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SECURITIES AND EXCHANGE COMMISSION (PRIVATE)
WASHINGTON, DC 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR 12(G) OF THE
SECURITIES EXCHANGE ACT OF 1934
SOUTHWEST BANCORP, INC.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OKLAHOMA 73-1136584
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(STATE OF INCORPORATION OR ORGANIZATION) (I.R.S. EMPLOYER
IDENTIFICATION NO.)
608 SOUTH MAIN STREET, STILLWATER, OKLAHOMA 74074
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
If this Form relates to the If this Form relates to the
registration of a class of securities Registration of a class of securities
pursuant to Section 12(b) of the pursuant to Section 12(g) of the
Exchange Act and is effective Exchange Act and is effective
pursuant to General Instruction pursuant to General Instruction
A(c) please check the following A (d) please check the following box.
box.
[_] [X]
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
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None
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SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
Preferred Stock Purchase Rights
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(TITLE OF CLASS)
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(TITLE OF CLASS)
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ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
On April 22, 1999, the Board of Directors of Southwest Bancorp, Inc., a
corporation organized under the laws of Oklahoma (the "Company"), approved a
Rights Agreement, dated as of and to be effective on April 22, 1999 (the "Rights
Agreement") between the Company and Harris Trust and Savings Bank, as Rights
Agent, having the principal terms summarized below. In accordance with the
Rights Agreement, the Board also declared a dividend distribution of one
Preferred Stock Purchase Right, or Right, for each outstanding share of common
stock (the "Common Stock") of the Company to shareholders of record at the Close
of Business on April 22, 1999 (the "Record Date"). The description and terms of
the Rights are set forth in the Rights Agreement. The Summary description of
the Rights set forth below does not purport to be complete, and is qualified in
its entirety by reference to the Rights Agreement, as the same may be amended
from time to time, which is an exhibit to this Form 8-A and is incorporated in
this description by reference.
Each Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of the Company's Class B Series 1 Preferred Stock
("Preferred Stock"). Each one one-thousandth of a share (a "Unit") of Preferred
Stock is structured to be the equivalent of one share of Common Stock of the
Company ("Common Stock"). The terms of the Preferred Stock are set forth in the
Certificate of Designations for the Preferred Stock, which is attached as an
exhibit hereto and is incorporated in this description by reference.
Shareholders will receive one Right per share of Common Stock held of record at
the Close of Business on the Record Date. The exercise price of each Right will
be $110.00 subject to adjustment (the "Purchase Price").
Rights owned by any Acquiring Person, as defined below, or by persons who
have acquired Rights from an Acquiring Person, are not exercisable, with certain
exceptions.
Rights will also attach to shares of Common Stock issued after the Record
Date but prior to the Distribution Date unless the Board of Directors determines
otherwise at the time of issuance. The description and terms of the Rights are
set forth in the Rights Agreement. The Rights will be evidenced by Common Stock
certificates, and no separate certificates evidencing the Rights (the "Rights
Certificates") will be distributed unless there is a Distribution Date,
described below. The Rights will separate from the Common Stock and a
distribution of the Rights Certificates will occur on a date (the "Distribution
Date") that is the earlier of (i) 10 days following a public announcement by the
Company that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially becoming 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) any Common
Stock certificates issued 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 certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the Close of Business on April 22, 2009, unless earlier redeemed or exchanged
by the Company as described below. 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 such
separate Rights Certificates alone will represent the Rights. While each Right
will initially provide for the acquisition of one Unit of Preferred Stock at the
Purchase Price, the Rights Agreement provides that if any person becomes an
Acquiring Person, proper provision shall be made so that each holder of a Right
(except as described below) will thereafter have the right to receive, upon
exercise and payment of the Purchase Price, Preferred Stock or, at the option of
the Company, Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) having a value equal to twice the amount of the
Purchase Price. In the event that, at any time following the Stock Acquisition
Date, (i) the Company is acquired in a merger, statutory share exchange, or
other business combination in which the Company is not the surviving
corporation, or (ii) 25% or more of the Company's assets or earning power is
sold or transferred, each holder of a Right (except as described below) shall
thereafter have the right to receive, upon exercise and payment of the Purchase
Price, common stock of the acquiring company having a value equal to twice the
Purchase Price. The events set forth in this paragraph and in the immediately
preceding paragraph are referred to as the "Triggering Events." If there is a
Triggering Event, Rights that are or were owned by the Acquiring Person, or any
affiliate or associates of such Acquiring Person, on or after such Acquiring
Person's Stock Acquisition Date shall be null and
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void and shall not thereafter be exercised by any person (including subsequent
transferees).
The Purchase Price payable, and the number of shares of Preferred Stock,
Common Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution. At any
time (including a time after any person becomes an Acquiring Person), the
Company may exchange all or part of the Rights (except as set forth below) for
shares of Common Stock (an "Exchange") at an exchange ratio of one share per
Right, as appropriately adjusted to reflect any stock split or similar
transaction. At any time until ten days following the Stock Acquisition Date,
the Company may redeem the Rights in whole, but not in part, at a price of $.01
per Right (the "Redemption Price"). Under certain circumstances set forth in the
Rights Agreement, the decision to make an Exchange or to redeem the Rights shall
require the approval of a 2/3 majority of the full Board of Directors. After the
redemption period has expired, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial ownership to less than
10% of the outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Immediately upon the action of the Board
ordering redemption of the Rights, with, where required, the approval of a 2/3
majority of the full Board of Directors, 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 shareholder 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 shareholders or to the Company, shareholders may, depending on the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Preferred Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above. Other than certain
provisions relating to the principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the Board prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board (in certain circumstances, only with the
approval of 2/3 of the whole Board of Directors) in order to cure any ambiguity,
to make certain other changes that do not adversely affect the interests of
holders of Rights (excluding the interest of any Acquiring Person), or to
shorten or lengthen any time period under the Rights Agreement; provided,
however, no amendment to adjust the time period governing redemption may be made
during the time that the Rights are not redeemable (generally, after a
Triggering Event).
ITEM 2. EXHIBITS.
I. The following documents are included as exhibits to this registration
statement or are exhibits to the Form S-1, as indicated, and are incorporated
herein by reference:
1. Rights Agreement, dated as of April 22, 1999, between Southwest Bancorp,
Inc., and Harris Trust & Savings Bank, as Rights Agent, including as
Exhibit A the form of Rights Certificate, as Exhibit B the form of
Summary of Rights Agreement, is filed herewith.
2. Certificate of Designations of the Company setting forth the terms of the
Class B, Series 1 Preferred Stock is filed herewith.
3. Amended and Restated Certificate of Incorporation of Southwest Bancorp,
Inc.(incorporated by reference to Exhibit 3.1 to Quarterly Report on Form
10-Q for the quarter ended June 30, 1996)
4. Bylaws of Southwest Bancorp, Inc. (incorporated by reference as
Exhibit3.2 to Registration Statement on Form S-1 (File No. 33-71168))
II. Not applicable.
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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, thereto duly authorized.
SOUTHWEST BANCORP, INC.
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(Registrant)
Date: April 22, 1999 By: /s/ Rick J. Green
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Rick J. Green
President and Chief Executive Officer
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RIGHTS AGREEMENT
This Agreement, dated as of April 22, 1999 (the "Agreement"), between
SOUTHWEST BANCORP, INC., an Oklahoma corporation, (the "Company"), and HARRIS
TRUST and SAVINGS BANK, an Illinois banking corporation as Rights Agent (the
"Rights Agent"), provides as follows:
W I T N E S S E T H
WHEREAS, the Board of Directors of the Company has authorized and declared
a dividend distribution of one Right (as hereinafter defined) for each
outstanding share of Common Stock of the Company to shareholders of record at
the Close of Business (as hereafter defined) on the Record Date (as hereinafter
defined) and has authorized the issuance of one Right (as such number may
hereinafter be adjusted as provided herein) for each share of Common Stock that
shall be issued between the Record Date and the earliest of the Distribution
Date, the Redemption Date or the Expiration Date (as such terms are hereinafter
defined) unless the Board of Directors provides to the contrary before or at the
time of issuance of any such Common Stock, each Right initially representing the
right to purchase one Unit of Preferred Stock, (as hereinafter defined), and
being in the form of the Rights Certificate attached hereto as Exhibit A, upon
the terms and subject to the conditions hereof (the "Rights");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall at any time be
the Beneficial Owner of any or all of (i) 10% or more of the shares of Common
Stock then outstanding, or (ii) 10% or more of the total voting power in an
election of directors of the Company but shall not include (a) 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; (b)
any such Person who has become and is such a Beneficial Owner solely because (1)
of a reduction in the aggregate number of shares of Common Stock outstanding due
to a repurchase of shares of Common Stock by the Company since the last date on
which such Person acquired Beneficial Ownership of any shares of Common Stock,
until such time as such Person acquires Beneficial Ownership of any additional
shares of Common Stock, other than as a result of a stock split or stock
dividend in respect of the Common Stock, or (2) it acquired such Beneficial
Ownership in the good faith belief that such acquisition would not cause such
Beneficial Ownership to equal or exceed 10% of the shares of Common Stock or
Rights then outstanding or 10% or more of the total voting power in an election
of directors of the Company, and such Person relied in good faith in computing
the percentage of its Beneficial Ownership on publicly filed reports or
documents of the Company that are inaccurate or out-of-date; (c) any Person who
is the Beneficial Owner of 10% or more of the outstanding Common Stock but who
acquired Beneficial Ownership of shares of Common Stock without any plan or
intention to seek or affect control of the Company, if such Person enters into
an irrevocable commitment to divest, and promptly divests (without exercising or
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retaining any power, including voting, with respect to such shares) sufficient
shares of Common Stock so that such Person ceases to be the Beneficial Owner of
10% or more of the outstanding shares of Common Stock; or (d) any Person who is
the Beneficial Owner of 10% or more of the outstanding shares of Common Stock,
all of which shares are held by such Person in trust accounts, managed accounts
and the like, or otherwise held in a fiduciary capacity without any plan or
intention of seeking or affecting control of the Company, and are beneficially
owned by third persons who are not Affiliates or Associates of such Person, and
who are not acting in concert with, or as a group with, such person to acquire,
hold or vote such shares. Notwithstanding clause (b)(2) of the preceding
sentence, if any Person that is not an Acquiring Person due to such clause
(b)(2) does not reduce its percentage of Beneficial Ownership of shares of
Common Stock to less than 10% by the Close of Business on the twentieth Business
Day after notice from the Company (the date of notice being the first day) that
such Person's Beneficial Ownership of shares of Common Stock so equals or
exceeds 10%, such Person shall, at the end of such twenty Business Day period,
become an Acquiring Person (and such clause (b)(2) shall no longer apply to such
Person). For purposes of this definition, the determination that any Person
acted in good faith shall be conclusively determined by the Board of Directors
of the Company, acting by a vote of those directors of the Company whose
approval would be required to redeem the Rights under Section 23.
(b) "Affiliate" and "Associate" shall have the respective meanings ascribed
to such terms in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act.
(c) 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 is
deemed to "beneficially own" within the meaning of Rule 13d-3 of the
General Rules and Regulations under the Exchange Act;
(ii) 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, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed to be the "Beneficial Owner" of, or
to "beneficially own," (A) securities tendered pursuant to a tender
or exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange or (B) securities issuable upon exercise of
the Rights;
(iii) that such Person or any of such Person's Affiliates or Associates,
directly or indirectly, has the right to vote, 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 (iii) 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
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applicable provisions of the General Rules and Regulations under the
Exchange Act, and (B) the beneficial ownership of such security is
not also then reportable by such Person on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iv) 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 (iii) of this
paragraph (c)) or disposing of any voting securities of the Company;
provided, however, that notwithstanding any provision of this Section 1(c),
any Person engaged in business as an underwriter of securities who acquires
any securities of the Company through such Person's participation in good
faith in a firm commitment underwriting registered under the Securities Act
of 1933, as amended (the "Act"), shall not be deemed the "Beneficial Owner"
of, or to "beneficially own," such securities until the expiration of 40
days after the date of acquisition; and provided, further, that in no case
shall an officer or director of the Company be deemed (x) the beneficial
owner of any securities beneficially owned by another officer or director
of the Company solely by reason of actions undertaken by such persons in
their capacity as officers or directors of the Company; (y) the beneficial
owner of securities held of record by the trustee of any employee benefit
plan of the Company or any Subsidiary of the Company for the benefit of any
employee of the Company or any Subsidiary of the Company, other than the
officer or director, solely by reason of any influence that such officer or
director may have over the voting of the securities held in the plan, or
(z) the beneficial owner of securities held of record by the Company or any
Subsidiary of the Company in any fiduciary capacity in the ordinary course
of the Company's or such Subsidiary's business, solely by reason of any
influence that such officer or director may have over the voting of such
securities.
(d) "Business Day" shall mean any day other than a Saturday, Sunday or a
day on which national banking institutions in the State of Oklahoma or the State
of Illinois are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall mean 5:00 P.M., Stillwater,
Oklahoma time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Stillwater, Oklahoma time, on the next
succeeding Business Day.
(f) "Common Stock" shall mean the common stock of the Company, except that
"Common Stock" when used with reference to any Person other than the Company, if
such Person is a corporation, shall mean the capital stock of such Person with
the greatest voting power, or the equity securities or other equity interest in
such Person having power to control or direct the management of such Person, or
any shares of capital stock or other equity interests into which the foregoing
shall be reclassified or changed.
(g) "Distribution Date" shall mean the earlier of (i) the Close of Business
on the tenth day after a Stock Acquisition Date (as hereinafter defined) or (ii)
the Close of Business on the tenth
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business day (or such later time as the Board of directors of the Company may
from time to time fix by resolution adopted prior to the Distribution Date that
would otherwise occur) after the date that a tender or exchange offer by 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) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act if, upon consummation thereof, such Person would be an Acquiring Person
(irrespective of whether any shares were actually purchased pursuant to any such
offer).
(h) "Equivalent Shares" shall mean shares of Preferred Stock (as
hereinafter defined) and any other class or series of capital stock of the
Company that is entitled to participate in dividends and other distributions,
including distributions upon the liquidation, dissolution or winding up of the
Company, on a proportional basis with the Common Stock. In calculating the
number of any class or series of Equivalent Shares for purposes of Section 11
hereof, the number of shares, or fractions of a share, of such class or series
of capital stock that is entitled to the same dividend or distribution as a
whole share of Common Stock shall be deemed to be one share.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended and in effect on the date of this Agreement, unless a different date is
otherwise specifically provided herein.
(j) "Exchange Date" shall mean the date on which the Board of Directors
authorizes the exchange of Rights for shares of Common Stock pursuant to Section
24 hereof.
(k) "Expiration Date" shall mean the earliest of (i) the Close of Business
on the Final Expiration Date, or (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof, or (iii) the Exchange Date.
(l) "Final Expiration Date" shall mean April 22, 2009.
(m) "Person" shall mean any individual, firm, corporation, partnership or
other entity and any particular Person shall include any "group" acting as
described in Section 13(d)(3) of the Exchange Act.
(n) "Preferred Stock" shall mean shares of Class B Series 1 Participating
Preferred Stock, par value $1.00 per share, of the Company.
(o) "Purchase Price" shall have the meaning set forth in Section 4(a)
hereof, as adjusted in accordance with this Agreement and as in effect from time
to time.
(p) "Record Date" shall mean the Close of Business on April 22, 1999.
(q) "Redemption Date" shall mean the date upon which the Rights are
redeemed pursuant to Section 23 hereof.
(r) "Rights" shall mean the rights to purchase Preferred Stock (or other
securities) as provided in this Agreement and "Rights Certificate" shall have
the meaning set forth in Section
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3(a) hereof.
(s) "Section 11(a)(ii) Event" shall mean any occurrence of the event
described in the first sentence of Section 11(a)(ii) hereof.
(t) "Section 13 Event" shall mean any event described in clause (w), (x),
(y) or (z) of Section 13(a) hereof.
(u) "Stock Acquisition Date" shall mean the first date of public
announcement by the Company that an Acquiring Person has become such.
(v) "Subsidiary" shall mean, with reference to any Person, any corporation
or other entity of which an amount of voting securities sufficient to elect a
majority of the directors or Persons having similar authority of such
corporation or other entity is beneficially owned, directly or indirectly, by
such Person, or otherwise controlled by such Person.
(w) Triggering Event" shall mean any Section 11(a)(ii) Event or any Section
13 Event.
(x) "Unit of Preferred Stock" shall mean one one-thousandth of a share of
Preferred Stock.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be 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. Issue of Rights and Rights Certificates. (a) Until the
Distribution Date, (x) the Rights shall be evidenced (subject to the provisions
of paragraphs (b) and (c) of this Section 3) by the certificates for the Common
Stock registered in the names of the 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 shall be
transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). Subject to the provisions of
Section 7(e) hereof, as soon as practicable after the Company has notified the
Rights Agent of the occurrence of a Distribution Date, the Rights Agent shall,
at the expense of the Company, send by first-class, insured, postage prepaid
mail, to each such record holder of shares of the Common Stock as of the Close
of Business on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates, in substantially the
form of Exhibit A 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(n) 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 shall be evidenced solely by such Rights Certificates.
(b) A Summary of Rights, in substantially the form attached hereto as
Exhibit B (the
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"Summary of Rights"), shall be sent by the Company by first-class, postage
prepaid mail, to each record holder of the Common Stock on the Record Date, at
the address of each such holder shown on the records of the Company. Until the
Distribution Date, the Rights shall be evidenced by such certificates evidencing
the Common Stock, and the registered holders of the Common Stock shall also be
the registered holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of any certificates
evidencing shares of Common Stock in respect of which Rights have been issued
shall also constitute, subject to the provisions of Section 7(e) hereof, the
transfer of the Rights associated with such shares of Common Stock.
(c) Unless the Board of Directors by resolution adopted at or before the
time of the issuance (including pursuant to the exercise of rights under the
Company's stock option or other benefit plans) of any shares of Common Stock
specifies to the contrary, Rights shall be issued in respect of all shares of
Common Stock that are issued after the Record Date but prior to the earliest of
the Distribution Date, the Expiration Date or the redemption of the Rights in
accordance with Section 23. Certificates representing shares of Common Stock
outstanding prior to the Record Date that are issued upon transfer or exchange
of such 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 the Company and Harris
Trust and Savings Bank (the "Rights Agent") dated as of April 22, 1999 (the
"Rights Agreement"), the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal 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 that are owned or that were previously owned by a Person who is, was
or becomes an Acquiring Person or any Affiliate or Associate of an
Acquiring Person may become null and void."
With respect to such certificates containing the foregoing legend, until
the earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the transfer
of any of such certificates shall also constitute, subject to the provisions of
Section 7(e) hereof, the transfer of the Rights associated with the Common Stock
represented by such certificates. In the event that the Company purchases or
acquires any shares of Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such shares of Common Stock shall
be deemed canceled and retired so that the Company shall not be entitled to
exercise any Rights associated with the shares of Common Stock that are no
longer outstanding.
Section 4. Form of Rights Certificates. (a) The Rights Certificates (and
the forms of election to purchase and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth in Exhibit A hereto
and may have such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company
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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 (including for purposes hereof, the Nasdaq National Market) on or
with which the Rights may from time to time be listed, or to conform to usage.
Subject to the provisions of Section 11 and Section 22 hereof, the Rights
Certificates, whenever distributed, shall be dated as of the Distribution Date,
and on their face shall entitle the holders thereof to purchase such number of
Units of Preferred Stock as shall be set forth therein at the price set forth
therein (such exercise price per unit, being hereinafter referred to as the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) 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 an Acquiring Person, 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
an Acquiring Person 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 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 was or became an Acquiring Person or an Affiliate or
an Associate of an Acquiring Person. Accordingly, this Rights Certificate
and the Rights represented hereby are or may become void as specified in
Section 7(e) of the Rights Agreement."
The Company shall notify the Rights Agent, and, if such notification is
given orally, the Company shall confirm promptly the same in writing, at such
time as the Company has notice that any Person constitutes an Acquiring Person
or an Affiliate or Associate of an Acquiring Person, and until such notice is
received by the Rights Agent the Rights Agent may conclusively presume for all
purposes that the foregoing legend need be imprinted only on Right Certificates
beneficially owned by Persons that the Company has previously identified to the
Rights Agent as constituting an Acquiring Person or an Affiliate or Associate of
an Acquiring Person and transferees of any such Persons.
Section 5. Countersignature and Registration. (a) 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 manually or by facsimile by the Rights Agent and shall not be
valid for any purpose unless so countersigned. The Rights Certificates shall be
countersigned by an
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authorized signatory of the Rights Agent but it shall not be necessary for the
same signatory to countersign all of the Rights Certificates issued hereunder.
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 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; and 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) 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 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 holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates. (a)
Subject to the provisions of 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, (other than Rights Certificates that have
become void pursuant to Section 7(e) hereof or that have been exchanged pursuant
to Section 24 hereof) entitling the registered holder to purchase a like number
of Units 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 entitle such holder (or former
holder in the case of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Certificates
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the principal 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 registered 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 countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case may be, as so
requested. The Company may require payment from the holder of the Rights of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b) Subject to Section 7(e) hereof, upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably
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satisfactory to them, and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if mutilated, the Company will
execute and deliver a new Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights;
Restriction on Transfer of Rights. (a) Subject to Section 7(e) hereof, the
registered 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)(ii),
Section 11(a)(iii), Section 13, Section 23(a), and Section 24 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 certificate on the
reverse side thereof duly executed, to the Rights Agent at the principal office
or offices of the Rights Agent designated for such purpose, together, except as
otherwise provided in Section 11(a)(ii) hereof, with payment of the aggregate
Purchase Price with respect to the total number of Units of Preferred Stock (or
Common Stock or other securities or property, as the case may be) as to which
surrendered Rights are then exercisable, at or prior to the Expiration Date.
(b) The Purchase Price for each Unit of Preferred Stock pursuant to the
exercise of a Right shall initially be $110 and shall be subject to adjustment
from time to time as provided in Section 11 hereof and shall be payable in
accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable Rights,
with the form of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per Unit of Preferred Stock (or Common Stock, other securities or
property, as the case may be) to be purchased as set forth below and an amount
equal to any applicable transfer tax, the Rights Agent shall, subject to Section
20(k) hereof, thereupon promptly, (i) (A) requisition from any transfer agent of
the Units of Preferred Stock (or make available, if the Rights Agent is the
transfer agent for such shares) certificates for the total number of Units 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 Units of Preferred Stock issuable
upon exercise of the Rights hereunder with a depositary agent, requisition from
the depositary agent depositary receipts representing such number of Units of
Preferred Stock as are to be purchased (in which case certificates for the Units
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) after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon the order of the
registered holder of such Rights Certificate, registered in such name or names
as may be designated by such holder, and (iv) after receipt thereof, deliver
such cash, if any, to or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such amount may be reduced
(including to zero) pursuant to Section 11(a)(iii) hereof) may 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 of the
Company, pay cash and/or distribute other property pursuant to Section 11(a)
hereof, the Company will make all
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arrangements necessary so that such other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any 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 registered 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) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Section 11(a)(ii) Event, any Rights beneficially
owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under any provision of this Agreement or otherwise. The Company shall use all
reasonable efforts to ensure that the provisions of this Section 7(e) and
Section 4(b) hereof are complied with, but shall have no liability to any holder
of Rights Certificates or any other Person as a result of its failure to make
any determinations with respect to an Acquiring Person or its Affiliates or
Associates, or any transferee thereof, hereunder.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate 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
any of 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 other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
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Section 9. Reservation and Availability of Preferred Stock. (a) The Company
covenants and agrees that it will cause to be reserved and kept available out of
its authorized and unissued shares of Preferred Stock (or, following the
occurrence of a Triggering Event, out of its authorized and unissued Preferred
Stock or other securities, as the case may be), the number of shares of
Preferred Stock (or such other securities) that, except as provided in Section
11(a)(iii) hereof, will be sufficient from time to time to permit the exercise
in full of all outstanding Rights and all Rights that are at the time issuable,
in accordance with the provisions of this Agreement.
(b) So long as the shares of Preferred Stock (and, following the occurrence
of a Triggering Event, any other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national securities exchange or the
Nasdaq National Market ("Nasdaq"), the Company shall use its best efforts to
cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such exchange or Nasdaq, as the case
may be, upon official notice of issuance.
(c) The Company shall use its best efforts (i) to 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 (iii) hereof, or as soon as is required by law following the Distribution
Date, as the case may be, a registration statement under the Act on an
appropriate form, with respect to the securities purchasable upon exercise of
the Rights, (ii) to cause such registration statement to become effective as
soon as practicable after such filing, and (iii) to 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 will also take such action as may be appropriate under, or to
ensure compliance with, the securities or "blue sky" laws of the various states
in connection with the exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety 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 issue a
public announcement stating, and notify the Rights Agent, that the
exercisability of the Rights has been temporarily suspended. The Company shall
also issue a public announcement at such time as the suspension is no longer in
effect. Notwithstanding any provision of this Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction unless the requisite
qualification in such jurisdiction shall have been obtained.
(d) The Company covenants and agrees that it will take all such action as
may be necessary to ensure that all shares of Preferred Stock (or other
securities, as the case may be) delivered upon exercise of the Rights shall, at
the time of delivery of the certificates for such shares (subject to payment of
the Purchase Price), be duly authorized, validly issued, fully paid and
nonassessable.
(e) The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges that may be
payable in respect of the issuance or delivery of the Rights Certificates and of
any certificates for shares of Preferred Stock (or other securities, as the case
may be) upon the exercise of Rights. The Company shall not, however, be required
to pay any transfer tax that may be payable in respect of any transfer or
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delivery of Rights Certificates to a Person other than, or the issuance or
delivery of a number of shares of Preferred Stock (or other securities, as the
case may be) in respect of a name other than that of, the registered holder of
the Rights Certificates evidencing Rights surrendered for exercise or to issue
or deliver any certificates for a number of shares of Preferred Stock (or other
securities, as the case may be) in a name other than that of the registered
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 Units of Preferred Stock (or other securities, as
the case may be) is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of such Units of Preferred Stock (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 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
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 such transfer books are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights Certificate as
such shall not be entitled to any rights of a 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 or
Number of Rights. The Purchase Price, and 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) (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 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), 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
the number and kind of shares of other capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the aggregate number of
shares of Preferred Stock or the number and kind of shares of other capital
stock, as the case may be, that, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock
transfer books of the Company were open, he would have owned upon such
exercise and been entitled to
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receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs that 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 23 and Section 24 hereof, in the event any
Person becomes an Acquiring Person, then, proper provision shall be made by
the Company so that each record holder of each Right (except as provided in
Section 7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof for the Purchase Price in accordance with terms of this
Agreement, such number of Units of Preferred Stock (or, in lieu of
Preferred Stock, at the option of the Company and to the extent available,
such number of shares of Common Stock) as shall equal the result obtained
by multiplying the Purchase Price by a fraction, the numerator of which is
the number of Units of Preferred Stock for which a Right is then
exercisable and the denominator of which is 50% of the current market price
of a share of Common Stock (determined pursuant to Section 11(d) hereof) on
the date of the first occurrence of a Section 11(a)(ii) Event (such result
being hereinafter referred to as the "Adjustment Shares").
(iii) To the extent that the number of shares of Preferred Stock that
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), and subject to such limitations as are necessary to prevent a
default under any agreement for money borrowed as presently constituted to
which the Company is a party and subject to any limitations with respect to
the payment of dividends or other distributions to shareholders contained
in the Oklahoma General Corporation Law, the Company shall: (A) determine
the excess of (1) the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value"), over (2) the Purchase Price
(such excess being hereinafter referred to as the "Spread"), and (B) with
respect to each Right, make adequate provision to substitute for such
unavailable 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, (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having, together with the
Adjustment Shares issued upon exercise of such Right, an aggregate value
equal to the Current Value, where such aggregate value has been determined
by the Board of Directors of the Company based upon the advice of a
nationally recognized investment banking firm selected by Directors
constituting more than two-thirds of the full Board of Directors of the
Company; provided, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within 30 days
following the first occurrence of a Section 11(a)(ii) Event, then the
Company shall be obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price, shares of
preferred stock of the Company or Common Stock (to the extent such
securities are available) and then, if necessary, cash, which securities
and/or assets in the aggregate are equal to the Spread. If the Board of
Directors of the Company shall determine in good faith that it is likely
that sufficient additional shares of preferred stock of the Company or
Common Stock could be authorized for
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issuance upon exercise in full of the Rights, the 30 day period set forth
above may be extended to the extent necessary, but not more than 90 days
following the first occurrence of a Section 11(a)(ii) Event, in order that
the Company may seek shareholder approval for the authorization of such
additional shares (such period, as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some action need
be taken pursuant to the first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof,
that such action shall apply uniformly to all outstanding Rights, and (y)
may suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant
to such first sentence and to determine the value thereof. In the event of
any such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended, as
well as a public announcement at such time as the suspension is no longer
in effect. For purposes of this Section 11(a)(iii), the value of the Common
Stock shall be the current market price (as determined pursuant to Section
11(d) hereof) per share of the Common Stock on the date of the first
occurrence of a Section 11(a)(ii) Event.
(b) If at any time after the date of this Agreement the Company shall fix a
record date for the issuance of rights, options or warrants to all holders of
Common Stock or of any class or series of Equivalent Shares entitling such
holders to subscribe for or to purchase Common Stock or Equivalent Shares (or
securities convertible into Common Stock or Equivalent Shares) at a price per
share (or having a conversion price per share, if a security convertible into
Common Stock or Equivalent Shares) less than the current market price of such
Common Stock or Equivalent Shares on such record date, then, in each such case,
each Right outstanding immediately prior to such record date shall thereafter
evidence the right to purchase, for the Purchase Price, that number of Units of
Preferred Stock or Equivalent Shares obtained by multiplying the number of Units
of Preferred Stock issuable upon exercise of a Right immediately prior to such
record date by a fraction, the numerator of which shall be the total number of
shares of Common Stock and Equivalent Shares (if any) outstanding on such record
date plus the number of additional shares of Common Stock and Equivalent Shares
(if any) to be offered for subscription or purchase (or into which the
convertible securities so to be offered are initially convertible) and the
denominator of which shall be the total number of shares of Common Stock and
Equivalent Shares (if any) outstanding on such record date plus the number of
shares of Common Stock or Equivalent Shares, as the case may be, that the
aggregate offering price of the total number of shares of Common Stock or
Equivalent Shares, as the case may be, 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. In case such subscription price may be
paid in a consideration, part or all of which shall be in a form other than
cash, the value of such consideration shall be as determined in good faith by
the Board of Directors of the Company, whose determination shall be described in
a statement filed with the Rights Agent. Common Stock and Equivalent Shares
owned by or held for the account of the Company or any Subsidiary of the Company
shall not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such rights, options or warrants are not so issued, each Right
shall be adjusted to evidence the right to receive that number of Units of
Preferred Stock that such Right would have entitled the holder to receive, for
the Purchase Price, if such record date had not been fixed.
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<PAGE>
(c) If at any time after the date of this Agreement the Company shall fix a
record date for the making of a distribution to all holders of Common Stock or
of any class or series of Equivalent Shares (including any such distribution
made in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation) of cash (other than a regular quarterly
cash dividend of the Company), evidences of indebtedness, assets, securities
(other than Common Stock or any Equivalent Shares) or subscription rights,
options or warrants (excluding those referred to in Section 11(b) hereof), then,
in each such case, each Right outstanding immediately prior to such record date
shall thereafter evidence the right to purchase, for the Purchase Price, that
number of Units of Preferred Stock obtained by multiplying the number of Units
of Preferred Stock issuable upon exercise of a Right immediately prior to such
record date by a fraction, the numerator of which shall be the current market
price of a share of Common Stock or an Equivalent Share on the record date and
the denominator of which shall be the current market price of a share of Common
Stock or an Equivalent Share on such record date less the fair market value (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the cash, evidences of indebtedness, assets or securities so to
be distributed or of such subscription rights, options or warrants applicable to
a share of Common Stock or an Equivalent Share, as the case may be. Such
adjustments shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, each Right shall be adjusted
to evidence the right to receive that number of Units of Preferred Stock that
such Right would have entitled the holder to receive, for the Purchase Price, if
such record date had not been fixed.
(d) (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 30
consecutive Trading Days (as such term is hereinafter defined) 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 consecutive Trading Days immediately following
such date; provided, however, that in the event that the current market price
per share of the Common Stock is determined during a period following the
announcement by the issuer of 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 prior to the expiration of the requisite 30 Trading Day or ten Trading Day
period, as set forth above, after the ex-dividend date for such dividend or
distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the "current market price" shall
be properly adjusted to take into account ex-dividend trading. The closing price
for each day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on a national securities exchange (including for purposes hereof The
Nasdaq National Market) or, if the shares of Common Stock are not listed or
admitted to trading on a national securities 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
15
<PAGE>
securities exchange, the last quoted price or, if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
Nasdaq or such other system then in use, or, if on any such date the shares of
Common Stock are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Common Stock selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock, the fair value
of such shares on such date as determined in good faith by the Board of
Directors of the Company shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares of
Common Stock are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the Common Stock is not
publicly held or not so listed or traded, "current market price" per share shall
mean the fair value per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent and shall be conclusive for all purposes. (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 above for
the Common Stock in Section 11(d)(i) hereof (other than the last sentence
thereof). If the current market price per share of Preferred Stock cannot be
determined in the manner provided above or if the Preferred Stock is not
publicly held or listed or traded in a manner described in clause (i) of this
Section 11(d), the "current market price" per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 1,000 (as such number may be
appropriately adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock and Preferred 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 of the Company, 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 1,000.
(e) Anything herein to the contrary notwithstanding, no adjustment in the
number of Units of Preferred Stock for which a Right is exercisable or in the
Purchase Price shall be required unless such adjustment would require an
increase or decrease of at least one percent in such number of shares or in the
Purchase Price; provided, however, that any adjustments that by reason of this
Section 11(e) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Section
11 shall be made to the nearest cent or to the nearest ten-thousandth of a Unit
of Preferred Stock, as the case may be. Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of the transaction that
mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a) or 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 if
required, 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
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with respect to the Preferred Stock contained in Section 11(a), (b), (c), (e),
(g), (h), (i), (k) and (l) hereof, 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) All Rights originally issued by the Company subsequent to any
adjustment made to the number or kind of shares purchasable upon exercise of the
Rights or to the Purchase Price hereunder shall evidence the right to purchase,
at the adjusted Purchase Price, the adjusted number of Units of Preferred Stock
or other securities purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided below
in this Section 11(h), upon each adjustment of the Purchase Price as a result of
the calculations made in Section 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 Units of
Preferred Stock obtained by (i) multiplying (x) the number of Units of Preferred
Stock covered by a Right immediately prior to this adjustment by (y) the
Purchase Price in effect immediately prior to such adjustment and (ii) dividing
the product so obtained by the Purchase Price in effect immediately after such
adjustment of the Purchase Price. On or after the date of any adjustment of the
Purchase Price, in lieu of any adjustment in the number of Units of Preferred
Stock or any other capital stock purchasable upon the exercise of a Right, the
Company may elect to adjust the number of Rights. Each of the Rights outstanding
after the adjustment in the number of Rights shall be exercisable for the number
of Units of Preferred Stock for which a Right was exercisable immediately prior
to such adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the nearest
one-ten-thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The Company shall
make a public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least ten days later than the date of
the public announcement. If Rights Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(h), the Company
shall, as promptly as practicable, cause to be distributed to holders of record
of Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders shall
be entitled as a result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders prior to the date
of adjustment, and upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so to be distributed shall
be issued, executed and countersigned in the manner provided for herein (and 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.
(i) Irrespective of any adjustment or change in the Purchase Price or the
number of Units of Preferred Stock or the number and kind of other securities
issuable upon the exercise of the Rights, the Rights Certificates theretofore
and thereafter issued may continue to express the
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Purchase Price per Unit, the number of Units and the other terms that were
expressed in the initial Rights Certificates issued hereunder.
(j) In any case in which this Section 11 shall require that an adjustment
be made effective as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event the issuance to the holder of
any Right exercised after such record date of the number of Units of Preferred
Stock and other capital stock or securities of the Company, if any, issuable
upon such exercise over and above the number of Units of Preferred Stock and
other capital stock or securities of the Company, if any, issuable upon such
exercise before giving effect 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.
(k) 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 its good faith judgment the Board of Directors of the Company
shall determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance wholly for cash of any shares
of Preferred Stock at less than the current market price, (iii) issuance wholly
for cash of shares of Preferred Stock or securities that by their terms are
convertible into or exchangeable for shares of Preferred Stock, (iv) stock
dividend 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 shareholders.
(l) The Company covenants and agrees that it shall not, at any time after
the Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction that complies with Section 11(m)
hereof), (ii) merge with or into any other Person (other than a Subsidiary of
the Company in a transaction that complies with Section 11(m) hereof), (iii)
effect a statutory share exchange with any Person (other than a Subsidiary of
the Company in a transaction that complies with Section 11(m) hereof), or (iv)
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 25% 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(m) hereof), if at the time of or immediately after such
consolidation, merger, statutory share exchange or sale there are any rights,
warrants or other instruments or securities outstanding or agreements in effect
that would substantially diminish or otherwise eliminate the benefits intended
to be afforded by the Rights.
(m) The Company covenants and agrees that, after the Distribution Date, it
will not, except as permitted by Section 23 or Section 27 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is taken it
is reasonably foreseeable that such action will diminish substantially or
otherwise eliminate the benefits intended to be afforded by the Rights.
(n) Anything in this Agreement to the contrary notwithstanding, in the
event that the Company shall at any time after the Record Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares of Common
Stock payable in shares of Common Stock, (ii)
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subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or delivered thereafter 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. Certificates 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 or the Common Stock, a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Rights Certificate
(or, if prior to the Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained, and shall not be obligated or responsible for
calculating any adjustment, nor shall it be deemed to have knowledge of any such
adjustment unless and until it shall have received such a certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power. (a) In the event that, following a Stock Acquisition Date, directly or
indirectly, (w) 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(m) hereof), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger, (x) any Person (other
than a Subsidiary of the Company in a transaction that complies with Section
11(m) 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, (y) the Company shall be a party to a statutory share exchange with
any other Person (other than a Subsidiary of the Company in a transaction that
complies with Section 11(m) hereof) after which the Company is a Subsidiary of
any other Person, 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 25% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than a sale or transfer by
the Company or any Subsidiary of the Company in one or more transactions each of
which complies with Section 11(m) hereof), then, and in each such case, proper
provision shall be made so that: (i) each record 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
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Agreement, such number of validly authorized and issued, fully paid,
nonassessable and freely tradable shares of Common Stock of the Principal Party
(as 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 shares of
Common Stock for which a Right (or Unit(s) of Preferred Stock for which a Right
is exercisable) 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 shares
for which a Right (or Unit(s) of Preferred Stock for which a Right is
exercisable) 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 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 of such Section
13 Event; and (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 ensure 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) "Principal Party" shall mean (i) in the case of any transaction
described in clause (w), (x) or (y) of the first sentence of Section 13(a)
hereof, the Person that is the issuer of any securities into which shares of
Common Stock of the Company are converted in such merger, consolidation or
statutory share exchange, and if no securities are so issued, the Person that is
the other party to such merger, consolidation or statutory share exchange; and
(ii) in the case of any transaction described in clause (z) of the first
sentence of Section 13(a) hereof, the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to such
transaction or transactions; 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-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; and (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 of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger,
statutory share exchange, sale or transfer unless the Principal Party shall have
a sufficient number of authorized shares of its Common Stock that have not been
issued or reserved for issuance to permit 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
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supplemental agreement providing for the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that, as soon as practicable after
the date of any consolidation, merger, statutory share exchange or sale of
assets mentioned in paragraph (a) of this Section 13, the Principal Party will
(i) prepare and file a registration statement under the Act on an appropriate
form 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 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; and (ii) 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. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or statutory share
exchanges 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) hereof.
Section 14. Fractional Rights and Fractional Shares. (a) The Company shall
not be required to issue fractions of Rights, except prior to the Distribution
Date as provided in Section 11(n) hereof, or to distribute Rights Certificates
that evidence fractional Rights. In lieu of such fractional Rights, there shall
be paid to the registered 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 (including
for purposes hereof, the Nasdaq National Market) on which the Rights are listed
or admitted to trading, or if the Rights are not listed or admitted to trading
on any national securities exchange, the last quoted price, or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter
market, as reported by Nasdaq or such other system then in use or, if on any
such date the Rights are not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional market maker making
a market in the Rights selected by the Board of Directors of the Company. 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 of the Company shall be used.
(b) The Company shall not be required to issue fractions of shares of
Preferred Stock (other than 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 in such integral multiples). In lieu of fractional shares of
Preferred Stock that are not in such integral multiples, the Company may pay to
the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash
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equal to the same fraction of the current market value of one one-thousandth of
a share of Preferred Stock. For purposes of this Section 14(b), the current
market value of one one-thousandth of a share of Preferred Stock shall be one
one-thousandth of the current market price of a share of Preferred Stock (as
determined pursuant to Section 11(d) hereof) for the Trading Day immediately
prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly waives
his right to receive any fractional Right 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, except the rights of action given to the Rights Agent under Section
18 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock in respect of which Rights have been issued); and any registered
holder of any Rights Certificate (or, prior to the Distribution Date, of such
Common Stock), without the consent of the Rights Agent or of the holder of any
other Rights Certificate (or, prior to the Distribution Date, of such 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 holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations 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 registry 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 as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights Certificate
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,
subject to the last sentence of Section 7(e) hereof, nor the Rights Agent 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
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permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative agency
or commission, or any statute, rule, regulation or executive order promulgated
or enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
Section 17. 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 Units of Preferred Stock or any other
securities of the Company that 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) The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and 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, its directors, officers, employees and agents, for, and to hold
each of them harmless against, any loss, liability, or expense incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent or
other such indemnified party, for anything done or omitted by the Rights Agent
or such other indemnified party in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending
against any claim of liability in the premises.
(b) The Rights Agent may conclusively rely upon, and shall be fully
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 or the exercise or performance of its duties hereunder 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, instruction,
consent, certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons, or otherwise upon the advice of
counsel as set forth in Section 20 hereof. The indemnity provided in this
Section 18 shall survive the expiration of the Rights, the termination of the
Agreement and the resignation or removal of the Rights Plan. The costs and
expenses of enforcing this right of indemnification shall also be paid by the
Company. Notwithstanding anything in this Agreement to the contrary, in no event
shall the Rights Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including but not limited to lost profits), even
if the Rights Agent has been advised of the likelihood of such loss or damage
and regardless of the form of the action.
Section 19. Merger or Consolidation or Change of Name of Rights Agent. (a)
Any
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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
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, however, 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 either in the name of the predecessor or in the name of the
successor Rights Agent; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Rights Certificates so countersigned; 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 duties
and obligations imposed by this Agreement upon the following terms and
conditions, and no implied duties or obligations shall be read into this
Agreement against the Rights Agent, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:
(a) Before the Rights Agent acts or refrains from acting, the Rights Agent
may consult with legal counsel (who may be legal counsel for the Company), and
the written advice or opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such written advice or
opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of "current market price") be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by the
Chairman of the Board, any Vice Chairman, 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 suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own negligence,
bad faith or
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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 any provision 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 provided for in this Agreement 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 Preferred Stock to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares of Preferred
Stock will, when so issued, be duly authorized, validly 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, the President, or any Executive Vice President of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such
officer, or for any delay in acting while awaiting instructions. At any time the
Rights Agent may apply to the Company for written instructions with respect to
any matter arising in connection with the Rights Agent's duties and obligations
arising under this Agreement. Such application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set forth
in writing any action proposed to be taken or omitted by the Rights Agent with
respect to its duties or obligations under this Agreement and the date on and/or
after which such action shall be taken and the Rights Agent shall not be liable
for any action taken or omitted in accordance with a proposal included in any
such application on or after the date specified therein (which date shall be not
less than one Business Day after the Company receives such application, without
the Company's consent) unless, prior to taking or initiating any such action,
the Rights Agent has received written instructions in response to such
application specifying the action to be taken or omitted. The Rights Agent shall
not be required to take notice or be deemed to have notice of any fact, event or
determination (including, without limitation, any dates or events defined in
this Agreement or the designation of any Person as an Acquiring Person,
Affiliate or Associate) under this Agreement unless and until the Rights Agent
shall be specifically notified in writing by the Company of such fact, event or
determination.
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(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.
(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, as long as the Rights Agent was not negligent 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 of transfer without first consulting with the Company.
(l) The Rights Agent undertakes only the express duties and obligations
imposed on it by this Agreement and no implied duties or obligations shall be
read into this Agreement against the Rights Agent.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company, and to each transfer
agent of the Preferred Stock or Common Stock, by registered or certified mail.
The Company may remove the Rights Agent or any successor Rights Agent upon 30
days' notice in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Preferred Stock or Common
Stock, by registered or certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after 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 holder of a Rights Certificate
(who shall, with such notice, submit his Rights Certificate for inspection by
the Company), then any registered holder of any Rights Certificate may apply to
any court of competent jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of any state of the United States in good standing, and authorized
under all applicable laws to fulfill the duties of a rights agent. After
appointment, the successor Rights Agent shall be vested with the
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same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Stock,
and mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
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, 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 and 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, the Company may, if deemed
necessary or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection with
the issuance or sale of shares of Common Stock following the Distribution Date.
Section 23. Redemption and Termination. (a) The Company may, at its option,
at any time prior to the earlier of (A) the Close of Business on the tenth day
following the Stock Acquisition Date, or (B) the Final Expiration Date, redeem
all but not less than all of the then outstanding Rights (which shall not
include any rights that have become void pursuant to Section 7(e) hereof) at a
redemption price of $.01 per Right, as it may be appropriately adjusted by the
Board of Directors of the Company to reflect any stock split or combination,
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price") and
the Company may, at its option, pay the Redemption Price either in shares of
Common Stock (based on the current market price (as determined pursuant to
Section 11(d) hereof) per share of the Common Stock at the time of redemption)
or cash; provided, however, that if the Board of Directors of the Company
authorizes redemption of the Rights in either of the circumstances set forth in
clauses (x) and (y) below, then such authorization shall require the concurrence
of a directors constituting more than two-thirds of the full Board of Directors:
(x) such authorization occurs on or after the date a Person becomes an Acquiring
Person, or (y) such authorization occurs on or after the date of a change
(resulting from one or more proxy or consent solicitations) in a majority of the
directors in office at the commencement of such solicitation if any Person who
is a participant in such solicitation has stated (or, if upon the commencement
of the first such solicitation, a majority of the Board of Directors of the
Company has determined in good faith) that such Person (or any of its Affiliates
or Associates) intends to take, or may consider taking, any action that would
result in such Person becoming an Acquiring Person or that would cause the
occurrence of a Triggering Event.
(b) Immediately upon the action of the Board of Directors of the Company
authorizing the redemption of the Rights pursuant to subsection (a) of this
Section 23 and without any further action and without any notice, the right to
exercise the Rights shall terminate and the only right thereafter of a holder of
such Rights shall be to receive the Redemption Price for each Right so
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<PAGE>
held. Promptly after the action of the Board of Directors authorizing the
redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and to the holders of such Rights by mailing such notice to all
such holders at each holder's last address as it appears upon the registry books
of the Rights Agent or, prior to the Distribution Date, on the registry books of
the transfer agent for the Common Stock. Any notice that is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption shall state the method by which the
payment of the Redemption Price will be effected.
(c) The option to redeem set forth in this Section 23(a) shall be
reinstated and be exercisable in the future upon the occurrence of a subsequent
Stock Acquisition Date as stated therein if the Company fails to exercise such
option by the Close of Business on the tenth day following the Stock Acquisition
Date but thereafter the Acquiring Party whose acquisition of shares triggered
the Stock Acquisition Date (together with all Affiliates and Associates of such
Person, shall reduce its Beneficial Ownership of Common Stock and of total
voting power in an election of directors of the Company to less than 10% in a
transaction or series of transactions (i) in which neither the Company nor any
of its subsidiaries or affiliates is a party, and (ii) that does not involve an
acquisition, retirement, reclassification, or exchange of securities by or a the
sale or transfer of any assets of the Company or any of its subsidiaries or
affiliates.
Section 24. Exchange. (a) The Company may, at its option, by resolution of
its Board of Directors, at any time (including a 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 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 with respect to the
Common Stock after the date hereof (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"); provided, however, under the circumstances
described in the proviso to Section 23(a) hereof, an Exchange shall require the
concurrence of directors constituting more than two-thirds of the full Board of
Directors.
(b) Immediately upon the action of the Board of Directors of the Company
authorizing the exchange of the Rights pursuant to subsection (a) of this
Section 24 and without any further action and without any notice, the right to
exercise the Rights will 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 Rights held by such holder multiplied by the Exchange Ratio.
Promptly after the action of the Board of Directors authorizing the exchange of
the Rights, the Company shall give notice of such exchange to the Rights Agent
and to the holders of such Rights by mailing such notice to all such holders at
each holder's last address as it appears upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the transfer
agent for the Common Stock. Any notice that is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of exchange will state the method by which the exchange of the
shares of Common Stock for Rights will be effected.
(c) In the event that there shall not be sufficient shares of Common Stock
authorized but unissued to permit the exchange in full of such Rights in
accordance with this Section 24, the Company shall take all such action as may
be necessary to authorize additional shares of
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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 Common Stock, the Company shall
substitute, for each share of Common Stock that would otherwise be issuable upon
exchange of a Right, a number of shares of other equity securities of the
Company or fraction thereof such that the current per share market price of one
share of such other equity securities multiplied by such number or fraction is
equal to the current per share market price of one share of Common Stock as of
the date of issuance of such shares of such other equity securities or fraction
thereof.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates that evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, there shall be
paid to the registered holders of the Right Certificates with regard to which
such fractional shares of Common Stock would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value of a whole share of
Common Stock. For the purposes of this subsection (d), the current market value
of a whole share of Common Stock shall be the closing price of a share of Common
Stock (as determined pursuant to Section 11(d) hereof) for the Trading Day
immediately prior to the Exchange Date.
Section 25. Notice of Certain Events. (a) 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 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(m) hereof), or to
effect a statutory share exchange with any Person (other than a Subsidiary of
the Company in a transaction that complies with Section 11(m) 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 25% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person or Persons (other than a
Subsidiary of the Company in one or more transactions each of which complies
with Section 11(m) 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, 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,
statutory share exchange, sale, transfer, liquidation, dissolution, or winding
up is to take 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 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 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.
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(b) In case any Section 11(a)(ii) Event shall occur, then, in any such
case, (i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, 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 the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer, if appropriate, not only to
Preferred Stock but also to Common Stock or other securities.
Section 26. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights Certificate to
or on the Company shall be sent by registered or certified mail and shall be
deemed given upon receipt if addressed (until another address is filed in
writing with the Rights Agent) as follows:
Southwest Bancorp, Inc.
608 Main Street
Stillwater, Oklahoma 74074
Attention: Corporate Secretary
Subject to the provisions of Section 21 hereof, 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 sent by registered
or certified mail and shall be deemed given upon receipt if addressed (until
another address is filed in writing with the Company) as follows:
Harris Trust and Savings Bank
311 West Monroe Street
14/th/ Floor
Chicago, Illinois 60606
Attention: Susan R. Hogan, Trust Officer
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 Company.
Section 27. Supplements and Amendments. Prior to the Distribution Date and
subject to the penultimate sentence of this Section 27, the Company may, and the
Rights Agent shall, if the Company so directs and at the expense of the Company,
supplement or amend any provision of this Agreement without the approval of any
holders of certificates representing shares of Common Stock. From and after the
Distribution Date and subject to the penultimate sentence of this Section 27,
the Company and the Rights Agent shall, if the Company so directs and at the
expense of the Company, 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 that may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder (which lengthening or shortening, under the circumstances
described in the proviso to Section 23(a) hereof, shall require the concurrence
of a more than two-thirds of the full Board of Directors), or (iv) to change or
supplement the provisions hereunder in any manner that the Company may deem
necessary or desirable and that 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,
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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 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.
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. No
supplement or amendment shall be made that changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number of shares of Common
Stock for which a Right is exercisable; provided, however, that at any time
prior to the Distribution Date, the Board of Directors of the Company may amend
this Agreement to increase the Purchase Price or extend the Final Expiration
Date. Notwithstanding anything contained in this Agreement to the contrary, no
supplement or amendment that changes the rights or duties of the Rights Agent
under this Agreement shall be effective against the Rights Agent without the
execution of such supplement or amendment by the Rights Agent.
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, etc. 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. The Board of Directors of the Company (and, where
specifically provided for herein, the Board of Directors acting by a specified
majority or supermajority of the Board of Directors) shall have the exclusive
power and authority to administer this Agreement and to exercise all rights and
powers specifically granted to the Board, or the Company (or, where specifically
provided for herein, the Board of Directors acting by a specified majority or
supermajority of the Board of Directors), 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, without limitation, 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
(or, where specifically provided for herein, by the Board of Directors acting by
a specified majority or supermajority of the Boar of 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 (y) not subject the Board 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, the
registered holders from time to time of the Rights Certificates (and, prior to
the Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; and this
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Agreement shall be for the sole and exclusive benefit of the Company and the
Persons specified above.
Section 31. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth day following the date of such determination by the Board of Directors.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Oklahoma 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, except the rights and
obligations of the Rights Agent, which shall be governed by and construed in
accordance with the laws of the State of Illinois.
Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
ATTEST: [SEAL] SOUTHWEST BANCORP, INC.
/s/ Deborah T. Bradley /s/ Rick J. Green
________________________________ By:_________________________________
Deborah T. Bradley, Secretary Rick J. Green, President
and Chief Executive Officer
ATTEST: [SEAL] HARRIS TRUST AND SAVINGS BANK,
as RIGHTS AGENT
/s/ Alma Menendez /s/ Susan R. Hogan
________________________________ By:_________________________________
Name: Alma Menendez Name: Susan R. Hogan
Title: Title:
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EXHIBIT A
Form of Rights Certificate
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER APRIL 22, 2009, OR EARLIER IF REDEEMED OR EXCHANGED
BY THE COMPANY. THE COMPANY, AT ITS OPTION, MAY REDEEM THE RIGHTS EVIDENCED BY
THIS CERTIFICATE AT A REDEMPTION PRICE OF $.01 PER RIGHT OR EXCHANGE THE RIGHTS
FOR SHARES OF COMMON STOCK 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 ARE OR MAY BECOME NULL AND VOID. THE RIGHTS REPRESENTED BY THIS RIGHTS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN ACQUIRING PERSON.
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY ARE OR
MAY BECOME VOID AS SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.*
Right Certificate
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 April 22, 1999 (the "Rights
Agreement"), between Southwest Bancorp, Inc., an Oklahoma corporation (the
"Company"), and Harris Trust and Savings Bank, an Illinois corporation (the
"Rights Agent"), to purchase from the Company at any time prior to 5:00 P.M.
(Stillwater, Oklahoma time) on April 22, 2009 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, non-assessable share (a "Unit") of Class B
Series1 Preferred Stock (the "Preferred Stock") or other securities of the
Company, at a purchase price of $110.00 per Unit (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate duly executed. (All capitalized terms not
defined herein shall have the meaning set forth in the Rights Agreement.) The
Purchase Price may be paid in cash or by certified bank check or bank draft
payable to the order of the Company. The number of Rights evidenced by this
Rights Certificate (and the number of shares which 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 __________ __, 199_, 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 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 Triggering Events. 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 Rights Agreement
reference is hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights Agent,
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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. Under
certain circumstances specified in Section 7(e) of the Rights Agreement, Rights
that are or were owned by an Acquiring Person or an Affiliate or Associate of an
Acquiring Person may become null and void and no longer exercisable by any
Person (including any subsequent transferee). 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 or the Secretary of the Corporation.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of Units of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered then
entitle such holder to purchase. If this Rights Certificate shall be exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised. Subject to the provisions of the Rights Agreement, the Company, at
its option, may redeem the Rights evidenced by this Certificate at a redemption
price of $.01 per Right or exchange the Rights for shares of Common Stock. No
fractional shares of Preferred Stock will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions that are integral
multiples of one one-thousandth of a share of Preferred Stock), 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 signatures of the proper officers of the Company and
its corporate seal.
Dated as of ___________ __, ______
ATTEST: [SEAL] SOUTHWEST BANCORP INC.
By:____________________________ By:___________________________
Secretary President
Countersigned: HARRIS TRUST AND SAVINGS BANK,
as RIGHTS AGENT
By:____________________________
Authorized Signature
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[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
Rights Certificate.)
FOR VALUE RECEIVED ___________________ hereby sells, assigns and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint _________________________
Attorney, to transfer the within Rights Certificate on the books of the within-
named Company, with full power of substitution.
Dated: ___________, _____ ________________________ Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that: (1)
this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred
by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined pursuant to
the Rights Agreement); (2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: _______________, ____ ________________________ Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond to the
name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
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<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented by the Rights
Certificate.)
To: SOUTHWEST BANCORP, 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 that may be issuable upon the exercise of the
Rights) and requests that certificates for such shares (or other securities) be
issued in the name of and delivered to: Please insert social security or other
identifying number
_______________________________________________________________________________
_______________________________________________________________________________
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to: Please insert social security or
other identifying number
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address)
Date: _______________, ____ ___________________________ Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that: (1) the
Rights evidenced by this Rights Certificate [ ] are [ ] are not being exercised
by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined pursuant to
the Rights Agreement); (2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] 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
Date: _______________, ____ ___________________________ Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
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<PAGE>
EXHIBIT B
On April 22, 1999, the Board of Directors of Southwest Bancorp, Inc., a
corporation organized under the laws of Oklahoma (the "Company"), approved a
Rights Agreement, dated as of and to be effective on April 22, 1999 (the "Rights
Agreement") between the Company and Harris Trust and Savings Bank, as Rights
Agent, having the principal terms summarized below. In accordance with the
Rights Agreement, the Board also declared a dividend distribution of one Right
for each outstanding share of common stock (the "Common Stock") of the Company
to shareholders of record at the Close of Business on April 22, 1999 (the
"Record Date").
Each Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of the Company's Class B Series 1 Preferred Stock
("Preferred Stock"). Each one one-thousandth of a share (a "Unit") of Preferred
Stock is structured to be the equivalent of one share of Common Stock of the
Company ("Common Stock"). Shareholders will receive one Right per share of
Common Stock held of record at the Close of Business on the Record Date. The
exercise price of each Right will be $110.00 subject to adjustment (the
"Purchase Price").
Rights owned by any Acquiring Person, as defined below, or by persons who
have acquired Rights from an Acquiring Person, are not exercisable, with certain
exceptions.
Rights will also attach to shares of Common Stock issued after the Record
Date but prior to the Distribution Date unless the Board of Directors determines
otherwise at the time of issuance. The description and terms of the Rights are
set forth in the Rights Agreement. The Rights will be evidenced by Common Stock
certificates, and no separate certificates evidencing the Rights (the "Rights
Certificates") will be distributed unless there is a Distribution Date,
described below. The Rights will separate from the Common Stock and a
distribution of the Rights Certificates will occur on a date (the "Distribution
Date") that is the earlier of (i) 10 days following a public announcement by the
Company that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 10% or more of the outstanding shares of Common Stock (the "Stock
Acquisition Date"), or (ii) 10 business days following the commencement of a
tender offer or exchange offer that would result in a person or group
beneficially becoming 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) any Common
Stock certificates issued 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 certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the Close of Business on April 22, 2009, unless earlier redeemed or exchanged
by the Company as described below. 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 such
separate Rights Certificates alone will represent the Rights. While each Right
will initially provide for the acquisition of one Unit of Preferred Stock at the
Purchase Price, the Rights Agreement provides that if any person becomes an
Acquiring Person, proper provision
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<PAGE>
shall be made so that each holder of a Right (except as described below) will
thereafter have the right to receive, upon exercise and payment of the Purchase
Price, Preferred Stock or, at the option of the Company, Common Stock (or, in
certain circumstances, cash, property or other securities of the Company) having
a value equal to twice the amount of the Purchase Price. In the event that, at
any time following the Stock Acquisition Date, (i) the Company is acquired in a
merger, statutory share exchange, or other business combination in which the
Company is not the surviving corporation, or (ii) 25% or more of the Company's
assets or earning power is sold or transferred, each holder of a Right (except
as described below) shall thereafter have the right to receive, upon exercise
and payment of the Purchase Price, common stock of the acquiring company having
a value equal to twice the Purchase Price. The events set forth in this
paragraph and in the immediately preceding paragraph are referred to as the
"Triggering Events." If there is a Triggering Event, Rights that are or were
owned by the Acquiring Person, or any affiliate or associates of such Acquiring
Person, on or after such Acquiring Person's Stock Acquisition Date shall be null
and void and shall not thereafter be exercised by any person (including
subsequent transferees).
The Purchase Price payable, and the number of shares of Preferred Stock,
Common Stock or other securities or property issuable upon exercise of the
Rights are subject to adjustment from time to time to prevent dilution. At any
time (including a time after any person becomes an Acquiring Person), the
Company may exchange all or part of the Rights (except as set forth below) for
shares of Common Stock (an "Exchange") at an exchange ratio of one share per
Right, as appropriately adjusted to reflect any stock split or similar
transaction. At any time until ten days following the Stock Acquisition Date,
the Company may redeem the Rights in whole, but not in part, at a price of $.01
per Right (the "Redemption Price"). Under certain circumstances set forth in the
Rights Agreement, the decision to make an Exchange or to redeem the Rights shall
require the approval of a 2/3 majority of the full Board of Directors. After the
redemption period has expired, the Company's right of redemption may be
reinstated if an Acquiring Person reduces his beneficial ownership to less than
10% of the outstanding shares of Common Stock in a transaction or series of
transactions not involving the Company. Immediately upon the action of the Board
ordering redemption of the Rights, with, where required, the approval of a 2/3
majority of the full Board of Directors, 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 shareholder 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 shareholders or to the Company, shareholders may, depending on the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Preferred Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above. Other than certain
provisions relating to the principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the Board prior to the
Distribution Date. After the Distribution Date, the provisions of the Rights
Agreement may be amended by the Board (in certain circumstances, only with the
approval of 2/3 of the whole Board of Directors) in order to cure any ambiguity,
to make certain other changes that do not adversely affect the interests of
holders of Rights (excluding the interest of any Acquiring Person), or to
shorten or lengthen any time period under the Rights Agreement; provided,
however, no amendment to adjust the time period governing redemption may be made
during the time that the Rights are not redeemable (generally, after a
Triggering Event).
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<PAGE>
CERTIFICATE OF DESIGNATIONS
OF THE
CLASS B SERIES 1 PREFERRED STOCK
OF
SOUTHWEST BANCORP, INC.
(Pursuant to Section 1032 of the Oklahoma
General Corporation Act)
WHEREAS, by the Amended and Restated Certificate of Incorporation, as
amended, (the "Amended and Restated Certificate") of Southwest Bancorp, Inc.
(the "Company"), 1,000,000 shares of Class B Serial Preferred Stock, $1.00 par
value per share (the "Preferred Stock") are authorized; and
WHEREAS, in and by Article V of the Amended and Restated Certificate, the
Board of Directors of the Company, pursuant to Section 1032 of the Oklahoma
General Corporation Act (the "Act"), is expressly authorized, by resolution or
resolutions from time to time adopted, to provide for the issuance of Preferred
Stock in series and to fix and state the powers, designations, preferences, and
relative, participating, optional or other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof; and
WHEREAS, the Board of Directors now desires to fix and determine such
matters with respect to the issuance of certain shares of Preferred Stock.
NOW, THEREFORE, BE IT RESOLVED, as follows:
Section 1. Designation. Par Value and Amount. There is hereby designated in
the Class B preferred stock, shares designated as "Series 1 Preferred Stock"
(hereinafter referred to as "Class B Series 1 Preferred Stock"), the shares of
such series shall be with par value of $1.00 per share, and the number of shares
constituting such series shall be 50,000, provided, however, that, if more than
a total of 50,000 shares of Class B Series 1 Preferred Stock shall be issuable
upon the exercise of Rights (the "Rights") issued pursuant to the rights
Agreement, dated as of April 22, 1999 between the Corporation and Harris Trust
and Savings Bank, as Rights Agent (as amended from time to time) (the "Rights
Agreement"), the Board of Directors of the Corporation, pursuant to Section 1032
of the Oklahoma General Corporation Law, shall be authorized to, and shall
direct, by resolution or resolutions that a certificate be properly executed,
acknowledged and filed providing for the increase in the total number of shares
of Class B Series 1 Preferred Stock authorized to be issued (to the extent that
the Certificate of Incorporation then permits) to the largest number of whole
shares (rounded up to the nearest whole number) issuable upon exercise of the
Rights. Notwithstanding anything to the contrary contained in the Certificate of
Incorporation of the Corporation, and in addition to any other vote required by
the Certificate of Incorporation or the Oklahoma General Corporation Law, any
decrease in the number of authorized shares of Class B Series 1 Preferred Stock
shall require the affirmative vote of holders of at least two thirds of the
outstanding shares of Class B Series 1 Preferred Stock, voting separately as a
class.
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 Class
B Series 1 Preferred Stock with respect to dividends, the holders of shares of
Class B Series 1 Preferred Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of assets legally available for the
purpose, quarterly dividends payable in cash on the first business day of
January, April, July and October in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of a share or fraction
of a share of Class B Series 1 Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $90 or (b) subject to the
provision for adjustment hereinafter set forth, one thousand (1,000) times the
aggregate per share amount of all cash dividends or other times the aggregate
per share amount of all cash dividends and one thousand (1,000) times the
aggregate per share amount (payable in kind) of all cash non-cash
<PAGE>
dividends or other distributions other than a dividend payable in shares of
Common Stock, par value $1.00 per share, of the Corporation (the "Common Stock")
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Class B Series 1 Preferred Stock.
(B) The Corporation shall declare a dividend or distribution on the Class
B Series 1 Preferred Stock as provided in paragraph (A) above immediately after
it declares a dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in the event no
dividend or distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $90 per share on the Class B
Series 1 Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Class B Series 1 Preferred Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Class B Series 1
Preferred Stock, unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which case dividends on
such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of Class B Series 1
Preferred Stock entitled to receive a quarterly dividend and before such
Quarterly Dividend Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Class B Series 1 Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for the determination
of holders of shares of Class B Series 1 Preferred Stock entitled to receive
payment of a dividend or distribution declared thereon, which record date shall
be not more than 30 days prior to the date fixed for the payment thereof.
Section 3. Voting Rights. The holders of shares of Class B Series 1
Preferred Stock shall have the following voting rights:
(A) Except as provided in paragraph C of this Section 3 and subject to the
provision for adjustment hereinafter set forth, each share of Class B Series 1
Preferred Stock shall entitle the holder thereof to 1000 votes on all matters
submitted to a vote of the stockholders of the Corporation.
(B) Except as otherwise provided herein or by law, the holders of shares
of Class B Series 1 Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) (i) If, on the date used to determine stockholders of record for any
meeting of stockholders for the election of directors, a default in preference
dividends (as defined in subparagraph (v) below) on the Class B Series 1
Preferred Stock shall exist, the holders of the Class B Series 1 Preferred Stock
shall have the right, voting as a class as described in subparagraph (ii) below,
to elect two directors (in addition to the directors elected by holders of
Common Stock of the Corporation). Such right may be exercised (a) at any
meeting of stockholders for the election of directors or (b) at a meeting of the
holders of shares of Voting Preferred Stock (as hereinafter defined), called for
the purpose in accordance with the By-laws of the Corporation, until all such
cumulative dividends (referred to above) shall have been paid in full or until
non-cumulative dividends have been paid regularly for at least one year.
(ii) The right of the holders of Class B Series 1 Preferred Stock to
elect two directors, as described above, shall be exercised as a class
concurrently with the rights of holders of any other series of Preferred Stock
upon which voting rights to elect such directors have been conferred and are
then exercisable. The Class B Series 1 Preferred Stock and any additional
series of Preferred Stock which the Corporation may issue and which may provide
for the right to vote with the foregoing series of Preferred Stock are
collectively referred to herein as "Voting Preferred Stock."
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<PAGE>
(iii) Each director elected by the holders of shares of Voting
Preferred Stock shall be referred to herein as a "Preferred Director". A
Preferred Director so elected shall continue to serve as such director for a
term of one year, except that upon any termination of the right of all of such
holders to vote as a class for Preferred Directors, the term of office of such
directors shall terminate. Any Preferred Director may be removed by, and shall
not be removed except by, the vote of the holders of record of a majority of the
outstanding shares of Voting Preferred Stock then entitled to vote for the
election of directors, present (in person or by proxy) and voting together as a
single class (a) at a meeting of the stockholders, or (b) at a meeting of the
holders of shares of such Voting Preferred Stock, called for the purpose in
accordance with the By-laws of the Corporation, or (c) by written consent signed
by the holders of a majority of the then outstanding shares of Voting Preferred
Stock then entitled to vote for the election of directors, taken together as a
single class.
(iv) So long as a default in any preference dividends on the Class B
Series 1 Preferred Stock shall exist or the holders of any other series of
Voting Preferred Stock shall be entitled to elect Preferred Directors, (a) any
vacancy in the office of Preferred Director may be filled (except as provided in
the following clause (b)) by an instrument in writing signed by the remaining
Preferred Director and filed with the Corporation and (b) in the case of the
removal of any Preferred Director, the vacancy may be filled by the vote or
written consent of the holders of a majority of the outstanding shares of Voting
Preferred Stock then entitled to vote for the election of Directors, present (in
person or by proxy) and voting together as a single class, at such time as the
removal shall be effected. Each director appointed as aforesaid by the
remaining preferred Director shall be deemed, for all purposes hereof, to be a
Preferred Director. Whenever (x) no default in preference dividends on the
Class B Series 1 Preferred Stock shall exist and (y) the holders of other series
of Voting Preferred Stock shall no longer be entitled to elect such Preferred
Directors, then the number of directors constituting the Board of Directors of
the Corporation shall be reduced by two.
(v) For purposes hereof, a "default in preference dividends" on the
Class B Series 1 Preferred Stock shall be deemed to have occurred whenever the
amount of cumulative and unpaid dividends on the Class B Series 1 Preferred
Stock shall be equivalent to six full quarterly dividends or more (whether or
not consecutive), and, having so occurred, such default shall be deemed to exist
thereafter until, but only until, all cumulative dividends on all shares of the
Class B Series 1 Preferred Stock then outstanding shall have been paid through
the last Quarterly Dividend Payment Date or until, but only until, non-
cumulative dividends have been paid regularly for at least one year.
(E) Except as set forth herein (or as otherwise required by applicable
law), holders of Class B Series 1 Preferred Stock shall have no general or
special voting rights and their consent shall not be required for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Class B Series 1 Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Class B Series 1 Preferred
Stock outstanding shall have been paid in full, the Corporation shall not
(i) declare or pay dividends, or make any other distributions,
on any shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Class B Series 1 Preferred Stock;
(ii) declare or pay dividends, or make any other distributions,
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Class B Series 1 Preferred
Stock, except dividends paid ratably on the Class B Series 1 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;
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<PAGE>
(iii) redeem or purchase or otherwise acquire for consideration
(except as provided in (iv) below) shares of any stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the Class B
Series 1 Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such junior stock in exchange for
shares of any stock of the Corporation ranking junior (either as to dividends or
upon dissolution, liquidation or winding up) to the Class B Series 1 Preferred
Stock;
(iv) redeem or purchase or otherwise acquire for consideration
any shares of Class B Series 1 Preferred Stock, or any shares of stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Class B Series 1 Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series 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.
(C) The Corporation shall not issue any shares of Class B Series 1
Preferred Stock except upon exercise of Rights issued pursuant to the Rights
Agreement, as it may be amended and restated from time to time, a copy of which
as is then currently in effect shall kept on file with the Secretary of the
Company at its principal executive office and shall be made available to
stockholders of record without charge upon written request therefor addressed to
said Secretary. Notwithstanding the foregoing sentence, nothing contained in
the provisions hereof shall prohibit or restrict the Company from issuing for
any purpose any series of Preferred Stock with rights and privileges similar to,
different from, or greater than, those of the Class B Series 1 Preferred Stock.
Section 5. Reacquired Shares. Any shares of Class B Series 1 Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock subject to the conditions and restrictions on issuance set
forth herein, in the Certificate of Incorporation, in any other Certificate of
Amendment creating a series of Preferred Stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up.
(A) Subject to the prior and superior rights of holders of any shares of
any series of Preferred Stock ranking prior and superior to the shares of Class
B Series 1 Preferred Stock with respect to rights upon liquidation, dissolution
or winding up (voluntary or otherwise), the holders of shares of Class B Series
1 Preferred Stock shall be entitled to receive an aggregate amount per share
equal to one thousand (1,000) times the aggregate amount to be distributed per
share to holders of shares of Common Stock plus an amount equal to any accrued
and unpaid dividends on such shares of Class B Series 1 Participating Preferred
Stock.
(B) In the event, however, that there are not sufficient assets available
to permit payment in full of the Class B Series 1 Liquidation Preference and the
liquidation preferences of all other series of preferred stock, if any, which
rank on a parity with the Class B Series 1 Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of Class B Series 1 Preferred
Stock and the holders of such parity shares in proportion to their respective
liquidation preferences. In the event, however, that there are not sufficient
assets available to permit payment in full of the Capital Adjustment, then such
remaining assets shall be distributed ratably to the holders of Common Stock.
Section 7. Consolidation of 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
Class B Series 1 Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to one thousand (1,000) times the aggregate amount
of stock,
4
<PAGE>
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.
Section 8. No Redemption. The shares of Class B Series 1 Preferred Stock
shall not be redeemable.
Section 9. Ranking. The Class B Series 1 Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise.
Section 10. Amendment. The Certificate of Incorporation of the
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Class B Series
1 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 Class B Series 1
Preferred Stock, voting separately as a class.
5
<PAGE>
IN WITNESS WHEREOF, Rick J. Green., its President, has executed this
instrument and its secretary, Deborah T. Bradley, has affixed the corporate seal
hereto and attested said seal on the 22nd day of April, 1999.
SOUTHWEST BANCORP, INC.
/s/ Rick J. Green
By: _______________________________________
SEAL President
Rick J. Green
ATTEST:
/s/ Deborah T. Bradley
_______________________________
Deborah T. Bradley
Secretary
6
