SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
TRICO MARINE SERVICES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 72-1252405
(State of incorporation or organization) (I.R.S. Employer Identification No.)
250 North American Court
Houma, LA 70363
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
None
If this form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective
upon filing pursuant to General Instruction A.(c), check the
following box.
If this form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective
pursuant to General Instruction A.(d), check the following box. X
Securities Act registration statement file number to which this
form relates (if applicable):
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
(Title of Class)
Item 1. Description of Securities to be Registered
On February 18, 1998, the Board of Directors of Trico Marine
Services, Inc. (the "Company") declared a dividend payable on
March 11, 1998 of one preferred stock purchase right (a "Right")
for each outstanding share of common stock, par value $0.01 per
share (the "Common Stock"), of the Company held of record on
March 6, 1998 (the "Record Date"), or issued thereafter and prior
to the Distribution Date (as hereinafter defined). Each Right
entitles the registered holder to purchase from the Company one
one-thousandth of a share of Series AA Participating Cumulative
Preference Stock, par value $0.01 per share (the "Preference
Shares"), of the Company at a price of $105 per one
one-thousandth of a Preference Share (the "Purchase Price"),
subject to adjustment as described below. The description and
terms of the Rights are set forth in a Rights Agreement dated as
of February 19, 1998 (the "Rights Agreement") between the Company
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent").
Initial Status of the Rights
The Rights Agreement provides that until the earlier to
occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 15% or
more of the outstanding Common Stock or (ii) 10 business days (or
such later date as may be determined by action of the Board of
Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) following the commencement
of, or announcement of an intention to make, a tender offer or
exchange offer that, if consummated, would result in the
beneficial ownership by a person or group of 15% or more of the
outstanding Common Stock (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced by the
Common Stock certificates. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will
be transferred with and only with the Common Stock. New Common
Stock certificates issued after the Record Date but prior to the
Distribution Date (or earlier redemption or expiration of the
Rights) upon transfer or new issuance of Common Stock will
contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Stock outstanding as of the Record Date
will also constitute the transfer of the Rights associated with
the Common Stock represented by such certificate.
Distribution and Term of Rights
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights will be mailed to
holders of record of the Common Stock as of the close of business
on the Distribution Date and such separate certificates alone
will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on February 19, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, in each case, as described below.
Triggering Events
In the event that the Company is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power are sold after a person or
group has become an Acquiring Person, proper provision will be
made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right. In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be null and void), will thereafter have
the right to receive upon exercise that number of shares of
Common Stock having a market value at the time of such occurrence
of two times the exercise price of the Right.
Anti-Dilution
The Purchase Price payable, and the number of Preference
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preference
Shares, (ii) upon the grant to holders of the Preference Shares
of certain rights, options or warrants to subscribe for or
purchase Preference Shares at a price, or securities convertible
into Preference Shares with a conversion price, less than the
then-current market price of the Preference Shares or (iii) upon
the distribution to holders of the Preference Shares of evidences
of indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Preference Shares) or of
subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights and the number of one
one-thousandths of a Preference Share issuable upon exercise of
each Right are also subject to adjustment in the event of a stock
split of the Common Stock or a stock dividend on the Common Stock
payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case,
prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preference Shares will be issued (other than fractions which are
integral multiples of one one-thousandth of a Preference Share,
which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preference Shares
on the last trading day prior to the date of exercise.
Exchange and Redemption
At any time after any person or group becomes an Acquiring
Person and prior to the acquisition by such person or group of
50% or more of the outstanding Common Stock, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which will have become null
and void), in whole or in part, at an exchange ratio of one share
of Common Stock, or one one-thousandth of a Preference Share, per
Right (subject to adjustment).
At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 15%
or more of the outstanding Common Stock, the Board of Directors
of the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right (the "Redemption Price"), subject to
adjustment. The redemption of the Rights may be made effective
at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. Immediately
upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
Rights, Preferences and Limitations of Purchase Rights
Preference Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preference Share will be entitled
to a minimum preferential quarterly dividend payment of the
greater of $1.00 or 1,000 times the aggregate dividend declared
per share of Common Stock. In the event of liquidation, the
holders of the Preference Shares will be entitled to a minimum
preferential liquidation payment of $100 per share and, under
certain circumstances, may be entitled to receive additional
distributions. Each Preference Share will entitle the holder to
1,000 votes, voting together with the Common Stock. Finally, in
the event of any merger, consolidation or other transaction in
which Common Stock is exchanged, each Preference Share will be
entitled to receive 1,000 times the amount received per share of
Common Stock. These rights are protected by customary
antidilution provisions. Because of the nature of Preference
Shares' dividend, liquidation and voting rights, the value of
each one one-thousandth interest in a Preference Share
purchasable upon exercise of each Right should approximate the
value of a share of the Common Stock.
Amendments
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, including an amendment to lower the 15% thresholds
described above to not less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common Stock
then known to the Company to be beneficially owned by any person
or group of affiliated or associated persons and (ii) 10%, except
that from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring Person, no
such amendment may adversely affect the interests of the holders
of the Rights.
Miscellaneous
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company.
However, the Rights may cause substantial dilution to a person or
group that acquires 15% or more of the Common Stock unless the
Rights are first redeemed by the Board of Directors.
Nevertheless, the Rights should not interfere with any merger or
other business combination approved by the Board of Directors
since the Rights may be redeemed by the Company as described
above.
While the dividend of the Rights will not be taxable to the
stockholders or to the Company, stockholders or the Company may,
depending upon the circumstances, recognize taxable income in the
event that the Rights become exercisable as described above.
The Rights Agreement and the Certificate of Designations for
the Preference Shares are attached hereto as exhibits and are
incorporated herein by reference. The foregoing description of
the Rights is qualified in its entirety by reference to such
exhibits.
Item 2. Exhibits
99.1 Rights Agreement, dated as of February 19, 1998,
between Trico Marine Services, Inc. and ChaseMellon
Shareholder Services, L.L.C. (the "Rights Agreement").
99.2 Form of Rights Certificate and of Election to Exercise,
included as Exhibit B to the Rights Agreement.
99.3 Certificate of Designations for the Series AA
Participating Cumulative Preference Stock.
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.
TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
Victor M. Perez
Vice President and Chief Financial Officer
Date: March 3, 1998
TRICO MARINE SERVICES, INC.
and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
Rights Agent
Rights Agreement
Dated as of February 19, 1998
TABLE OF CONTENTS
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 3
Section 3. Issue of Right Certificates 3
Section 4. Form of Right Certificates 5
Section 5. Countersignature and Registration 5
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates 6
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights 6
Section 8. Cancellation and Destruction of Right Certificates 7
Section 9. Availability of Preference Shares 8
Section 10. Preference Shares Record Date 8
Section 11. Adjustment of Purchase Price, Number of Shares or
Number of Rights 8
Section 12. Certificate of Adjusted Purchase Price or Number of Shares 15
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 15
Section 14. Fractional Rights and Fractional Shares 16
Section 15. Rights of Action 17
Section 16. Agreement of Right Holders 17
Section 17. Right Certificate Holder Not Deemed a Stockholder 17
Section 18. Concerning the Rights Agent 18
Section 19. Merger or Consolidation or Change of Name of Rights Agent 19
Section 20. Duties of Rights Agent 19
Section 21. Change of Rights Agent 21
Section 22. Issuance of New Right Certificates 21
Section 23. Redemption 22
Section 24. Exchange 22
Section 25. Notice of Certain Events 23
Section 26. Notices 24
Section 27. Supplements and Amendments 24
Section 28. Successors 25
Section 29. Benefits of this Agreement 25
Section 30. Severability 25
Section 31. Governing Law 25
Section 32. Counterparts 25
Section 33. Descriptive Headings 25
Exhibits
Exhibit A - Form of Articles of Amendment A-1
Exhibit B - Form of Right Certificate B-1
Exhibit C - Summary of Rights to Purchase Preference Shares C-1
RIGHTS AGREEMENT
This Rights Agreement, dated as of February 19, 1998, is by
and between Trico Marine Services, Inc., a Delaware corporation
(the "Company") and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent hereunder (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on February 18, 1998, the Board of Directors of the
Company has authorized and declared a dividend, payable as of
March 11, 1998, of one preference share purchase right (a
"Right") for each Common Share (as hereinafter defined) of the
Company outstanding on March 6, 1998 (the "Record Date"), each
Right representing the right to purchase one one-thousandth of a
Preference Share (as hereinafter defined), upon the terms and
subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect
to each Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the
Redemption Date or the Final Expiration Date (as such terms are
hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
a. "Acquiring Person" shall mean any Person (as such term
is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as such
term is hereinafter defined) of 15% or more of the Common Shares
of the Company then outstanding, but shall not include the
Company, any Subsidiary (as such term is hereinafter defined) of
the Company, any employee benefit plan of the Company or any
Subsidiary of the Company, or any trust or other entity holding
Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares
beneficially owned by such Person to 15% or more of the Common
Shares of the Company then outstanding; provided, however, that
if a Person shall become the Beneficial Owner of 15% or more of
the Common Shares of the Company then outstanding by reason of
share purchases by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of any
additional Common Shares of the Company, then such Person shall
be deemed to be an "Acquiring Person." Notwithstanding the
foregoing, if the Board of Directors of the Company determines
in good faith that a Person who would otherwise be an "Acquiring
Person", as defined pursuant to the foregoing provisions of this
paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring
Person," as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
b. "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), as in effect on the date of
this Agreement.
c. A Person shall be deemed the "Beneficial Owner" of and
shall be deemed to "beneficially own" any securities:
i. which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
ii. which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement
or understanding (other than customary agreements with and
between underwriters and selling group members with respect
to a bona fide public offering of securities), or upon the
exercise of conversion rights, exchange rights, rights
(other than the above-defined Rights), warrants or options,
or otherwise; provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) the right to vote
pursuant to any agreement, arrangement or understanding;
provided, further, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security if
the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or
consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations promulgated under
the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or
successor report); or
iii. which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding (other than
customary agreements with and between underwriters and
selling group members with respect to a bona fide public
offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the
proviso to Section 1(c)(ii)(B)) or disposing of any
securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when
used with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such
securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding
which such Person would be deemed to beneficially own hereunder.
d. "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking or trust
institutions in the State of Texas and the state of the
principal office of the Rights Agent 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., local time in the State of Texas, on such date; provided,
however, that if such date is not a Business Day it shall mean
5:00 P.M., local time in the State of Texas, on the next
succeeding Business Day.
f. "Common Shares" when used with reference to the
Company shall mean the shares of common stock, par value $0.01
per share, of the Company. "Common Shares" when used with
reference to any Person other than the Company shall mean the
capital stock (or equity interest) with the greatest voting
power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which
ultimately control such first-mentioned Person.
g. "Distribution Date" shall have the meaning set forth
in Section 3 hereof.
h. "Final Expiration Date" shall have the meaning set
forth in Section 7 hereof.
i. "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall
include any successor (by merger or otherwise) of such entity.
j. "Preference Shares" shall mean shares of Series AA
Participating Cumulative Preference Stock, par value $0.01 per
share, of the Company, having the rights and preferences set
forth in the form of Certificate of Designations attached to this
Agreement as Exhibit A.
k. "Redemption Date" shall have the meaning set forth in
Section 7 hereof.
l. "Share Acquisition Date" shall mean the first date of
public announcement by the Company or an Acquiring Person that
an Acquiring Person has become such.
m. "Subsidiary" of any Person shall mean any corporation
or other entity of which a majority of the voting power of the
voting equity securities or equity interest is owned, directly
or indirectly, by such Person.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company
in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such Co-Rights Agents as it may deem
necessary or desirable, in which event it shall notify the Rights
Agent of the name and address of any such Co-Rights Agent
appointed by it.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Share Acquisition Date or
(ii) the tenth Business Day (or such later date as may be
determined by action of the Board of Directors of the Company
prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement 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 trust
or other entity holding Common Shares for or pursuant to the
terms of any such plan) of, or of the first public announcement
of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any trust or
other entity holding Common Shares for or pursuant to the terms
of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming the
Beneficial Owner of Common Shares aggregating 15% or more of the
then outstanding Common Shares, irrespective of whether any
shares are actually purchased pursuant to any such offer
(including any such date which is after the date of this
Agreement and prior to the issuance of the Rights; the earlier
of such dates being herein referred to as the "Distribution
Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for
Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right
Certificates) and not by separate Right Certificates, and (y)
the right to receive Right Certificates will be transferable
only in connection with the transfer of Common Shares. As soon
as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign, and the
Company will send or cause to be sent (and the Rights Agent
will, if requested and provided with a list of holders of Common
Shares by the transfer agent of the Common Shares, send) by
first-class, postage-prepaid mail, to each record holder of
Common Shares as of the close of business on the Distribution
Date, at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of
Exhibit B hereto (a "Right Certificate"), evidencing one Right
for each Common Share so held. As of and after the Distribution
Date, the Rights will be evidenced solely by such Right
Certificates.
(b) The Company shall promptly send a copy of a Summary of
Rights to Purchase Preference Shares, in substantially the form
of Exhibit C hereto (the "Summary of Rights"), by
postage-prepaid mail, to each record holder of Common Shares as
of the close of business on the Record Date, at the address of
such holder shown on the records of the Company. With respect to
certificates for Common Shares outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by
such certificates registered in the names of the holders
thereof. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares outstanding on the
Record Date shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby.
(c) Certificates for Common Shares which become
outstanding (including, without limitation, reacquired Common
Shares referred to in the last sentence of this paragraph (c))
after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration
Date shall have impressed on, printed on, written on or otherwise
affixed to them the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in the
Rights Agreement between Trico Marine Services, Inc.
(the "Company") and ChaseMellon Shareholder Services,
L.L.C. (the "Rights Agent"), dated as of February 19,
1998 (as amended from time to time, the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at
the principal offices of the Company. Under certain
circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate.
The Company will mail to the holder of this certificate
a copy of the Rights Agreement, as in effect on the
date of mailing, without charge promptly after receipt
of a written request therefor. Under certain
circumstances set forth in the Rights Agreement, Rights
issued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or
Associate thereof (as such terms are defined in the
Rights Agreement), whether currently held by or on
behalf of such Person or by any subsequent holder, may
become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or
acquires any Common Shares after the Record Date but prior to
the Distribution Date, any Rights associated with such Common
Shares shall be deemed cancelled and retired so that the Company
shall not be entitled to exercise any Rights associated with the
Common Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preference
Shares and of assignment to be printed on the reverse thereof)
shall be substantially in the form set forth in Exhibit B hereto
and may have such marks of identification or designation and
such legends, summaries or endorsements printed thereon as the
Company may deem appropriate (which do not affect the duties or
responsibilities of the Rights Agent) and as are not inconsistent
with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any stock
exchange or market on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Section 22 hereof, the Right Certificates shall entitle the
holders thereof to purchase such number of one one-thousandths of
a Preference Share as shall be set forth therein at the price
per one one-thousandth of a Preference Share set forth therein
(the "Purchase Price"), but the number of such one
one-thousandths of a Preference Share or other securities
purchasable and the Purchase Price shall be subject to adjustment
as provided herein.
Section 5. Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its Chief Executive Officer, its
President, or any of its Vice Presidents, either manually or by
facsimile signature, shall have affixed thereto the Company's
seal or a facsimile thereof, and shall be attested by the
Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates
shall be countersigned by the Rights Agent, either manually or
by facsimile signature, and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company who
shall have signed any of the Right Certificates shall cease to
be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights
Agent and issued and delivered by the Company with the same
force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company;
and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to
sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
(b) Following the Distribution Date and receipt by the
Rights Agent of the list of holders of Common Shares, the Rights
Agent will keep or cause to be kept, at its office designated in
Section 26 hereof (the "Designated Office"), books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates,
the date of each of the Right Certificates and the certificate
number for each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates. (a) Subject to the provisions of 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 earlier of the Redemption Date or the Final Expiration Date,
any Right Certificate or Right Certificates (other than Right
Certificates representing Rights that have become null and void
pursuant to Section 11(a)(ii) hereof or that have been exchanged
pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like
number of one one-thousandths of a Preference Share as the Right
Certificate or Right Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Right Certificate or Right
Certificates shall make such request in writing delivered to the
Rights Agent, and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined or exchanged
at the Designated Office of the Rights Agent. Thereupon the
Rights Agent shall countersign and deliver to the person entitled
thereto a Right Certificate or Right Certificates, as the case
may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer, split up, combination
or exchange of Right Certificates. The Rights Agent shall have
no duty or obligation under this Section unless and until it is
satisfied that all such taxes and/or charges have been paid.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security satisfactory
to them, and, at the Company's request, 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 Right Certificate if mutilated, the Company
will execute and deliver a new Right Certificate of like tenor to
the Rights Agent for countersignature and delivery to the
registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) The registered holder of any Right
Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein) in whole or in part at any time after
the Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof
duly and properly executed, to the Rights Agent at the Designated
Office of the Rights Agent, together with payment of the Purchase
Price for each one one-thousandth of a Preference Share as to
which the Rights are exercised, at or prior to the earliest of
(i) the close of business on February 19, 2008 (the "Final
Expiration Date"), (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date"), or
(iii) the time at which such Rights are exchanged as provided in
Section 24 hereof.
(b) The Purchase Price for each one one-thousandth of a
Preference Share purchasable pursuant to the exercise of a Right
shall initially be $105, and shall be subject to adjustment from
time to time as provided in Section 11 or 13 hereof and shall be
payable in lawful money of the United States of America in
accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
and properly executed, accompanied by payment of the Purchase
Price for the shares to be purchased and an amount equal to any
applicable tax or governmental charge required to be paid by the
holder of such Right Certificate in accordance with Section 9
hereof, the Rights Agent shall thereupon promptly (i) requisition
from any transfer agent of the Preference Shares certificates for
the number of Preference Shares to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with
all such requests, (ii) as provided in Section 14(b), at the
election of the Company, cause depositary receipts in lieu of
fractional shares to be issued, (iii) when appropriate,
requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with Section
14 hereof, (iv) 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 Right Certificate, registered in
such name or names as may be designated by such holder, and (v)
when appropriate, after receipt, deliver such cash to or upon the
order of the registered holder of such Right Certificate. The
payment of the Purchase Price may be made (x) in cash or by
certified bank check or bank draft payable to the order of the
Company, or (y) by delivery of a certificate or certificates
(with appropriate stock powers executed in blank attached
thereto) evidencing a number of Common Shares of the Company
equal to the then Purchase Price divided by the current per share
market price (as determined pursuant to Section 11(d) hereof) per
Common Share on the date of such exercise. In the event that the
Company is obligated to issue other securities (including Common
Shares) of the Company pursuant to Section 11(a) hereof, the
Company will make all arrangements necessary so that such other
securities are available for distribution by the Rights Agent, if
and when necessary to comply with this Agreement.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent to the
registered holder of such Right Certificate or to such holder's
duly authorized assigns, subject to the provisions of Section 14
hereof.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose
of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Rights Agreement. The Company shall deliver to the Rights Agent
for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Availability of Preference Shares. (a) The
Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued Preference
Shares or any Preference Shares held in its treasury, the number
of Preference Shares that will be sufficient to permit the
exercise in full of all outstanding Rights in accordance with
Section 7. The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all Preference
Shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such Preference Shares (subject
to payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares.
(b) The Company further covenants and agrees that it will
pay when due and payable any and all taxes and charges which may
be payable in respect of the issuance or delivery of the Right
Certificates or of any Preference Shares upon the exercise of
Rights. The Company shall not, however, be required to pay any
tax or charge which may be payable in respect of any transfer or
delivery of Right Certificates to a Person other than, or the
issuance or delivery of certificates or depositary receipts for
the Preference Shares in a name other than that of, the
registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or to deliver any
certificates or depositary receipts for Preference Shares upon
the exercise of any Rights until any such tax or charge shall
have been paid (any such tax or charge being payable by the
holder of such Right Certificate at the time of surrender) or
until it has been established to the Company's reasonable
satisfaction that no such tax or charge is due.
Section 10. Preference Shares Record Date. Each Person in
whose name any certificate for Preference Shares is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preference Shares represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
taxes or charges) was made; provided, however, that if the date
of such surrender and payment is a date upon which the Preference
Shares transfer books of the Company are closed, such Person
shall be deemed to have become the record holder of such shares
on, and such certificate shall be dated, the next succeeding
Business Day on which the Preference Shares transfer books of the
Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled
to any rights of a holder of Preference 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 of Shares
or Number of Rights. The Purchase Price, the number and kind of
Preference Shares or other 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
Preference Shares payable in Preference Shares, (B) subdivide the
outstanding Preference Shares, (C) combine the outstanding
Preference Shares into a smaller number of Preference Shares or
(D) issue any shares of its capital stock in a reclassification
of the Preference Shares (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 capital stock issuable on such
date, shall be proportionately adjusted so that the holder of any
Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if
such Right had been exercised immediately prior to such date and
at a time when the Preference Shares transfer books of the
Company were open, such holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of
one Right. If an event occurs which would require an adjustment
under both this Section 11(a)(i) and Section 11(a)(ii) below, 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) below.
(ii) Subject to Section 24 of this Agreement, in the
event any Person, alone or together with its Affiliates and
Associates, becomes an Acquiring Person, each holder of a Right
shall thereafter have a right to receive, upon exercise thereof
at a price equal to the then current Purchase Price multiplied by
the number of one one-thousandths of a Preference Share for which
the Right is then exercisable, in accordance with the terms of
this Agreement and in lieu of Preference Shares, such number of
Common Shares of the Company as shall equal the result obtained
by (x) multiplying the then current Purchase Price by the number
of one one-thousandths of a Preference Share for which a Right is
then exercisable and dividing that product by (y) 50% of the then
current per share market price of the Company's Common Shares
(determined pursuant to Section 11(d) hereof) on the date of the
occurrence of such event. In the event that any Person shall
become an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the
Rights. From and after the time at which any Person, alone or
together with its Affiliates and Associates, becomes an Acquiring
Person, any Rights that are or were acquired or beneficially
owned by any Acquiring Person (or any Associate or Affiliate of
such Acquiring Person) shall be null and void and any holder of
such Rights shall thereafter have no right to exercise such
Rights under any provision of this Agreement. No Right
Certificate shall be issued pursuant to Section 3 that represents
Rights beneficially owned by an Acquiring Person whose Rights
would be null and void pursuant to the preceding sentence or any
Associate or Affiliate thereof; no Right Certificate shall be
issued at any time upon the transfer of any Rights to an
Acquiring Person whose Rights would be null and void pursuant to
the preceding sentence or any Associate or Affiliate thereof or
to any nominee of such Acquiring Person, Associate or Affiliate;
and any Right Certificate delivered to the Rights Agent for
transfer to an Acquiring Person whose Rights would be null and
void pursuant to the preceding sentence shall be cancelled.
(iii) If the number of Common Shares that are
authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercise
in full of the Rights in accordance with Section 11(a)(ii)
hereof, the Company shall (A) determine an amount (the "Excess
Amount") equal to the excess of the value (the "Current Value")
of the aggregate number of Common Shares that would otherwise be
issuable upon the exercise of a Right in accordance with Section
11(a)(ii) hereof over the Purchase Price and (B) with respect to
each Right, substitute for such Common Shares, upon payment of
the applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Shares (to the extent available) or
other equity securities of the Company, (4) debt securities of
the Company, (5) other assets or (6) any combination of the
foregoing, having an aggregate value equal to the Current Value
(less the amount of any reduction in the Purchase Price), where
such aggregate value has been determined by a majority of the
Independent Directors and the Board of Directors of the Company,
based upon the advice of a nationally recognized investment
banking firm selected by the Board of Directors of the Company;
provided, however, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within 30 days following the date upon which any Person, alone or
together with its Affiliates and Associates, becomes an Acquiring
Person (the "Section 11(a)(ii) Trigger Date"), then the Company
shall be obligated to deliver, upon the surrender for exercise of
a Right and without requiring payment of the Purchase Price,
Common Shares (to the extent available) and then, if necessary,
cash, securities and/or assets that have an aggregate value equal
to the Excess Amount, where such aggregate value has been
determined by a majority of the Independent Directors and the
Board of Directors of the Company based upon the advice of a
nationally recognized investment banking firm selected by the
Board of Directors of the Company; provided, further, however,
that if the Independent Directors shall determine in good faith
that it is likely that sufficient additional Common Shares could
be authorized for issuance upon exercise of the Rights in full,
the 30-day period referred to above (such period, as it may be
extended, being referred to hereinafter as the "Substitution
Period") may, in the sole discretion of the Independent
Directors, be extended to the extent necessary, but not more than
90 days following the Section 11(a)(ii) Trigger Date, in order
for the Company to seek shareholder approval for the
authorization of such additional shares. To the extent that
action is to be taken pursuant to the first sentence of this
Section 11(a)(iii), the Company (1) shall provide, subject to the
exceptions specified in Section 11(a)(ii) hereof, that such
action shall to the maximum extent possible apply uniformly to
the holders of all outstanding Rights that shall not have become
null and void and (2) may suspend the exercisability of the
Rights until the expiration of the Substitution Period in order
to seek any corporate authorizations, to decide the appropriate
form of distribution to be made pursuant to such first sentence,
to determine the value thereof, or to take any combination of
such actions. In the event of any such suspension, the Company
shall issue a public announcement (with prompt notice thereof to
the Rights Agent) stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement
(with prompt notice thereof to the Rights Agent) at such time as
the suspension is no longer in effect. For purposes of this
Section 11(a)(iii), the value of the Common Shares shall be the
current per share market price per Common Share (as determined
pursuant to Section 11(d) hereof) on the Section 11(a)(ii)
Trigger Date. For purposes of this paragraph, "Independent
Director" shall mean any member of the Board of Directors of the
Company, while such person is a member of the Board, who is not
an Acquiring Person, or an Affiliate or Associate of an Acquiring
Person, or a representative or nominee of an Acquiring Person or
of any such Affiliate or Associate, and was a member of the Board
prior to the time that any Person becomes an Acquiring Person,
and any successor of an Independent Director, while such
successor is a member of the Board, who is not an Acquiring
Person or an Affiliate or Associate of an Acquiring Person, or a
representative or nominee of an Acquiring Person or of any such
Affiliate or Associate, and is recommended or elected to succeed
the Independent Director by a majority of the Independent
Directors.
(b) In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of
Preference Shares entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Preference Shares (or shares having the same rights,
privileges and preferences as the Preference Shares ("equivalent
preference shares")) or securities convertible into Preference
Shares or equivalent preference shares at a price per Preference
Share or equivalent preference share (or having a conversion
price per share, if a security convertible into Preference Shares
or equivalent preference shares) less than the then current per
share market price (as defined in Section 11(d)) on such record
date, the Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of Preference Shares
outstanding on such record date plus the number of Preference
Shares which the aggregate offering price of the total number of
Preference Shares and/or equivalent preference shares so to be
offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
current market price and the denominator of which shall be the
number of Preference Shares outstanding on such record date plus
the number of additional Preference Shares and/or equivalent
preference shares to be offered for subscription or purchase (or
into which the convertible securities so to be offered are
initially convertible); provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock
of the Company issuable upon exercise of one Right. 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. Preference
Shares owned by or held for the account of the Company shall not
be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record
date is fixed, and in the event that such rights, options or
warrants are not so issued, the Purchase Price shall be adjusted
to be the Purchase Price which would then be in effect if such
record date had not been fixed.
(c) In case the Company shall fix a record date for the
making of a distribution to all holders of the Preference Shares
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or assets
(other than a regular quarterly cash dividend or a dividend
payable in Preference Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the then current per share market
price of the Preference Shares 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
assets or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to one Preference
Share and the denominator of which shall be such current per
share market price of the Preference Shares; provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company to be issued upon exercise
of one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(d)(i) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security"
for the purpose of this Section 11(d)(i)) on any particular date
shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as
such term is hereinafter defined) immediately prior to but not
including such date; provided, however, that in the event that
the current per share market price of the Security is determined
during a period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into
such shares, or (B) any subdivision, combination or
reclassification of such Security and prior to the expiration of
30 Trading Days after but not including 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 per share market price shall be
appropriately adjusted to reflect the current market price per
share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock
Exchange or, if the Security is not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or such other system then in use, or, if on any such
date the Security is 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 Security
selected by the Board of Directors of the Company, or, if on any
such date no such market maker is making a market in the
Security, the fair value of the Security on such date as
determined in good faith by the Board of Directors of the
Company. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Security is
listed or admitted to trading is open for the transaction of
business or, if the Security is not listed or admitted to trading
on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, the
"current per share market price" of the Preference Shares shall
be determined in accordance with the method set forth in Section
11(d)(i). If the Preference Shares are not publicly traded, the
"current per share market price" of a Preference Share shall be
conclusively deemed to be the current per share market price of a
Common Share as determined pursuant to Section 11(d)(i)
(appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof),
multiplied by 1,000. If neither the Common Shares nor the
Preference Shares are publicly held or so listed or traded,
"current per share market price" 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.
(e) No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of
at least 1% in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest one one-millionth of a Preference Share or one
ten-thousandth of any other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which requires such adjustment or (ii) the date of
the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital
stock of the Company other than Preference Shares, thereafter the
number of such other shares so receivable upon exercise of any
Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Preference Shares contained in
Section 11(a) through (c), inclusive, and the provisions of
Sections 7, 9, 10 and 13 with respect to the Preference Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of one one-thousandths of a Preference Share
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase
Price as a result of the calculations made in Sections 11(b) and
(c), each Right outstanding immediately prior to the making of
such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-
thousandths of a Preference Share (calculated to the nearest one
one-millionth of a Preference Share) obtained by (i) multiplying
(x) the number of one one-thousandths of a share covered by a
Right immediately prior to this adjustment by (y) the Purchase
Price in effect immediately prior to such adjustment of the
Purchase Price and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment of the
Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of one one-
thousandths of a Preference Share purchasable upon the exercise
of a Right. Each of the Rights outstanding after such adjustment
of the number of Rights shall be exercisable for the number of
one one-thousandths of a Preference Share 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
(with prompt notice thereof to the Rights Agent) of its election
to adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which
the Purchase Price is adjusted or any day thereafter, but, if the
Right Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number
of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of
record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company,
shall cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender
thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled
after such adjustment. Right Certificates so to be distributed
shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the
holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of one one-thousandths of a
Preference Share issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue
to express the Purchase Price and the number of one one-
thousandths of a Preference Share which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below one one-thousandth of the then
par value, if any, of the Preference Shares issuable upon
exercise of the Rights, the Company shall take any corporate
action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully paid
and nonassessable Preference Shares at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require that
an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer
(and shall promptly give the Rights Agent notice of such
deferral) until the occurrence of such event the issuance to the
holder of any Right exercised after such record date of the
Preference Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
Preference Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the
Preference Shares, issuance wholly for cash of any Preference
Shares at less than the current market price, issuance wholly for
cash of Preference Shares or securities which by their terms are
convertible into or exchangeable for Preference Shares, dividends
on Preference Shares payable in Preference Shares or issuance of
rights, options or warrants referred to hereinabove in Section
11(b), hereafter made by the Company to holders of its Preference
Shares, shall not be taxable to such shareholders.
(n) In the event that at any time after the date of this
Agreement and prior to the Distribution Date, the Company shall
(i) declare or pay any dividend on the Common Shares payable in
Common Shares or (ii) effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into a
greater or lesser number of Common Shares, then in any such case
(A) the number of one one-thousandths of a Preference Share
purchasable after such event upon proper exercise of each Right
shall be determined by multiplying the number of one one-
thousandths of a Preference Share so purchasable immediately
prior to such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such event
and the denominator of which is the number of Common Shares
outstanding immediately after such event, and (B) each Common
Share outstanding immediately after such event shall have issued
with respect to it that number of Rights which each Common Share
outstanding immediately prior to such event had issued with
respect to it. The adjustments provided for in this Section
11(n) shall be made successively whenever such a dividend is
declared or paid or such a subdivision, combination or
consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement
of the facts and computations accounting for such adjustment, (b)
file with the Rights Agent and with each transfer agent for the
Common Shares or the Preference Shares a copy of such certificate
and (c) subject to Section 25(c), mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 25
hereof. Notwithstanding the foregoing sentence, the failure of
the Company to give such notice shall not affect the validity of
or the force or effect of or the requirement of such adjustment.
The Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall
have no duty with respect to and shall not be deemed to have
knowledge of any adjustment unless and until it shall have
received such a certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event, directly or indirectly,
at any time after a Person has become an Acquiring Person, (a)
the Company shall consolidate with, or merge with and into, any
other Person, (b) any Person shall consolidate with the Company,
or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Shares
shall be changed into or exchanged for stock or other securities
of any other Person (or the Company) or cash or any other
property, or (c) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise
transfer), in one or more transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other
Person other than the Company or one or more of its wholly-owned
Subsidiaries, then, and in each such case, proper provision shall
be made so that (i) each holder of a Right (except as otherwise
provided herein) shall thereafter have the right to receive, upon
the exercise thereof at a price equal to the then current
Purchase Price multiplied by the number of one one-thousandths of
a Preference Share for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of
Preference Shares, such number of Common Shares of such other
Person (including the Company as successor thereto or as the
surviving corporation) as shall equal the result obtained by (A)
multiplying the then current Purchase Price by the number of one
one-thousandths of a Preference Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then
current per share market price of the Common Shares of such other
Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Shares shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable
upon the exercise of the Rights. The Company shall not
consummate any such consolidation, merger, sale or transfer
unless prior thereto the Company and such issuer shall have
executed and delivered to the Rights Agent a supplemental
agreement so providing. The Company shall not enter into any
transaction of the kind referred to in this Section 13 if at the
time of such transaction there are any rights, warrants,
instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such
transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The provisions
of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid
to the registered holders of the Right Certificates with regard
to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing
price of the Rights (as determined pursuant to the second
sentence of Section 11(d)(i) hereof) for the Trading Day
immediately prior to the date on which such fractional Rights
would have been otherwise issuable.
(b) The Company shall not be required to issue fractions of
Preference Shares (other than fractions which are integral
multiples of one one-thousandth of a Preference Share) upon
exercise of the Rights or to distribute certificates which
evidence fractional Preference Shares (other than fractions which
are integral multiples of one one-thousandth of a Preference
Share). Fractions of Preference Shares in integral multiples of
one one-thousandth of a Preference Share may, at the election of
the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary
selected by it; provided, that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Preference Shares represented by such
depositary receipts. In lieu of fractional Preference Shares
that are not integral multiples of one one-thousandth of a
Preference Share, the Company shall pay to the registered holders
of Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of one Preference Share. For the
purposes of this Section 14(b), the current market value of a
Preference Share shall be the closing price of a Preference Share
(as determined pursuant to the second sentence of Section
11(d)(i) 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 such holder's right to receive any fractional
Rights or any fractional shares upon exercise of a Right (except
as provided above).
Section 15. Rights of Action. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common
Shares), without the consent of the Rights Agent or of the holder
of any other Right Certificate (or, prior to the Distribution
Date, of the Common Shares), may, in such holder's own behalf and
for such holder's own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to
exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at law for
any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief
against actual or threatened violations of the obligations of any
Person subject to, this Agreement.
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will not be
evidenced by a Rights Certificate and will be transferable only
in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the Designated Office of the Rights Agent, duly
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificate or the associated Common Shares
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder of a Right, as such, shall be entitled to
vote, receive dividends or be deemed for any purpose the holder
of the Preference Shares or any other securities of the Company
which may at any time be issuable upon the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Right Certificate be construed to confer upon the holder of
any Rights, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting
stockholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by such Right Certificate shall have
been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent. (a) The Company
agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and counsel
fees and other disbursements incurred in the preparation,
execution, delivery, administration and any amendment of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability,
damage, judgment, fine, penalty, claim, demand, settlement, cost
or expense, incurred without gross negligence, bad faith or
willful misconduct on the part of the Rights Agent, for any
action taken, suffered or omitted by the Rights Agent in
connection with the acceptance and administration of this
Agreement, including without limitation the costs and expenses of
defending against any claim of liability in the premises.
Anything to the contrary notwithstanding, in no event shall the
Rights Agent be liable for special, indirect, consequential or
incidental 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. The Rights
Agent shall promptly notify the Company of any claim for which it
may seek indemnity. The Company shall defend any such claim for
which the Rights Agent is entitled to indemnification and the
Rights Agent shall cooperate in the defense. The Rights Agent
may engage separate counsel to review the progress of the defense
to any claim and to advise the Rights Agent as to its obligation
to cooperate in such defense, and the Company shall pay the
reasonable fees and expenses of such counsel.
(b) The Rights Agent shall be authorized and protected and
shall incur no liability for, or in respect of any action taken,
suffered or omitted by it in connection with, its acceptance and
administration of this Agreement in reliance upon any Right
Certificate or certificate for the Preference Shares or Common
Shares or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate
(including certificates delivered under Section 12), 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.
(c) The Rights Agent has no duty to determine when an
adjustment under this Rights Agreement should be made, how it
should be made, or what it should be. The Rights Agent makes no
representation as to the validity or value of any securities or
assets issued upon exercise of the Rights. The Rights Agent
shall not be responsible for the Company's failure to comply with
this Agreement. Each Co-Rights Agent shall have the same
protection under this Section as the Rights Agent.
(d) If the Rights become listed, and for as long thereafter
as the Rights remain listed, on the New York Stock Exchange, the
Rights Agent shall maintain such facilities in the area located
south of Chambers Street in the Borough of Manhattan, New York,
New York, as are required by Section 6 of the New York Stock
Exchange Listed Company Manual.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. (a) Any Person into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any Person succeeding to the stock
transfer or shareholder service business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto; provided, that such Person 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 Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates
either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of
the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
undertakes only the duties and obligations expressly imposed by
this Agreement upon the following terms and conditions, by all of
which the Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the advice or opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent, and the Rights Agent shall incur
no liability for or in respect of, any action taken, suffered or
omitted by it in good faith and in accordance with such 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 per share market price") be proved or established by the
Company prior to taking, suffering or omitting to take any action
hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, the Chief Executive
Officer, the President, any Vice President, the Treasurer or the
Secretary of the Company and delivered to the Rights Agent; and
such certificate shall be full authorization and protection to
the Rights Agent, and the Rights Agent shall incur no liability
for or in respect of, any action taken, suffered or omitted in
good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own gross negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not have any liability for or be
under any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in
this Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights
(including the Rights becoming null and void pursuant to Section
11(a)(ii) hereof) or any adjustment in the terms of the Rights
(including the manner, method or amount thereof) provided for in
Section 3, 11, 13, 23 or 24, or the ascertaining of the existence
of facts that would require any such change or adjustment (except
with respect to the exercise of Rights evidenced by Right
Certificates after actual notice that such change or adjustment
is required); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or
reservation of any Preference Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any
Preference Shares will, when issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the
Treasurer or the Secretary of the Company, and to apply to such
officers for advice or instructions in connection with its
duties, and such instructions shall be full authorization and
protection to the Rights Agent and the Rights Agent shall incur
no liability for or in respect of any action taken, omitted to be
taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while
waiting for those instructions.
(h) The Rights Agent and any stockholder, affiliate,
director, officer or employee of the Rights Agent may buy, sell
or deal in any of the Rights or other securities of the Company
or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for
the Company or for any other Person.
(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, absent gross negligence, bad
faith or willful misconduct in the selection and continued
employment thereof.
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 Common
Shares or Preference Shares by registered or certified mail, and,
after the Distribution Date, to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent (with or without
cause) upon 30 days' notice in writing mailed to the Rights Agent
or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares or Preference Shares by
registered or certified mail, and, after the Distribution Date,
to the holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor
to the Rights Agent. 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 Right Certificate (who shall,
with such notice, submit his Right Certificates for inspection by
the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be a
Person organized and doing business under the laws of the United
States or of any other state of the United States, in good
standing, which is authorized under such laws to engage in
shareholder services and is subject to supervision or examination
by federal or state authority, or which is an Affiliate of such
institution, and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $20
million. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities
as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property
at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the
Common Shares or Preference Shares, and, after the Distribution
Date, mail a notice thereof in writing to the registered holders
of the Right Certificates. Failure to give any notice provided
for in this Section 21, however, or any defect therein, shall not
affect the legality or validity of the resignation or removal of
the Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by 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
Right Certificates made in accordance with the provisions of this
Agreement.
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to such time as any
Person becomes an Acquiring Person, redeem all but not less than
all the then outstanding Rights at a redemption price of $.01 per
Right, as such amount may be appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter
referred to as the "Redemption Price"). The redemption of the
Rights by the Board of Directors may be made effective at such
time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the redemption of the Rights pursuant to
paragraph (a) of this Section 23, and without any further action
and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price. The Company shall
promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such
notice shall not affect the validity of such redemption. Within
10 days after such action of the Board of Directors ordering the
redemption of the Rights, the Company shall mail a notice of
redemption to the Rights Agent and to all the holders of the then
outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent
for the Common Shares. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be
made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23 or in Section 24 hereof, and other than in
connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes
an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have
become null and void pursuant to the provisions of Section
11(a)(ii) hereof) for Common Shares at an exchange ratio of one
Common Share per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors of the Company shall not be
empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any such Subsidiary, or
any trust or other entity holding Common Shares for or pursuant
to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Common Shares then outstanding.
(b) Immediately upon the action of the Board of Directors
of the Company ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of Common Shares equal to
the number of such Rights held by such holder multiplied by the
Exchange Ratio. The Company shall promptly give public notice
(including prompt notice to the Rights Agent) of any such
exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such
exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by
which the exchange of the Common Shares for Rights will be
effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become null and void pursuant to the provisions
of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Common
Shares issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company may take any such action as may be
necessary to authorize additional Common Shares 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 Common Shares in a timely
manner, the Company may substitute, for each Common Share that
would otherwise be issuable upon exchange of a Right, a number of
Preference Shares or fraction thereof such that the current per
share market price of one Preference Share multiplied by such
number or fraction is equal to the current per share market price
of one Common Share as of the date of issuance of such Preference
Shares or fraction thereof.
(d) The Company shall not be required to issue fractions of
Common Shares or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common
Shares, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional Common
Shares would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole Common
Share. For the purposes of this paragraph (d), the current
market value of a whole Common Share shall be the closing price
of a Common Share (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior
to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of
any class to the holders of its Preference Shares or to make any
other distribution to the holders of its Preference Shares (other
than a regular quarterly cash dividend), (ii) to offer to the
holders of its Preference Shares rights or warrants to subscribe
for or to purchase any additional Preference Shares or shares of
stock of any class or any other securities, rights or options,
(iii) to effect any reclassification of its Preference Shares
(other than a reclassification involving only the subdivision of
outstanding Preference Shares), (iv) to effect any consolidation
or merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one or more transactions, of 50% or more
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, or (v) to
effect the liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to the Rights
Agent and to each holder of a Right Certificate, 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, or distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to take
place and the date of participation therein by the holders of the
Preference Shares, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of the Preference Shares for
purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the
holders of the Preference Shares, whichever shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof
shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of
such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
(c) Notwithstanding anything in this Agreement to the
contrary, prior to the Distribution Date a filing by the Company
with the Securities and Exchange Commission shall constitute
sufficient notice to the holders of securities of the Company,
including the Rights (but not to the Rights Agent), for purposes
of this Agreement and no other notice need be given.
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 Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Trico Marine Services, Inc.
2401 Fountainview, Suite 920
Houston, Texas 77057
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 Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
ChaseMellon Shareholder Services, L.L.C.
2323 Bryan Street
Suite 2300
Dallas, Texas 75201
Attention: Relationship Manager
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate 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. (a) The Company
may from time to time supplement or amend this Agreement without
the approval of any holders of Rights in order to cure any
ambiguity, to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions with respect
to the Rights which the Company may deem necessary or desirable,
any such supplement or amendment to be evidenced by a writing
signed by the Company and the Rights Agent; provided, however,
that from and after such time as any Person becomes an Acquiring
Person, this Agreement shall not be amended in any manner which
would adversely affect the interests of the holders of Rights.
The Rights Agent shall have no duty or obligation to enter into
any amendment to this Agreement or to supplement this Agreement
if such amendment or supplement will change or increase the
duties or obligations of the Rights Agent.
(b) Without limiting the foregoing, the Company may at any
time prior to such time as any Person becomes an Acquiring Person
amend this Agreement to lower the thresholds set forth in
Sections 1(a) and 3(a) to not less than the greater of (i) the
sum of .001% and the largest percentage of the outstanding Common
Shares then known by the Company to be beneficially owned by any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or any Subsidiary of the
Company, or any trust or other entity holding Common Shares for
or pursuant to the terms of any such plan) and (ii) 10%.
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. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common
Shares) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares).
Section 30. 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.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of
such State applicable to contracts made and to be performed
entirely within such State.
Section 32. 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 33. 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 and attested, all as of the day and
year first above written.
ATTEST: TRICO MARINE SERVICES, INC.
By: /s/ Victor M. Perez
Victor M. Perez
Vice President, Chief Financial
Officer and Treasurer
ATTEST: CHASEMELLON SHAREHOLDER SERVICES,
L.L.C.
By: /s/ David M Cary
David M. Cary
Relationship Manager
Exhibit A
to Rights Agreement
CERTIFICATE OF DESIGNATIONS
of
TRICO MARINE SERVICES, INC.
We the undersigned, being the President and Chief Executive
Officer and Secretary, respectively, of Trico Marine Services,
Inc., a Delaware corporation, DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of Trico Marine
Services, Inc. (the "Company"), as amended (hereinafter the
"Certificate"), authorizes the issuance of 5,000,000 shares of
preferred stock, $0.01 par value per share ("Preferred Stock").
The Board of Directors of the Company is authorized to provide,
without further shareholder action, for the issuance of one or
more series of Preferred Sock and to fix by resolution or
resolutions the voting powers, designations, preference and
relative, participating, optional or other special rights and
qualification, limitations or restrictions thereof, of such
series.
SECOND. The Board of Directors of the Company, at a meeting
duly called and held on February 18, 1998, duly adopted the
following resolutions authorizing the creation and issuance of a
series of Preferred Stock:
RESOLVED, that the Board of Directors pursuant to authority
vested in it by the provisions of the Certificate of the Company,
hereby authorizes the issue of a series of Preferred Stock of the
Company and hereby fixes the number, designation, preferences,
rights and limitations thereof in addition to those set forth in
the Certificate as follows;
1. Series AA Participating Cumulative Preference Stock.
The Corporation's Series AA Participating Cumulative Preference
Stock shall consist of one hundred thousand (100,000) shares of
Preferred Stock having the preferences, limitations and relative
rights set forth below. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of
Series AA Participating Cumulative Preference Stock to a number
less than the number of shares then outstanding plus the number
of shares reserved for issuance upon the exercise of outstanding
options or rights or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series AA
Participating Cumulative Preference Stock.
(a) The holders of Series AA Participating Cumulative
Preference Stock shall have the following dividend rights.
(1) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series AA Participating
Cumulative Preference Stock with respect to dividends, the
holders of shares of Series AA Participating Cumulative
Preference Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the
fifteenth day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series AA Participating Cumulative Preference Stock, in
an amount per share (rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common
Stock of the Corporation since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series AA Participating
Cumulative Preference Stock. In the event the Corporation shall
at any time after February 18, 1998 (the "Right Declaration
Date") (i) declare or pay any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to
which holders of shares of Series AA Participating Cumulative
Preference Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(2) The Corporation shall declare a dividend or
distribution on the Series AA Participating Cumulative Preference
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 $1.00 per share on the
Series AA Participating Cumulative Preference Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(3) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series AA Participating
Cumulative Preference Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series AA
Participating Cumulative Preference 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 of such
shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series AA Participating
Cumulative Preference Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series AA Participating Cumulative Preference Stock
in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series AA Participating
Cumulative Preference Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than 45 days prior to the date fixed for the
payment thereof.
(b) In addition to any voting rights otherwise
required by law, the holders of shares of Series AA Participating
Cumulative Preference Stock shall have the following voting
rights:
(1) Subject to the provision for adjustment
hereinafter set forth, each share of Series AA Participating
Cumulative Preference Stock shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare
or pay any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to
which holders of shares of Series AA Participating Cumulative
Preference Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) Except as otherwise provided in the
Corporation's Certificate of Incorporation or By-laws, the
holders of shares of Series AA Participating Cumulative
Preference 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.
(3) (i) If at any time dividends on any Series
AA Participating Cumulative Preference Stock shall be in arrears
in an amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series AA Participating
Cumulative Preference Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the
Series AA Participating Cumulative Preference Stock) with
dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two Directors.
(ii) During any default period, such voting
right of the holders of Series AA Participating Cumulative
Preference Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section (b)(3) or
at any annual meeting of shareholders, and thereafter at annual
meetings of shareholders, provided that neither such voting right
nor the right of the holders of any other series of Preferred
Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of 10%
in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting
at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to
fill such vacancies, if any, in the Board of Directors as may
then exist up to two Directors or, if such right is exercised at
an annual meeting, to elect two Directors. If the number which
may be so elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock shall have
the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period
and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of
the holders of Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or pari
passu with the Series AA Participating Cumulative Preference
Stock.
(iii) Unless the holders of Preferred
Stock shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors
may order, or any shareholder or shareholders owning in the
aggregate not less than 10% of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request,
the calling of a special meeting of the holders of Preferred
Stock, which meeting shall thereupon be called by the Chairman of
the Board, the Chief Executive Officer, the President, a
Vice-President or the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this paragraph
(3)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to the holder at the
holder's last address appearing on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in
default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by
any shareholder or shareholders owning in the aggregate not less
than 10% of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph
(3)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed for
the next annual meeting of the shareholders.
(iv) In any default period, the holders of
Common Stock, and other classes of stock of the Corporation, if
applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock shall
have exercised their right to elect two Directors voting as a
class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
paragraph (3)(ii) of this Section (b)) be filled by vote of a
majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose
office shall have become vacant. References in this paragraph
(3) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred Stock
as a class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such
number as may be provided for in the Corporation's Certificate of
Incorporation or By-laws irrespective of any increase made
pursuant to the provisions of paragraph (3)(ii) of this Section
(b) (such number being subject, however, to change thereafter in
any manner provided by law or in the Corporation's Certificate of
Incorporation or By-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the
remaining Directors.
(4) Except as set forth herein, holders of Series
AA Participating Cumulative Preference Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate
action.
(c) Any shares of Series AA Participating Cumulative
Preference 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 to be created by resolution or
resolutions of the shareholders or the Board of Directors,
subject to the conditions and restrictions on issuance set forth
in the Corporation's Certificate of Incorporation.
(d) The Corporation shall abide by the following
restrictions:
(1) Whenever quarterly dividends or other
dividends or distributions payable on the Series AA
Participating Cumulative Preference Stock as provided for in
Section (a) are in arrears or the Corporation shall be in
default in payment thereof, thereafter and until all accrued
and unpaid dividends and distributions, whether or not
declared, on shares of Series AA Participating Cumulative
Preference Stock outstanding shall have been paid or set
aside for payment in full, and in addition to any and all
other rights which any holder of shares of Series AA
Participating Cumulative Preference Stock may have in such
circumstances, the Corporation shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of
stock ranking junior (either as to
dividends or upon liquidation,
dissolution or winding up) to the Series
AA Participating Cumulative Preference
Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series AA
Participating Cumulative Preference Stock, unless
dividends are paid ratably on the Series AA
Participating Cumulative Preference Stock and all such
parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series AA
Participating Cumulative Preference 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
liquidation, dissolution or winding up) to the Series
AA Participating Cumulative Preference Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series AA Participating
Cumulative Preference Stock, or any shares of stock
ranking on a parity with the Series AA Participating
Cumulative Preference Stock (either as to dividends or
upon liquidation, dissolution or winding up), except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the
Board of Directors, after consideration of the
respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(2) 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
(1) of this Section (d), purchase or otherwise acquire such
shares at such time and in such manner.
(e) Upon any liquidation, dissolution or winding up of
the Corporation, the holders of Series AA Participating
Cumulative Preference Stock shall have the following rights.
(1) Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, no
distribution shall be made to the holders of shares of stock
ranking (either as to dividends or upon liquidation, dissolution
or winding up) junior to the Series AA Participating Cumulative
Preference Stock unless, prior thereto, the holders of shares of
Series AA Participating Cumulative Preference Stock shall have
received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series AA Liquidation
Preference"). Following the payment of the full amount of the
Series AA Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series AA Participating
Cumulative Preference Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share
(the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Series AA Liquidation Preference by (ii) 1,000
(as appropriately adjusted as set forth in subparagraph (3) below
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment
of the full amount of the Series AA Liquidation Preference and
the Common Adjustment in respect of all outstanding shares of
Series AA Participating Cumulative Preference Stock and Common
Stock, respectively, holders of Series AA Participating
Cumulative Preference Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Series AA Participating
Cumulative Preference Stock and Common Stock, on a per share
basis, respectively.
(2) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series AA Liquidation Preference and the liquidation preferences
of all other series of Series AA Participating Cumulative
Preference Stock, if any, which rank on a parity with the Series
AA Participating Cumulative Preference Stock, then such remaining
assets shall be distributed ratably to 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 Common Adjustment then
such remaining assets shall be distributed ratably to the holders
of Common Stock.
(3) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(f) 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 converted into
other stock or securities, cash and/or any other property, then
in any such case the shares of Series AA Participating Cumulative
Preference Stock shall at the same time be similarly exchanged or
converted in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted or exchanged. In
the event the Corporation shall at any time after the Rights
Declaration Date (i) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or
conversion of shares of Series AA Participating Cumulative
Preference Stock shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(g) The shares of Series AA Participating Cumulative
Preference Stock shall not be redeemable.
(h) 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 Series AA Participating Cumulative
Preference Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series AA Participating Cumulative
Preference Stock, voting separately as a class.
(i) Series AA Participating Cumulative Preference
Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series AA Participating Cumulative Preference Stock.
* * * * * * * * * *
IN WITNESS WHEREOF, the undersigned duly authorized officers
of the Corporation have executed and delivered this Certificate
of Designations on this 19th day of February, 1998.
TRICO MARINE SERVICES, INC.
By:
Thomas E. Fairley, President a
nd
Chief Executive Officer
By:
Victor M. Perez, Secretary
Exhibit B
to Rights Agreement
Form of Right Certificate
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER FEBRUARY 19, 2008 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT
TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
TRICO MARINE SERVICES, INC.
This certifies that _________________________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement,
dated as of February 19, 1998 (the "Rights Agreement"), between
Trico Marine Services, Inc., a Delaware corporation (the
"Company"), and ChaseMellon Shareholder Services, L.L.C. (the
"Rights Agent"), to purchase from the Company at any time after
the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., local time in the State of the
principal office of the Rights Agent, on February 19, 2008 at the
principal office of the Rights Agent, or at the office of its
successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series AA Participating Cumulative
Preference Stock, par value $0.01 per share (the "Preference
Shares"), of the Company, at a purchase price of $105 per one one-
thousandth of a Preference Share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the
Form of Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of one one-
thousandths of a Preference Share which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of February 19,
1998, based on the Preference Shares as constituted as of such
date. As provided in the Rights Agreement, the Purchase Price
and the number of one one-thousandths of a Preference Share (or
other securities) which may be purchased upon the exercise of the
Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the occurrence of certain
events.
This Right 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, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and the
above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of Preference Shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $.01 per Right or (ii) may be
exchanged in whole or in part for Preference Shares or shares of
the Company's Common Stock, par value $0.01 per share.
No fractional Preference Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
Preference Share, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of the Preference Shares or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of
________________________.
ATTEST: TRICO MARINE SERVICES, INC.
By:
Name:
Title:
Countersigned:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By:
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Right Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within Right Certificate on the
books of the within-named Company, with full power of
substitution.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
The undersigned hereby certifies that the Rights evidenced
by this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement).
Signature
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented
by the Right Certificate.)
To: TRICO MARINE SERVICES, INC.
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the Preference
Shares issuable upon the exercise of such Rights and requests
that certificates for such Preference Shares be issued in the
name of:
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 Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security or other identifying number
(Please print name and address)
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
The undersigned hereby certifies that the Rights evidenced
by this Right Certificate are not beneficially owned by an
Acquiring Person or an Affiliate or Associate thereof (as defined
in the Rights Agreement).
Signature
NOTICE
The signature in the Form of Assignment or Form of Election
to Purchase, as the case may be, must conform to the name as
written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form
of Assignment or the Form of Election to Purchase, as the case
may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
Exhibit C
to Rights Agreement
SUMMARY OF RIGHTS TO PURCHASE PREFERENCE SHARES
On February 18, 1998, the Board of Directors of Trico Marine
Services, Inc. (the "Company") declared a dividend payable on
March 11, 1998 of one preferred stock purchase right (a "Right")
for each outstanding share of common stock, par value $0.01 per
share (the "Common Stock"), of the Company held of record on
March 6, 1998 (the "Record Date"), or issued thereafter and prior
to the Distribution Date (as hereinafter defined). Each Right
entitles the registered holder to purchase from the Company one
one-thousandth of a share of Series AA Participating Cumulative
Preference Stock, par value $0.01 per share (the "Preference
Shares"), of the Company at a price of $105 per one one-
thousandth of a Preference Share (the "Purchase Price"), subject
to adjustment as described below. The description and terms of
the Rights are set forth in a Rights Agreement dated as of
February 19, 1998 (the "Rights Agreement") between the Company
and ChaseMellon Shareholder Services, L.L.C., as Rights Agent
(the "Rights Agent").
Initial Status of the Rights
The Rights Agreement provides that until the earlier to
occur of (i) 10 days following a public announcement that a
person or group of affiliated or associated persons (an
"Acquiring Person") has acquired beneficial ownership of 15% or
more of the outstanding Common Stock or (ii) 10 business days (or
such later date as may be determined by action of the Board of
Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) following the commencement
of, or announcement of an intention to make, a tender offer or
exchange offer that, if consummated, would result in the
beneficial ownership by a person or group of 15% or more of the
outstanding Common Stock (the earlier of such dates being called
the "Distribution Date"), the Rights will be evidenced by the
Common Stock certificates. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will
be transferred with and only with the Common Stock. New Common
Stock certificates issued after the Record Date but prior to the
Distribution Date (or earlier redemption or expiration of the
Rights) upon transfer or new issuance of Common Stock will
contain a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption or
expiration of the Rights), the surrender for transfer of any
certificates for Common Stock outstanding as of the Record Date
will also constitute the transfer of the Rights associated with
the Common Stock represented by such certificate.
Distribution and Term of Rights
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights will be mailed to
holders of record of the Common Stock as of the close of business
on the Distribution Date and such separate certificates alone
will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on February 19, 2008 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, in each case, as described below.
Triggering Events
In the event that the Company is acquired in a merger or
other business combination transaction or 50% or more of its
consolidated assets or earning power are sold after a person or
group has become an Acquiring Person, proper provision will be
made so that each holder of a Right will thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common
stock of the acquiring company which at the time of such
transaction will have a market value of two times the exercise
price of the Right. In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person,
proper provision shall be made so that each holder of a Right,
other than Rights beneficially owned by the Acquiring Person
(which will thereafter be null and void), will thereafter have
the right to receive upon exercise that number of shares of
Common Stock having a market value at the time of such occurrence
of two times the exercise price of the Right.
Anti-Dilution
The Purchase Price payable, and the number of Preference
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of, the Preference
Shares, (ii) upon the grant to holders of the Preference Shares
of certain rights, options or warrants to subscribe for or
purchase Preference Shares at a price, or securities convertible
into Preference Shares with a conversion price, less than the
then-current market price of the Preference Shares or (iii) upon
the distribution to holders of the Preference Shares of evidences
of indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Preference Shares) or of
subscription rights or warrants (other than those referred to
above).
The number of outstanding Rights and the number of one one-
thousandths of a Preference Share issuable upon exercise of each
Right are also subject to adjustment in the event of a stock
split of the Common Stock or a stock dividend on the Common Stock
payable in Common Stock or subdivisions, consolidations or
combinations of the Common Stock occurring, in any such case,
prior to the Distribution Date.
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preference Shares will be issued (other than fractions which are
integral multiples of one one-thousandth of a Preference Share,
which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preference Shares
on the last trading day prior to the date of exercise.
Exchange and Redemption
At any time after any person or group becomes an Acquiring
Person and prior to the acquisition by such person or group of
50% or more of the outstanding Common Stock, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group which will have become null
and void), in whole or in part, at an exchange ratio of one share
of Common Stock, or one one-thousandth of a Preference Share, per
Right (subject to adjustment).
At any time prior to the acquisition by a person or group of
affiliated or associated persons of beneficial ownership of 15%
or more of the outstanding Common Stock, the Board of Directors
of the Company may redeem the Rights in whole, but not in part,
at a price of $.01 per Right (the "Redemption Price"), subject to
adjustment. The redemption of the Rights may be made effective
at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. Immediately
upon any redemption of the Rights, the right to exercise the
Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
Rights, Preferences and Limitations of Purchase Rights
Preference Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preference Share will be entitled
to a minimum preferential quarterly dividend payment of the
greater of $1.00 or 1,000 the aggregate dividend declared per
share of Common Stock. In the event of liquidation, the holders
of the Preference Shares will be entitled to a minimum
preferential liquidation payment of $100 per share and, under
certain circumstances, may be entitled to receive additional
distributions. Each Preference Share will entitle the holder to
1,000 votes, voting together with the Common Stock. Finally, in
the event of any merger, consolidation or other transaction in
which Common Stock is exchanged, each Preference Share will be
entitled to receive 1,000 times the amount received per share of
Common Stock. These rights are protected by customary
antidilution provisions. Because of the nature of Preference
Shares' dividend, liquidation and voting rights, the value of
each one one-thousandth interest in a Preference Share
purchasable upon exercise of each Right should approximate the
value of a share of Common Stock.
Amendments
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, including an amendment to lower the 15% thresholds
described above to not less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common Stock
then known to the Company to be beneficially owned by any person
or group of affiliated or associated persons and (ii) 10%, except
that from and after such time as any person or group of
affiliated or associated persons becomes an Acquiring Person, no
such amendment may adversely affect the interests of the holders
of the Rights.
Miscellaneous
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company.
However, the Rights may cause substantial dilution to a person or
group that acquires 15% or more of the Common Stock unless the
Rights are first redeemed by the Board of Directors.
Nevertheless, the Rights should not interfere with any merger or
other business combination approved by the Board of Directors
since the Rights may be redeemed by the Company as described
above.
While the dividend of the Rights will not be taxable to the
stockholders or to the Company, stockholders or the company may,
depending upon the circumstances, recognize taxable income in the
event that the Rights become exercisable as described above.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated March _____, 1998. A
copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to
the Rights Agreement, which is hereby incorporated herein by
reference.
CERTIFICATE OF DESIGNATIONS
of
TRICO MARINE SERVICES, INC.
We the undersigned, being the President and Chief Executive
Officer and Secretary, respectively, of Trico Marine Services,
Inc., a Delaware corporation, DO HEREBY CERTIFY:
FIRST. The Certificate of Incorporation of Trico Marine
Services, Inc. (the "Company"), as amended (hereinafter the
"Certificate"), authorizes the issuance of 5,000,000 shares of
preferred stock, $0.01 par value per share ("Preferred Stock").
The Board of Directors of the Company is authorized to provide,
without further shareholder action, for the issuance of one or
more series of Preferred Sock and to fix by resolution or
resolutions the voting powers, designations, preference and
relative, participating, optional or other special rights and
qualification, limitations or restrictions thereof, of such
series.
SECOND. The Board of Directors of the Company, at a meeting
duly called and held on February 18, 1998, duly adopted the
following resolutions authorizing the creation and issuance of a
series of Preferred Stock:
RESOLVED, that the Board of Directors pursuant to authority
vested in it by the provisions of the Certificate of the Company,
hereby authorizes the issue of a series of Preferred Stock of the
Company and hereby fixes the number, designation, preferences,
rights and limitations thereof in addition to those set forth in
the Certificate as follows;
1. Series AA Participating Cumulative Preference Stock.
The Corporation's Series AA Participating Cumulative Preference
Stock shall consist of one hundred thousand (100,000) shares of
Preferred Stock having the preferences, limitations and relative
rights set forth below. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided,
however, that no decrease shall reduce the number of shares of
Series AA Participating Cumulative Preference Stock to a number
less than the number of shares then outstanding plus the number
of shares reserved for issuance upon the exercise of outstanding
options or rights or upon the conversion of any outstanding
securities issued by the Corporation convertible into Series AA
Participating Cumulative Preference Stock.
(a) The holders of Series AA Participating Cumulative
Preference Stock shall have the following dividend rights.
(1) Subject to the rights of the holders of any
shares of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series AA Participating
Cumulative Preference Stock with respect to dividends, the
holders of shares of Series AA Participating Cumulative
Preference Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally available
for the purpose, quarterly dividends payable in cash on the
fifteenth day of March, June, September and December in each year
(each such date being referred to herein as a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend
Payment Date after the first issuance of a share or fraction of a
share of Series AA Participating Cumulative Preference Stock, in
an amount per share (rounded to the nearest cent) equal to the
greater of (a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the aggregate
per share amount (payable in kind) of all non-cash dividends or
other distributions other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common
Stock (by reclassification or otherwise), declared on the Common
Stock of the Corporation since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series AA Participating
Cumulative Preference Stock. In the event the Corporation shall
at any time after February 19, 1998 (the "Right Declaration
Date") (i) declare or pay any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common
Stock, or (iii) combine the outstanding Common Stock into a
smaller number of shares, then in each such case the amount to
which holders of shares of Series AA Participating Cumulative
Preference Stock were entitled immediately prior to such event
under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
(2) The Corporation shall declare a dividend or
distribution on the Series AA Participating Cumulative Preference
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 $1.00 per share on the
Series AA Participating Cumulative Preference Stock shall
nevertheless be payable on such subsequent Quarterly Dividend
Payment Date.
(3) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series AA Participating
Cumulative Preference Stock from the Quarterly Dividend Payment
Date next preceding the date of issue of such shares of Series AA
Participating Cumulative Preference 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 of such
shares shall begin to accrue from the date of issue of such
shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the
determination of holders of shares of Series AA Participating
Cumulative Preference Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to accrue and
be cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series AA Participating Cumulative Preference Stock
in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time
outstanding. The Board of Directors may fix a record date for
the determination of holders of shares of Series AA Participating
Cumulative Preference Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date
shall be no more than 45 days prior to the date fixed for the
payment thereof.
(b) In addition to any voting rights otherwise
required by law, the holders of shares of Series AA Participating
Cumulative Preference Stock shall have the following voting
rights:
(1) Subject to the provision for adjustment
hereinafter set forth, each share of Series AA Participating
Cumulative Preference Stock shall entitle the holder thereof to
1,000 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare
or pay any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of
shares, then in each such case the number of votes per share to
which holders of shares of Series AA Participating Cumulative
Preference Stock were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(2) Except as otherwise provided in the
Corporation's Certificate of Incorporation or By-laws, the
holders of shares of Series AA Participating Cumulative
Preference 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.
(3) (i) If at any time dividends on any Series
AA Participating Cumulative Preference Stock shall be in arrears
in an amount equal to six quarterly dividends thereon, the
occurrence of such contingency shall mark the beginning of a
period (herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly
dividend period on all shares of Series AA Participating
Cumulative Preference Stock then outstanding shall have been
declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the
Series AA Participating Cumulative Preference Stock) with
dividends in arrears in an amount equal to six quarterly
dividends thereon, voting as a class, irrespective of series,
shall have the right to elect two Directors.
(ii) During any default period, such voting
right of the holders of Series AA Participating Cumulative
Preference Stock may be exercised initially at a special meeting
called pursuant to subparagraph (iii) of this Section (b)(3) or
at any annual meeting of shareholders, and thereafter at annual
meetings of shareholders, provided that neither such voting right
nor the right of the holders of any other series of Preferred
Stock, if any, to increase, in certain cases, the authorized
number of Directors shall be exercised unless the holders of 10%
in number of shares of Preferred Stock outstanding shall be
present in person or by proxy. The absence of a quorum of the
holders of Common Stock shall not affect the exercise by the
holders of Preferred Stock of such voting right. At any meeting
at which the holders of Preferred Stock shall exercise such
voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to
fill such vacancies, if any, in the Board of Directors as may
then exist up to two Directors or, if such right is exercised at
an annual meeting, to elect two Directors. If the number which
may be so elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock shall have
the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have
exercised their right to elect Directors in any default period
and during the continuance of such period, the number of
Directors shall not be increased or decreased except by vote of
the holders of Preferred Stock as herein provided or pursuant to
the rights of any equity securities ranking senior to or pari
passu with the Series AA Participating Cumulative Preference
Stock.
(iii) Unless the holders of Preferred
Stock shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of Directors
may order, or any shareholder or shareholders owning in the
aggregate not less than 10% of the total number of shares of
Preferred Stock outstanding, irrespective of series, may request,
the calling of a special meeting of the holders of Preferred
Stock, which meeting shall thereupon be called by the Chairman of
the Board, the Chief Executive Officer, the President, a
Vice-President or the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at which holders of
Preferred Stock are entitled to vote pursuant to this paragraph
(3)(iii) shall be given to each holder of record of Preferred
Stock by mailing a copy of such notice to the holder at the
holder's last address appearing on the books of the Corporation.
Such meeting shall be called for a time not earlier than 20 days
and not later than 60 days after such order or request or in
default of the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar notice by
any shareholder or shareholders owning in the aggregate not less
than 10% of the total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph
(3)(iii), no such special meeting shall be called during the
period within 60 days immediately preceding the date fixed for
the next annual meeting of the shareholders.
(iv) In any default period, the holders of
Common Stock, and other classes of stock of the Corporation, if
applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock shall
have exercised their right to elect two Directors voting as a
class, after the exercise of which right (x) the Directors so
elected by the holders of Preferred Stock shall continue in
office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as provided in
paragraph (3)(ii) of this Section (b)) be filled by vote of a
majority of the remaining Directors theretofore elected by the
holders of the class of stock which elected the Director whose
office shall have become vacant. References in this paragraph
(3) to Directors elected by the holders of a particular class of
stock shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred Stock
as a class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock as a class
shall terminate, and (z) the number of Directors shall be such
number as may be provided for in the Corporation's Certificate of
Incorporation or By-laws irrespective of any increase made
pursuant to the provisions of paragraph (3)(ii) of this Section
(b) (such number being subject, however, to change thereafter in
any manner provided by law or in the Corporation's Certificate of
Incorporation or By-laws). Any vacancies in the Board of
Directors effected by the provisions of clauses (y) and (z) in
the preceding sentence may be filled by a majority of the
remaining Directors.
(4) Except as set forth herein, holders of Series
AA Participating Cumulative Preference Stock shall have no
special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate
action.
(c) Any shares of Series AA Participating Cumulative
Preference 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 to be created by resolution or
resolutions of the shareholders or the Board of Directors,
subject to the conditions and restrictions on issuance set forth
in the Corporation's Certificate of Incorporation.
(d) The Corporation shall abide by the following
restrictions:
(1) Whenever quarterly dividends or other
dividends or distributions payable on the Series AA
Participating Cumulative Preference Stock as provided for in
Section (a) are in arrears or the Corporation shall be in
default in payment thereof, thereafter and until all accrued
and unpaid dividends and distributions, whether or not
declared, on shares of Series AA Participating Cumulative
Preference Stock outstanding shall have been paid or set
aside for payment in full, and in addition to any and all
other rights which any holder of shares of Series AA
Participating Cumulative Preference Stock may have in such
circumstances, the Corporation shall not:
(i) declare or pay dividends, or make any
other distributions, on any shares of
stock ranking junior (either as to
dividends or upon liquidation,
dissolution or winding up) to the Series
AA Participating Cumulative Preference
Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series AA
Participating Cumulative Preference Stock, unless
dividends are paid ratably on the Series AA
Participating Cumulative Preference Stock and all such
parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise
acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series AA
Participating Cumulative Preference 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
liquidation, dissolution or winding up) to the Series
AA Participating Cumulative Preference Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series AA Participating
Cumulative Preference Stock, or any shares of stock
ranking on a parity with the Series AA Participating
Cumulative Preference Stock (either as to dividends or
upon liquidation, dissolution or winding up), except in
accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the
Board of Directors, after consideration of the
respective annual dividend rates and other relative
rights and preferences of the respective series and
classes, shall determine in good faith will result in
fair and equitable treatment among the respective
series or classes.
(2) 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
(1) of this Section (d), purchase or otherwise acquire such
shares at such time and in such manner.
(e) Upon any liquidation, dissolution or winding up of
the Corporation, the holders of Series AA Participating
Cumulative Preference Stock shall have the following rights.
(1) Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, no
distribution shall be made to the holders of shares of stock
ranking (either as to dividends or upon liquidation, dissolution
or winding up) junior to the Series AA Participating Cumulative
Preference Stock unless, prior thereto, the holders of shares of
Series AA Participating Cumulative Preference Stock shall have
received $100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not
declared, to the date of such payment (the "Series AA Liquidation
Preference"). Following the payment of the full amount of the
Series AA Liquidation Preference, no additional distributions
shall be made to the holders of shares of Series AA Participating
Cumulative Preference Stock unless, prior thereto, the holders of
shares of Common Stock shall have received an amount per share
(the "Common Adjustment") equal to the quotient obtained by
dividing (i) the Series AA Liquidation Preference by (ii) 1,000
(as appropriately adjusted as set forth in subparagraph (3) below
to reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock) (such number
in clause (ii), the "Adjustment Number"). Following the payment
of the full amount of the Series AA Liquidation Preference and
the Common Adjustment in respect of all outstanding shares of
Series AA Participating Cumulative Preference Stock and Common
Stock, respectively, holders of Series AA Participating
Cumulative Preference Stock and holders of shares of Common Stock
shall receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the Adjustment
Number to 1 with respect to such Series AA Participating
Cumulative Preference Stock and Common Stock, on a per share
basis, respectively.
(2) In the event, however, that there are not
sufficient assets available to permit payment in full of the
Series AA Liquidation Preference and the liquidation preferences
of all other series of Series AA Participating Cumulative
Preference Stock, if any, which rank on a parity with the Series
AA Participating Cumulative Preference Stock, then such remaining
assets shall be distributed ratably to 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 Common Adjustment then
such remaining assets shall be distributed ratably to the holders
of Common Stock.
(3) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any dividend
on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding
Common Stock into a smaller number of shares, then in each such
case the Adjustment Number in effect immediately prior to such
event shall be adjusted by multiplying such Adjustment Number by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(f) 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 converted into
other stock or securities, cash and/or any other property, then
in any such case the shares of Series AA Participating Cumulative
Preference Stock shall at the same time be similarly exchanged or
converted in an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for
which each share of Common Stock is converted or exchanged. In
the event the Corporation shall at any time after the Rights
Declaration Date (i) declare or pay any dividend on Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into
a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or
conversion of shares of Series AA Participating Cumulative
Preference Stock shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
(g) The shares of Series AA Participating Cumulative
Preference Stock shall not be redeemable.
(h) 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 Series AA Participating Cumulative
Preference Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series AA Participating Cumulative
Preference Stock, voting separately as a class.
(i) Series AA Participating Cumulative Preference
Stock may be issued in fractions of a share which shall entitle
the holder, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights of
holders of Series AA Participating Cumulative Preference Stock.
* * * * * * * * * *
IN WITNESS WHEREOF, the undersigned duly authorized officers
of the Corporation have executed and delivered this Certificate
of Designations on this 19th day of February, 1998.
TRICO MARINE SERVICES, INC.
By:/s/ Thomas E. Fairley
Thomas E. Fairley, President and
Chief Executive Officer
By:/s/ Victor M. Perez
Victor M. Perez, Secretary
