation, dissolution or
winding up) to the shares of Series A Preferred
Stock (together with the Common Stock, the "Junior
<PAGE> Stock"), shall be entitled to receive,
when, as and if declared by the Board of Directors
out of funds legally available for the purpose,
dividends payable in cash in an amount per share
(rounded to the nearest cent), equal to the
product of the Series A Multiple (as defined
below) then in effect times the aggregate per
share amount of all cash dividends declared (but
not withdrawn) on the Common Stock, plus the
product of the Series A Multiple then in effect
times the aggregate per share amount (payable in
cash, based upon the fair market value at the time
the non-cash dividend or other distribution is
declared as determined in good faith by the Board
of Directors) 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 (but not
withdrawn) on the Common Stock.
(B) As used herein, the Series A Multiple
shall initially be 1,000. In the event the
Corporation shall (i) declare any dividend on
Common Stock payable in shares of Common Stock,
(ii) subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case
the Series A Multiple 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.
(C) The Board of Directors of the
Corporation shall not declare a dividend or
distribution on the Common Stock (other than a
dividend payable in shares of Common Stock) unless
it shall concurrently therewith declare a dividend
or distribution on the Series A Preferred Stock.
Payment of a dividend or distribution determined
on the Series A Preferred Stock shall be in
preference to payment of any dividend or
distribution on any Junior Stock.
(D) The Board of Directors may fix a record
date for the determination of holders of shares of
Series A Preferred Stock entitled to receive
payment of a dividend or distribution declared
thereon, which record date shall be no more than
thirty (30) days prior to the date fixed for the
payment thereof.
Section 3. VOTING RIGHTS. Except as otherwise
provided herein or by law and in addition to any rights
provided in the Articles of Incorporation, the holders
of shares of Series A Preferred Stock shall have the
following voting rights:
(A) Each share of Series A Preferred Stock
shall entitle the holder thereof to a number of
votes on all matters submitted to the shareholders
of the Corporation equal to the product of the
Series A <PAGE> Multiple then in effect times the
number of votes that each share of Common Stock
entitles its holder to vote at a meeting of the
shareholders of the Corporation.
(B) The holders of shares of Series A
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 shareholders of the
Corporation.
(C) The holders of Series A 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 dividends or distributions
payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter
and until all accrued and unpaid dividends and
distributions on shares of Series A Preferred
Stock outstanding shall have been paid in full,
the Corporation shall not:
(i) declare or pay dividends (other
than a dividend payable in shares of Common
Stock) on, make any other distributions on,
or redeem or purchase or otherwise acquire
for consideration any shares of Junior Stock;
(ii) declare or pay dividends on 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 A Preferred Stock
("Parity Stock"), except dividends paid
ratably on the Series A 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 Parity Stock, provided that the
Corporation may at any time redeem, purchase
or otherwise acquire shares of any such
Parity Stock in exchange for shares of any
Junior Stock; or
(iv) purchase or otherwise acquire
for consideration any shares of Series A
Preferred Stock, or any shares of Parity
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 <PAGE> 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 Corporation 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 A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and canceled 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 to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein, in the Articles of Incorporation, in any other
Certificate of Designation establishing a series of
Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING
UP.
(A) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of the shares of
Series A Preferred Stock shall be entitled to
receive, in preference to the holders of any
Junior Stock, the greater of (a) $1,000.00 per
share, plus accrued dividends to the date of
distribution, whether or not earned or declared,
or (b) an amount per share equal to the product of
the Series A Multiple then in effect times the
aggregate amount to be distributed per share to
holders of Common Stock.
(B) In the event of any voluntary or
involuntary liquidation, dissolution or winding up
of the Corporation, the holders of Parity Stock
shall not receive any distributions except for
distributions made ratably on the Series A
Preferred Stock and all other 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.
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 the shares of
the Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share
equal to the product of the Series A Multiple then in
effect 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.
<PAGE>
Section 8. NO REDEMPTION. The shares of
Series A Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Preferred
Stock shall rank junior to all other series of the
Corporation's Preferred Stock, or any similar stock
that specifically provides that it shall rank prior to
the shares of Series A Preferred Stock, as to the
payment of dividends and the distribution of assets,
unless the terms of any such series shall provide
otherwise. Nothing herein shall preclude the Board of
Directors from creating any series of Preferred Stock
or any similar stock ranking on a parity with or prior
to the shares of Series A Preferred Stock as to the
payment of dividends or the distribution of assets.
Section 10. FRACTIONAL SHARES. Series A
Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to
have the benefit of all other rights of holders of
Series A Preferred Stock.
Section 11. AMENDMENT. The Articles of
Incorporation, including this Certificate of
Designation establishing the shares of the Series A
Preferred Stock, shall not be amended in any manner
that would materially alter or change the powers,
preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more
of the outstanding shares of Series A Preferred Stock
voting separately as a class.
<PAGE>
IN WITNESS WHEREOF, this Certificate is executed on
behalf of the Corporation by its president and attested by
it Secretary this 24th day of May, 2000.
/s/ Donald L. Campbell
Donald L. Campbell
President
ATTEST:
/s/ Kathleen L. Bruegenhemke
Kathleen L. Bruegenhemke
Secretary
STATE OF MISSOURI )
) ss.
COUNTY OF COLE )
BE IT REMEMBERED, that before me, a notary public in and for
the aforesaid county and state, personally appeared Donald L.
Campbell, President, and Kathleen L. Bruegenhemke, Secretary, of
Exchange National Bancshares, Inc., a Missouri corporation, who
are known to me to be the same persons who executed the foregoing
instrument, and duly acknowledged the execution of the same this
24th day of May, 2000.
/s/ Arla Surls
Notary Public
My commission expires:
2/16/03
<PAGE>
EXHIBIT B
FORM OF RIGHTS CERTIFICATE
Certificate No. R- Rights
NOT EXERCISABLE AFTER MAY 23, 2010 OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF
THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO IS OR WAS AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]
[FN]
RIGHTS CERTIFICATE
EXCHANGE NATIONAL BANCSHARES, 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 May 24, 2000, as amended (the "Rights Agreement"),
between Exchange National Bancshares, Inc., a Missouri
corporation (the "Company"), and The Exchange National Bank of
Jefferson City, a national banking association (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 at any time prior to 5:00 p.m. (central time) on
May 23, 2010 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights Agent,
one one-thousandth of a fully paid, nonassessable share of Series
A Preferred Stock (the "Preferred Stock") of the Company, at a
purchase price of $150 per one one-thousandth of a share (the
"Purchase Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related
Certification duly executed. The number of Rights evidenced by
this Rights Certificate (and the number of one one-thousandths of
a share of Preferred Stock that may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of May 24,
2000, based on the Preferred Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the
number and kind of shares of Preferred Stock or other securities
of the Company or any other Person (as such term is
[FN] The portion of the legend in brackets will be inserted only
if applicable and shall replace the preceding sentence.
</FN>
<PAGE>
defined in the Rights Agreement) that may be purchased upon the
exercise of the Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of
certain events including a Triggering Event (as such term is
defined in the Rights Agreement).
Upon the occurrence of a Section 11(a)(ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person,
Affiliate or Associate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which reference is hereby
made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent,
the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the
exercisability of such Rights under the specific circumstances
set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the above-mentioned office of the Rights
Agent and are also available upon written request to the Rights
Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office or offices of the
Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of one one-thousandths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate or
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 Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i) the
tenth Business Day following the Stock Acquisition Date (as such
term is defined in the Rights Agreement, and as such time period
may be extended pursuant to the Rights Agreement), or (ii) the
Final Expiration Date (as such term is defined in the Rights
Agreement). In addition, subject to the provisions of the Rights
Agreement, each Right evidenced by this Certificate may be
exchanged by the Company at its option for one share of Common
Stock of the Company (subject to adjustment for any stock split,
stock dividend or similar transaction) following the Stock
Acquisition Date and prior to the time an Acquiring Person owns
50% or more of the shares of Common Stock of the Company then
outstanding.
No fractional shares of Preferred Stock or other securities
will be issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral <PAGE> multiples
of one one-thousandth of a share of Preferred Stock, which may,
at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of shares of Preferred Stock or of any other securities of the
Company that may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (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 and its corporate seal.
Dated as of _________, 20__
EXCHANGE NATIONAL
BANCSHARES, INC.
By: _______________________
Name:
Title:
ATTEST:
_______________________
Name:
Title:
Countersigned:
THE EXCHANGE NATIONAL BANK
OF JEFFERSON CITY, as Rights Agent
By: _______________________
Name:
Title:
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the record holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto _______________________________________________
______________________________________________________________
______________________________________________________________
(Please print name, address and social security or other
identifying number of transferee) ______________ (______) of the
Rights represented by this Rights Certificate, together with all
right, title and interest therein, and does hereby irrevocably
constitute and appoint ______________________________________ its
attorney, to transfer the within Rights Certificate on the books
of the within-named Company, with full power of substitution.
Dated: ______________________, 20__
_________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-
15) or any similar rule which the Rights Agent deems applicable.
<PAGE>
[Form of Reverse Side of Rights Certificate (continued)]
Certification
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Rights Certificate is not being sold, assigned and
transferred by or on behalf of a Person who is or was an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned 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 of an Acquiring Person.
Dated: ___________, 20_
__________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-
15) or any similar rule which the Rights Agent deems applicable.
NOTICE
The signature to the foregoing Assignment and Certification
must correspond to the name as written upon the face of this
Rights Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above is not or
cannot be completed, the Company and the Rights Agent will deem
the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Certificate) and such
Assignment will not be honored.
<PAGE>
[Form of Reverse Side of Rights Certificate (continued)]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights
represented by the Rights Certificate)
To: Exchange National Bancshares, Inc.:
The undersigned hereby irrevocably elects to exercise
_______________________(____) Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock issuable
upon the exercise of the Rights (or such other securities of the
Company or of any other Person (as such term is defined in the
Rights Agreement) that may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued
in the name of:
________________________________________________________________
________________________________________________________________
(Please print name, address and social security number or other
identifying number)
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
________________________________________________________________
________________________________________________________________
(Please print name, address and social security number or other
identifying number)
Dated: ________________, 20__ _____________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-
15) or any similar rule which the Rights Agent deems applicable.
<PAGE>
[Form of Reverse Side of Rights Certificate (continued)]
Certification
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate
are not being exercised by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, the undersigned did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ___________________, _____ ________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by an Eligible Guarantor
Institution as defined by SEC Rule 17Ad-15 (12 C.F.R. 240.17Ad-
15) or any similar rule which the Rights Agent deems applicable.
NOTICE
The signature to the foregoing Election to Purchase and
Certification must correspond to the name as written upon the
face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above is not or
cannot be completed, the Company and the Rights Agent will deem
the beneficial owner of the Rights evidenced by this Rights
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Certificate) and such
Election to Purchase will not be honored.
<PAGE>
EXHIBIT C
FORM OF
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On May 24, 2000, the Board of Directors of Exchange
National Bancshares, Inc. declared a dividend distribution on
each outstanding share of its Common Stock of one Right to
purchase its Series A Preferred Stock. The dividend will be paid
to shareholders of record at the close of business on June 5,
2000. No income was recognized by shareholders for tax purposes
on payment of the dividend. The Rights are not now exercisable,
and it is not known at this time whether they ever will be
exercisable. No action can be taken by holders of Rights at this
time. Until a Right is exercised, the Right does not create any
rights as a shareholder of Exchange, including the right to vote
or receive dividends.
The Rights trade with the Common Stock of Exchange. In
general, the Rights detach from the Common Stock of Exchange and
become exercisable on the tenth business day after the earlier of
either of the following two events occurs:
-- a person or entity, together with its Affiliates or
Associates, becomes the beneficial owner of 15% or more
of the outstanding shares of Common Stock of Exchange,
or
-- a person or entity, together with its Affiliates or
Associates, announces or commences a tender offer that,
if consummated, would result in them becoming the
beneficial owner of 15% or more of the outstanding
shares of Common Stock of Exchange.
An "Affiliate" of a person or entity is a person or entity that
directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with,
the person or entity specified. An "Associate" of a person or
entity is (a) any corporation or organization (other than
Exchange or any majority-owned subsidiary of Exchange) of which
such person or entity is an officer or partner or is, directly or
indirectly, the beneficial owner of 10% or more of any class of
equity securities, (b) any trust or other estate in which such
person or entity has a substantial beneficial interest or as to
which such person or entity serves as trustee or in a similar
fiduciary capacity, and (c) any relative or spouse of such person
or entity, or any relative of such spouse, who has the same home
as such person or entity or who is a director or officer of such
person or entity or any of its parents or subsidiaries.
If the Rights detach and become exercisable as a result
of the commencement of a tender offer, each Right entitles its
holder to purchase one one-thousandth of a share of Series A
Preferred Stock for an exercise price of $150 unless the Rights
are redeemed by Exchange. This exercise price and the number of
shares, or fraction of a share, of Series A Preferred Stock that
can be purchased are both subject to adjustment to prevent
dilution in the event of a stock dividend on the Series A
Preferred Stock or a subdivision, combination or reclassification
of the Series A Preferred Stock or if Exchange distributes
certain rights, options, warrants, evidences of indebtedness or
assets to the holders of the Series A Preferred Stock.
<PAGE>
Because of the nature of the Series A Preferred Stock's
dividend, liquidation and voting rights, the value of one one-
thousandth of a share of Series A Preferred Stock that may be
purchased upon the exercise of each Right should approximate the
value of one share of Common Stock. In the event of the
liquidation of Exchange, the holders of shares of Series A
Preferred Stock will be entitled to the greater of
-- a minimum preferential liquidation payment of $1,000
per share, plus accrued dividends, or
-- 1,000 times the aggregate amount to be distributed per
share of Common Stock.
Each share of Series A Preferred Stock will have 1000 votes and
will vote together with the Common Stock as a single class.
Finally, in the event of any merger, consolidation or other
transaction involving Exchange in which shares of Common Stock
are exchanged for or changed into other stock, securities, cash
and/or other property, each share of Series A Preferred Stock
will be entitled to receive 1,000 times the amount received per
share of Common Stock. The dividend, liquidation, voting and
other rights of the Series A Preferred Stock will be
proportionately adjusted to reflect any stock split, stock
dividend or similar transaction involving the Common Stock.
After a person or entity (referred to as an Acquiring
Person), together with its Affiliates and Associates, becomes the
beneficial owner of 15% or more of the outstanding shares of
Common Stock of Exchange in one or more transactions that do not
constitute a Qualifying Offer, each Right entitles its holder to
purchase, for the Right's exercise price, a number of shares of
Common Stock (or in certain circumstances, cash, property or
other securities of Exchange) having a value equal to two times
the then current exercise price of the Right. All Rights that
are, or under certain circumstances were, beneficially owned by
any Acquiring Person, or Affiliates or Associates of that person
or entity, will be null and void. A "Qualifying Offer" is an
offer for outstanding shares of Common Stock that a majority of
the directors of Exchange who are not Affiliates or Associates of
an Acquiring Person determine, after receiving advice from one or
more investment banking firms, to be fair to the shareholders and
otherwise in the best interests of Exchange and its shareholders.
If Exchange is involved in a merger or other business
combination transaction after the Rights become exercisable, each
Right entitles its holder to purchase, for the Right's exercise
price, a number of the acquiring or surviving company's shares of
common stock having a market value equal to twice the exercise
price of the Right. Similarly, if Exchange sells or transfers
50% or more of its assets or earning power after the Rights
become exercisable, each Right entitles its holder to purchase,
for the Right's exercise price, a number of the acquiring
company's shares of common stock having a market value equal to
twice the exercise price of the Right.
At any time after any person or entity becomes an
Acquiring Person and before the acquisition by such person or
entity, together with that person's Affiliates or Associates, of
50% or more of the Common Stock of Exchange, the Exchange Board
may exchange Common Stock for all or any part of the Rights other
than any Rights that have become null and void. The exchange rate
is one share of Common Stock for each Right. This exchange rate
is subject to <PAGE> adjustment to reflect any stock split, stock
dividend or similar transaction involving the Common Stock.
Exchange is entitled to redeem the Rights at $.01 per
Right at any time until ten business days following a public
announcement that a person, together with that person's
Affiliates or Associates, has become the beneficial owner of 15%
or more of the outstanding shares of Common Stock of Exchange.
The terms of the Rights expire on May 23, 2010, unless Exchange
redeems the Rights before then or unless the Exchange Board
extends the Rights by amending the Rights Agreement.
Until the Rights are no longer redeemable, the Exchange
Board of Directors may amend the Rights Agreement and Rights in
any respect. After the Rights are no longer redeemable, the
Exchange Board of Directors may amend the Rights Agreement and
the Rights to make changes that do not adversely affect the
interests of the holders of the Rights (excluding the interests
of the Acquiring Person or its Affiliates and Associates) or to
shorten or lengthen any time period under the Rights Agreement
(except for the time period governing redemption of the Rights).
No amendment of the Rights Agreement or Rights by the Exchange
Board of Directors is permitted to change the redemption price of
the Rights, regardless of whether the amendment occurs before or
after the time the Rights cease to be redeemable.
The terms of the Rights are set forth in the Rights
Agreement, which has been filed with the Securities and Exchange
Commission as an Exhibit to a Registration Statement on Form 8-A
registering the Rights under the Securities Exchange Act of 1934.
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.
May 24, 2000.
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