FORM 8-B/A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Registration of Securities of Certain Successor Issuers
Filed Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
Conrail Inc.
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(Exact name of registrant as specified in its charter)
Pennsylvania 23-2728514
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2001 Market Street
Philadelphia, Pennsylvania 19101
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Common Stock, par value $1.00 New York Stock Exchange
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per share Philadelphia Stock Exchange
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Common Stock Purchase Rights
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of class)
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This Amendment is filed to amend and restate Item 4 hereof
to reflect the terms of Conrail Inc's common stock purchase
rights, as amended through September 20, 1995 and to file
Exhibits 3.4(i)(h) and 3.4(i)(i) hereto.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. General Information.
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(a) Conrail Inc. was incorporated as a
corporation under the laws of the Commonwealth of
Pennsylvania on February 12, 1993.
(b) The fiscal year of Conrail Inc. ends on April
30. Conrail Inc. will continue the practice of
Consolidated Rail Corporation of furnishing
audited financial statements to its shareholders
for the 12-month period ending December 31 of each
year.
Item 2. Transaction of Succession.
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(a) Consolidated Rail Corporation, which had
common stock and common stock purchase rights
registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended, at
the time of succession, is the sole predecessor of
Conrail Inc.
(b) See "Proposal to Approve the Agreement And
Plan of Merger" in the Proxy Statement of
Consolidated Rail Corporation, dated April 16,
1993, and Appendix A thereto, "Agreement And Plan
of Merger", incorporated herein by reference
pursuant to General Instructions A(b) and E to
Form 8-B.
Item 3. Securities to Be Registered.
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As of July 1, 1993, the effective date of the
succession, there were (1) 250,000,000 shares of common
stock authorized, 83,824,701 shares of common stock
issued and 4,257,384 shares of common stock issued and
held by or for the account of Conrail Inc., and (2)
250,000,000 common stock purchase rights authorized,
79,567,317 common stock purchase rights issued and no
common stock purchase rights issued and held by or for
the account of Conrail Inc.
Item 4. Description of Registrant's Securities to Be Registered.
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The Conrail Inc. common stock is identical to the
common stock of Consolidated Rail Corporation, the
predecessor of Conrail Inc. For a description of the
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Consolidated Rail Corporation common stock, see
"Description of Capital Stock" in the Prospectus
included in Registration Statement No. 33-11995 on Form
S-1 filed with the Securities and Exchange Commission
by Consolidated Rail Corporation, effective March 26,
1987, and incorporated herein by reference.
As of July 1, 1993, the effective date of the
succession, the Conrail Inc. common stock purchase
rights were identical to the common stock purchase
rights of Consolidated Rail Corporation, the
predecessor of Conrail Inc. The following is a
description of the Conrail Inc. common stock purchase
rights, as amended as of September 20, 1995:
On July 19, 1989, the Board of Directors of
Consolidated Rail Corporation declared a dividend of
one common stock purchase right (a "Right") for each
share of common stock, par value $1.00 per share (the
"Common Shares"), of Consolidated Rail Corporation then
outstanding or which would later be issued. The
dividend was originally payable on July 31, 1989 (the
"Record Date") to the stockholders of record on that
date. On September 20, 1995, the Board of Directors of
Conrail Inc. declared a dividend of one Right for each
share of Series A ESOP Convertible Junior Preferred
Stock, without par value, of Conrail Inc. (the
"Preferred Shares"; and, collectively, with the Common
Shares, the "Applicable Shares") outstanding on October
2, 1995 (the "Preferred Stock Record Date") and amended
the terms of the Rights and the Rights Agreement, to
provide, among other things, for such Rights. As
amended, each Right entitles the registered holder to
purchase from Conrail Inc. one Common Share of Conrail
Inc. at a price of $205 per share (the "Purchase
Price"), subject to adjustment. The Rights will be
represented by the Applicable Share certificates
(whether such certificates are issued before or after
the Record Date (in the case of Common Shares) or the
Preferred Stock Record Date (in the case of Preferred
Shares)) and will not be exercisable, or transferable
apart from the Applicable Shares, until the earlier of
(i) the tenth day after public announcement (the date
of such announcement being the "Shares Acquisition
Date") that a person or group of affiliated or
associated persons (other than Conrail Inc., any
subsidiary of Conrail Inc. or any employee benefit plan
of Conrail Inc. or such subsidiary) (an "Acquiring
Person") has acquired, obtained the right to acquire,
or otherwise obtained beneficial ownership of 10% or
more of the then outstanding shares of Common Shares
and (ii) the tenth business day (or such later date as
may be determined by action of the Board of Directors
prior to such time as any person becomes an Acquiring
Person) following the commencement of a tender offer or
exchange offer that would result in a person or group
beneficially owning 10% or more of the then outstanding
Company Common Shares (the earlier of such dates being
called the "Distribution Date"). Separate certificates
for the Rights will be
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mailed to the holders of record of the Applicable
Shares as soon as practicable after the Distribution
Date.
In the event that (i) Conrail Inc. is the surviving
corporation in a merger with an Acquiring Person and
Conrail Inc. Common Shares shall remain outstanding,
(ii) a person or group of affiliated or associated
persons becomes the beneficial owner of 10% or more of
the then outstanding Company Common Shares, (iii) an
Acquiring Person engages in one or more "self-dealing"
transactions as set forth in the Rights Agreement, or
(iv) during such time as there is an Acquiring Person,
an event occurs which results in such Acquiring
Person's ownership interest being increased by more
than 1% (e.g., by means of a reverse stock split or
recapitalization), then, in each such case, each holder
of a Right will thereafter have the right to receive,
upon the exercise thereof at the then current exercise
price of the Right, that number of Company Common
Shares (or, in certain circumstances, cash, property or
other securities of Conrail Inc.) having a value equal
to two times the exercise price of the Right. The
exercise price is the Purchase Price multiplied by the
number of Common Shares issuable upon exercise of a
Right prior to the events described in this paragraph.
Notwithstanding any of the foregoing, following the
occurrence of any of the events 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 will be null
and void.
In the event that, at any time following the Shares
Acquisition Date, (i) Conrail Inc. is acquired in a
merger or other business combination transaction and
Conrail Inc. is not the surviving corporation (other
than a merger described in the preceding paragraph),
(ii) any person consolidates or merges with Conrail
Inc. and all or part of Conrail Inc. Common Shares are
converted or exchanged for securities, cash or property
of any other Person or (iii) 50% or more of Conrail
Inc.'s assets or earning power is sold or transferred,
each holder of a Right (except Rights which previously
have been voided as described above), shall thereafter
have the right to receive, upon exercise, common stock
of the acquiror having a value equal to two times the
exercise price of the Right.
At any time prior to the Distribution Date, the Board
of Directors of Conrail Inc. may redeem the Rights in
whole, but not in part, at a price of $.005 per Right
(the "Redemption Price"), subject to adjustment. The
redemption of the Rights may be made effective at such
time on such basis with such conditions as the Board of
Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the
only right of the holders of Rights will be to receive
the Redemption Price.
At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial
ownership of 10% or more of the outstanding Common
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Shares and prior to the acquisition by such person or
group of 50% or more of the outstanding Common Shares,
the Board of Directors of Conrail Inc. may exchange the
Rights (other than Rights owned by such person or group
which have become void), in whole or in part, at an
exchange ratio of one Common Share per Right (subject
to adjustment).
Any of the provisions of the Rights Agreement may be
amended without the approval of the holders of Common
Shares at any time prior to the Distribution Date.
After the Distribution Date, the provisions of the
Rights Agreement may be amended in order to cure any
ambiguity, defect or inconsistency, to make changes
which do not adversely affect the interests of holders
of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no
amendment to adjust the time period governing
redemption shall be made at such time as the Rights are
not redeemable.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on September 20, 2005,
unless the expiration date is extended or unless the
Rights are earlier redeemed or exchanged by Conrail
Inc. The Rights will not have any voting rights or
rights to receive dividends. First Chicago Trust
Company of New York is the Rights Agent.
The Purchase Price payable, and the number of Common
Shares or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from
time to time to prevent dilution (i) in the event of a
stock dividend on, or a subdivision, combination or
reclassification of, the Common Shares, (ii) upon the
grant to holders of the Common Shares of certain rights
or warrants to subscribe for or purchase Common Shares
at a price, or securities convertible into Common
Shares with a conversion price, less than the then
current market price of the Common Shares or (iii) upon
the distribution to holders of the Common Shares of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends or dividends payable in Common
Shares) or of subscription rights or warrants (other
than those referred to above). With certain
exceptions, no adjustments in the purchase price will
be required until cumulative adjustments require an
adjustment of at least 1% in such purchase price.
Actions or determinations made by the Board of
Directors in the administration of the Rights Agreement
require the concurrence of a majority of (and at least
two) Continuing Directors. A "Continuing Director" is
a director who is not an Acquiring Person (or a
representative or nominee thereof), and who either
(i) was a member of the Board prior to September 20,
1995 or (ii) subsequently became a director of Conrail
Inc. and whose election or nomination for election is
approved or recommended by a majority of the then
Continuing Directors.
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The Rights have certain anti-takeover effects. The
Rights will cause substantial dilution to a person or
group that attempts to acquire Conrail Inc. on terms
not approved by its Board of Directors. The Rights
should not interfere with any stock acquisition or
merger or other business combination approved by the
Board of Directors because all but not less than all of
the Rights may be redeemed by the Board at $.005 per
Right at any time before the Distribution Date.
A copy of the Rights Agreement, dated as of July 19,
1989, between Consolidated Rail Corporation and First
Chicago Trust Company of New York specifying the terms
of the Rights, and amendments thereto dated March 21,
1990, February 17, 1993, October 19, 1994 and September
20, 1995, are included as Exhibits 3.4(i)(e),
3.4(i)(f), 3.4(i)(g), 3.4(i)(h) and 3.4(i)(i) hereto
and are incorporated herein by reference. The
foregoing description of the Rights does not purport to
be complete and is qualified in its entirety by
reference to such exhibits.
Item 5. Financial Statements and Exhibits.
---------------------------------
(a) Financial Statements.
None
(b) Exhibits.
2. Proxy Statement of Consolidated Rail
Corporation, dated April 16, 1993, filed
pursuant to General Instruction A(b).
3.2 Agreement and Plan of Merger, dated as
of February 17, 1993, among Consolidated Rail
Corporation, Conrail Inc. and Conrail
Subsidiary Corporation, included as Appendix
A to the Proxy Statement of Consolidated Rail
Corporation, dated April 16, 1993 (included
in Exhibit 2 above).
3.3(i) Articles of Incorporation of
Conrail Inc., included as Appendix B to the
Proxy Statement of Consolidated Rail
Corporation, dated April 16, 1993 (included
in Exhibit 2 above).
3.3(ii) By-laws of Conrail Inc.
3.4(i)(a) Articles of Incorporation of
Conrail Inc. (included in Exhibit 2 above).
3.4(i)(b) By-laws of Conrail Inc. (Exhibit 3.3(ii) above).
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3.4(i)(c) Form of certificate of common
stock, par value $1.00 per share, of Conrail
Inc.
3.4(i)(d) Form of certificate of Series A
ESOP Convertible Junior Preferred Stock, no
par value, of Conrail Inc.
3.4.(i)(e) Rights Agreement dated as of
July 19, 1989, between Consolidated Rail
Corporation and First Chicago Trust Company
of New York, together with Form of Right
Certificate and Summary of Rights to Purchase
Common Shares as exhibits thereto, filed as
Exhibit 1 to the Consolidated Rail
Corporation Form 8-K dated July 31, 1989 and
incorporated herein by reference.
3.4(i)(f) Amendment to Rights Agreement dated
as of March 21, 1990, filed as Exhibit 4.5 to
the Consolidated Rail Corporation Form 8-K
dated March 27, 1990 and incorporated herein
by reference.
3.4(i)(g) Amendment, Assignment and
Assumption Agreement, dated as of February
17, 1993, with respect to the Rights
Agreement.
3.4(i)(h) Amendment to Rights Agreement dated
as of October 19, 1994.
3.4(i)(i) Amendment to Rights Agreement dated
as of September 20, 1995.
3.4(ii)(a) Form of Indenture between
Consolidated Rail Corporation and The First
National Bank of Chicago, as Trustee, with
respect to the issuance of up to $1.25
billion aggregate principal amount of
Consolidated Rail Corporation debt
securities, filed as Exhibit 4 to the
Consolidated Rail Corporation Registration
Statement on Form S-3 (Registration No. 33-
34040) and incorporated herein by reference.
3.4(ii)(b) Form of 9 3/4% Notes due 2000
of Consolidated Rail Corporation, filed as
Exhibit 4.6 to the Consolidated Rail
Corporation Form 8-K dated July 10, 1990 and
incorporated herein by reference.
3.4(ii)(c) Form of 9 3/4% Debentures Due
2020 of Consolidated Rail Corporation, filed
as Exhibit 4.7 to the Consolidated Rail
Corporation Form 8-K dated July 10, 1990 and
incorporated herein by reference.
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3.4(ii)(d) Form of Fixed Rate Note Due
More Than Nine Months From Date of Issue,
filed as Exhibit 1 to the Consolidated Rail
Corporation Form 8-K dated November 27, 1990
and incorporated herein by reference.
3.4(ii)(e) Form of Floating Rate Note Due
More Than Nine Months From Date of Issue,
filed as Exhibit 2 to the Consolidated Rail
Corporation Form 8-K dated November 27, 1990
and incorporated herein by reference.
In accordance with Item 601(b)(4)(iii)
of Regulation 8-K, copies of instruments of
Conrail Inc. and its subsidiaries (including
Consolidated Rail Corporation) with respect
to the rights of holders of certain long-term
debt are not filed herewith, or incorporated
by reference, but will be furnished to the
Commission upon request.
3.10(i) Second Amended and Restated
Northeast Corridor Freight Operating
Agreement dated October 1, 1986 between
National Railroad Passenger Corporation and
Consolidated Rail Corporation, filed as
Exhibit 10.1 to the Consolidated Rail
Corporation Registration Statement and Form S-
1 (Registration No. 33-11995) and
incorporated herein by reference.
3.10(ii) Letter agreements dated September
30, 1982 and July 19, 1986 between
Consolidated Rail Corporation and The Penn
Central Corporation, filed as Exhibit 10.5 to
the Consolidated Rail Corporation
Registration Statement on Form S-1
(Registration No. 33-11995) and incorporated
herein by reference.
3. 10(iii) Letter agreement dated March
16, 1988 between Consolidated Rail
Corporation and Penn Central Corporation
relating to hearing loss liquidation, filed
as Exhibit 19.1 to the Consolidated Rail
Corporation Quarterly Report on Form 10-Q for
the quarter ended March 31, 1988 and
incorporated herein by reference.
3.10(iv) Consolidated Rail Corporation 1992
Annual Performance Achievement Reward Plan,
filed as Exhibit 10.6 to the Consolidated
Rail Corporation Annual Report on Form 10-K
for the year ended December 31, 1991 and
incorporated herein by reference.
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3.10(v) Consolidated Rail Corporation 1993
Annual Performance Achievement Reward Plan.
3.10(vi) Consolidated Rail Corporation 1987
Long-Term Incentive Plan, filed as Exhibit
4.4 to the Consolidated Rail Corporation
Registration Statement on Form S-8
(Registration No. 33-19155) and incorporated
herein by reference.
3.10(vii) Consolidated Rail Corporation 1991
Long-Term Incentive Plan, filed as Exhibit
4.8 to the Consolidated Rail Corporation
Registration Statement on Form S-8
(Registration No. 33-44140) and incorporated
herein by reference.
3.10(viii) Retirement Plan for Non-employee Directors as
amended February 21,1990, filed as Exhibit 10.10
to the Consolidated Rail Corporation Annual Report
on Form 10-K for the year ended December 31,
1989 and incorporated herein by reference.
3.10(ix) Employment Agreement between James
A. Hagen and Consolidated Rail Corporation,
dated as of April 3, 1989, filed as Exhibit
10.11 to the Consolidated Rail Corporation
Annual Report on Form 10-K for the year ended
December 31, 1989 and incorporated herein by
reference.
3.10(x) Agreement for Supplemental Employee
Retirement Plan between James A. Hagen and
Consolidated Rail Corporation, dated as of
January 17, 1990, filed as Exhibit 10. 12 to
the Consolidated Rail Corporation Annual
Report on Form 10-K for the year ended
December 31, 1989 and incorporated herein by
reference.
3.10(xi) Form of Continuation Agreement
between Consolidated Rail Corporation and
each of its officers other than James A.
Hagen, dated as of January 15, 1990, filed as
Exhibit 10. 14 to the Consolidated Rail
Corporation Annual Report on Form 10-K for
the year ended December 31, 1989 and
incorporated herein by reference.
3.21 Subsidiaries list.
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SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused
this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized.
CONRAIL INC.
(Registrant)
Date: September 25, 1995
By: /s/ Bruce B. Wilson
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Bruce B. Wilson
Senior Vice President-Law
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EXHIBIT INDEX
Exhibit No.
3.4(i)(h) Amendment to Rights Agreement dated as of October
19, 1994.
3.4(i)(i) Amendment to Rights Agreement dated as of September
20, 1995.
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EXHIBIT 3.4(i)(h)
AMENDMENT TO RIGHTS AGREEMENT
AMENDMENT, dated as of October 19, 1994, to the Rights
Agreement, dated as of July 19, 1989, as amended March 21, 1990
(the "Rights Agreement"), between Consolidated Rail Corporation,
a Pennsylvania corporation, and First Chicago Trust Company of
New York, as Rights Agent (the "Rights Agent"), which Rights
Agreement was assigned by Consolidated Rail Corporation, as of
July 1, 1993, to Conrail Inc., a Pennsylvania corporation (the
"Company").
The Company and the Rights Agent have heretofore
executed and entered into the Rights Agreement. Pursuant to
Section 27 of the Rights Agreement, the Company and the Rights
Agent may from time to time supplement or amend the Rights
Agreement in accordance with the provisions of Section 27
thereof. All acts and things necessary to make this Amendment a
valid agreement, enforceable according to its terms, have been
done and performed, and the execution and delivery of this
Amendment by the Company and the Rights Agent have been in all
respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual
agreements set forth herein, the parties have hereto agreed as
follows:
1. Section 7(b) of the Rights Agreement is hereby
amended to read in its entirety as follows:
The Purchase Price for each Common Share
pursuant to the exercise of a Right shall be
$105, shall be subject to adjustment from
time to time after October 19, 1994 as
provided in Sections 11 and 13 hereof and
shall be payable in lawful money of the
United States of America in accordance with
paragraph (c) below.
2. Section 24(a) of the Rights Agreement is hereby
modified and amended by deleting the second sentence thereof.
3. This Amendment to the Rights Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts to be made
and performed entirely within such Commonwealth.
4. This Amendment to the Rights Agreement may be
executed in any number of counterparts, each of which shall be an
original, but such counterparts shall
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2
together constitute one and the same instrument. Terms not defined
herein shall, unless the context otherwise requires, have the meanings
assigned to such terms in the Rights Agreement.
5. In all respects not inconsistent with the terms
and provisions of this Amendment to the Rights Agreement, the
Rights Agreement is hereby ratified, adopted, approved and
confirmed. In executing and delivering this Amendment, the
Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and
conditions of the Rights Agreement.
6. If any term, provision, covenant or restriction of
this Amendment to the Rights Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Amendment to the Rights Agreement, and
of the Rights Agreement, shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and attested, all as of the date
and year first above written.
Attest: CONRAIL INC.
By: /s/ Cheryl A. Cook By: /s/ Timothy T. O'Toole
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Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ Joanne Goustiola By: /s/ Ralph Persico
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EXHIBIT 3.4(i)(i)
AMENDMENT TO RIGHTS AGREEMENT
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Amendment, dated as of September 20, 1995, to the
Rights Agreement (as amended, the "Rights Agreement"), dated
as of July 19, 1989, between Consolidated Rail Corporation,
a Pennsylvania corporation, and First Chicago Trust Company
of New York, as rights agent (the "Rights Agent"), as
amended by (i) Amendment to Rights Agreement, dated as of
March 21, 1990; (ii) Amendment, Assignment and Assumption
Agreement, dated as of February 17, 1993, among Consolidated
Rail Corporation, as assignor, Conrail Inc., a Pennsylvania
corporation (the "Company"), as assignee, and the Rights
Agent; and (iii) Amendment to Rights Agreement, dated as of
October 19, 1994.
Pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may from time to time
supplement or amend the Rights Agreement in accordance with
such Section 27 of the Rights Agreement. All acts and
things necessary to make this Amendment a valid agreement,
enforceable according to its terms, have been done and
performed, and the execution and delivery of this Amendment
by the Company and the Rights Agent have been in all
respects duly authorized by the Company and the Rights
Agent.
In consideration of the foregoing and the mutual
agreement set forth herein, the parties hereto have agreed
as follows:
1. Preamble of the Rights Agreement is hereby amended
by (a) inserting the phrase "and each Preferred Share (as
hereinafter defined) outstanding at the close of business on
October 2, 1995 (the `Preferred Stock Record Date')"
immediately after the words "(the `Record Date')", (b) by
inserting the phrase "and each Preferred Share" immediately
after the words "with respect to each Common Share" and
(c) by deleting the phrase "between the Record Date and" and
substituting therefor the phrase "between (a) the Record
Date (in the case of Common Shares) and the Preferred Stock
Record Date (in the case of Preferred Shares) and (b)".
2. Section 1(a) of the Rights Agreement is hereby
amended by inserting, immediately after the phrase "or any
entity holding" in the first sentence thereof, the following
", or which has the right to acquire,".
3. Section 1 of the Rights Agreement is hereby
amended by adding, at the end of such Section, the
following:
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In addition, for purposes of this
Agreement, the following terms have the meanings
indicated:
(1) "Adjustment Shares" shall
have the meaning set forth in
Section 11(a)(ii);
(2) "Applicable Shares" shall
mean the Company's Common Shares
and the Preferred Shares;
(3) "Continuing Director"
shall mean a member of the Board of
Directors of the Company who is not
an Acquiring Person or an Affiliate
or Associate of an Acquiring Person
or a representative or nominee of
an Acquiring Person or of any such
Affiliate or Associate, and who
either (i) was a member of the
Board of Directors of the Company
prior to September 20, 1995 or (ii)
subsequently became a director of
the Company and whose election or
nomination for election is approved
or recommended by a vote of a
majority of the Board of Directors
of the Company, which majority
includes a majority of the
Continuing Directors then on the
Board of Directors.
(4) "Current Value" shall
have the meaning set forth in
Section 11(b)(iii) hereof;
(5) "Expiration Date" shall
mean the earlier of (i) the Final
Expiration Date, and (ii) the time
at which the Rights are redeemed as
provided in Section 23 hereof;
(6) "Preferred Shares" shall
mean the shares of Series A ESOP
Convertible Junior Preferred Stock,
without par value, of the Company;
(7) "Principal Party" shall
have the meaning set forth in
Section 13(a) hereof;
(8) "Purchase Price" shall
have the meaning set forth in
Section 7 hereof;
(9) "Redemption Price" shall
have the meaning set forth in
Section 23 hereof;
(10) "Section 11(a)(ii) Event"
shall have the meaning set forth in
Section 11(a)(ii);
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(11) "Section 11(a)(iii)
Trigger Date" shall have the
meaning set forth in Section
11(a)(iii);
(12) "Section 13 Event" shall
have the meaning set forth in
Section 13 hereof;
(13) "Spread" shall have the
meaning set forth in Section
11(a)(iii) hereof.
4. The Rights Agreement is hereby amended by deleting
the words "Common Share(s)" each time such words appear in
Sections 2, 12, 15, 16, 18, 21, 23 and 29 of the Rights
Agreement and substituting therefor the words "Applicable
Share(s)".
5. Section 3 of the Rights Agreement is hereby
amended:
(a) by deleting the words "Common
Share(s)" and substituting therefor the words
"Applicable Share(s)" each time such words
appear in the following places in Section 3:
clause (x) and clause (y) of the first
sentence of Section 3(a); the second sentence
of Section 3(a); and Section 3(c);
(b) by inserting the phrase "the close
of business on" at the beginning of each of
clause (i) and clause (ii) of the first
sentence of Section 3(a);
(c) by deleting the phrase "after the
date of commencement by any Person" where it
appears in Section 3(a) and substituting
therefor the phrase "after the date that a
tender or exchange offer by any Person";
(d) by deleting the phrase "of, or of
the first public announcement of the
intention of any Person (other than the
Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of
any Subsidiary of the Company or any entity
holding Common Shares for or pursuant to the
terms of any such plan) to commence, a tender
or exchange offer the consummation of which
would result in any Person becoming" where it
appears in Section 3(a) and substituting
therefor the phrase "is first published or
sent or given within the meaning of Rule 14d-
4(a) promulgated under the Exchange Act or
any successor Rule, if upon consummation
thereof, such Person would be";
(e) by inserting in clause (ii) of the
first sentence Section 3(a), immediately
after the words "such time as any Person
becomes an Acquiring Person" and before the
closing of the parentheses, the phrase ",
provided that no such action may be taken by
the Board of Directors to determine a later
date unless, at the time of such action,
there are then in office not less
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than two Continuing Directors and such action
is approved by a majority of the Continuing
Directors then in office";
(f) by inserting at the end of the
penultimate sentence of Section 3(a), the
phrase ", subject to adjustment as provided
herein";
(g) by deleting Section 3(b) and
substituting therefor the following:
(b) The Company
sent a copy of a Summary of Rights
to Purchase Common Shares (the
"Summary of Rights") in
substantially the form initially
attached hereto as Exhibit B to
each record holder of Common Shares
as of the close of business on the
Record Date, by first-class,
postage prepaid mail, at the
address of such holder shown on the
records of the Company. The
Summary of Rights has been revised
as set forth in Exhibit B to
reflect the Agreement, as amended,
as of September 20, 1995. With
respect to certificates for
Applicable Shares outstanding prior
to the Distribution Date, the
Rights will be evidenced by such
certificates registered in the
names of the holders thereof.
Until the Distribution Date (or the
earlier of the Redemption Date or
the Final Expiration Date), the
surrender for transfer of any
certificate evidencing Applicable
Shares, with or without a copy of
the Summary of Rights attached
thereto, shall also constitute the
transfer of the Rights associated
with the Applicable Shares
evidenced by such certificate.
(h) by deleting the phrase "after the
Record Date but" the first time such phrase
appears in Section 3(c) and substituting
therefor "after September 20, 1995 but" and
by deleting the phrase "after the Record Date
but" the second time such phrase appears in
Section 3(c) and substituting therefor "after
the Record Date (in the case of Common
Shares) and the Preferred Stock Record Date
(in the case of Preferred Shares) but";
(i) by deleting the last sentence of
the legend described in Section 3(c) and
substituting therefor the following sentence:
As set forth in the
Rights Agreement, Rights
issued to, or Beneficially
Owned by, an Acquiring Person
or any Affiliate or Associate
thereof (as such terms are
defined in the Rights
Agreement) or any subsequent
holder of such Rights may,
under certain circumstances,
become null and void.
4
<PAGE>
; and
(j) by inserting, in Section 3(c),
immediately after the phrase "With respect to
such certificates containing the foregoing
legend" the phrase "or any similar legend
required at any time pursuant to this
Agreement" and by inserting, at the end of
Section 3(c) the following sentence: "In the
event that any Preferred Shares are converted
to Common Shares after the close of business
on the Preferred Stock Record Date but prior
to the Distribution Date, any Rights
associated with such Preferred Shares shall
be deemed cancelled and retired and, in
accordance with the terms of this Agreement,
the Common Shares into which such Preferred
Shares are converted shall represent the
Rights associated with such Common Shares."
6. (a) Section 7(a) of the Rights Agreement is
hereby amended by (i) deleting the words "July 19, 1999" and
substituting therefor the words "September 20, 2005" and
(ii) inserting, immediately after the phrase "together with
payment of the Purchase Price for each Common Share" the
phrase "(or, if substituted for Common Shares pursuant to
Section 11(a)(iii), other securities, cash or assets, as the
case may be)".
(b) Section 7(b) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(b) The Purchase Price for each
Common Share pursuant to the exercise of
a Right shall be $205, shall be subject
to adjustment from time to time, as
provided in Sections 11 and 13 hereof
and shall be payable in lawful money of
the United States of America in
accordance with paragraph (c) below.
(c) Section 7(e) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(e) The Company covenants and
agrees that it will, at all times after
the Distribution Date, cause to be
reserved and kept available out of its
authorized and unissued Common Shares or
any Common Shares held in its treasury,
the number of Common Shares that will be
sufficient to permit the exercise in
full of all outstanding Rights in
accordance with this Section 7 or, to
the extent that there are insufficient
Common Shares available, make adequate
provision to fulfill its obligations
pursuant to Section 11(a)(iii) of this
Agreement.
7. Section 11(a)(ii) of the Rights Agreement is
hereby amended to read in its entirety as follows:
5
<PAGE>
(ii) In the event:
(A) any Acquiring
Person or any Associate or Affiliate of
any Acquiring Person, at any time after
the date of this Agreement, directly or
indirectly, (1) shall merge into the
Company or otherwise combine with the
Company and the Company shall be the
continuing or surviving corporation of
such merger or combination and the
Company's Common Shares shall remain
outstanding and unchanged, (2) shall, in
one transaction or a series of
transactions, transfer any assets to the
Company or to any of its Subsidiaries in
exchange (in whole or in part) for the
Company's Common Shares, for other
equity securities of the Company or any
such Subsidiary, or for securities
exercisable for or convertible into
shares of equity securities of the
Company or any of its Subsidiaries
(whether Company Common Shares or
otherwise) or otherwise obtain from the
Company or any of its Subsidiaries, with
or without consideration, any additional
shares of such equity securities or
securities exercisable for or
convertible into such equity securities
(other than pursuant to a pro rata
distribution to all holders of the
Company's Common Shares), (3) shall
sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise
acquire or dispose of, in one
transaction or a series of transactions,
to, from or with the Company or any of
its Subsidiaries or any employee benefit
plan maintained by the Company or any of
its Subsidiaries or any trustee or
fiduciary with respect to such plan
acting in such capacity, assets
(including securities) on terms and
conditions less favorable to the Company
or such Subsidiary or plan than those
that could have been obtained in arm's-
length negotiations with an unaffiliated
third party, other than pursuant to a
transaction set forth in Section 13(a)
hereof, (4) shall sell, purchase, lease,
exchange, mortgage, pledge, transfer or
otherwise acquire or dispose of, in one
transaction or a series of transactions,
to, from or with the Company or any of
the Company's Subsidiaries or any
employee benefit plan maintained by the
Company or any of its Subsidiaries or
any trustee or fiduciary with respect to
such plan acting in such capacity (other
than transactions, if any, consistent
with those engaged in, as of the date
hereof, by the Company and such
Acquiring Person or such Associate or
Affiliate), assets (including
securities) having an aggregate fair
market value of more than $5,000,000,
other than pursuant to a transaction set
forth in Section 13(a) hereof, (5) shall
sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise
acquire or dispose of, in one
transaction or a series of transactions,
to, from or with the
6
<PAGE>
Company or any of its Subsidiaries or any
employee benefit plan maintained by the Company
or any of its Subsidiaries or any trustee or
fiduciary with respect to such plan
acting in such capacity, any material
trademark or material service mark,
other than pursuant to a transaction set
forth in Section 13(a) hereof, (6) shall
receive, or any designee, agent or
representative of such Acquiring Person
or any Affiliate or Associate of such
Acquiring Person shall receive, any
compensation from the Company or any of
its Subsidiaries other than compensation
for full-time employment as a regular
employee at rates in accordance with the
Company's (or its Subsidiaries') past
practices, or (7) shall receive the
benefit, directly or indirectly (except
proportionately as a holder of the
Company's Common Shares or as required
by law or governmental regulation), of
any loans, advances, guarantees, pledges
or other financial assistance or any tax
credits or other tax advantage provided
by the Company or any of its
Subsidiaries or any employee benefit
plan maintained by the Company or any of
its Subsidiaries or any trustee or
fiduciary with respect to such plan
acting in such capacity; or
(B) any Person
(other than the Company, any Subsidiary
of the Company, any employee benefit
plan maintained by the Company or any of
its Subsidiaries or any trustee or
fiduciary with respect to such plan
acting in such capacity) shall become an
Acquiring Person, unless the event
causing such Person to become an
Acquiring Person is a transaction set
forth in Section 13(a) hereof; or
(C) during such
time as there is an Acquiring Person,
there shall be any reclassification of
securities (including any reverse stock
split), or recapitalization of the
Company, or any merger or consolidation
of the Company with any of its
Subsidiaries or any other transaction or
series of transactions involving the
Company or any of its Subsidiaries,
other than a transaction or transactions
to which the provisions of Section 13(a)
apply (whether or not with or into or
otherwise involving an Acquiring
Person), which has the effect, directly
or indirectly, of increasing by more
than 1% the proportionate share of the
outstanding shares of any class of
equity securities of the Company or any
of its Subsidiaries that is directly or
indirectly beneficially owned by any
Acquiring Person or any Associate or
Affiliate of any Acquiring Person; then,
----
immediately upon the date of the
occurrence of an event described in
Section 11(a)(ii)(A)-(C) hereof (a
"Section 11(a)(ii) Event"), proper
provision shall be
7
<PAGE>
made so that each holder of a Right
(except as provided below in Section 11(a)
(ii)(D) hereof) shall thereafter have the
right to receive, upon exercise thereof at
the then current Purchase Price multiplied
by the number of Common Shares for which
a Right is then exercisable, in
accordance with the terms of this
Agreement, in lieu of the number of the
Common Shares for which a Right was
exercisable immediately prior to the
first occurrence of a Section 11(a)(ii)
Event, such number of Common Shares
(such Common Shares being the
"Adjustment Shares") as shall equal the
result obtained by (x) multiplying the
then current Purchase Price by the then
number of Common Shares for which a
Right was exercisable immediately prior
to the first occurrence of a
Section 11(a)(ii) Event, and
(y) dividing that product by 50% of the
then current per share market price
(determined pursuant to Section 11(d)
hereof) of the Company's Common Shares
on the date of such first occurrence.
(D) Notwithstanding
anything in this Agreement to the
contrary, from and after the time any
Person shall become an Acquiring Person,
any Rights beneficially owned by (i) an
Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of
any such Associate or Affiliate) which
becomes a transferee after the Acquiring
Person becomes such, or (iii) a
transferee of an Acquiring Person (or of
any such Associate or Affiliate) which
becomes a transferee prior to or
concurrently with the Acquiring Person
becoming such and which receives such
Rights pursuant to either (1) a transfer
(whether or not for consideration) from
the Acquiring Person (or any such
Associate or Affiliate) to holders of
equity interests in such Acquiring
Person (or any such Associate or
Affiliate) or to any Person with whom
the Acquiring Person (or such Associate
or Affiliate) has any continuing
agreement, arrangement or understanding
regarding the transferred Rights, the
Company's Common Shares or the Company
or (2) a transfer which a majority of
the Continuing Directors has determined
to be part of a plan, arrangement or
understanding which has as a primary
purpose or effect the avoidance of this
Section 11(a)(ii), shall be null and
void without any further action, and no
holder of such Rights shall have any
rights whatsoever with respect to such
Rights, whether under any provision of
this Agreement or otherwise. No Right
Certificate shall be issued pursuant to
Section 3 that represents Rights
beneficially owned by an Acquiring
Person whose Rights would be void
pursuant to the preceding sentence or
any Associate or Affiliate thereof; no
Right Certificate shall be
8
<PAGE>
issued at any time upon the transfer of any
Rights to an Acquiring Person whose Rights
would be void pursuant to the preceding
sentence or any Associate or Affiliate
thereof or to any nominee of such
Acquiring Person, Associate or
Affiliate; and any Right Certificate
delivered to the Rights Agent for
transfer to an Acquiring Person whose
Rights would be void pursuant to the
preceding sentence shall be cancelled.
The Company shall use all reasonable
efforts to ensure that the provisions of
this Section 11(a)(ii) are complied
with, but shall have no liability to any
holder of Rights or any other Person as
a result of its failure to make any
determination under this
Section 11(a)(ii) with respect to an
Acquiring Person or its Affiliates,
Associates or transferees.
8. Section 11(a)(iii) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(iii) In the event that
the number of Common Shares which are
authorized by the Company's Articles of
Incorporation but not outstanding or
reserved for issuance for purposes other
than upon exercise of the Rights is not
sufficient to permit the exercise in
full of the Rights in accordance with
the foregoing subparagraph (ii) of this
Section 11(a), the Company, by the vote
of a majority of the Continuing
Directors, shall: (A) determine the
excess of (1) the value of the
Adjustment Shares issuable upon the
exercise of a Right pursuant to Section
11(a) hereof (the "Current Value") over
(2) the Purchase Price (such excess
being the "Spread"), and (B) with
respect to each Right, make adequate
provision to substitute, to the extent
that there are insufficient Common
Shares available, for such Adjustment
Shares, upon payment of the applicable
Purchase Price, (1) cash, (2) a
reduction in the Purchase Price,
(3) other equity securities of the
Company (including, without limitation,
shares, or units of shares, of preferred
stock (such other shares being "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 a
majority of the Continuing Directors,
after receiving advice from a nationally
recognized investment banking firm;
provided, however, that if the Company
------------------
shall not have made adequate provision
to deliver value pursuant to clause (B)
above within thirty days following the
later of (x) the Distribution Date and
(y) the date on which the Company's
right of redemption pursuant to
Section 23(a) expires (the later of (x)
and (y) being referred to herein as the
"Section 11(a)(iii) Trigger Date"), then
9
<PAGE>
the Company shall be obligated to
deliver, upon the surrender for exercise
of a Right and without requiring payment
of the Purchase Price, its Common Shares
(to the extent available) and then, if
necessary, cash, which Common Shares
and/or cash shall have an aggregate
value equal to the Spread. To the
extent that the Company determines that
some action need be taken pursuant to
the first sentence of this
Section 11(a)(iii), the Company shall
provide, subject to Section 11(a)(ii)(D)
hereof, that such action shall apply
uniformly to all outstanding Rights.
For purposes of this Section 11(a)(iii),
the value of a Common Share of the
Company shall be the "current per share
market price" (as defined in
Section 11(d) hereof) of the Company's
Common Shares on the Section 11(a)(iii)
Trigger Date and the value of any common
stock equivalent shall be deemed to have
the same value as the Company's Common
Shares on such date.
9. Section 11(d) of the Rights Agreement is hereby
amended by deleting, in the last sentence of such Section,
the phrase "the Board of Directors of the Company" and
substituting therefor the phrase "a majority of the
Continuing Directors".
10. Section 11 of the Rights Agreement is hereby
amended by adding the following new paragraphs (n), (o), (p)
and (q) thereto:
(n) The Company shall not, at any
time after the Distribution Date,
(i) consolidate with any other Person
(other than a wholly owned Subsidiary
of the Company in a transaction which
complies with Section 11(o) hereof),
(ii) merge with or into any other
Person (other than a wholly owned
Subsidiary of the Company in a
transaction which complies with
Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to
sell or transfer), in one transaction,
or a series of 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 wholly owned Subsidiaries in one or
more transactions each of which
complies with Section 11(o) hereof), if
(x) at the time of or immediately after
such consolidation, merger or sale
there are any rights, warrants or other
instruments or securities outstanding
or agreements in effect which would
substantially diminish or otherwise
eliminate the benefits intended to be
afforded by the Rights or (y) prior to,
simultaneously with or immediately
after such consolidation, merger or
sale, the Person which constitutes, or
would constitute, the "Principal Party"
for purposes of Section 13(a) hereof
shall have distributed or otherwise
10
<PAGE>
transferred to its shareholders or
other persons holding an equity
interest in such Person Rights
previously owned by such Person or any
of its Affiliates and Associates;
provided, however, this Section 11(n)
------------------
shall not affect the ability of any
wholly owned Subsidiary of the Company
to consolidate with, merge with or
into, or sell or transfer assets or
earning power to, any other wholly
owned Subsidiary of the Company.
(o) After the Distribution Date,
the Company shall not, except as
permitted by Section 23 or Section 27
hereof, take (or permit any Subsidiary
to take) any action if at the time such
action is taken it is reasonably
foreseeable that such action will
diminish substantially or otherwise
eliminate the benefits intended to be
afforded by the Rights.
(p) Upon each adjustment that
occurs prior to the Distribution Date
to the Conversion Ratio (as defined in
Section 5(A) of Exhibit A to the
Articles of Incorporation of the
Company) of the Preferred Shares,
additional Rights (or fractions
thereof) shall be issued in respect of
each outstanding Preferred Share or
such Rights (or fractions thereof)
associated with each outstanding
Preferred Share shall be cancelled so
that, after giving effect to such
issuance of additional Rights (or
fractions thereof) or cancellation of
outstanding Rights (or fractions
thereof), as the case may be, the
number of Rights associated with each
outstanding Preferred Share shall be
equal to the aggregate number of Rights
that would be associated with the
aggregate number of Common Shares into
which such Preferred Share is then
convertible in accordance with Section
5(A) of Exhibit A to the Articles of
Incorporation of the Company, if such
Preferred Share was converted into
Common Shares at the Conversion Ratio
in effect immediately after such
adjustment of the Conversion Ratio.
Each adjustment made pursuant to this
Section 11(p) shall be effected
contemporaneously with the
corresponding adjustment to the
Conversion Ratio of the Preferred
Shares.
(q) Upon each adjustment that
occurs prior to the Distribution Date
to the number of Rights associated with
each outstanding Common Share, such
adjustment shall be made whenever
necessary pursuant to this Section
11(q) to ensure that the number of
Rights associated with each outstanding
Preferred Share shall be equal to the
aggregate number of Rights that would
be associated with the aggregate number
of Common Shares into which such
Preferred Share is then convertible in
accordance with
11
<PAGE>
Section 5(A) of Exhibit A to the Articles
of Incorporation of the Company, if such
Preferred Share was converted.
11. Section 13 of the Rights Agreement is hereby
amended to read in its entirety as follows:
Section 13. Consolidation, Merger
---------------------
or Sale or Transfer of Assets or Earning
----------------------------------------
Power. (a) In the event that,
-----
following the Shares Acquisition Date,
directly or indirectly, either (x) the
Company shall consolidate with, or merge
with and into, any other Person (other
than a wholly owned Subsidiary of the
Company in a transaction which complies
with Section 11(o) hereof), and the
Company shall not be the continuing or
surviving corporation of such
consolidation or merger, (y) any Person
(other than a wholly owned Subsidiary of
the Company in a transaction which
complies with Section 11(o) hereof)
shall consolidate with, or merge with or
into, the Company, and the Company shall
be the continuing or surviving
corporation of such consolidation or
merger and, in connection with such
consolidation or merger, all or part of
the outstanding Company Common Shares
shall be converted 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) to any Person or Persons
(other than the Company or any of its
wholly owned Subsidiaries in one or more
transactions each of which complies with
Section 11(o) hereof), in one or more
transactions, assets or earning power
aggregating more than 50% of the assets
or earning power of the Company and its
Subsidiaries (taken as a whole) (any
such event being a "Section 13 Event"),
then, and in each such case, proper
provision shall be made so that:
(i) each holder of a Right, except as
provided in Section 11(a)(ii)(D) hereof,
shall thereafter have the right to
receive, upon the exercise thereof at a
price equal to the then current Purchase
Price multiplied by the number of Common
Shares for which a Right is then
exercisable, in accordance with the
terms of this Agreement, such number of
validly authorized and issued, fully
paid and non-assessable Common Shares of
the Principal Party (as such term is
hereinafter defined), which shares shall
not be subject to any liens,
encumbrances, rights of first refusal,
transfer restrictions or other adverse
claims, as shall be equal to the result
obtained by (1) multiplying the then
current Purchase Price by the number of
the Company's Common Shares 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
12
<PAGE>
has occurred prior to the first
occurrence of a Section 13 Event,
multiplying the number of such Company's
Common Shares for which a Right would be
exercisable hereunder but for the
occurrence of such Section 11(a)(ii)
Event by the Purchase Price which would
be in effect hereunder but for such
first occurrence) and (2) dividing that
product by 50% of the current per share
market price (determined pursuant to
Section 11(d) hereof) of the Common
Shares of such Principal Party on the
date of consummation 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 Common Shares) in connection
with the consummation of any such
transaction as may be necessary to
ensure that the provisions of this
Agreement shall thereafter be applicable
to its Common Shares thereafter
deliverable upon the exercise of the
Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no
further effect following the first
occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any
transaction described in clause (x) or
(y) of the first sentence of
Section 13(a), (A) the Person that is
the issuer of any securities into which
the Company's Common Shares are
converted in such merger or
consolidation, or, if there is more than
one such issuer, the issuer of Common
Shares that have the highest aggregate
current market price (determined based
on the "current per share market price"
of such Common Shares as defined in
Section 11(d) hereof) and (B) if no
securities are so issued, the Person
that is the other party to such merger
or consolidation, or, if there is more
than one such Person, the Person the
Common Shares of which have the highest
aggregate current market price
(determined based on the "current per
share market price" of such Common
Shares as defined in Section 11(d)
hereof); and
(ii) in the case of any
transaction described in clause (z) of
the first sentence of Section 13(a), the
Person that is
13
<PAGE>
the party receiving the largest 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 transferred pursuant to such
transaction or transactions or if the
Person receiving the largest portion of
the assets or earning power cannot be
determined, whichever Person the Common
Shares of which have the highest
aggregate current market price
(determined based on the "current per
share market price" of such Common
Shares as defined in Section 11(d)
hereof); provided, however, that in any
-----------------
such case, (1) if the Common Shares of
such Person are not at such time and
have not been continuously over the
preceding twelve-month period registered
under Section 12 of the Exchange Act
("Registered Common Shares"), or such
Person is not a corporation, and such
Person is a direct or indirect
Subsidiary of another Person that has
Registered Common Shares outstanding,
"Principal Party" shall refer to such
other Person; (2) if the Common Shares
of such Person are not Registered Common
Shares or such Person is not a
corporation, and such Person is a direct
or indirect Subsidiary of another Person
but is not a direct or indirect
Subsidiary of another Person which has
Registered Common Shares outstanding,
"Principal Party"shall refer to the
ultimate parent entity of such first-
mentioned Person; (3) if the Common
Shares of such Person are not Registered
Common Shares or such Person is not a
corporation, and such Person is directly
or indirectly controlled by more than
one Person, and one or more of such
other Persons has Registered Common
Shares outstanding, "Principal Party"
shall refer to whichever of such other
Persons is the issuer of the Registered
Common Shares having the highest
aggregate current market price
(determined based on the "current per
share market price" of such Registered
Common Shares as defined in
Section 11(d) hereof); and (4) if the
Common Shares of such Person are not
Registered Common Shares or such Person
is not a corporation, and such Person is
directly or indirectly controlled by
more than one Person, and none of such
other Persons have Registered Common
Shares outstanding, "Principal Party"
shall refer to whichever ultimate parent
entity is the corporation having the
greatest shareholders equity or, if no
such ultimate parent entity is a
corporation, shall refer to whichever
ultimate parent entity is the entity
having the greatest net assets.
(c) The Company shall not
consummate any such consolidation, merger,
sale or transfer unless the Principal Party
14
<PAGE>
shall have a sufficient number of authorized
Common Shares which have not been issued or
reserved for issuance to permit the exercise
in full of the Rights in accordance with this
Section 13, and unless prior thereto the
Company and such Principal Party shall
have executed and delivered to the
Rights Agent a supplemental agreement
providing for the terms set forth in
paragraphs (a) and (b) of this
Section 13 and further providing that
the Principal Party will:
(i) (A) file on an appropriate
form, as soon as practicable
following the execution of such
agreement, a registration statement
under the Securities Act with
respect to the Common Shares that
may be acquired upon exercise of
the Rights, (B) cause such
registration statement to remain
effective (and to include a
prospectus complying with the
requirements of the Securities Act)
until the Expiration Date, and
(C) as soon as practicable
following the execution of such
agreement, take such action as may
be required to ensure that any
acquisition of such Common Shares
upon the exercise of the Rights
complies with any applicable state
security or "blue sky" laws; and
(ii) deliver to holders of the
Rights historical financial
statements for the Principal Party
and each of its Affiliates which
comply in all respects with the
requirements for registration on
Form 10 under the Exchange Act.
(d) In case the Principal Party
which is to be a party to a transaction
referred to in this Section 13 has a
provision in any of its authorized
securities or in its Certificate of
Incorporation or By-laws or other
instrument governing its corporate
affairs, which provision would have the
effect of (i) causing such Principal
Party to issue, in connection with, or
as a consequence of, the consummation of
a transaction referred to in this
Section 13, Common Shares of such
Principal Party at less than the then
current per share market price
(determined pursuant to Section 11(d)
hereof) or securities exercisable for,
or convertible into, Common Shares of
such Principal Party at less than such
then current per share market price
(other than to holders of Rights
pursuant to this Section 13) or
(ii) providing for any special payment,
tax or similar provisions in connection
with the issuance of the Common Shares
of such Principal Party pursuant to the
provisions of this Section 13; then, in
such event, the Company shall not
consummate any such transaction unless
prior thereto the
15
<PAGE>
Company and such Principal Party shall have
executed and delivered to the Rights Agent a
supplemental agreement providing that
the provision in question of such
Principal Party shall have been
cancelled, waived or amended, or that
the authorized securities shall be
redeemed, so that the applicable
provision will have no effect in
connection with, or as a consequence of,
the consummation of the proposed
transaction.
(e) The provisions of this
Section 13 shall similarly apply to
successive mergers or consolidations or
sales or other transfers. In the event
that a Section 13 Event shall occur at
any time after the occurrence of a
Section 11(a)(ii) Event, the Rights
which have not theretofore been
exercised shall thereafter become
exercisable in the manner described in
Section 13(a).
12. Section 14(a) of the Rights Agreement is hereby
amended (a) by adding the following at the end of the first
sentence thereof ", except to the extent that an adjustment
is made in accordance with Section 11(p) or 11(q) hereof
pursuant to which fractions of Rights are required to be
issued in respect of Rights associated with Preferred
Shares" and (b) by deleting the second sentence thereof and
replacing such sentence with the following:
If at the Distribution Date certificates
for outstanding Applicable Shares do not
evidence a whole number of Rights, that
portion of the Rights evidenced by each
such certificate that is less than a
whole number of Rights shall be
cancelled at the Distribution Date and
in lieu of such cancelled portion there
shall be paid an amount in cash equal to
the same fraction of the current market
value of a whole Right.
13. Section 23(a) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(a) The Company may, at its option,
upon resolution by the Board of
Directors of the Company, at any time
prior to the earlier of (i) the
Distribution Date or (ii) the Final
Expiration Date, redeem all but not less
than all of the then outstanding Rights
at a redemption price of $.01 per Right,
as such amount may be appropriately
adjusted to reflect any stock split,
stock dividend or similar transaction
occurring after the date hereof (such
redemption price being the "Redemption
Price"), and the Company may, at its
option, pay the Redemption Price either
in the Company's Common Shares (based on
the "current per share market price", as
defined in Section 11(d) hereof, of the
Common Shares at the time of redemption)
or cash; provided that, notwithstanding
16
<PAGE>
anything to the contrary contained in
this Section 23(a), the Company may not
take any action pursuant to this
Section 23(a) unless (x) at the time of
the action of the Board of Directors of
the Company approving such redemption
and the form of payment of the
Redemption Price, there are then in
office not less than two Continuing
Directors and (y) such action is
approved by a majority of the Continuing
Directors then in office. The
redemption of the Rights by the Board of
Directors may be made effective at such
time, on such basis and with such
conditions as the Board of Directors in
its sole discretion may establish.
14. Section 24(a) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(a) (i) The Company may, at its
option, at any time after any person
becomes an Acquiring Person, upon
resolution by the Board of Directors of
the Company, 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 11(a)(ii)(D)
hereof) for Common Shares at an exchange
ratio of one Common Share 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 "Section
24(a)(i) Exchange Ratio").
Notwithstanding the foregoing, the
Company may not effect such exchange at
any time after any Person (other than
the Company, any Subsidiary of the
Company, any employee benefit plan of
the Company or any such Subsidiary, or
any entity holding Common Shares for or
pursuant to the terms of any such plan),
together with all Affiliates and
Associates of such Person, becomes the
Beneficial Owner of 50% or more of the
Common Shares then outstanding.
(ii) The Company may, at its
option, at any time after any person
becomes an Acquiring Person, upon
resolution by the Board of Directors of
the Company, exchange all or part of the
then outstanding and exercisable Rights
(which shall not include Rights that
have become void pursuant to
Section 11(a)(ii)(D) hereof) for Common
Shares at an exchange ratio specified in
the following sentence, as appropriately
adjusted to reflect any stock split,
stock dividend or similar transaction
occurring after the date hereof.
Subject to such adjustment, each Right
may be exchanged for that number of
Common Shares obtained by dividing the
Adjustment Spread (as defined below) by
the then current per share market price
(determined pursuant to Section 11(d)
17
<PAGE>
hereof) of the Common Shares on the
earlier of (i) the date on which any
Person becomes an Acquiring Person and
(ii) the date on which a tender or
exchange offer by any Person (other than
the Company, any Subsidiary of the
Company, any employee benefit plan
maintained by the Company or any of its
Subsidiaries or any trustee or fiduciary
with respect to such plan acting in such
capacity) is first published or sent or
given within the meaning of
Rule 14d-4(a) promulgated under the
Exchange Act or any successor rule, if
upon consummation thereof such Person
would be the Beneficial Owner of 10% or
more of the Company Common Shares then
outstanding (such exchange ratio being
the "Section 24(a)(ii) Exchange Ratio").
The "Adjustment Spread" shall equal
(x) the aggregate market price on the
date of such event of the number of
Adjustment Shares determined pursuant to
Section 11(a)(ii), minus (y) the
Purchase Price.
(iii) Notwithstanding
anything contained in this Section 24(a)
to the contrary, the Company may not
exchange any Rights pursuant to this
Section 24(a) unless (x) at the time of
the action of the Board of Directors of
the Company approving exchange, there
are then in office not less than two
Continuing Directors and (y) such
exchange is approved by a majority of
the Continuing Directors then in office.
15. Section 24(b) of the Rights Agreement is
hereby amended by deleting the phrase "Exchange Ratio" in
the first sentence thereof and substituting therefore the
phrase "Section 24(a)(i) Exchange Ratio or Section 24(a)(ii)
Exchange Ratio, as the case may be".
16. Section 24(c) of the Rights Agreement is
hereby amended to read in its entirety as follows:
(a) In the event that there shall
not be sufficient Common Shares issued
but not outstanding or authorized but
unissued to permit any exchange of
Rights as contemplated in accordance
with this Section 24, the Company shall
make adequate provision to substitute,
to the extent that there are
insufficient Common Shares available
(1) cash, (2) other equity securities of
the Company, (3) debt securities of the
Company, (4) other assets, or (5) any
combination of the foregoing, having an
aggregate value per Right equal to (x)
in the case of an exchange pursuant to
Section 24(a)(i), the then current per
share market price (determined pursuant
to Section 11(d) hereof) of the Common
Shares multiplied by the Exchange Ratio
and (y) in the case of an exchange
pursuant to Section 24(a)(ii), the
Adjustment Spread, where such aggregate
18
<PAGE>
value has been determined by a majority
of the Continuing Directors, after
receiving advice from a nationally
recognized investment banking firm. To
the extent that the Company determines
that any such substitution must be made,
the Company shall provide, subject to
section 11(a)(ii)(D) hereof, that such
substitution shall apply uniformly to
all outstanding Rights.
17. Section 27 of the Rights Agreement is hereby
amended to read in its entirety as follows:
Section 27. Supplements and Amendments
--------------------------------------
Prior to the Distribution Date and subject
to the penultimate sentence of this Section
27, the Company and the Rights Agent shall,
if the Company so directs, supplement or amend
any provision of this Agreement without
the approval of any holders of
certificates representing the Applicable
Shares. From and after the Distribution
Date and subject to the penultimate
sentence of this Section 27, the Company
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 (i) to cure any ambiguity, (ii) to
correct or supplement any provision
contained herein which may be defective
or inconsistent with any other
provisions herein, (iii) to shorten or
lengthen any time period hereunder, or
(iv) to change or supplement the
provisions hereunder in any manner which
the Company may deem necessary or
desirable and which shall not adversely
affect the interests of the holders of
Rights Certificates (other than an
Acquiring Person or an Affiliate or
Associate of an Acquiring Person);
provided, however, that this Agreement
------------------
may not be supplemented or amended to
lengthen, pursuant to clause (iii) of
this sentence, (A) a time period
relating to when the Rights may be
redeemed at such time as the Rights are
not then redeemable, or (B) any other
time period unless such lengthening is
for the purpose of protecting, enhancing
or clarifying the rights of, and/or the
benefits to, the holders of Rights.
Upon the delivery of a certificate from
an appropriate officer of the Company
or, so long as any Person is an
Acquiring Person hereunder, from a
majority of the Continuing Directors
which states that the proposed
supplement or amendment is in compliance
with the terms of this Section 27, the
Rights Agent shall execute such
supplement or amendment. Notwithstanding
anything contained in this Agreement to
the contrary, supplements or amendments
shall be made only if (x) at the time of
the action of the Board of Directors of
the Company approving such supplement or
amendment there are then in office not less
19
<PAGE>
than two Continuing Directors and (y) such
supplement or amendment is approved by a
majority of the Continuing Directors
then in office. Prior to the
Distribution Date, the interests of the
holders of Rights shall be deemed
coincident with the interests of the
holders of the Applicable Shares.
18. The Rights Agreement is hereby amended by
adding new Sections 34 and 35 thereto to read in their
entirety as follows:
Section 34. Restatements of this Agreement.
------------------------------
In connection with any amendment or supplement
made to this Rights Agreement in accordance
with Section 27 hereof or at any time or from
time to time as the Company determines
to be appropriate, the Company may
restate this Rights Agreement to reflect
in such restatements the full terms of
this Rights Agreement as amended and
supplemented to the date thereof. Any
such restatement shall be made at such
time or times as the Company's President
or any Vice President may determine to
be appropriate.
Section 35. Determinations and
-------------------
Actions by the Board of Directors, etc.
---------------------------------------
(a) For all purposes of this Agreement,
any calculation of the number of Company
Common Shares outstanding at any
particular time, including for purposes
of determining the particular percentage
of such outstanding Company Common
Shares 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 Exchange Act
Regulations as in effect on the date
hereof. Except as otherwise
specifically provided herein and subject
to paragraph (b) of this Section, the
Board of Directors of the Company shall
have the exclusive power and authority
to administer this Agreement and to
exercise all rights and powers
specifically granted to the Board 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 (i) to interpret the
provisions of this Agreement, and
(ii) to make all determinations deemed
necessary or advisable for the
administration of this Agreement. All
such actions, calculations,
interpretations and determinations
(including, for purposes of clause (y)
below, all omissions with respect to the
foregoing) which are done or made by the
Board of Directors of the Company or by
a majority of the Continuing Directors
in good faith shall (x) be final,
conclusive and binding on the Company,
the Rights Agent, the holders of the
Rights and all other parties, and
20
<PAGE>
(y) not subject the Board of Directors
of the Company or any member thereof to
any liability to the holders of the
Rights.
(b) Notwithstanding anything
to the contrary contained in this
Agreement, the concurrence of a majority
of the Continuing Directors then in
office shall be required to give effect
to any action, calculation,
interpretation or determination made by
the Board of Directors of the Company or
the Continuing Directors in the
administration of this Agreement and the
exercise of the rights or powers granted
to the Board of Directors of the
Company, to the Continuing Directors or
to the Company pursuant to this
Agreement and no effect shall be given
to any such action, calculation,
interpretation, determination or
exercise of rights or powers unless at
least two Continuing Directors are then
in office.
19. The Rights Agreement is hereby amended by deleting
in its entirety the form of "Summary of Rights to Purchase
Common Shares" set forth in Exhibit B to the Rights
Agreement and substituting therefor the text set forth in
Annex A to this Amendment.
20. This Amendment to the Rights Agreement shall be
governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania applicable to contracts to be
made and performed entirely within such Commonwealth.
21. This Amendment to the Rights Agreement may be
executed in any number of counterparts, each of which shall
be an original, but such counterparts shall together
constitute one and the same instrument. Terms not defined
herein shall, unless the context otherwise requires, have
the meanings assigned to such terms in the Rights Agreement.
22. In all respects not inconsistent with the terms
and provisions of this Amendment to the Rights Agreement,
the Rights Agreement is hereby ratified, adopted, approved
and confirmed. In executing and delivering this Amendment,
the Rights Agent shall be entitled to all the privileges and
immunities afforded to the Rights Agent under the terms and
conditions of the Rights Agreement.
23. If any terms, provision, covenant or restriction
of this Amendment to the Rights Agreement is held by a court
of competent jurisdiction or other authority to be invalid,
void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Amendment to
the Rights Agreement, and of the Rights Agreement, shall
remain in full force and effect and shall in no way be
affected, impaired or invalidated.
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to the Rights Agreement to be duly executed and
attested, all as of the date and year first above written.
Attest: CONRAIL INC.
By /s/ James D. McGeehan By: /s/ Timothy T. O'Toole
--------------------- ----------------------
Assistant Secretary Vice President and Treasurer
Attest: FIRST CHICAGO TRUST COMPANY
OF NEW YORK
By: /s/ J. Cohen By: /s/ Ralph Persico
-------------------------------- ----------------------------
Title: Assistant Vice-President Title: Customer Officer
22
<PAGE>
ANNEX A to AMENDMENT TO RIGHTS AGREEMENT
Exhibit B
---------
AMENDED SUMMARY OF RIGHTS TO PURCHASE
COMMON SHARES
On July 19, 1989, the Board of Directors of
Consolidated Rail Corporation declared a dividend of one common
share purchase right (a "Right") for each share of common stock,
par value $1.00 per share (the "Common Shares"), of Consolidated
Rail Corporation or would later be issued. The dividend was
originally payable on July 31, 1989 (the "Record Date") to the
stockholders of record on that date. The description and terms
of the Rights are set forth in a Rights Agreement (as amended,
the "Rights Agreement") between Conrail Inc. (the "Company"), as
assignee of Consolidated Rail Corporation, and First Chicago
Trust Company of New York, as Rights Agent (the "Rights Agent"),
as amended on March 21, 1990, February 17, 1993, October 19, 1994
and September 20, 1995. On September 20, 1995, the Board of
Directors declared a dividend of one Right for each share of
Series A ESOP Convertible Junior Preferred Stock, without par
value, of the Company (the "Preferred Shares"; and, collectively,
with the Common Shares, the "Applicable Shares") outstanding on
October 2, 1995 (the "Preferred Stock Record Date") and amended
the terms of the Rights and the Rights Agreement, to provide,
among other things, for such Rights. As amended, each Right
entitles the registered holder to purchase from the Company one
Common Share of the Company at a price of $205 per share (the
"Purchase Price"), subject to adjustment.
Until the earlier to occur of (i) 10 days following a
public announcement (the date of such announcement being the
"Shares Acquisition Date") that a person or group of affiliated
or associated persons (other than the Company, any subsidiary of
the Company or any employee benefit plan of the Company or such
subsidiary) (an "Acquiring Person") has acquired, obtained the
right to acquire, or otherwise obtained beneficial ownership of
10% or more of the then outstanding shares of Common Shares and
(ii) 10 business days (or such later date as may be determined by
action of the Board of Directors prior to such time as any person
becomes an Acquiring Person) following the commencement of a
tender offer or exchange offer that would result in a person or
group beneficially owning 10% or more of the then outstanding
Company Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced by the
Applicable Share certificates, with or without a copy of this
Summary of Rights being attached thereto, and not by separate
Right Certificates.
<PAGE>
The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only
with the Applicable Shares. Until the Distribution Date (or
earlier redemption or expiration of the Rights), new Applicable
Share certificates issued after the Record Date (in the case of
Common Shares) and the Preferred Stock Record Date (in the case
of Preferred Shares), upon transfer or new issuance of Applicable
Shares will contain a notation incorporating the Rights Agreement
by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any
certificates for Applicable Shares even without such notation or
a copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the
Applicable Shares represented by such certificate. As soon as
practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be
mailed to holders of record of the Applicable Shares as of the
close of business on the Distribution Date and such separate
Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on September 20, 2005 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, in each case, as described below.
In the event that (i) the Company is the surviving
corporation in a merger with an Acquiring Person and the Company
Common Shares shall remain outstanding, (ii) a person or group of
affiliated or associated persons becomes the beneficial owner of
10% or more of the then outstanding Company Common Shares,
(iii) an Acquiring Person engages in one or more "self-dealing"
transactions as set forth in the Rights Agreement, or (iv) during
such time as there is an Acquiring Person, an event occurs which
results in such Acquiring Person's ownership interest being
increased by more than 1% (e.g., by means of a reverse stock
split or recapitalization), then, in each such case, each holder
of a Right will thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right,
that number of Company Common Shares (or, in certain
circumstances, cash, property or other securities of the Company)
having a value equal to two times the exercise price of the
Right. The exercise price is the Purchase Price multiplied by
the number of Common Shares issuable upon exercise of a Right
prior to the events described in this paragraph. Notwithstanding
any of the foregoing, following the occurrence of any of the
events 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 will be null and
void.
In the event that, at any time following the Shares
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction and the Company is not the
surviving corporation (other than a merger described in the
preceding paragraph), (ii) any person consolidates or merges with
the Company and all or part of the Company Common Shares are
converted or exchanged for securities, cash or property of any
other Person or (iii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as described
above) shall thereafter have the
<PAGE>
right to receive, upon exercise, common stock of the acquiror
having a value equal to two times the exercise price of the
Right.
The Purchase Price payable, and the number of Common
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Common
Shares, (ii) upon the grant to holders of the Common Shares of
certain rights or warrants to subscribe for or purchase Common
Shares at a price, or securities convertible into Common Shares
with a conversion price, less than the then current market price
of the Common Shares or (iii) upon the distribution to holders of
the Common Shares of evidences of indebtedness or assets
(excluding regular quarterly cash dividends or dividends payable
in Common Shares) 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 require an
adjustment of at least 1% in such Purchase Price. No fractional
Common Shares will be issued and in lieu thereof, an adjustment
in cash will be made based on the market price of the Common
Shares on the last trading day prior to the date of exercise.
At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial ownership of
10% or more of the outstanding Common Shares and prior to the
acquisition by such person or group of 50% or more of the
outstanding Common Shares, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by such person
or group which have become void), in whole or in part, at an
exchange ratio of one Common Share per Right (subject to
adjustment).
At any time prior to the Distribution Date, the Board
of Directors of the Company may redeem the Rights in whole, but
not in part, at a price of $.005 per Right (the "Redemption
Price"), subject to adjustment. The redemption of the Rights may
be made effective at such time on such basis with such conditions
as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
Any of the provisions of the Rights Agreement may be
amended without the approval of the holders of Company Common
Shares at any time prior to the Distribution Date. After the
Distribution Date, the provisions of the Rights Agreement may be
amended in order to cure any ambiguity, defect or inconsistency,
to make changes which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the
Rights Agreement; provided, however, that no amendment to
-------- -------
adjust the time period governing redemption shall be made at such
time as the Rights are not redeemable.
<PAGE>
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
Actions or determinations made by the Board of
Directors in the administration of the Rights Agreement require
the concurrence of a majority of (and at least two) Continuing
Directors. A "Continuing Director" is a director who is not an
Acquiring Person (or a representative or nominee thereof), and
who either (i) was a member of the Board prior to September 20,
1995 or (ii) subsequently became a director of the Company and
whose election or nomination for election is approved or
recommended by a majority of the then Continuing Directors.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-B dated July 15, 1993, as
amended. 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 hereby
incorporated herein by reference.
<PAGE>
