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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
SEPTEMBER 17, 1998
Date of report (Date of earliest event reported)
WAVE TECHNOLOGIES INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in Charter)
MISSOURI
(State or other jurisdiction of incorporation)
0-24454 43-1481443
(Commission File No.) (IRS employer identification no.)
10845 OLIVE BOULEVARD, SUITE 250, ST. LOUIS, MISSOURI 63141
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (314)995-5767
ITEM 5. OTHER EVENTS
Adoption of Shareholder Rights Plan.
On September 17, 1998, the Board of Directors of Wave Technologies
International, Inc. (the "Company") declared a dividend of one right to purchase
preferred stock ("Right") for each outstanding share of the Company's Common
Stock, par value $0.50 per share ("Common Stock"), to shareholders of record at
the close of business on September 28, 1998. Each Right entitles the registered
holder to purchase from the Company a unit consisting of one one-thousandth of a
share (a "Fractional Share") of Series B Junior Participating Preferred Stock,
no par value per share (the "Preferred Stock"), at a purchase price of $25.00
per Fractional Share, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement dated as
of September 17, 1998, as it may from time to time be supplemented or amended
(the "Rights Agreement") between the Company and ChaseMellon Shareholder
Services, as Rights Agent.
Initially, the Rights will be attached to all certificates representing
outstanding shares of Common Stock, and no separate certificates for the Rights
("Rights Certificates") will be distributed. The Rights will separate from the
Common Stock and a "Distribution Date" will occur, with certain exceptions, upon
the earlier of (i) ten days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Common Stock (the date of the announcement being the
"Stock Acquisition Date"), or (ii) ten business days following the commencement
of a tender offer or exchange offer that would result in a person's becoming an
Acquiring Person. In certain circumstances, the Distribution Date may be
deferred by the Board of Directors. Certain inadvertent acquisitions will not
result in a
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person's becoming an Acquiring Person if the person promptly divests itself of a
sufficient amount of Common Stock. Until the Distribution Date, (a) the Rights
will be evidenced by the Common Stock certificates (together with a copy of this
Summary of Rights or bearing the notation referred to below) and will be
transferred with and only with such Common Stock certificates, (b) new Common
Stock certificates issued after September 28, 1998, will contain a notation
incorporating the Rights Agreement by reference and (c) the surrender for
transfer of any certificate for Common Stock (with or without a copy of this
Summary of Rights) will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on September 28, 2008, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date and, from and after the Distribution Date, the separate
Rights Certificates alone will represent the Rights. All shares of Common Stock
issued prior to the Distribution Date will be issued with Rights. Shares of
Common Stock issued after the Distribution Date in connection with certain
employee benefit plans or upon conversion of certain securities will be issued
with Rights. Except as otherwise determined by the Board of Directors, no other
shares of Common Stock issued after the Distribution Date will be issued with
Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring Person
(except pursuant to a tender or exchange offer for all outstanding shares of
Common Stock at a price and on terms that a majority of the independent
directors of the Company determines to be fair to and otherwise in the best
interests of the Company and its shareholders (a "Permitted Offer")), each
holder of a Right will thereafter have the right to receive, upon exercise of
such Right, a number of shares of Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a Current Market Price
(as defined in the Rights Agreement) equal to two times the exercise price of
the Right. Notwithstanding the foregoing, following the occurrence of any
Triggering Event, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by or transferred to an
Acquiring Person (or by certain related parties) will be null and void in the
circumstances set forth in the Rights Agreement. However, Rights are not
exercisable following the occurrence of any Flip-In Event until such time as the
Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $25.00 per Right, each Right not owned
by an Acquiring Person (or by certain related parties) following an event set
forth in the preceding paragraph would entitle its holder to purchase $25.00 X 2
worth of Common Stock (or other consideration, as noted above), based upon its
then Current Market Price, for $26.00. Assuming that the Common Stock had a
Current Market Price of $10.00 per share at such time, the holder of each valid
Right would be entitled to purchase 5 shares of Common Stock for $25.00.
In the event (a "Flip-Over Event") that, at any time from and after the
time an Acquiring Person becomes such, (i) the Company is acquired in a merger
or other business combination transaction (other than certain mergers that
follow a Permitted Offer), or (ii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except Rights that
are voided as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as "Triggering Events."
The number of outstanding Rights associated with a share of Common Stock,
or
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the number of Fractional Shares of Preferred Stock issuable upon exercise of a
Right and the Purchase Price, are subject to adjustment in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock occurring prior to the Distribution Date. The Purchase Price payable, and
the number of Fractional Shares of Preferred Stock or other securities or
property issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution in the event of certain transactions affecting
the Preferred Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock that are not integral multiples
of a Fractional Share are required to be issued and, in lieu thereof, an
adjustment in cash may be made based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
At any time until ten days following the first date of public announcement
of the occurrence of a Flip-In Event, the Company may redeem the Rights in
whole, but not in part, at a price of $0.01 per Right, payable, at the option of
the Company, in cash, shares of Common Stock or such other consideration as the
Board of Directors may determine. Immediately upon the effectiveness of the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the $0.01 redemption price.
At any time after the occurrence of a Flip-In Event and prior to a person's
becoming the beneficial owner of 50% or more of the shares of Common Stock then
outstanding or the occurrence of a Flip-Over Event, the Company may exchange the
Rights (other than Rights owned by an Acquiring Person or an affiliate or an
associate of an Acquiring Person, which will have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, and/or other equity
securities deemed to have the same value as one share of Common Stock, per
Right, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights should not
be taxable to shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for the
common stock of the acquiring company as set forth above or are exchanged as
provided in the preceding paragraph.
Other than the redemption price, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company as long as the
Rights are redeemable. Thereafter, the provisions of the Rights Agreement other
than the redemption price may be amended by the Board of Directors in order to
cure any ambiguity, defect or inconsistency, to make changes that do not
materially adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment to lengthen the
time period governing redemption shall be made at such time as the Rights are
not redeemable.
This form of Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit B thereto, the
form of Right Certificate, is attached hereto as Exhibit 4.1 and is incorporated
herein by reference.
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The foregoing description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the form of Rights Agreement.
Amendment of Bylaws
On September, 17, 1998, the Board of Directors of the Company amended the
Company's Bylaws to require the approval of the holders of two-thirds of the
shares entitled to vote to remove a director without "cause." Cause is defined
as (i) conviction of the director of a felony, (ii) declaration by order of a
court of competent jurisdiction that the director is of unsound mind, or (iii)
gross abuse of trust which is proven by clear and convincing evidence to have
been committed in bad faith.
ITEM 7 FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(C) EXHIBITS
4.1 Rights Agreement, dated as of September 17, 1998, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, which includes the Certificate of Designations for the
Series B Junior Participating Preferred Stock as Exhibit A, the
form of Right Certificate as Exhibit B, and the Summary of
Rights to Purchase Preferred Stock as Exhibit C.
4.2 Bylaws of the Company, as amended effective September 17,
1998.
99.1 Press Release dated September 18, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereto duly authorized.
WAVE TECHNOLOGIES INTERNATIONAL, INC.
Dated: September 25, 1998 By: /S/ Kenneth W. Kousky
President and Chief Executive Officer
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Rights Agreement, dated as of September 17, 1998, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, which includes the Certificate of Designations for the
Series B Junior Participating Preferred Stock as Exhibit A, the
form of Right Certificate as Exhibit B, and the Summary of
Rights to Purchase Preferred Stock as Exhibit C.
4.2 Bylaws of the Company, as amended effective September 17, 1998.
99.1 Press Release dated September 18, 1998.
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EXHIBIT 4.1
================================================================================
WAVE TECHNOLOGIES INTERNATIONAL, INC.
AND
CHASE MELLON SHAREHOLDER SERVICES, L.L.C.
RIGHTS AGENT
----------------
RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 17, 1998
================================================================================
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
Section 1. Certain Definitions........................................... 1
Section 2. Appointment of Rights Agent................................... 6
Section 3. Issue of Rights Certificates.................................. 6
Section 4. Form of Rights Certificates................................... 8
Section 5. Countersignature and Registration............................. 8
Section 6. Transfer, Split-Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen
Rights Certificates........................................... 9
Section 7. Exercise of Rights; Purchase Price............................ 9
Section 8. Cancellation and Destruction of Rights Certificates........... 11
Section 9. Reservation and Availability of Capital Stock................. 11
Section 10. Preferred Stock Record Date................................... 13
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights........................................... 13
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.... 19
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power................................................. 19
Section 14. Fractional Rights and Fractional Shares....................... 22
Section 15. Rights of Action.............................................. 23
Section 16. Agreement of Rights Holders................................... 23
Section 17. Rights Certificate Holder Not Deemed a Shareholder............ 24
Section 18. Concerning the Rights Agent................................... 24
Section 19. Merger or Consolidation or Change of Name of Rights Agent..... 24
Section 20. Duties of Rights Agent........................................ 25
Section 21. Change of Rights Agent........................................ 26
Section 22. Issuance of New Rights Certificates........................... 27
Section 23. Redemption and Termination.................................... 27
Section 24. Exchange...................................................... 28
Section 25. Notice of Certain Events...................................... 29
Section 26. Notices....................................................... 30
Section 27. Supplements and Amendments.................................... 30
Section 28. Successors.................................................... 31
Section 29. Determinations and Actions by the Board of Directors, etc. ... 31
Section 30. Benefits of this Agreement.................................... 31
Section 31. Severability.................................................. 31
Section 32. Governing Law................................................. 32
Section 33. Counterparts.................................................. 32
</TABLE>
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<TABLE>
<S> <C>
Section 34. Descriptive Headings.......................................... 32
Exhibit A Form of Certificate of Designations of Series B. Junior
Participating Preferred Stock
Exhibit B Form of Rights Certificate
Exhibit C Summary of Rights to Purchase Preferred Stock
</TABLE>
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RIGHTS AGREEMENT
This Rights Agreement, dated as of September 17, 1998 (the "Agreement"),
between Wave Technologies International, Inc. a Missouri corporation (the
"Company"), and Chase Mellon Shareholder Services, L.L.C., a New Jersey limited
liability company (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on September 17, 1998 (the "Rights Dividend Declaration Date"),
the Board of Directors of the Company authorized and declared a dividend of one
Right for each share of common stock, par value $0.50 per share, of the Company
(the "Common Stock") outstanding at the close of business on September 28, 1998
(the "Record Date"), and has authorized the issuance of one Right (as such
number may hereinafter be adjusted pursuant to the provisions of Section 11(p)
hereof) for each share of Common Stock of the Company issued (whether originally
issued or delivered from the Company's treasury) between the Record Date and the
earlier of the Distribution Date (as hereinafter defined) and the Expiration
Date (as hereinafter defined), and, in certain circumstances provided for in
Section 22 hereof, after the Distribution Date, each Right initially
representing the right to purchase one Fractional Share (as hereinafter defined)
of Series B Junior Participating Preferred Stock of the Company, upon the terms
and subject to the conditions hereinafter set forth (the "Rights");
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of the shares of Common Stock then outstanding, but shall
not include any Exempt Person; provided, however, that a Person shall not
be or become an Acquiring Person if such Person, together with its
Affiliates and Associates, shall become the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding solely as a result of a
reduction in the number of shares of Common Stock outstanding due to the
repurchase of Common Stock by the Company, unless and until such time as
such Person or any Affiliate or Associate of such Person shall purchase or
otherwise become the Beneficial Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of Common Stock or
any other Person (or Persons) who is (or collectively are) the Beneficial
Owner of shares of Common Stock constituting 1% or more of the then
outstanding shares of Common Stock shall become an Affiliate or Associate
of such Person, unless, in either such case, such Person, together with all
Affiliates and Associates of such Person, is not then the Beneficial Owner
of 15% or more of the shares of Common Stock then outstanding; and
provided, further, that if the Board of Directors, with the concurrence of
a majority of the members of the Board of Directors who are not, and are
not representatives, nominees, Affiliates or Associates of, such Person or
an Acquiring Person, determines in good faith that a Person that would
otherwise be an "Acquiring Person" has become such inadvertently
(including, without limitation, because (i) such Person was unaware that it
beneficially owned a percentage of Common Stock that would otherwise cause
such Person to be an "Acquiring Person" or (ii) such Person was aware of
the extent of its Beneficial Ownership of Common Stock but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing control of
the Company, and if such Person as promptly as practicable divested or
divests itself of Beneficial Ownership of a sufficient number of shares
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of Common Stock so that such Person would no longer be an "Acquiring
Person," then such Person shall not be deemed to be or to have become an
"Acquiring Person" for any purposes of this Agreement.
"Adjustment Shares" shall have the meaning set forth in Section
11(a)(ii) hereof.
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect
on the date of this Agreement.
"Associate" shall mean, with reference to any Person, (1) any
corporation, firm, partnership, association, unincorporated organization or
other entity (other than the Company or a Subsidiary of the Company) of
which such Person is an officer or general partner (or officer or general
partner of a general partner) or is, directly or indirectly, the Beneficial
Owner of 10% or more of any class of equity securities, (2) any trust or
other estate in which such Person has a substantial beneficial interest or
as to which such Person serves as trustee or in a similar fiduciary
capacity and (3) any relative or spouse of such Person, or any relative of
such spouse, who has the same home as such Person.
A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) that such Person or any of such Person's Affiliates or Associates, directly
or indirectly, is the "beneficial owner" of (as determined pursuant to Rule 13d-
3 of the General Rules and Regulations under the Exchange Act as in effect on
the date of this Agreement) or otherwise has the right to vote or dispose of,
including pursuant to any agreement, arrangement or understanding (whether or
not in writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under this
subparagraph (i) as a result of an agreement, arrangement or understanding to
vote such security if such agreement, arrangement or understanding: (A) arises
solely from a revocable proxy or consent given in response to a public (i.e.,
not including a solicitation exempted by Rule 14a-2(b)(2) of the General Rules
and Regulations under the Exchange Act as in effect on the date of this
Agreement) proxy or consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the General Rules and Regulations under the
Exchange Act and (B) is not then reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor report);
(ii) that such Person or any of such Person's Affiliates or Associates, directly
or indirectly, has the right or obligation to acquire (whether such right or
obligation is exercisable or effective immediately or only after the passage of
time or the occurrence of an event) pursuant to any agreement, arrangement or
understanding (whether or not in writing) or upon the exercise of conversion
rights, exchange rights, other rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," (A) securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or exchange,
(B) securities issuable upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities issuable upon exercise of
Rights from and after the occurrence of a Triggering Event which Rights were
acquired by such Person or any of such Person's Affiliates or Associates prior
to the Distribution Date or pursuant to Section 3(a) or Section 22 hereof (the
"Original Rights") or pursuant to Section 11(i) or (p) hereof in connection with
an adjustment made with respect to any Original Rights; or
(iii) that are beneficially owned, directly or indirectly, by (A) any other
Person (or any Affiliate or Associate thereof) with which such Person or any of
such Person's Affiliates or Associates has any agreement, arrangement or
2
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understanding (whether or not in writing) for the purpose of acquiring, holding,
voting (except as set forth in the proviso to subparagraph (i) of this
definition) or disposing of any voting securities of the Company or (B) any
group (as that term is used in Rule 13d-5(b) of the General Rules and
Regulations under the Exchange Act) of which such Person is a member;
provided, however, that nothing in this definition shall cause a Person engaged
in business as an underwriter of securities to be the "Beneficial Owner" of, or
to "beneficially own," any securities acquired through such Person's
participation in good faith in a firm commitment underwriting (including,
without limitation, securities acquired pursuant to stabilizing transactions to
facilitate a public offering in accordance with Regulation M promulgated under
the Exchange Act, or to cover overallotments created in connection with a public
offering) until the expiration of forty days after the date of such acquisition.
For purposes of this Agreement, "voting" a security shall include voting,
granting a proxy, acting by consent, making a request or demand relating to
corporate action (including, without limitation, calling a shareholder meeting)
or otherwise giving an authorization (within the meaning of Section 14(a) of the
Exchange Act as in effect on the date of this Agreement) in respect of such
security.
"Business Day" shall mean any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
"close of business" on any given date shall mean 5:00 p.m., New York
City time, on such date; provided, however, that if such date is not a
Business Day, it shall mean 5:00 p.m., New York City time, on the next
succeeding Business Day.
"Closing Price" of a security for any day shall mean the last sales
price, regular way, on such day or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, on
such day, in either case as reported in the principal transaction reporting
system with respect to securities listed or admitted to trading on the New
York Stock Exchange, or, if such security is not listed or admitted to
trading on the New York Stock Exchange, on the principal national
securities exchange on which such security is listed or admitted to
trading, or, if such security is not listed or admitted to trading on any
national securities exchange but sales price information is reported for
such security, as reported by NASDAQ or such other self-regulatory
organization or registered securities information processor (as such terms
are used under the Exchange Act) that then reports information concerning
such security, or, if sales price information is not so reported, the
average of the high bid and low asked prices in the over-the-counter market
on such day, as reported by NASDAQ or such other entity, or, if on such day
such security is not quoted by any such entity, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in such security selected by the Board of Directors of the Company.
If on such day no market maker is making a market in such security, the
fair value of such security on such day as determined in good faith by the
Board of Directors of the Company shall be used.
"Common Stock" shall mean the common stock, par value $0.50 per share,
of the Company, except that "Common Stock" when used with reference to
equity interests issued by any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or the equity
securities or other equity interest having power to control or direct the
management, of such Person.
"Common Stock Equivalents" shall have the meaning set forth in Section
11(a)(iii) hereof.
3
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"Company" shall mean the Person named as the "Company" in the preamble
of this Agreement until a successor Person shall have become such or until
a Principal Party shall assume, and thereafter be liable for, all
obligations and duties of the Company hereunder, pursuant to the applicable
provisions of this Agreement, and thereafter "Company" shall mean such
successor Person or Principal Party.
"Current Market Price" shall have the meaning set forth in Section
11(d) hereof.
"Current Value" shall have the meaning set forth in Section 11(a)(iii)
hereof.
"Distribution Date" shall mean the earlier of (i) the close of
business on the tenth day (or, if such Stock Acquisition Date results from
the consummation of a Permitted Offer, such later date as may be determined
by the Company's Board of Directors as set forth below before the
Distribution Date occurs) after the Stock Acquisition Date (or, if the
tenth day after the Stock Acquisition Date occurs before the Record Date,
the close of business on the Record Date) or (ii) the close of business on
the tenth Business Day (or such later date as may be determined by the
Company's Board of Directors as set forth below before the Distribution
Date occurs) after the date that a tender offer or exchange offer by any
Person (other than any Exempt Person) is first published or sent or given
within the meaning of Rule 14d-2(a) of the General Rules and Regulations
under the Exchange Act as then in effect, if upon consummation thereof,
such Person would be an Acquiring Person, other than a tender or exchange
offer that is determined before the Distribution Date occurs to be a
Permitted Offer. The Board of Directors of the Company may, to the extent
set forth in the preceding sentence, defer the date set forth in clause (i)
or (ii) of the preceding sentence to a specified later date or to an
unspecified later date to be determined by a subsequent action or event
(but in no event to a date later than the close of business on the tenth
day after the first occurrence of a Triggering Event).
"Equivalent Preferred Stock" shall have the meaning set forth in
Section 11(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Ratio" shall have the meaning set forth in Section 24
hereof.
"Exempt Person" shall mean the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of the
Company, and any Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan or for the purpose of funding
any such plan or funding other employee benefits for employees of the
Company or any Subsidiary of the Company.
"Expiration Date" shall mean the earliest of (i) the Final Expiration
Date, (ii) the time at which the Rights are redeemed as provided in Section
23 hereof, (iii) the time at which the Rights expire pursuant to Section
13(d) hereof and (iv) the time at which all Rights then outstanding and
exercisable are exchanged pursuant to Section 24 hereof.
"Final Expiration Date" shall mean the close of business on September
28, 2008.
4
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"Flip-In Event" shall mean an event described in Section 11(a)(ii)
hereof.
"Flip-In Trigger Date" shall have the meaning set forth in Section
11(a)(iii) hereof.
"Flip-Over Event" shall mean any event described in clause (x), (y) or
(z) of Section 13(a) hereof, but excluding any transaction described in
Section 13(d) hereof that causes the Rights to expire.
"Fractional Share" with respect to the Preferred Stock shall mean one
one-thousandth of a share of Preferred Stock.
"NASDAQ" shall mean the National Association of Securities Dealers,
Inc. Automated Quotations System.
"Original Rights" shall have the meaning set forth in the definition
of "Beneficial Owner."
"Permitted Offer" shall mean a tender offer or an exchange offer for
all outstanding shares of Common Stock at a price and on terms determined
by at least a majority of the members of the Board of Directors who are not
officers or employees of the Company and who are not, and are not
representatives, nominees, Affiliates or Associates of, an Acquiring Person
or the Person making the offer, after receiving advice from one or more
investment banking firms, to be (a) at a price and on terms that are fair
to shareholders (taking into account all factors that such members of the
Board deem relevant including, without limitation, prices that could
reasonably be achieved if the Company or its assets were sold on an orderly
basis designed to realize maximum value) and (b) otherwise in the best
interests of the Company and its shareholders.
"Person" shall mean any individual, firm, corporation, partnership,
limited liability company, association, trust, unincorporated organization
or other entity.
"Preferred Stock" shall mean shares of Series B Junior Participating
Preferred Stock, no par value per share, of the Company having the rights,
powers and preferences set forth in the form of Certificate of Designations
attached hereto as Exhibit A and, to the extent that there is not a
sufficient number of shares of Series B Junior Participating Preferred
Stock authorized to permit the full exercise of the Rights, any other
series of Preferred Stock, par value $1.00 per share, of the Company
designated for such purpose containing terms substantially similar to the
terms of the Series B Junior Participating Preferred Stock.
"Principal Party" shall have the meaning set forth in Section 13(b)
hereof.
"Purchase Price" shall have the meaning set forth in Section 4(a)
hereof.
"Record Date" shall have the meaning set forth in the recitals clause
at the beginning of this Agreement.
"Redemption Price" shall have the meaning set forth in Section 23(a)
hereof.
"Rights" shall have the meaning set forth in the recitals clause at
the beginning of this Agreement.
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"Rights Agent" shall mean the Person named as the "Rights Agent" in
the preamble of this Agreement until a successor Rights Agent shall have
become such pursuant to the applicable provisions hereof, and thereafter
"Rights Agent" shall mean such successor Rights Agent. If at any time there
is more than one Person appointed by the Company as Rights Agent pursuant
to the applicable provisions of this Agreement, "Rights Agent" shall mean
and include each such Person.
"Rights Certificates" shall mean the certificates evidencing the
Rights.
"Rights Dividend Declaration Date" shall have the meaning set forth in
the recitals clause at the beginning of this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Spread" shall have the meaning set forth in Section 11(a)(iii)
hereof.
"Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition and Section 23, shall
include, without limitation, a report filed pursuant to Section 13(d) of
the Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such.
"Subsidiary" shall mean, with reference to any Person, any corporation
or other Person of which an amount of voting securities sufficient to elect
at least a majority of the directors or other persons performing similar
functions is beneficially owned, directly or indirectly, by such Person, or
otherwise controlled by such Person.
"Substitution Period" shall have the meaning set forth in Section
11(a)(iii) hereof.
"Summary of Rights" shall mean the Summary of Rights to Purchase
Preferred Stock sent pursuant to Section 3(b) hereof.
"Trading Day" with respect to a security shall mean a day on which the
principal national securities exchange on which such security is listed or
admitted to trading is open for the transaction of business, or, if such
security is not listed or admitted to trading on any national securities
exchange but is quoted by NASDAQ, a day on which NASDAQ reports trades, or,
if such security is not so quoted, a Business Day.
"Triggering Event" shall mean any Flip-In Event or any Flip-Over
Event.
Section 2. Appointment of Rights Agent. The Company hereby appoints the
Rights Agent (i) to act as agent for the Company and (ii) to take certain
actions in respect of the holders of the Rights (who, in accordance with Section
3 hereof, shall prior to the Distribution Date also be the holders of the Common
Stock)(although it is expressly agreed that the Rights Agent shall not act as
agent for such holders) in accordance with the terms and conditions hereof, and
the Rights Agent hereby accepts such appointment. The Company may from time to
time appoint such Co-Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the Distribution Date, (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section 3) by the
certificates for Common Stock registered in the names of the holders of the
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Common Stock and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). As soon as practicable after
the Distribution Date, the Rights Agent will send by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock as of the close
of business on the Distribution Date (other than any Person referred to in the
first sentence of Section 7(e)), at the address of such holder shown on the
records of the Company, one or more Rights Certificates, evidencing one Right
for each share of Common Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights per share of
Common Stock has been made pursuant to Section 11(p) hereof, at the time of
distribution of the Rights Certificates, the Company shall make the necessary
and appropriate rounding adjustments (in accordance with Section 14(a) hereof)
so that Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights. As of and after
the Distribution Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) On or as promptly as practicable following the Record Date, the
Company will deliver a copy of a Summary of Rights to Purchase Preferred Stock,
in substantially the form attached hereto as Exhibit C, by first class, postage
prepaid mail, to each registered holder of the Common Stock as of the Record
Date, at the address of such holders shown on the records of the Company, and
the Rights associated with the shares of Common Stock represented by
certificates for such Common Stock held by the registered holders of Common
Stock shall be evidenced by such certificates for Common Stock together with the
Summary of Rights, and such registered holders of the Common Stock shall also be
the registered holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of any of the
certificates for Common Stock outstanding on the Record Date, with or without a
copy of the Summary of Rights, shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
(c) Rights shall be issued in respect of all shares of Common Stock
that are issued (whether originally issued or delivered from the Company's
treasury) after the Record Date but prior to the earlier of the Distribution
Date or the Expiration Date or, in certain circumstances provided in Section 22
hereof, after the Distribution Date. Certificates issued for shares of Common
Stock that shall so become outstanding or shall be transferred or exchanged
after the Record Date but prior to the earlier of the Distribution Date or the
Expiration Date shall also be deemed to be certificates for Rights, and shall
bear the following legend:
This certificate also evidences and entitles the holder hereof to certain Rights
as set forth in the Rights Agreement between Wave Technologies International,
Inc. (the "Company") and Chase Mellon Shareholder Services (the "Rights Agent")
dated as of September 17, 1998 as it may from time to time be supplemented or
amended (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 may be redeemed, may be exchanged, may expire or may be evidenced by
separate certificates and will no longer be evidenced by this certificate. The
Company or the Rights Agent 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 BENEFICIALLY OWNED BY OR
TRANSFERRED TO ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT), AND CERTAIN TRANSFEREES THEREOF, WILL BECOME NULL AND VOID AND WILL
NO LONGER BE TRANSFERABLE.
With respect to such certificates containing the foregoing legend, until the
earlier of the Distribution Date or the Expiration Date, the Rights associated
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with the Common Stock represented by such certificates shall be evidenced by
such certificates alone, and registered holders of Common Stock shall also be
the registered holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights associated with
the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase and
of assignment to be printed on the reverse thereof), when, as and if issued,
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 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 quotation system
on which the Rights may from time to time be listed or quoted, or to conform to
usage. Subject to the provisions of Section 11 and Section 22 hereof, the Rights
Certificates, whenever issued, shall be dated as of the Record Date and on their
face shall entitle the holders thereof to purchase such number of Fractional
Shares of Preferred Stock as shall be set forth therein at the price set forth
therein (such exercise price per Fractional Share (or, as set forth in this
Agreement, for other securities), the "Purchase Price"), but the amount and type
of securities purchasable upon the exercise of each Right and the Purchase Price
thereof shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section
22 hereof that represents Rights beneficially owned by a Person described in the
first sentence of Section 7(e), and any Rights Certificate issued pursuant to
Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any such Rights, shall contain (to the extent feasible) the
following legend, modified as applicable to apply to such Person:
The Rights represented by this Rights Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the Rights represented
hereby will become null and void in the circumstances and with the effect
specified in Section 7(e) of such Agreement.
The provisions of Section 7(e) of this Agreement shall be operative whether or
not the foregoing legend is contained on any such Rights Certificate. The
Company shall give notice to the Rights Agent promptly after it becomes aware of
the existence of any Acquiring Person or any Associate or Affiliate thereof.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, its President or any Vice President, either
manually or by facsimile signature, and shall have affixed thereto the Company's
seal or a facsimile thereof, which shall be attested by the Secretary or an
Assistant Secretary of the Company, either manually or by facsimile signature.
The Rights Certificates shall be countersigned 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 Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights
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Certificate may be signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although at the date of
the execution of this Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face
by each Rights Certificate and the certificate number and the date of each
Rights Certificate.
Section 6. Transfer, Split-Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e), Section
13(d), Section 14 and Section 24 hereof, at any time after the close of business
on the Distribution Date, and at or prior to the close of business on the
Expiration Date, any Rights Certificate or Rights Certificates may be
transferred, split up, combined or exchanged for another Rights Certificate or
Rights Certificates, entitling the registered holder to purchase a like number
of Fractional Shares of Preferred Stock (or, following a Triggering Event,
Common Stock, other securities, cash or other assets, as the case may be) as the
Rights Certificate or Rights Certificates surrendered then entitled such holder
(or former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Rights Certificate or
Rights Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Rights Certificate or Rights Certificates to be
transferred, split up, combined or exchanged at the principal office or offices
of the Rights Agent designated for such purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the registered holder
shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) thereof or of the Affiliates or Associates thereof as
the Company shall reasonably request. Thereupon the Rights Agent shall, subject
to Section 4(b), Section 7(e), Section 13(d), Section 14 and Section 24 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Company may
require payment by the holder of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any transfer, split-
up, combination or exchange of Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the Rights Certificate if
mutilated, the Company will, subject to Section 4(b), Section 7(e), Section
13(d), Section 14 and Section 24, execute and deliver a new Rights Certificate
of like tenor to the Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price.
(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
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otherwise provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a)
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly completed and executed, to the
Rights Agent at the principal office or offices of the Rights Agent designated
for such purpose, together with payment of the aggregate Purchase Price with
respect to the total number of Fractional Shares of Preferred Stock (or other
securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the Expiration Date.
(b) The Purchase Price for each Fractional Share of Preferred Stock
pursuant to the exercise of a Right shall initially be $25.00, and shall be
subject to adjustment from time to time as provided in Sections 11 and 13(a)
hereof and shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate on the reverse
side thereof duly executed, accompanied by payment, with respect to each Right
so exercised, of the Purchase Price per Fractional Share of Preferred Stock (or
other shares, securities, cash or other assets, as the case may be) to be
purchased as set forth below and an amount equal to any applicable transfer tax,
the Rights Agent shall, subject to Section 20(k) hereof, thereupon promptly
(i)(A) requisition from any transfer agent of the shares of Preferred Stock (or
make available, if the Rights Agent is the transfer agent for such shares)
certificates for the total number of Fractional Shares of Preferred Stock to be
purchased, and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (B) if the Company, in its sole discretion,
shall have elected to deposit the shares of Preferred Stock issuable upon
exercise of the Rights hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing interests in such number of
Fractional Shares of Preferred Stock as are to be purchased (in which case
certificates for the shares of Preferred Stock represented by such receipts
shall be deposited by the transfer agent with the depositary agent) and the
Company will direct the depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14 hereof, (iii) after receipt of
such certificates or depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Rights Certificate, registered
in such name or names as may be designated by such holder and (iv) after receipt
thereof, deliver such cash, if any, to or upon the order of the registered
holder of such Rights Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii) hereof) may be made in cash
or by certified check, cashier's or official bank check or bank draft payable to
the order of the Company or the Rights Agent. In the event that the Company is
obligated to issue other securities (including Common Stock) of the Company, pay
cash and/or distribute other property pursuant to Section 11(a) or Section 13(a)
hereof, the Company will make all arrangements necessary so that such other
securities, cash and/or other property are available for distribution by the
Rights Agent, if and when appropriate.
(d) In case the registered holder of any Rights Certificate shall
exercise fewer than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent and delivered to, or upon the order of, the registered
holder of such Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the first occurrence of a Triggering Event, any Rights
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beneficially owned by or transferred to (i) an Acquiring Person or an Associate
or Affiliate of an Acquiring Person other than any such Person that became such
pursuant to a Permitted Offer and the Board of Directors in good faith
determines was not involved in and did not cause or facilitate, directly or
indirectly, such Triggering Event, (ii) a direct or indirect transferee of such
Rights from such Acquiring Person (or any such Associate or Affiliate) who
becomes a transferee after such Triggering Event or (iii) a direct or indirect
transferee of such Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with such Triggering Event and
receives such Rights pursuant to either (A) a transfer (whether or not for
consideration) from such Acquiring Person (or such Affiliate or Associate) to
holders of equity interests in such Acquiring Person (or such Affiliate or
Associate) or to any Person with whom such Acquiring Person (or such Affiliate
or Associate) has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer that the Board of Directors
of the Company determines is part of a plan, arrangement or understanding that
has as a primary purpose or effect the avoidance of this Section 7(e), shall
become null and void without any further action, no holder of such Rights shall
have any rights whatsoever with respect to such Rights, whether under any
provision of this Agreement or otherwise, and such Rights shall not be
transferable. The Company shall use all reasonable efforts to ensure that the
provisions of this Section 7(e) and Section 4(b) hereof are complied with, but
shall have no liability to any holder of Rights Certificates or other Person as
a result of its failure to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate surrendered for
such exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All Rights
Certificates surrendered for the purpose of exercise, transfer, split-up,
combination or exchange shall, if surrendered to the Company or any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Rights
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement, including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as any shares of Preferred Stock (and, following the
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occurrence of a Triggering Event, Common Stock and/or other securities) issuable
and deliverable upon the exercise of the Rights are listed on any national
securities exchange or quoted on any trading system, the Company shall use its
best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed on such
exchange, or quoted on such system, upon official notice of issuance upon such
exercise. Following the occurrence of a Triggering Event, the Company will use
its best efforts to list (or continue the listing of) the Rights and the
securities issuable and deliverable upon the exercise of the Rights on one or
more national securities exchanges or to cause the Rights and the securities
purchasable upon exercise of the Rights to be reported by NASDAQ or such other
transaction reporting system then in use.
(c) The Company shall use its best efforts to (i) prepare and file, as
soon as practicable following the first occurrence of a Flip-In Event or, if
applicable, as soon as practicable following the earliest date after the first
occurrence of a Flip-In Event on which the consideration to be delivered by the
Company upon exercise of the Rights has been determined pursuant to this
Agreement (including in accordance with Section 11(a)(iii) hereof), a
registration statement on an appropriate form under the Securities Act with
respect to the securities purchasable upon exercise of the Rights, (ii) cause
such registration statement to become effective as soon as practicable after
such filing, and (iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities Act)
until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities and (B) the Expiration Date. The Company will
also take such action as may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states in connection with the
exercisability of the Rights. The Company may temporarily suspend, for a period
of time not to exceed 90 days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of the Rights in order
to prepare and file such registration statement and permit it to become
effective. In addition, if the Company shall determine that the Securities Act
requires an effective registration statement under the Securities Act following
the Distribution Date, the Company may temporarily suspend the exercisability of
the Rights until such time as such a registration statement has been declared
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained, the
exercise thereof shall not be permitted under applicable law or any required
registration statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Fractional Shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such shares (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges that may be
payable in respect of the issuance or delivery of the Rights Certificates and of
any certificates for a number of Fractional Shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) upon the exercise of Rights.
The Company shall not, however, be required to pay any transfer tax that may be
payable in respect of any transfer or delivery of Rights Certificates to a
Person other than, or the issuance or delivery of a number of Fractional Shares
of Preferred Stock (or Common Stock and/or other securities, as the case may be)
in respect of a name other than that of, the
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registered holder of the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a number of Fractional
Shares of Preferred Stock (or Common Stock and/or other securities, as the case
may be) in a name other than that of the registered holder upon the exercise of
any Rights until such tax shall have been paid (any such tax being payable by
the holder of such Rights Certificate at the time of surrender) or until it has
been established to the Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each Person in whose name any
certificate for a number of Fractional Shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) is issued upon the exercise
of Rights shall for all purposes be deemed to have become the holder of record
of such shares (fractional or otherwise) of Preferred Stock (or Common Stock
and/or other securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Stock (or
Common Stock and/or other securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have become the record holder
of such shares (fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Stock (or Common
Stock and/or other securities, as the case may be) transfer books of the Company
are open. Prior to the exercise of the Rights evidenced thereby, the holder of a
Rights Certificate, as such, shall not be entitled to any rights of a
shareholder of the Company with respect to shares for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. The Purchase Price, the number and kind of shares or other
securities subject to purchase upon exercise of 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 Rights
Dividend Declaration Date (A) declare a dividend on the outstanding shares of
Preferred Stock payable in shares of Preferred Stock, (B) subdivide the
outstanding shares of Preferred Stock, (C) combine the outstanding shares of
Preferred Stock into a smaller number of shares or (D) otherwise reclassify the
outstanding shares of Preferred Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), except as otherwise provided in this Section 11(a)
and Section 7(e) hereof, the Purchase Price in effect at the time of the record
date for such dividend or of the effective date of such subdivision, combination
or reclassification, and the number and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive, upon payment of the Purchase Price then in
effect, the aggregate number and kind of shares of Preferred Stock or capital
stock, as the case may be, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock transfer books of the
Company were open, he would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs that would require an adjustment under both
this Section 11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for
in this Section 11(a)(i) shall be in addition to, and shall be made prior to,
any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Sections 23 and 24 of this Agreement, in
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the event any Person shall, at any time after the Rights Dividend Declaration
Date, become an Acquiring Person, unless the event causing such Person to become
an Acquiring Person is (1) a Flip-Over Event or (2) an acquisition of shares of
Common Stock pursuant to a Permitted Offer (provided that this clause (2) shall
cease to apply if such Acquiring Person thereafter becomes the Beneficial Owner
of any additional shares of Common Stock other than pursuant to such Permitted
Offer or a transaction set forth in Section 13(a) or 13(d) hereof), then each
holder of a Right (except as provided below in Section 11(a)(iii) and in Section
7(e) hereof) shall thereafter have the right to receive, upon exercise thereof
at a price equal to the Purchase Price in accordance with the terms of this
Agreement, in lieu of shares of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by dividing the Purchase
Price by 50% of the Current Market Price per share of Common Stock on the date
of such first occurrence (such number of shares, the "Adjustment Shares");
provided that the Purchase Price and the number of Adjustment Shares shall be
further adjusted as provided in this Agreement to reflect any events occurring
after the date of such first occurrence.
(iii) In the event that the number of shares of Common Stock that are
authorized by the Company's articles of incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights is not
sufficient to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section 11(a), the Company shall, to the
extent permitted by applicable law and regulation, (A) determine the excess of
(1) the value of the Adjustment Shares issuable upon the exercise of a Right
(computed using the Current Market Price used to determine the number of
Adjustment Shares) (the "Current Value") over (2) the Purchase Price (such
excess is herein referred to as the "Spread"), and (B) with respect to each
Right, make adequate provision to substitute for the Adjustment Shares, upon the
exercise of the Rights and payment of the applicable Purchase Price, (1) cash,
(2) a reduction in the Purchase Price, (3) Common Stock or other equity
securities of the Company (including, without limitation, shares, or units of
shares, of preferred stock (including, without limitation, the Preferred Stock)
that the Board of Directors of the Company has determined to have the same value
as shares of Common Stock (such shares of preferred stock are herein referred to
as "Common Stock Equivalents")), (4) debt securities of the Company, (5) other
assets or (6) any combination of the foregoing, having an aggregate value equal
to the Current Value, where such aggregate value has been determined by the
Board of Directors 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, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) above within 30 days following
the later of (x) the first occurrence of a Flip-In Event and (y) the date on
which the Company's right of redemption pursuant to Section 23(a) expires (the
later of (x) and (y) being referred to herein as the "Flip-In 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, shares of Common
Stock (to the extent available) and then, if necessary, cash, which shares
and/or cash have an aggregate value equal to the Spread. If the Board of
Directors of the Company shall determine in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized for issuance
upon exercise in full of the Rights, the 30-day period set forth above may be
extended to the extent necessary, but not more than 90 days after the Flip-In
Trigger Date, in order that the Company may seek shareholder approval for the
authorization of such additional shares (such period, as it may be extended, the
"Substitution Period"). To the extent that the Company or the Board of Directors
determines that some action need be taken pursuant to the first and/or second
sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to
Section 7(e) hereof, that such action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek any authorization of
additional shares and/or to decide the
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appropriate form of distribution to be made pursuant to such first sentence and
to determine the value thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this Section 11(a)(iii),
the value of the Common Stock shall be the Current Market Price per share of the
Common Stock on the Flip-In Trigger Date and the value of any Common Stock
Equivalent shall be deemed to have the same value as the Common Stock on such
date.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to all holders of Preferred Stock entitling them to
subscribe for or purchase (for a period expiring within 45 calendar days after
such record date) Preferred Stock (or shares having the same rights, privileges
and preferences as the shares of Preferred Stock ("Equivalent Preferred Stock"))
or securities convertible into Preferred Stock or Equivalent Preferred Stock at
a price per share of Preferred Stock or per share of Equivalent Preferred Stock
(or having a conversion price per share, if a security convertible into
Preferred Stock or Equivalent Preferred Stock) less than the Current Market
Price per share of Preferred Stock on such record date, the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Preferred Stock outstanding
on such record date, plus the number of shares of Preferred Stock that the
aggregate offering price of the total number of shares of Preferred Stock and/or
Equivalent Preferred Stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase
at such Current Market Price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record date, plus the number of
additional shares of Preferred Stock and/or Equivalent Preferred Stock to be
offered for subscription or purchase (or into which the convertible securities
so to be offered are initially convertible). In case such subscription price may
be paid by delivery of consideration, part or all of which may be in a form
other than cash, the value of such consideration shall be as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent and shall be binding on the
Rights Agent and the holders of the Rights. Shares of Preferred Stock owned by
or held for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed, and in the event that such rights or
warrants are not so issued, the Purchase Price shall be adjusted to be the
Purchase Price that would then be in effect if such record date had not been
fixed.
(c) In case the Company shall fix a record date for a distribution to
all holders of Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness, cash (other than a
regular quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred Stock, but
including any dividend payable in stock other than Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the Current Market
Price per share of Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent) of the portion of the cash,
assets or evidences of indebtedness so to be distributed or of such subscription
rights or warrants applicable to a share of Preferred Stock and the denominator
of which shall be such Current Market Price per share of Preferred Stock. Such
adjustments shall be made successively whenever such a
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record date is fixed, and in the event that such distribution is not so made,
the Purchase Price shall be adjusted to be the Purchase Price that would have
been in effect if such record date had not been fixed.
(d)(i) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "Current Market
Price" per share of Common Stock of a Person on any date shall be deemed to be
the average of the daily Closing Prices per share of such Common Stock for the
30 consecutive Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii) hereof, the "Current Market
Price" per share of Common Stock on any date shall be deemed to be the average
of the daily Closing Prices per share of such Common Stock for the 10
consecutive Trading Days immediately following such date; provided, however,
that in the event that the Current Market Price per share of Common Stock is
determined during a period following the announcement of (A) a dividend or
distribution on such Common Stock other than a regular quarterly cash dividend
or the dividend of the Rights, or (B) any subdivision, combination or
reclassification of such Common Stock, and the ex-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, shall not have occurred prior to the commencement of the
requisite 30 Trading Day or 10 Trading Day period, as set forth above, then, and
in each such case, the Current Market Price shall be properly adjusted to take
into account ex-dividend trading. If the Common Stock is not publicly held or
not so listed or traded, "Current Market Price" per share shall mean the fair
value per share as determined in good faith by the Board of Directors of the
Company, whose determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the "Current Market
Price" per share (or Fractional Share) of Preferred Stock shall be determined in
the same manner as set forth above for the Common Stock in clause (i) of this
Section 11(d) (other than the last sentence thereof). If the Current Market
Price per share (or Fractional Share) of Preferred Stock cannot be determined in
the manner provided above or if the Preferred Stock is not publicly held or
listed or traded in a manner described in clause (i) of this Section 11(d), the
"Current Market Price" per share of Preferred Stock shall be conclusively deemed
to be an amount equal to 1,000 (as such number may be appropriately adjusted for
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock occurring after the date of this Agreement) multiplied by
the Current Market Price per share of the Common Stock. If neither the Common
Stock nor the Preferred Stock is publicly held or so listed or traded, Current
Market Price per share of the Preferred Stock shall mean the fair value per
share as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be conclusive for all purposes. For all purposes of this
Agreement, the Current Market Price of a Fractional Share of Preferred Stock
shall be equal to the Current Market Price of one share of Preferred Stock
divided by 1,000.
(e) Anything herein to the contrary notwithstanding, no adjustment in
the 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 that by reason of this Section 11(e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the nearest
cent or to the nearest ten-thousandth of a share of Common Stock or other share
or to the nearest ten-thousandth of a Fractional Share of Preferred Stock, as
the case may be. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which mandates such
adjustment or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
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11(a) or Section 13(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive in respect of such Right any shares of capital
stock other than Preferred Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price thereof shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Stock
contained in Sections 11(a), (b), (c), (e), (f), (g), (h), (i), (j), (k) and (m)
hereof, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect
to the Preferred Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of Fractional Shares of
Preferred Stock 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 Fractional Shares of
Preferred Stock (calculated to the nearest one ten-thousandth of a Fractional
Share) obtained by (i) multiplying (x) the number of Fractional Shares of
Preferred Stock 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 lieu of any adjustment in
the number of Fractional Shares of Preferred Stock purchasable upon the exercise
of a Right. Each of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of Fractional Shares of Preferred
Stock for which a Right was exercisable immediately prior to such adjustment.
Each Right held of record prior to such adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest ten-thousandth) obtained
by dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be made. This record
date may be the date on which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been issued, shall be at least
10 days later than the date of the public announcement. If Rights Certificates
have been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Rights Certificates
so to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the holders of record of
Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase
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Price or the number of Fractional Shares of Preferred Stock issuable upon the
exercise of the Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per Fractional Share and the
number of Fractional Shares that were expressed in the initial Rights
Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, or the stated capital of
the number of Fractional Shares of Preferred Stock or of the number of shares of
Common Stock or other securities issuable upon exercise of a Right, the Company
shall take any corporate action that may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue such fully
paid and nonassessable number of Fractional Shares of Preferred Stock or shares
of Common Stock or other securities 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 until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
the number of Fractional Shares of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of Fractional Shares of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(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 in their good faith judgment the Board of Directors of the
Company shall determine to be advisable in order that any (i) consolidation or
subdivision of the Preferred Stock, (ii) issuance wholly for cash of any shares
of Preferred Stock at less than the current market price, (iii) issuance wholly
for cash of shares of Preferred Stock or securities that by their terms are
convertible into or exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to in this
Section 11 hereafter made by the Company to holders of its Preferred Stock shall
not be taxable to such shareholders.
(n) The Company covenants and agrees that it shall not, at any time
that there is an Acquiring Person, (i) consolidate with any other Person, (ii)
merge with or into any other Person, or (iii) sell, lease or transfer (or permit
one or more Subsidiaries to sell, lease or transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person or Persons, if (x) at the time of or immediately
after such consolidation, merger, sale, lease or transfer there are any rights,
warrants or other instruments or securities of the Company or any other Person
outstanding or agreements, arrangements or understandings in effect that would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights, (y) prior to, simultaneously with or immediately after
such consolidation, merger, sale, lease or transfer, the shareholders or other
equity owners of the Person who constitutes, or would constitute, the "Principal
Party" for purposes of Section 13(a) hereof shall have received a distribution
of Rights previously owned by such Person or any of its Affiliates or
Associates, or (z) the identity, form or nature of organization of the Principal
Party (including, without limitation, the selection of the Person that will be
the Principal Party as a result of the Company's entering into one or more
consolidations, mergers, sales, leases,
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<PAGE>
transfers or transactions with more than one party) would preclude or limit the
exercise of Rights or otherwise diminish substantially or eliminate the benefits
intended to be afforded by the Rights.
(o) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23, Section 24 or Section 27
hereof, take (or permit any Subsidiary to take) any action if the purpose of
such action is to, or if at the time such action is taken it is reasonably
foreseeable that such action will, diminish substantially or eliminate the
benefits intended to be afforded by the Rights.
(p) Notwithstanding Section 3(c) hereof or any other provision of this
Agreement to the contrary, in the event that the Company shall at any time after
the Rights Dividend Declaration Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock payable in shares
of Common Stock, (ii) subdivide the outstanding shares of Common Stock, (iii)
combine the outstanding shares of Common Stock into a smaller number of shares
or (iv) otherwise reclassify the outstanding shares of Common Stock (including
any such reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), the number of Rights
associated with each share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date, shall be
proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction (the "Adjustment
Fraction") the numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event. In lieu of such
adjustment in the number of Rights associated with one share of Common Stock,
the Company may elect to adjust the number of Fractional Shares of Preferred
Stock purchasable upon the exercise of one Right and the Purchase Price. If the
Company makes such election, the number of Rights associated with one share of
Common Stock shall remain unchanged, and the number of Fractional Shares of
Preferred Stock purchasable upon exercise of one Right and the Purchase Price
shall be proportionately adjusted so that (i) the number of Fractional Shares of
Preferred Stock purchasable upon exercise of a Right following such adjustment
shall equal the product of the number of Fractional Shares of Preferred Stock
purchasable upon exercise of a Right immediately prior to such adjustment
multiplied by the Adjustment Fraction and (ii) the Purchase Price following such
adjustment shall equal the product of the Purchase Price immediately prior to
such adjustment multiplied by the Adjustment Fraction.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 or Section 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment,
(b) promptly file with the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such certificate and (c) mail a
brief summary thereof to each registered holder of a Rights Certificate (or, if
prior to the Distribution Date, to each registered holder of a certificate
representing shares of Common Stock) in accordance with Section 26 hereof. The
Rights Agent shall be fully protected in relying on any such certificate and on
any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) In the event that, from and after the time an Acquiring Person has
become such, directly or indirectly, (x) the Company shall consolidate with, or
merge with and into, any other Person, and the Company shall not be the
continuing or surviving corporation of such consolidation or
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merger, (y) any Person shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or surviving corporation of
such consolidation or merger, and, in connection with such consolidation or
merger, all or part of the outstanding shares of Common Stock shall be changed
into or exchanged for stock or other securities of the Company or any other
Person or cash or any other property, or (z) the Company shall sell, lease or
otherwise transfer (or one or more of its Subsidiaries shall sell, lease or
otherwise transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning power
of the Company and its Subsidiaries (taken as a whole) to any Person or Persons
(other than the Company or any wholly owned Subsidiary of the Company or any
combination thereof in one or more transactions each of which complies (and all
of which together comply) with Section 11(o) hereof), then, and in each such
case (except as may be contemplated by Section 13(d) hereof), proper provision
shall be made so that: (i) the Purchase Price shall be adjusted to be the
Purchase Price immediately prior to the first occurrence of a Triggering Event
multiplied by the number of Fractional Shares of Preferred Stock for which a
Right was exercisable immediately prior to such first occurrence; (ii) on and
after the Distribution Date, each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to receive, upon the
exercise thereof at the Purchase Price in accordance with the terms of this
Agreement, in lieu of shares of Preferred Stock or Common Stock of the Company,
such number of validly authorized and issued, fully paid, nonassessable and
freely tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall be equal to the result obtained by
dividing the Purchase Price by 50% of the Current Market Price per share of the
Common Stock of such Principal Party on the date of consummation of such Flip-
Over Event; provided that the Purchase Price and the number of shares of Common
Stock of such Principal Party issuable upon exercise of each Right shall be
further adjusted as provided in this Agreement to reflect any events occurring
after the date of such first occurrence of a Triggering Event or after the date
of such Flip-Over Event, as applicable; (iii) such Principal Party shall
thereafter be liable for, and shall assume, by virtue of such Flip-Over Event,
all the obligations and duties of the Company pursuant to this Agreement; (iv)
the term "Company" shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 hereof shall
apply only to such Principal Party following the first occurrence of a Flip-Over
Event; (v) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its shares of Common Stock
thereafter deliverable upon the exercise of the Rights; and (vi) the provisions
of Section 11(a)(ii) hereof shall be of no effect following the occurrence of
any Flip-Over Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (x) or (y)
of the first sentence of Section 13(a), (A) the Person that is the issuer
of any securities into which shares of Common Stock of the Company are
converted in such merger or consolidation, or, if there is more than one
such issuer, the issuer the Common Stock of which has the greatest
aggregate market value, or (B) if no securities are so issued, (x) the
Person that survives such consolidation or is the other party to the merger
and survives such merger, or, if there is more than one such Person, the
Person the Common Stock of which has the greatest aggregate market value or
(y) if the Person that is the other party to the merger does not survive
the merger, the Person that does survive the merger (including the Company
if it survives); and
(ii) in the case of any transaction described in clause
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(z) of the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions, or, if each Person that is a
party to such transaction or transactions receives the same portion of the
assets or earning power so transferred, or if the Person receiving the
greatest portion of the assets or earning power cannot be determined, the
Person the Common Stock of which has the greatest aggregate market value;
provided, however, that in any such case, if the Common Stock of such Person is
not at such time and has not been continuously over the preceding twelve-month
period registered under Section 12 of the Exchange Act, and if (1) such Person
is a direct or indirect Subsidiary of another Person the Common Stock of which
is and has been so registered, "Principal Party" shall refer to such other
Person; (2) such Person is a Subsidiary, directly or indirectly, of more than
one Person, the Common Stocks of all of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the issuer of the
Common Stock having the greatest aggregate market value; and (3) such Person is
owned, directly or indirectly, by a joint venture formed by two or more Persons
that are not owned, directly or indirectly, by the same Person, the rules set
forth in (1) and (2) above shall apply to each of the chains of ownership having
an interest in such joint venture as if such party were a "Subsidiary" of both
or all of such joint venturers and the Principal Parties in each such chain
shall bear the obligations set forth in this Section 13 in the same ratio as
their direct or indirect interests in such Person bear to the total of such
interests.
(c) The Company shall not consummate any Flip-Over Event unless each
Principal Party (or Person that may become a Principal Party as a result of such
Flip-Over Event) shall have a sufficient number of authorized shares of its
Common Stock that have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section 13 and unless
prior thereto the Company and each such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing for the terms
set forth in paragraphs (a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of such Flip-Over Event, the
Principal Party at its own expense will:
(i) prepare and file a registration statement under the
Securities Act with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights and
the securities purchasable upon exercise of the Rights under the "blue sky"
laws of such jurisdictions as may be necessary or appropriate;
(iii) use its best efforts, if the Common Stock of the Principal
Party is or shall become listed on a national securities exchange, to list
(or continue the listing of) the Rights and the securities purchasable upon
exercise of the Rights on such securities exchange and, if the Common Stock
of the Principal Party shall not be listed on a national securities
exchange, to cause the Rights and the securities purchasable upon exercise
of the Rights to be reported by NASDAQ or such other transaction reporting
system then in use; and
(iv) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates that comply
in all respects with the requirements for registration on Form 10 under
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the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Flip-Over Event
shall occur at any time after the occurrence of a Flip-In Event, the Rights that
have not theretofore been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is consummated with a
Person or Persons who acquired shares of Common Stock pursuant to a Permitted
Offer (or a wholly owned subsidiary of any such Person or Persons), (ii) the
price per share of Common Stock offered in such transaction is not less than the
price per share of Common Stock paid to all holders of Common Stock whose shares
were purchased pursuant to such Permitted Offer, and (iii) the form of
consideration being offered to the remaining holders of shares of Common Stock
pursuant to such transaction is the same as the form of consideration paid
pursuant to such Permitted Offer. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in Section 11(p) hereof, or to
distribute Rights Certificates or scrip evidencing fractional Rights. In lieu of
such fractional Rights, there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights would otherwise
be issuable, an amount in cash equal to the same fraction of the Closing Price
of one Right 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 shares of
Preferred Stock (other than, except as provided in Section 7(c) hereof,
fractions that are integral multiples of a Fractional Share of Preferred Stock)
upon exercise of the Rights or to distribute certificates or scrip evidencing
fractional shares of Preferred Stock (other than, except as provided in Section
7(c) hereof, fractions that are integral multiples of a Fractional Share of
Preferred Stock). Interests in fractions of shares of Preferred Stock in
integral multiples of a Fractional Share of Preferred Stock may, at the election
of the Company in its sole discretion, 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 shares of Preferred Stock
represented by such depositary receipts. In lieu of fractional shares of
Preferred Stock that are not integral multiples of a Fractional Share of
Preferred Stock, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of one one-thousandth of the Closing Price of
a share of Preferred Stock for the Trading Day immediately prior to the date of
such exercise.
(c) Following the occurrence of a Triggering Event, the Company shall
not be required to issue fractions of shares of Common Stock upon exercise of
the Rights or to distribute certificates or scrip evidencing fractional shares
of Common Stock. In lieu of fractional shares of Common Stock, the Company may
pay to the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
Closing Price of one share of Common Stock for the Trading Day immediately prior
to the date of such exercise.
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(d) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement, other than rights of action vested in the Rights Agent pursuant to
Section 18 hereof, are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Stock) and, where applicable, the Company; and any registered holder of
any Rights Certificate (or, prior to the Distribution Date, of the Common
Stock), without the consent of the Rights Agent or of the holder of any other
Rights Certificate (or, prior to the Distribution Date, of the Common Stock),
may, in his own behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, his right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this Agreement and
shall be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement. After a Triggering Event,
holders of Rights shall be entitled to recover the reasonable costs and
expenses, including attorneys' fees, incurred by them in any action to enforce
the provisions of this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will not be evidenced
by Rights Certificates and will be transferable only in connection with the
transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates will be
transferable only on the registry books of the Rights Agent if surrendered at
the principal office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper instrument of transfer and
with the form of assignment set forth on the reverse side thereof and the
certificate contained therein duly completed and fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company and
the Rights Agent may deem and treat the Person in whose name a Rights
Certificate (or, prior to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the associated Common Stock certificate made by anyone
other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent shall be affected by any notice to the
contrary; and
(d) notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any holder
of a Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or otherwise restraining
performance of such obligation; provided, however, the Company must use its best
efforts to have any such order, decree or ruling lifted or otherwise overturned
as soon as possible.
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Section 17. Rights Certificate Holder Not Deemed a Shareholder. No holder,
as such, of any Rights Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of Fractional Shares of
Preferred Stock or any other securities of the Company that may at any time be
issuable upon the exercise of the Rights represented thereby, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights Certificate, as such, any of the rights of a shareholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other reasonable disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company shall indemnify the Rights Agent for, and hold it
harmless against, any loss, liability, claim, or expense ("Loss") arising out of
or in connection with its duties under this Agreement, including the costs and
expenses of defending itself against any Loss, unless such Loss shall have been
determined by a court of competent jurisdiction to the result of the Rights
Agent's gross negligence or intentional misconduct. The obligations of the
Company under this section shall survive the termination of this Agreement.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement or other
paper or document believed by it, after proper inquiry or examination, to be
genuine and to be signed, executed and, where necessary, guaranteed, verified or
acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stock transfer business of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto; provided, however, that such corporation
would be eligible for appointment as a successor Rights Agent under the
provisions of Section 21 hereof. In case at the time such successor Rights Agent
shall succeed to the agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Rights Certificates either in the name of the
predecessor or in the name of the successor Rights Agent; and in all such cases
such Rights Certificates shall have the full force provided in the Rights
Certificates and in this Agreement.
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(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at that
time any of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall
have the full force provided in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of "Current Market Price") be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by the
Chairman of the Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in good faith by it under
the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct. In no case, however, will the
Rights Agent be liable for special, indirect, incidental, or consequential loss
or damages of any kind whatsoever (including but not limited to lost profits),
even it the Rights Agent has been advised of the possibility of such damages.
(d) The Rights Agent shall not be liable for or by reason of any of
the statements of fact or recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Rights Certificate; nor shall it
be responsible for any adjustment required under the provisions of Section 11 or
Section 13 hereof or responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that would require any
such adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after receipt of actual knowledge of any such adjustment);
nor shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of Preferred Stock
or Common Stock or other securities to be issued pursuant to this Agreement or
any Rights Certificate or as to whether any shares of Preferred Stock or Common
Stock or other securities will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
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(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from the
Chairman of the Board, the President, any Vice President, or the Secretary, and
to apply to such officers for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to be taken
by it in good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company resulting from any such act,
omission, default, neglect or misconduct; provided, however, that reasonable
care was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
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 Stock and the Preferred Stock, by registered or certified
mail, and to the registered holders, if any, of the Rights 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 Stock and the Preferred Stock, by registered or
certified mail, and to the registered holders of the Rights Certificates, if
any, 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. Notwithstanding the foregoing provisions of this
Section 21, in no event shall the resignation or removal of a Rights Agent be
effective until a successor Rights Agent shall have been appointed and have
accepted such appointment. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or after it has
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been notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the registered holder of a Rights Certificate
(who shall, with such notice, submit his Rights Certificate for inspection by
the Company), then the Rights Agent or the registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation organized and doing
business under the laws of the United States or any state of the United States
in good standing, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $100,000,000 or (b) an
Affiliate of a corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock and the
Preferred Stock, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the Purchase Price and the number or kind or class of shares or other securities
or property purchasable under the Rights Certificates made in accordance with
the provisions of this Agreement. In addition, in connection with the issuance
or sale of shares of Common Stock following the Distribution Date and prior to
the Expiration Date, the Company (a) shall, with respect to shares of Common
Stock issued or sold pursuant to the exercise of stock options or under any
employee plan or arrangement granted or awarded on or prior to the Distribution
Date, or upon the exercise, conversion or exchange of securities issued by the
Company on or prior to the Distribution Date, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of Directors of the Company, issue
Rights Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate shall be
issued if, and to the extent that, appropriate adjustment shall otherwise have
been made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company may, at its option, at any
time prior to the earlier of (i) the close of business on the tenth day
following the first date of public announcement of the occurrence of a Flip-In
Event (or, if such date shall have occurred prior to the Record Date, the close
of business on the tenth day following the Record Date) and (ii) the Expiration
Date, cause the Company to redeem all but not less than all the then outstanding
Rights at a redemption price of $0.001 per Right, as such amount may be
appropriately adjusted, if necessary, to reflect any stock split, stock dividend
or similar transaction occurring after the Rights Dividend Declaration Date
(such redemption price being hereinafter referred to as the "Redemption
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Price"); provided, however, that the Rights may not be redeemed following any
merger to which the Company is a party that (i) occurs when there is an
Acquiring Person and (ii) was not approved prior to such merger by the Board of
Directors of the Company and by the shareholders of the Company at a
shareholders' meeting. Notwithstanding anything contained in this Agreement to
the contrary, the Rights shall not be exercisable after the first occurrence of
a Flip-In Event until such time as the Company's right of redemption hereunder
has expired. The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the Current Market Price of the Common Stock at
the time of redemption) or any other form of consideration deemed appropriate by
the Board of Directors.
(b) Immediately upon the effectiveness of the action of the Board of
Directors of the Company ordering the redemption of the Rights (the
effectiveness of which action may be conditioned on the occurrence of one or
more events or on the existence of one or more facts or may be effective at some
future time), evidence of which shall be filed with the Rights Agent and without
any further action and without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of Rights shall be to
receive the Redemption Price for each Right so held. Promptly after the
effectiveness of the action of the Board of Directors ordering the redemption of
the Rights, the Company shall give notice of such redemption to the Rights Agent
and the registered holders of the then outstanding Rights by mailing such notice
to all such holders at each holder's last address as it appears upon the
registry books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the Company for the Common Stock. Any notice that is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall state the method by
which the payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any
time and from time to time after the occurrence of a Flip-In Event, exchange all
or part of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 7(e) hereof)
for shares of Common Stock or Common Stock Equivalents or any combination
thereof, at an exchange ratio of one share of Common Stock, or such number of
Common Stock Equivalents or units representing fractions thereof as would be
deemed to have the same value as one share of Common Stock, per Right,
appropriately adjusted, if necessary, to reflect any stock split, stock dividend
or similar transaction occurring after the Rights Dividend Declaration Date
(such exchange ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors may not effect such
exchange at any time after (i) any Person (other than an Exempt Person),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the shares of Common Stock then outstanding
or (ii) the occurrence of a Flip-Over Event.
(b) Immediately upon the effectiveness of the action of the Board of
Directors of the Company ordering the exchange of any Rights pursuant to and in
accordance with subsection (a) of this Section 24 (the effectiveness of which
action may be conditioned on the occurrence of one or more events or on the
existence of one or more facts or may be effective at some future time) and
without any further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of Common Stock and/or Common Stock
Equivalents equal to the number of such Rights held by such holder multiplied by
the Exchange Ratio. The Company shall promptly give public notice 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 registered
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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
shares of Common Stock and/or Common Stock Equivalents for Rights will be
effected and, in the event of any partial exchange, the number of Rights that
will be exchanged. Any partial exchange shall be effected as nearly pro rata as
possible based on the number of Rights (other than Rights that have become void
pursuant to the provisions of Section 7(e) hereof) held by each holder of
Rights.
(c) In the event that the number of shares of Common Stock that are
authorized by the Company's articles of incorporation but not outstanding or
reserved for issuance for purposes other than upon exercise of the Rights is not
sufficient to permit an exchange of Rights as contemplated in accordance with
this Section 24, the Company may, at its option, take all such action as may be
necessary to authorize additional shares of Common Stock for issuance upon
exchange of the Rights.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates or scrip evidencing fractional shares
of Common Stock. In lieu of such fractional shares of Common Stock, the Company
shall pay to the registered holders of Rights with regard to which such
fractional shares of Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the value of a whole share of Common Stock. For
purposes of this Section 24, the value of a whole share of Common Stock shall be
the Closing Price per share of Common Stock for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24, and the value of any
Common Stock Equivalent shall be deemed to have the same value as the Common
Stock on such date.
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to the
holders of Preferred Stock or to make any other distribution to the holders of
Preferred Stock (other than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation or
merger into or with any other Person (other than a wholly owned Subsidiary of
the Company in a transaction that complies with Section 11(o) hereof), or to
effect any sale, lease or other transfer of all or substantially all the
Company's assets to any other Person or Persons (other than a wholly owned
Subsidiary of the Company in a transaction that complies with Section 11(o)
hereof), or (v) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of
record of a Rights Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification, consolidation, merger,
sale, lease, transfer, liquidation, dissolution or winding up is to take place
and the date of participation therein by the holders of the shares of Preferred
Stock, if any such date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (i) or (ii) above at least 20 days prior to
the record date for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other action, at least 20
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock, whichever
shall be the earlier. The failure to give
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notice required by this Section 25 or any defect therein shall not affect the
legality or validity of the action taken by the Company or the vote upon any
such action.
(b) In case any Flip-In Event or Flip-Over Event shall occur, then (i)
the Company shall as soon as practicable thereafter give to each registered
holder of a Rights Certificate (or if occurring prior to the Distribution Date,
the registered holders of Common Stock), in accordance with Section 26 hereof, a
notice of the occurrence of such event, which shall specify the event and the
consequences of the event to holders of Rights under Section 11(a)(ii) or
Section 13(a) hereof, and (ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to Common Stock and/or, if
appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this Agreement to be
given or made by the Rights Agent or by the holder of any Rights Certificate to
or on the Company shall be 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:
Wave Technologies, International, Inc.
10845 Olive Boulevard, Suite 250
St. Louis, Missouri 63141
Attention: President
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Chase Mellon Shareholder Services, L.L.C.
200 North Broadway, Suite 1722
St. Louis, missouri 63102
Attention: Jane Martin
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed to such holder at the address of such
holder as shown on the registry books of the Company.
Section 27. Supplements and Amendments. Except as provided in the last
sentence of this Section 27, at any time when the Rights are then redeemable,
the Company may in its sole and absolute discretion and the Rights Agent shall,
if the Company so directs, supplement or amend any provision of this Agreement
in any respect without the approval of any holders of Rights or holders of
Common Stock. At any time when the Rights are not redeemable, except as provided
in the last sentence of this Section 27, the Company may and the Rights Agent
shall, if the Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein that may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen any
time period hereunder or (iv) to change or supplement the provisions hereunder
in any manner that the Company may deem necessary or desirable; provided that no
such amendment or supplement shall materially adversely affect the interests of
the holders of Rights (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person); and further provided that this Agreement may
not be supplemented or amended pursuant to this sentence to lengthen (A) a time
period relating to when the Rights may be redeemed or (B) any other time period
unless the lengthening of such other time period is for the purpose of
protecting, enhancing or
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clarifying the rights of, and/or the benefits to, the holders of Rights (other
than any Acquiring Person and its Affiliates and Associates). Upon the delivery
of a certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment;
provided, however, that the Rights Agent may, but shall not be obligated to,
enter into any such supplement or amendment that affects the Rights Agent's own
rights, duties or immunities under this Agreement. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment shall be
made that decreases the Redemption Price.
Section 28. Successors. All the covenants and provisions of this Agreement
by or for the benefit of the Company or the Rights Agent shall bind and inure to
the benefit of their respective successors and assigns hereunder.
Section 29. Determinations and Actions by the Board of Directors, etc. For
all purposes of this Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act as in effect on the date of this Agreement. The Board of
Directors of the Company (or, as set forth herein, certain specified members
thereof) shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board of Directors of the Company or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the
administration of this Agreement (including, without limitation, a determination
to redeem or not redeem the Rights or to amend this Agreement). All such
actions, calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) that
are done or made by the Board of Directors of the Company in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights, as such, and all other parties, and (y) not subject the
Board of Directors to any liability to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 31. Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, then, unless there has occurred any merger referred to
in the proviso to the first sentence of Section 23(a), the right of redemption
set forth in Section 23 hereof shall be reinstated and shall not expire until
the close of business on the tenth day following the date of such determination
by the Board of Directors of the Company or, if earlier, immediately prior to
any such merger. Without limiting the foregoing, if any
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provision requiring that a determination be made by less than the entire Board
of Directors of the Company is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, such determination shall
then be made by the entire Board of Directors of the Company.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts made
and to be performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in multiple
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the 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 as of the day and year first above written.
WAVE TECHNOLOGIES INTERNATIONAL, INC.
/s/ Kenneth W. Kousky
By:___________________________________
Name: Kenneth W. Kousky
Title: President and Chief Executive Officer
CHASE MELLON SHAREHOLDER SERVICES, L.L.C.
/s/ H. E. Bradford
By:___________________________________
Name: H. E. Bradford
Title: Vice-President
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Exhibit A
FORM OF
CERTIFICATE OF DESIGNATIONS
of
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
of
WAVE TECHNOLOGIES INTERNATIONAL, INC.
Pursuant to Section 351.180 of the General Business Corporation Law
of the State of Missouri
Wave Technologies International, Inc., a corporation organized and existing
under the General and Business Corporation Law of the State of Missouri, in
accordance with the provisions of Section 351.180 thereof, DOES HEREBY CERTIFY
that pursuant to the authority vested in the Board of Directors in accordance
with the provisions of the Restated Articles of Incorporation of the said
Corporation, the said Board of Directors on September 17, 1998, adopted a
resolution authorizing a series of 20,000 shares of Preferred Stock designated
as "Series B Junior Participating Preferred Stock" having the terms, conditions,
rights, preferences, qualifications, limitations, and restrictions set forth in
this Certificate of Designations.
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
1. Designation and Amount. There shall be a series of Preferred Stock that
shall be designated as "Series B Junior Participating Preferred Stock," and the
number of shares constituting such series shall be 20,000. 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 B Junior
Participating Preferred Stock to less than the number of shares then issued and
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any
shares of any series of Preferred Stock ranking prior and superior to the shares
of Series B Junior Participating Preferred Stock with respect to dividends, the
holders of shares of Series B Junior Participating Preferred Stock, in
preference to the holders of shares of any class or series of stock of the
Corporation ranking junior to the Series B Junior Participating Preferred 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 1st day of January, April, July and October in each year (each such
date being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series B Junior Participating Preferred
Stock, in an amount per share (rounded to the nearest cent) equal to the greater
of (a) $.02 or (b) the Adjustment Number (as defined below) times the aggregate
per share amount of all cash dividends, and the Adjustment Number 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, par
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value $0.50 per share, of the Corporation (the "Common Stock") since the
immediately preceding Quarterly Dividend Payment Date, or, with respect to the
first Quarterly Dividend Payment Date, since the first issuance of any share or
fraction of a share of Series B Junior Participating Preferred Stock. The
"Adjustment Number" shall initially be 1,000. In the event the Corporation shall
at any time after September 17, 1998 (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.
(B) The Corporation shall declare a dividend or distribution on the
Series B Junior Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock); provided that, in the
event no dividend or distribution shall have been declared on the Common Stock
during the period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $.02 per share on the
Series B Junior Participating Preferred Stock shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series B Junior Participating Preferred Stock from the Quarterly
Dividend Payment Date next preceding the date of issue of such shares of Series
B Junior Participating Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly Dividend Payment Date, in
which case dividends on such shares shall begin to accrue from the date of issue
of such shares, or unless the date of issue is a Quarterly Dividend Payment Date
or is a date after the record date for the determination of holders of shares of
Series B Junior Participating Preferred Stock entitled to receive a quarterly
dividend and before such Quarterly Dividend Payment Date, in either of which
events such dividends shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series B Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at the
time accrued and payable on such shares shall be allocated pro rata on a share-
by-share basis among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders of shares of
Series B Junior Participating Preferred Stock entitled to receive payment of a
dividend or distribution declared thereon, which record date shall be no more
than 30 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series B Junior Participating
Preferred Stock shall have the following voting rights:
(A) Each share of Series B Junior Participating Preferred Stock shall
entitle the holder thereof to a number of votes equal to the Adjustment Number
on all matters submitted to a vote of the shareholders of the Corporation.
(B) Except as otherwise provided herein, in the Restated Articles of
Incorporation or by law, the holders of shares of Series B Junior Participating
Preferred Stock, the holders of shares of any other class or series entitled to
vote with the Common Stock and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of shareholders of the
Corporation.
(C)(i) If at any time dividends on any Series B Junior
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Participating Preferred 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") that 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 B Junior Participating Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each default period, (1) the
number of Directors shall be increased by three, effective as of the time of
election of such Directors as herein provided, and (2) the holders of Preferred
Stock (including holders of the Series B Junior Participating Preferred Stock)
upon which these or like voting rights have been conferred and are exercisable
(the "Voting Preferred 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 such three Directors (the "Preferred Directors").
The Preferred Directors shall be allocated among the classes of Directors in
accordance with Section 3.c. of Article IV of the Restated Articles of
Incorporation.
(ii) During any default period, such voting right of the holders
of Series B Junior Participating Preferred Stock may be exercised initially at a
special meeting called pursuant to subparagraph (iii) of this Section 3(C) or at
any annual meeting of shareholders, and thereafter at annual meetings of
shareholders, provided that such voting right shall not be exercised unless the
holders of at least one-third in number of the shares of Voting 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
Voting Preferred Stock of such voting right.
(iii) Unless the holders of Voting Preferred Stock shall, during
an existing default period, have previously exercised their right to elect
Preferred Directors, the Board of Directors may order, or, notwithstanding any
provision to the contrary in the Corporation's Bylaws, any shareholder or
shareholders owning in the aggregate not less than ten percent of the total
number of shares of Voting Preferred Stock outstanding, irrespective of series,
may request, the calling of a special meeting of the holders of Voting Preferred
Stock, which meeting shall thereupon be called by the Chairman of the Board, the
President, a Vice President or the Secretary of the Corporation. Notice of such
meeting and of any annual meeting at which holders of Voting Preferred Stock are
entitled to vote pursuant to this paragraph (C)(iii) shall be given to each
holder of record of Voting Preferred Stock by mailing a copy of such notice to
him at his last address as the same appears 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 ten percent of the total number of shares of Voting Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph (C)(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, after the holders of Voting Preferred
Stock shall have exercised their right to elect Preferred Directors voting as a
class, (x) the Directors so elected by the holders of Voting 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 be filled by vote of a majority of the remaining
Directors theretofore elected by the holders of the class or classes of stock
which elected the Director whose office shall have become vacant. References in
this paragraph (C) to the Preferred Directors shall include Preferred Directors
elected by the other Preferred Directors to fill vacancies as provided in clause
(y) of the foregoing sentence.
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(v) Immediately upon the expiration of a default period, (x) the
right of the holders of Voting Preferred Stock as a class to elect Preferred
Directors shall cease, (y) the term of any Preferred Directors elected by the
holders of Voting Preferred Stock as a class shall terminate and (z) the number
of Directors shall be such number as may be provided for in the Restated
Articles of Incorporation or By-Laws irrespective of any increase made pursuant
to the provisions of paragraph (C) of this Section 3 (such number being subject,
however, to change thereafter in any manner provided by law or in the Restated
Articles 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.
(D) Except as set forth herein, holders of Series B Junior
Participating Preferred Stock shall have no special voting rights and their
consent shall not be required (except to the extent they are entitled to vote
with holders of Common Stock as set forth herein) for taking any corporate
action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series B Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series B Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series B Junior Participating
Preferred Stock, except dividends paid ratably on the Series B Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled; or
(iii) redeem or purchase or otherwise acquire for consideration
any shares of Series B Junior Participating Preferred Stock, or any shares of
stock ranking on a parity with the Series B Junior Participating Preferred
Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of Series B
Junior Participating Preferred Stock, or to all such holders and the holders of
any such shares ranking on a parity therewith, upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and other
relative rights and preferences of the respective Series and classes, shall
determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
5. Reacquired Shares. Any shares of Series B Junior Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the acquisition thereof.
All such shares shall upon their cancellation become authorized but
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unissued shares of Preferred Stock and may be reissued as part of a new series
of Preferred Stock to be created by resolution or resolutions of the Board of
Directors, subject to any conditions and restrictions on issuance set forth
herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation
(voluntary or otherwise), dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of stock ranking junior
(either as to dividends or upon liquidation, dissolution or winding up) to the
Series B Junior Participating Preferred Stock unless, prior thereto, the holders
of shares of Series B Junior Participating Preferred Stock shall have received
$1.00 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 B Liquidation Preference"). Following the payment of the full amount of
the Series B Liquidation Preference, no additional distributions shall be made
to the holders of shares of Series B Junior Participating Preferred 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 B Liquidation Preference by (ii) the Adjustment Number.
Following the payment of the full amount of the Series B Liquidation Preference
and the Common Adjustment in respect of all outstanding shares of Series B
Junior Participating Preferred Stock and Common Stock, respectively, holders of
Series B Junior Participating Preferred Stock and holders of shares of Common
Stock shall, subject to the prior rights of all other series of Preferred Stock,
if any, ranking prior thereto, 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 B Junior Participating Preferred Stock and Common
Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series B Liquidation Preference and
the liquidation preferences of all other series of Preferred Stock, if any, that
rank on a parity with the Series B Junior Participating Preferred 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.
(C) Neither the merger or consolidation of the Corporation into or
with another corporation nor the merger or consolidation of any other
corporation into or with the Corporation shall be deemed to be a liquidation,
dissolution or winding up of the Corporation within the meaning of this Section
6, but the sale, lease or conveyance of all or substantially all the
Corporation's assets shall be deemed to be a liquidation, dissolution or winding
up of the Corporation within the meaning of this Section 6.
7. Consolidation, Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case each share of Series B Junior
Participating Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share equal to the Adjustment Number times the
aggregate amount of stock, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each share of Common Stock
is changed or exchanged.
8. Redemption.
(A) The Corporation, at its option, may redeem shares of the Series B
Junior Participating Preferred Stock in whole at any time and in part from time
to time, at a redemption price equal to the Adjustment Number times
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the current per share market price (as such term is hereinafter defined) of the
Common Stock on the date of the mailing of the notice of redemption, together
with unpaid accumulated dividends to the date of such redemption. The "current
per share market price" on any date shall be deemed to be the average of the
closing price per share of such Common Stock for the ten consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share market price of
the Common Stock is determined during a period following the announcement of (A)
a dividend or distribution on the Common Stock other than a regular quarterly
cash dividend or (B) any subdivision, combination or reclassification of such
Common Stock and the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, shall not
have occurred prior to the commencement of such ten Trading Day period, then,
and in each such case, the current per share market price shall be properly
adjusted to take into account ex-dividend trading. The closing price for each
day shall be the last sales 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 transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange, or, if the Common Stock is not listed or admitted to trading on the
New York Stock Exchange, on the principal national securities exchange on which
the Common Stock is listed or admitted to trading, or, if the Common Stock is
not listed or admitted to trading on any national securities exchange but sales
price information is reported for such security, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other self-regulatory organization or registered securities information
processor (as such terms are used under the Securities Exchange Act of 1934, as
amended) that then reports information concerning the Common Stock, or, if sales
price information is not so reported, the average of the high bid and low asked
prices in the over-the- counter market on such day, as reported by NASDAQ or
such other entity, or, if on any such date the Common Stock is not quoted by any
such entity, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the
Board of Directors of the Corporation. If on any such date no such market maker
is making a market in the Common Stock, the fair value of the Common Stock on
such date as determined in good faith by the Board of Directors of the
Corporation shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the Common Stock is listed or
admitted to trading is open for the transaction of business, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
but is quoted by NASDAQ, a day on which NASDAQ reports trades, or, if the Common
Stock is not so quoted, a Monday, Tuesday, Wednesday, Thursday or Friday on
which banking institutions in the State of New York are not authorized or
obligated by law or executive order to close.
(B) In the event that fewer than all the outstanding shares of the
Series B Junior Participating Preferred Stock are to be redeemed, the number of
shares to be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be determined by lot or pro rata as may be
determined by the Board of Directors or by any other method that may be
determined by the Board of Directors in its sole discretion to be equitable.
(C) Notice of any such redemption shall be given by mailing to the
holders of the shares of Series B Junior Participating Preferred Stock to be
redeemed a notice of such redemption, first class postage prepaid, not later
than the fifteenth day and not earlier than the sixtieth day before the date
fixed for redemption, at their last address as the same shall appear upon the
books of the Corporation. Each such notice shall state: (i) the redemption date;
(ii) the number of shares to be redeemed and, if fewer than all the shares held
by such holder are to be redeemed, the number of such shares to be redeemed from
such holder; (iii) the redemption price; (iv) the place or places where
certificates for such shares are to be surrendered for payment of the
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redemption price; and (v) that dividends on the shares to be redeemed will cease
to accrue on the close of business on such redemption date. Any notice that is
mailed in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the shareholder received such notice, and failure
duly to give such notice by mail, or any defect in such notice, to any holder of
Series B Junior Participating Preferred Stock shall not affect the validity of
the proceedings for the redemption of any other shares of Series B Junior
Participating Preferred Stock that are to be redeemed. On or after the date
fixed for redemption as stated in such notice, each holder of the shares called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. If fewer than all the
shares represented by any such surrendered certificate are redeemed, a new
certificate shall be issued representing the unredeemed shares.
(D) The shares of Series B Junior Participating Preferred Stock shall
not be subject to the operation of any purchase, retirement or sinking fund.
9. Ranking. The Series B Junior Participating Preferred Stock shall rank
junior to all other series of the Corporation's Preferred Stock as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise, and shall rank senior to the Common Stock
as to such matters.
10. Amendment. At any time that any shares of Series B Junior
Participating Preferred Stock are outstanding, the Restated Articles of
Incorporation of the Corporation shall not be amended in any manner which would
materially alter or change the powers, preferences or special rights of the
Series B Junior Participating Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of two-thirds or more of the
outstanding shares of Series B Junior Participating Preferred Stock, voting
separately as a class.
11. Fractional Shares. Except as otherwise provided in this Certificate
of Designations, Series B Junior Participating Preferred Stock may be issued in
fractions of a share that 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 B Junior Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned has executed this Certificate and does
affirm the foregoing as true this ___ day of September, 1998.
________________________________________
President
STATE OF MISSOURI )
) SS
COUNTY OF ST. LOUIS )
I, ______________________________________, a Notary Public, do hereby
certify that on the _________ day of September, 1998, personally appeared before
me ______________________________, who, being by me first duly sworn, declared
that he is the President of Wave Technologies International,
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Inc., that he signed the foregoing document as President of the corporation, and
that the statements therein contained are true.
SEAL ________________________________________
Notary Public
My Commission Expires:____________________
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Exhibit B
[Form of Rights Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 28, 2008, OR EARLIER IF REDEEMED OR EXCHANGED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY,
AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS BENEFICIALLY OWNED BY OR
TRANSFERRED TO ANY PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO
LONGER BE TRANSFERABLE.
RIGHTS CERTIFICATE
WAVE TECHNOLOGIES INTERNATIONAL, 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 September 17, 1998 as it may from time to time be
supplemented or amended (the "Rights Agreement"), between Wave Technologies
International, Inc., a Missouri corporation (the "Company"), and Chase Mellon
Shareholder Services (the "Rights Agent"), to purchase from the Company at any
time prior to 5:00 p.m. (New York City time) on September 28, 2008, at the
principal office or offices of the Rights Agent designated for such purpose, or
its successors as Rights Agent, one one-thousandth of a fully paid,
nonassessable share (a "Fractional Share") of Series B Junior Participating
Preferred Stock (the "Preferred Stock") of the Company, at a purchase price of
$25.00 per one one-thousandth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate set forth on the reverse hereof duly
executed. The Purchase Price may be paid in cash or by certified check,
cashier's or official bank check or bank draft payable to the order of the
Company or the Rights Agent. The number of Rights evidenced by this Rights
Certificate (and the number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per Fractional Share set forth
above, are the number and Purchase Price as of September 28, 1998, based on the
Preferred Stock as constituted at such date. The Company reserves the right to
require prior to the occurrence of a Triggering Event (as such term is defined
in the Rights Agreement) that a number of Rights be exercised so that only whole
shares of Preferred Stock will be issued.
From and after the first occurrence of a Triggering Event (as such term is
defined in the Rights Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by or transferred to (i) an Acquiring Person
or an Associate or Affiliate of an Acquiring Person (as such terms are defined
in the Rights Agreement), (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of a person who, concurrently with or after such
transfer, became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person, such Rights shall, with certain exceptions, become null and
void in the circumstances set forth in the Rights Agreement, and no holder
hereof shall have any rights whatsoever with respect to such Rights from and
after the occurrence of such Triggering Event.
As provided in the Rights Agreement, the Purchase Price and the number
B-1
<PAGE>
and kind of shares of Preferred Stock or other securities or assets that may be
purchased upon the exercise of the Rights evidenced by this Rights Certificate
are subject to modification and adjustment upon the happening of certain events,
including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Company or the
Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of Fractional Shares of Preferred Stock as the
Rights evidenced by the Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase. If this Rights Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender hereof
another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at its option at a
redemption price of $0.01 per Right, payable, at the election of the Company, in
cash or shares of Common Stock or such other consideration as the Board of
Directors may determine, at any time prior to the earlier of the close of
business on (a) the tenth day following the first public announcement of the
occurrence of a Flip-In Event (as such term is defined in the Rights Agreement
and as such time period may be extended or shortened pursuant to the Rights
Agreement) and (b) the Expiration Date (as such term is defined in the Rights
Agreement) or (ii) may be exchanged in whole or in part for shares of the
Company's Common Stock, par value $0.50 per share, and/or other equity
securities of the Company deemed to have the same value as shares of Common
Stock, at any time prior to a person's becoming the beneficial owner of 50% or
more of the shares of Common Stock outstanding or the occurrence of a Flip-Over
Event (as such term is defined in the Rights Agreement). No fractional shares of
Preferred Stock are required to be issued upon the exercise of any Right or
Rights evidenced hereby (other than, except as set forth above, fractions that
are integral multiples of a Fractional Share of Preferred Stock, which may, at
the election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment may be made, as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Preferred
Stock or of any other securities of the Company that may at any time be issuable
on the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a shareholder of the Company or any right to vote for the election of
directors or upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
B-2
<PAGE>
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: WAVE TECHNOLOGIES INTERNATIONAL, INC.
______________________________ By:__________________________________
Secretary Title:
Countersigned:
CHASE MELLON SHAREHOLDER SERVICES
By:___________________________
Authorized Signature
B-3
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer any Rights evidenced by the Rights Certificate.)
FOR VALUE RECEIVED _____________________________________ hereby sells, assigns
and transfers unto ____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Please print name and address of transferee)
_________ Rights evidenced by this Rights Certificate, together with all right,
title and interest therein, and does hereby irrevocably constitute and appoint
__________________ Attorney, to transfer the said Rights 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 national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or another eligible guarantor institution (as defined pursuant to Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended).
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being sold, assigned and transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of an Acquiring Person (as such
terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or who is a direct or indirect
transferee of an Acquiring Person or of an Affiliate or Associate of an
Acquiring Person.
Dated: _____________________, ____
________________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or another eligible guarantor institution (as defined pursuant to
B-4
<PAGE>
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended).
NOTICE
The signatures to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
B-5
<PAGE>
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: WAVE TECHNOLOGIES INTERNATIONAL, INC.
The undersigned hereby irrevocably elects to exercise _________ Rights
represented by this Rights Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person that may be issuable upon the exercise of the
Rights) and requests that certificates for such shares (or other securities) be
issued in the name of and delivered to:
(Please insert social security or other identifying number.)
_______________________________________________________________________________
(Please print name and address.)
_______________________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
(Please insert social security or other identifying number.)
_______________________________________________________________________________
(Please print name and address.)
_______________________________________________________________________________
Dated: ________________, ____
________________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or another eligible guarantor institution (as defined pursuant to Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended).
B-6
<PAGE>
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or who is a direct or indirect transferee of an
Acquiring Person or of an Affiliate or Associate of an Acquiring Person.
Dated: _________________, ____
________________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a national securities
exchange, a member of the National Association of Securities Dealers, Inc., a
commercial bank or trust company having an office or correspondent in the United
States or another eligible guarantor institution (as defined pursuant to Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended).
NOTICE
The signatures to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
B-7
<PAGE>
Exhibit C
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS, WAS OR BECOMES AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE THEREOF (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT), AND CERTAIN TRANSFEREES THEREOF, WILL BECOME NULL AND
VOID AND WILL NO LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On September 17, 1998, the Board of Directors of Wave Technologies
International, Inc. (the "Company") declared a dividend of one right to purchase
preferred stock ("Right") for each outstanding share of the Company's Common
Stock, par value $0.50 per share ("Common Stock"), to shareholders of record at
the close of business on September 28, 1998. Each Right entitles the registered
holder to purchase from the Company a unit consisting of one one-thousandth of a
share (a "Fractional Share") of Series B Junior Participating Preferred Stock,
no par value per share (the "Preferred Stock"), at a purchase price of $25.00
per Fractional Share, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights Agreement dated as
of September 17, 1998, as it may from time to time be supplemented or amended
(the "Rights Agreement") between the Company and Chase Mellon Shareholder
Services, as Rights Agent.
Initially, the Rights will be attached to all certificates representing
outstanding shares of Common Stock, and no separate certificates for the Rights
("Rights Certificates") will be distributed. The Rights will separate from the
Common Stock and a "Distribution Date" will occur, with certain exceptions, upon
the earlier of (i) ten days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired,
or obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Common Stock (the date of the announcement being the
"Stock Acquisition Date"), or (ii) ten business days following the commencement
of a tender offer or exchange offer that would result in a person's becoming an
Acquiring Person. In certain circumstances, the Distribution Date may be
deferred by the Board of Directors. Certain inadvertent acquisitions will not
result in a person's becoming an Acquiring Person if the person promptly divests
itself of a sufficient amount of Common Stock. Until the Distribution Date, (a)
the Rights will be evidenced by the Common Stock certificates (together with a
copy of this Summary of Rights or bearing the notation referred to below) and
will be transferred with and only with such Common Stock certificates, (b) new
Common Stock certificates issued after September 28, 1998, will contain a
notation incorporating the Rights Agreement by reference and (c) the surrender
for transfer of any certificate for Common Stock (with or without a copy of this
Summary of Rights) will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on September 28, 2008, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date and, from and after the Distribution Date, the separate
Rights Certificates alone will represent the Rights. All shares of Common Stock
issued prior to the Distribution Date will be issued with Rights. Shares of
Common Stock issued after the Distribution Date in connection with
C-1
<PAGE>
certain employee benefit plans or upon conversion of certain securities will be
issued with Rights. Except as otherwise determined by the Board of Directors, no
other shares of Common Stock issued after the Distribution Date will be issued
with Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring Person
(except pursuant to a tender or exchange offer for all outstanding shares of
Common Stock at a price and on terms that a majority of the independent
directors of the Company determines to be fair to and otherwise in the best
interests of the Company and its shareholders (a "Permitted Offer")), each
holder of a Right will thereafter have the right to receive, upon exercise of
such Right, a number of shares of Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a Current Market Price
(as defined in the Rights Agreement) equal to two times the exercise price of
the Right. Notwithstanding the foregoing, following the occurrence of any
Triggering Event, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by or transferred to an
Acquiring Person (or by certain related parties) will be null and void in the
circumstances set forth in the Rights Agreement. However, Rights are not
exercisable following the occurrence of any Flip-In Event until such time as the
Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $25.00 per Right, each Right not owned
by an Acquiring Person (or by certain related parties) following an event set
forth in the preceding paragraph would entitle its holder to purchase $25.00 X 2
worth of Common Stock (or other consideration, as noted above), based upon its
then Current Market Price, for $26.00. Assuming that the Common Stock had a
Current Market Price of $10.00 per share at such time, the holder of each valid
Right would be entitled to purchase 5 shares of Common Stock for $25.00.
In the event (a "Flip-Over Event") that, at any time from and after the
time an Acquiring Person becomes such, (i) the Company is acquired in a merger
or other business combination transaction (other than certain mergers that
follow a Permitted Offer), or (ii) 50% or more of the Company's assets or
earning power is sold or transferred, each holder of a Right (except Rights that
are voided as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as "Triggering Events."
The number of outstanding Rights associated with a share of Common Stock,
or the number of Fractional Shares of Preferred Stock issuable upon exercise of
a Right and the Purchase Price, are subject to adjustment in the event of a
stock dividend on, or a subdivision, combination or reclassification of, the
Common Stock occurring prior to the Distribution Date. The Purchase Price
payable, and the number of Fractional Shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution in the event of certain
transactions affecting the Preferred Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares of Preferred Stock that are not integral multiples
of a Fractional Share are required to be issued and, in lieu thereof, an
adjustment in cash may be made based on the market price of the Preferred Stock
on the last trading date prior to the date of exercise. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the occurrence of
a Triggering Event that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
C-2
<PAGE>
At any time until ten days following the first date of public announcement
of the occurrence of a Flip-In Event, the Company may redeem the Rights in
whole, but not in part, at a price of $0.01 per Right, payable, at the option of
the Company, in cash, shares of Common Stock or such other consideration as the
Board of Directors may determine. Immediately upon the effectiveness of the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the $0.01 redemption price.
At any time after the occurrence of a Flip-In Event and prior to a person's
becoming the beneficial owner of 50% or more of the shares of Common Stock then
outstanding or the occurrence of a Flip-Over Event, the Company may exchange the
Rights (other than Rights owned by an Acquiring Person or an affiliate or an
associate of an Acquiring Person, which will have become void), in whole or in
part, at an exchange ratio of one share of Common Stock, and/or other equity
securities deemed to have the same value as one share of Common Stock, per
Right, subject to adjustment.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights should not
be taxable to shareholders or to the Company, shareholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for the
common stock of the acquiring company as set forth above or are exchanged as
provided in the preceding paragraph.
Other than the redemption price, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company as long as the
Rights are redeemable. Thereafter, the provisions of the Rights Agreement other
than the redemption price may be amended by the Board of Directors in order to
cure any ambiguity, defect or inconsistency, to make changes that do not
materially adversely affect the interests of holders of Rights (excluding the
interests of any Acquiring Person), or to shorten or lengthen any time period
under the Rights Agreement; provided, however, that no amendment to lengthen the
time period governing redemption shall be made at such time as the Rights are
not redeemable.
A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
C-3
<PAGE>
EXHIBIT 4.2
AMENDED AND RESTATED BY-LAWS
OF
WAVE TECHNOLOGIES INTERNATIONAL, INC.
(As Amended through September 17, 1998)
<TABLE>
<S> <C>
ARTICLE I Offices and Records
ARTICLE II Corporate Seal
ARTICLE III Shareholders
ARTICLE IV Directors
ARTICLE V Officers
ARTICLE VI Shares of Stock
ARTICLE VII Indemnification
ARTICLE VIII General Provisions
</TABLE>
<PAGE>
Table of Contents
-----------------
<TABLE>
<CAPTION>
SECTION NO. Page No.
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<S> <C>
ARTICLE I.............................................................. 1
Section 1. Registered Office and Registered Agent............... 1
Section 2. Corporate Offices.................................... 1
Section 3. Records.............................................. 1
Section 4. Inspection of Records................................ 1
ARTICLE II............................................................. 2
Section 1. Corporate Seal....................................... 2
ARTICLE III............................................................ 2
Section 1. Place of Meetings.................................... 2
Section 2. Annual Meeting....................................... 2
Section 3. Special Meetings..................................... 3
Section 4. No Action in Lieu of Meeting......................... 3
Section 5. Notice of Meetings................................... 3
Section 6. Presiding Officials.................................. 3
Section 7. Waiver of Notice..................................... 3
Section 8. Business Transacted at Annual Meetings............... 3
Section 9. Business Transacted at Special Meetings.............. 4
Section 10. Quorum............................................... 4
Section 11. Proxies.............................................. 4
Section 12. Voting............................................... 5
Section 13. Registered Shareholders.............................. 6
Section 14. Shareholders Lists................................... 6
Section 15. Removal of Directors................................. 7
Section 16. Nomination of Directors.............................. 7
Section 17. Proposals for Annual Meeting......................... 8
Section 18. Conduct of Business at Meetings...................... 9
ARTICLE IV............................................................. 9
Section 1. Qualifications and Number............................ 9
Section 2. Powers of the Board.................................. 10
Section 3. Annual Meeting of the Board, Notice.................. 10
Section 4. Regular Meetings, Notice............................. 11
Section 5. Special Meetings, Notice............................. 11
Section 6. Action in Lieu of Meetings........................... 11
Section 7. Meeting by Conference Telephone or Similar
Communications Equipment........................... 12
Section 8. Quorum............................................... 12
Section 9. Waiver of Notice; Attendance at Meeting.............. 12
</TABLE>
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<TABLE>
<CAPTION>
SECTION NO. Page No.
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<S> <C>
Section 10. Vacancies............................................ 12
Section 11. Executive Committee.................................. 12
Section 12. Audit Committee and Compensation Committee........... 13
Section 13. Other Committees..................................... 14
Section 14. Compensation of Directors and Committee Members...... 15
Section 15. Protection of Director for Reliance on Corporate
Records............................................ 15
ARTICLE V.............................................................. 16
Section 1. Officers--Who Shall Constitute....................... 16
Section 2. Term of Office....................................... 16
Section 3. Appointment of Officers and Agents--Terms of Office.. 16
Section 4. Removal.............................................. 16
Section 5. Salaries and Compensation............................ 17
Section 6. Delegation of Authority to Hire, Discharge, Etc...... 17
Section 7. The Chairman of the Board and the President.......... 17
Section 8. Vice Presidents...................................... 18
Section 9. The Secretary and Assistant Secretaries.............. 18
Section 10. The Treasurer and Assistant Treasurers............... 19
Section 11. Bond................................................. 20
Section 12. Checks and Other Instruments......................... 20
Section 13. Duties of Officers May be Delegated.................. 20
VI..................................................................... 21
Section 1. Payment for Shares of Stock.......................... 21
Section 2. Certificates for Shares of Stock..................... 21
Section 3. Lost or Destroyed Certificates....................... 21
Section 4. Transfers of Shares, Transfer Agent, Registrar....... 22
Section 5. Closing of Transfer Books, Record Date............... 22
Section 6. Fractional Share Interests or Scrip.................. 23
VII.................................................................... 24
Section 1. Third Party Actions.................................. 24
Section 2. Actions By or in the Right of the Corporation........ 24
Section 3. Indemnity if Successful.............................. 25
Section 4. Standard of Conduct.................................. 25
Section 5. Expenses............................................. 25
Section 6. Nonexclusivity....................................... 25
Section 7. Further Indemnity Permissible........................ 25
Section 8. Insurance............................................ 26
Section 9. Corporation.......................................... 26
Section 10. Other Definitions.................................... 26
</TABLE>
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<TABLE>
<CAPTION>
SECTION NO. Page No.
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<S> <C>
Section 11. Indemnity for Agents and Employees................... 27
VIII................................................................... 27
Section 1. Fixing of Capital, Transfers of Surplus.............. 27
Section 2. Dividends............................................ 28
Section 3. Creation of Reserves................................. 28
Section 4. Fiscal Year.......................................... 28
Section 5. Notices.............................................. 28
Section 6. Amendments to By-laws................................ 28
</TABLE>
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<TABLE>
<CAPTION>
SECTION NO. Page No.
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<S> <C>
Section 8. Insurance............................................ 24
Section 9. Corporation.......................................... 25
Section 10. Other Definitions.................................... 25
Section 11. Indemnity for Agents and Employees................... 25
</TABLE>
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<TABLE>
<CAPTION>
SECTION NO. Page No.
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ARTICLE VIII General Provisions..................................... 26
Section 1. Fixing of Capital, Transfers of Surplus............. 26
Section 2. Dividends........................................... 26
Section 3. Creation of Reserves................................ 26
Section 4. Fiscal Year......................................... 26
Section 5. Notices............................................. 27
Section 6. Amendments to By-laws............................... 27
</TABLE>
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ARTICLE I
Offices and Records
-------------------
Registered Office and Registered Agent. The location of the registered
office and the name of the registered agent of the corporation in the State of
Missouri shall be determined from time to time by the Board of Directors and
shall be on file in the appropriate office of the State of Missouri pursuant to
applicable provisions of law.
Section 2. Corporate Offices. The corporation may have such corporate
offices, anywhere within and without the State of Missouri as the Board of
Directors from time to time may appoint, or the business of the corporation may
require. The "principal place of business" or "principal business" or
"executive" office or offices of the corporation may be fixed and so designated
from time to time by the Board of Directors, but the location or residence of
the corporation in Missouri shall be deemed for all purposes to be in the county
in which its registered office in Missouri is maintained.
Section 3. Records. The corporation shall keep at its registered office
in Missouri, at its principal place of business, or at the office of its
transfer agent in Missouri, if any, original or duplicate books in which shall
be recorded the number of its shares subscribed, the names of the owners of its
shares, the numbers owned of record by them respectively, the amount of shares
paid, and by whom, and the transfer of said shares with the date of transfer.
The corporation shall also keep correct and accurate books and records of
account, including the amount of its assets and liabilities, minutes of
proceedings of its shareholders and Board of Directors, the names and places of
residence of its officers, and from time to time such other or additional
records, statements, lists, and information as may be required by law, including
the shareholder lists mentioned in these By-laws.
Section 4. Inspection of Records. A shareholder, if he is entitled and
demands to inspect the records of the corporation pursuant to any statutory or
other legal right, shall be privileged to inspect such records only during the
usual and customary hours of business and in such manner as will not unduly
interfere with the regular conduct of the business of the corporation. In order
to exercise this right of examination, a shareholder must make written demand
upon the corporation, stating with particularly the records sought to be
examined and the purpose therefor. A shareholder may delegate his right of
inspection to his representative on the condition that, if the representative is
not an attorney, the shareholder and representative agree with the corporation
to furnish to the
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<PAGE>
corporation, promptly as completed or made, a true and correct copy of each
report with respect to such inspection made by such representative. No
shareholder shall use or permit to be used or acquiesce in the use by others of
any information so obtained, to the detriment competitively of the corporation,
nor shall he furnish or permit to be furnished any information so obtained to
any competitor or prospective competitor of the corporation. The corporation as
a condition precedent to any shareholder's inspection of the records of the
corporation may require the shareholder to indemnify the corporation against any
loss or damage which may be suffered by it arising out of or resulting from any
unauthorized disclosure made or permitted to be made by such shareholder of
information obtained in the course of such inspection.
ARTICLE II
Corporate Seal
--------------
Section 1. Corporate Seal. The corporate seal, if any, shall have
inscribed thereon the name of the corporation and the words: Corporate Seal--
Missouri. Said seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE III
Shareholders
------------
Section 1. Place of Meetings. All meetings of the shareholders shall be
held at the principal business office of the corporation, except such meetings
as the Board of Directors to the extent permissible by law expressly determines
shall be held elsewhere, in which case such meetings may be held, upon notice
thereof as herein provided, at such other place or places, within or without the
State of Missouri, as said Board of Directors shall determine and as shall be
stated in such notice; and, unless specifically prohibited by law, any meeting
may be held at any place and time, and for any purpose if consented to in
writing by all of the shareholders entitled to vote thereat.
Section 2. Annual Meeting. An annual meeting of the shareholders shall be
held on the second Wednesday in the month of September of each year, commencing
in September 1995, and at such time on that day or on such other day within such
month, as shall be determined by the Board of Directors, at which time the
shareholders shall elect directors to succeed those whose terms expire and
transact such other business as may properly come before the meeting.
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Section 3. Special Meetings. Special Meetings of the shareholders may be
called only by the Chairman of the Board (if any), the President, or by the
Board of Directors, and shall be held on such date and at such time as he or
they shall fix.
Section 4. No Action in Lieu of Meeting. No action required to be taken
at a meeting of the shareholders nor any other action which may be taken at a
meeting of the shareholders may be taken without a meeting of the shareholders
entitled to vote with respect to the subject matter thereof.
Section 5. Notice of Meetings. Written or printed notice stating the
place, day, and hour of the meeting and, in the case of a special meeting, the
purpose or purposes for which the meeting is called, shall be given not less
than ten nor more than fifty days before the date of the meeting, either
personally or by mail, by or at the direction of the Board of Directors, the
Chairman of the Board (if any), the President, or the Secretary, to each
shareholder of record entitled to vote at such meeting. If mailed, such notice
shall be deemed to be delivered when deposited in the United States mail in a
sealed envelope addressed to the shareholder at his address as it appears on the
records of the corporation, with postage thereon prepaid.
Section 6. Presiding Officials. Every meeting of the shareholders for
whatever object, shall be convened (in the order shown, unless otherwise
determined by resolution of the Board of Directors) by the Chairman of the Board
(if any), or by the President, or by the officer who called the meeting by
notice as above provided; but it shall be presided over by the officers
specified elsewhere in these By-laws.
Section 7. Waiver of Notice. Whenever any notice is required to be given
under the provisions of these By-laws, the Articles of Incorporation of the
corporation, or any law, a waiver thereof in writing signed by the person or
persons entitled to such notice, whether before or after the time stated
therein, shall be deemed the equivalent of the giving of such notice to the
extent provided by law, attendance at any meeting shall constitute a waiver of
notice of such meeting.
Section 8. Business Transacted at Annual Meetings. At each annual meeting
of the shareholders, the shareholders shall elect the class of directors whose
terms expire at such annual meeting to hold office for a three-year term, until
the annual meeting three years thereafter, and they may transact such other
business as may be desired, whether or not the same was specified in the notice
of the meeting, unless the consideration of such other
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business without its having been specified in the notice of the meeting as one
of the purposes thereof is prohibited by law.
Section 9. Business Transacted at Special Meetings. Business transacted
at all special meetings of the shareholders shall be confined to the purposes
stated in the notice of such meetings, unless the transaction of other business
is consented to by the holders of all of the outstanding shares of stock of the
corporation entitled to vote thereat.
Section 10. Quorum. Except as may be otherwise required by law or by the
Articles of Incorporation, the holders of a majority of the voting shares issued
and outstanding and entitled to vote for the election of directors, whether
present in person or by proxy, shall constitute a quorum for the transaction of
business at all meetings of the shareholders. Every decision of a majority in
amount of shares of such quorum shall be valid as a corporate act, except in
those specific instances in which a larger vote is required by law, by these By-
laws, or by the Articles of Incorporation. If, however, such quorum should not
be present at any meeting, the shareholders present and entitled to vote shall
have the power successively to adjourn the meeting, without notice other than
announcement at the meeting, to a specified date not longer than ninety days
after such adjournment. At any such adjourned meeting at which a quorum is
present any business may be transacted which might have been transacted at the
meeting of which the shareholders were originally notified. However, if the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given in the manner otherwise provided herein to each shareholder of
record entitled to vote at such adjourned meeting. Withdrawal of shareholders
from any meeting shall not cause the failure of a duly constituted quorum at
such meeting.
Section 11. Proxies. At any meeting of the shareholders every shareholder
having the right to vote shall be entitled to vote in person, or by vesting
another person with authority to exercise the voting power of any or all of his
stock by executing in writing any voting trust agreement, proxy, or any other
type of appointment form or agreement, except as may be expressly limited by law
or by the Articles of Incorporation. Any copy, facsimile telecommunication, or
other reliable reproduction of any writing referred to in this Section may be
used in lieu of the original writing for any and all purposes for which the
original writing could be used, provided that such copy, facsimile
telecommunication, or other reproduction shall be a complete reproduction of the
entire original writing. No proxy shall be valid after eleven months from the
date of its execution, unless
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otherwise provided in the proxy.
Section 12. Voting. Subject to such voting rights as the Board of
Directors may establish for any series of Preferred Stock in accordance with
Article III.2.(a)(vi) of the Articles of Incorporation, each shareholder shall
have one vote for each share of stock entitled to vote under the provisions of
the Articles of Incorporation which is registered in his name on the books of
the corporation; in all elections of directors or a class of directors of the
corporation, each share of stock entitled to vote shall be entitled to one vote
as to each director to be elected by the holders thereof and no shareholder
shall have the right to cast votes in the aggregate or to cumulate his votes for
the election of any director, and cumulative voting of shares in elections of
directors is hereby specifically negated. All elections for directors and all
other matters shall be determined by a majority of the votes cast, except as law
or the Articles of Incorporation may requires a greater vote. Any shareholder
who is in attendance at a meeting of the shareholders either in person or by
proxy, but who abstains from voting on any matter, shall not be deemed present
or represented at such meeting for purposes of the preceding sentence with
respect to such vote, but shall be deemed present or represented for all other
purposes.
The rights and powers of the holders of any class or series of preferred
stock with respect to the election of directors shall be only as may be duly
designated with respect to such class or series and as is consistent with the
provisions of the Articles of Incorporation.
No person shall be permitted to vote any shares belonging to or pledged to
the corporation.
Shares standing in the names of two or more persons shall be voted or
represented in accordance with the vote or consent of a majority of the persons
in whose names the shares are registered. If only one such person is present in
person or by proxy, he or she may vote all of the shares, and all of the shares
standing in the names of such persons shall be deemed represented for purposes
of determining a quorum. The foregoing provisions shall also apply to shares
held by two or more personal representatives, trustees, or other fiduciaries
unless the instrument or order appointing them otherwise directs.
If the Board of Directors shall not have closed the transfer books of the
corporation or set a record date for the determination of its shareholders
entitled to vote, as otherwise provided in these By-laws, no person shall be
admitted to vote directly or by proxy except those in whose names the shares of
the
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corporation shall have stood on the transfer books on a date twenty days
previous to the date of the meeting.
Section 13. Registered Shareholders. The corporation shall be entitled to
treat the holder of any share or shares of stock of the corporation, as recorded
on the stock record or transfer books of the corporation, as the holder of
record and as the holder and owner in fact thereof and, accordingly shall not be
required to recognize any equitable or other claim to or interest in such
share(s) on the part of any other person, firm, partnership, corporation or
association, whether or not the corporation shall have express or other notice
thereof, except as is otherwise expressly required by law, and the term
"shareholder" as used in these By-laws means one who is a holder of record of
shares of the corporation; provided, however, that if permitted by law:
Shares standing in the name of another corporation, domestic or
foreign, may be voted by such officer, agent or proxy as the by-laws of
such corporation prescribe, or, in the absence of such provision, as the
board of directors of such corporation may determine;
Shares standing in the name of a deceased person may be voted by his
administrator or personal representative, either in person or by proxy; and
shares standing in the name of a guardian, curator, or trustee may be voted
by such fiduciary, either in person or by proxy; but no guardian, curator,
or trustee shall be entitled, as such fiduciary, to vote shares held by him
without a transfer of such shares into his name;
Shares standing in the name of a receiver may be voted by such
receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if
authority so to do be contained in an appropriate order of the court by
which such receiver was appointed; and
A shareholder whose shares are pledged shall be entitled to vote such
shares (except for shares pledged to the Corporation) until the shares have
been transferred of record into the name of the pledgee, and thereafter the
pledgee shall be entitled to vote the shares so transferred.
Section 14. Shareholders Lists. A complete list of the shareholders
entitled to vote at each meeting of the shareholders,
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arranged in alphabetical order, with the address of, and the number of voting
shares held by each, shall be prepared by the officer of the corporation having
charge of the stock transfer books of the corporation, and shall for a period of
ten days prior to the meeting be kept on file in the registered office of the
corporation in Missouri, and shall at any time during the usual hours for
business be subject to inspection by any shareholder. A similar or duplicate
list shall also be produced and kept open for the inspection of any shareholder
during the whole time of the meeting. The original share ledger or transfer
book, or a duplicate thereof kept in the State of Missouri, shall be prima facie
evidence as to who are shareholders entitled to examine such list, ledger, or
transfer book or to vote at any meeting of shareholders. Failure to comply with
the foregoing shall not affect the validity of any action taken at any such
meeting.
Section 15. Removal of Directors. Except as otherwise provided in the
Articles of Incorporation or these By-laws, the shareholders shall have the
power to remove any director from office either "for cause" or "without cause."
To remove a director "for cause" requires an affirmative vote of a majority of
the shares entitled to vote for the election of directors at any regular meeting
or special meeting expressly called to vote for the removal of a director. To
remove a director "without cause" requires an affirmative vote of at least two-
thirds (2/3) of the shares entitled to vote for the election of directors at any
regular meeting or special meeting expressly called to vote for the removal of a
director. A special meeting called to vote for the removal of a director shall
be held at any place prescribed by law or at any other place which may, under
law, be designated in the notice of the special meeting. As used in these
By-laws, the term "for cause" means (i) conviction of the director of a felony;
(ii) declaration by order of a court of competent jurisdiction that the director
is of unsound mind; or (iii) gross abuse of trust which is proven by clear and
convincing evidence to have been committed in bad faith.
Section 16. Nomination of Directors. Nominations of persons for election
to the Board of Directors of the corporation at a meeting of the shareholders
may be made by or at the direction of the Board of Directors or may be made at a
meeting of shareholders by any shareholder of the corporation entitled to vote
for the election of directors at the meeting who complies with the procedures
set forth in this Section. The procedures for making such nominations, other
than those made by or at the direction of the Board, shall be commenced by
delivering timely notice in writing to the Secretary of the corporation. To be
timely, a shareholder's notice shall be delivered to or mailed and received at
the principal office of the corporation not less than one hundred twenty days
nor more than one hundred eighty days prior to the anniversary of the previous
year's Annual Meeting of Shareholders. To be valid, such shareholder's notice to
the Secretary shall set forth: (a) as to each person whom the shareholder
proposes to nominate for election or re-election as a director, (i) the name,
age, business address, and residence address of the person, (ii) the principal
occupation or employment of the person, (iii) the number of shares of stock of
the corporation that are beneficially owned by the person, and (iv) any other
information relating to the person that is required to be disclosed in
solicitations for proxies for election of
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directors pursuant to Regulation 14A under the Securities Exchange Act of 1934,
as amended (whether or not the provisions of such Regulation are then applicable
to the corporation), provided, however, that nothing in this Section is intended
to imply or create any obligation on the part of the corporation to include
within the corporation's proxy solicitation materials, if any, any materials or
information regarding persons nominated for election to the Board of Directors
by shareholders of the corporation; and (b) as to the shareholder giving notice
(i) the name and record address of the shareholder and (ii) the number of shares
of stock of the corporation that are beneficially owned by the shareholder. The
corporation may require any proposed nominee to furnish such other information
as may be reasonably required by the Board of Directors to determine the
eligibility of such proposed nominee to serve as director of the corporation. No
person shall be eligible for election as a director of the corporation at a
meeting of the shareholders unless nominated in accordance with the procedures
set forth herein. The chairman of the meeting shall, if the facts warrant,
determine and declare that a nomination was not made in accordance with the
foregoing procedure, in which case the defective nomination shall be
disregarded.
Notwithstanding anything in the second sentence of Section 16 to the
contrary, in the event that (a) the date of the annual meeting is advanced by
more than thirty (30) days or delayed by more than sixty (60) days from such
anniversary date or (b) the number of directors to be elected to the Board of
Directors is increased and the corporation makes no public announcement naming
all of the nominees for director or specifying the size of the increased Board
of Directors at least seventy (70) days prior to the first anniversary of the
preceding year's annual meeting, a shareholder's notice required by this Section
shall also be considered timely if delivered not earlier than the 90th day prior
to such annual meeting and not later than the close of business on the later of
the 60th day prior to such annual meeting or the 10th day following the day on
which the corporation makes such public announcement of the date of such meeting
or the increased size of the Board of Directors.
Section 17. Proposals for Annual Meeting. Shareholder proposals intended
for presentation at the annual meeting of shareholders must comply as respects
time, contents, and otherwise with Rule 14a-8 promulgated by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934, as amended
from time to time (whether or not the provisions of Rule 14a-8 are then
applicable to the corporation), and as respects time of submission also with the
procedural requirements set forth in Section 16 for shareholder nominations for
director. Any shareholder proposal that is advisory or precatory in nature and
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which requests the Board of Directors to take any action shall require the
affirmative vote of a majority of the shares entitled to vote for the election
of directors in order for any resolution, shareholder referendum, or the like
embodying such proposal to be adopted.
Section 18. Conduct of Business at Meetings. The date and time of the
opening and the closing of the polls for each matter upon which the shareholders
will vote at a meeting shall be announced at the meeting by the person presiding
over the meeting. The Board of Directors of the Corporation may adopt by
resolution such rules and regulations for the conduct of the meeting of
shareholders as it shall deem appropriate. Except to the extent inconsistent
with any such rules and regulations as adopted by the Board of Directors, the
chairman of any meeting of shareholders shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for the proper conduct of the
meeting. Such rules, regulations, or procedures, whether adopted by the Board of
Directors or prescribed by the chairman of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of
business for the meeting; (ii) rules and procedures for maintaining order at the
meeting and the safety of those present; (iii) limitations on attendance at or
participation in the meeting to shareholders of record of the corporation, their
duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (iv) restrictions on entry to the meeting after the
time fixed for the commencement thereof; and (v) limitations on the time
allotted to questions or comments by participants. Unless and to the extent
determined by the Board of Directors or the chairman of the meeting, meetings of
shareholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
ARTICLE IV
Directors
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Section 1. Qualifications and Number. Each director shall be a natural
person who is at least eighteen years of age. A director need not be a
shareholder, a citizen of the United States, or a resident of the State of
Missouri unless required by law or the Articles of Incorporation.
Unless and until changed, the number of directors to constitute the full
Board of Directors shall be seven. The Board of Directors shall have the power
to change the number of directors, but said number shall be not less than three
nor more
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than eleven. In the event of any change in the number, any notice required by
law of any such change shall be duly given.
Section 2. Powers of the Board. The property and business of the
Corporation shall be managed by the Board of Directors. The Board shall have and
is vested with all and unlimited powers and authorities, except as may be
expressly limited by law, the Articles of Incorporation, or by these By-laws, to
do or cause to be done any and all lawful things for and on behalf of the
corporation (including, without limitation, the declaration of dividends on the
outstanding shares of the corporation and the payment thereof in cash, property
or shares), and to exercise or cause to be exercised any or all of its powers,
privileges and franchises, and to seek the effectuation of its objects and
purposes.
Section 3. Annual Meeting of the Board, Notice. Any continuing members
and the newly elected members of the Board shall meet: (i) immediately following
the conclusion of the annual meeting of the shareholders for the purpose of
electing officers and for such other purposes as may come before the meeting,
and the time and place of such meeting shall be announced at the annual meeting
of the shareholders by the chairman of such meeting, and no other notice to any
continuing or the newly elected directors shall be necessary in order to legally
constitute the meeting, provided a quorum of the directors shall be present; or
(ii) if no meeting immediately following the annual meeting of shareholders is
announced, at such time and place, either within or without the State of
Missouri, as may be suggested or provided for by resolution of the shareholders
at their annual meeting and no other notice of such meeting shall be necessary
to the newly elected directors in order to legally constitute the meeting,
provided a quorum of the directors shall be present; or (iii) if not so
suggested or provided for by resolution of the shareholders or if a quorum of
the directors shall not be present, at such time and place as may be consented
to in writing by a majority of any continuing and the newly elected directors,
provided that written or printed notice of such meeting shall be given to each
of any continuing and the newly elected directors in the same manner as provided
in these By-laws with respect to the notice for special meetings of the Board,
except that it shall not be necessary to state the purpose of the meeting in
such notice; or (iv) regardless of whether or not the time and place of such
meeting shall be suggested or provided for by resolution of the shareholders at
the annual meeting, at such time and place as may be consented to in writing by
all of any continuing and the newly elected directors. Each director, upon his
election, shall qualify by accepting the office of director, and his attendance
at, or his written approval of the minutes of,
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any meeting of the newly elected directors shall constitute his acceptance of
such office; or he may execute such acceptance by a separate writing, which
shall be placed in the minute book.
Section 4. Regular Meetings, Notice. Regular meetings of the Board may be
held at such times and places either within or without the State of Missouri as
shall from time to time be fixed by resolution adopted by a majority of the full
Board of Directors. No notice of any regular meeting need be given other than by
announcement at the immediately preceding regular meeting and communicated in
writing to all absent directors; provided, however, that written notice of any
regular meeting of the Board of Directors stating the place, day, and hour of
such meeting shall be given if required by resolution adopted by the Board of
Directors. Any business may be transacted at a regular meeting. Neither the
business to be transacted at nor the purpose need be specified in any notice or
waiver of notice of any regular meeting of the Board of Directors.
Section 5. Special Meetings, Notice. Special meetings of the Board may be
called at any time by the Chairman of the Board (if any), the President, or by
one-third of the directors (rounded up to the nearest whole number). The place
may be within or without the State of Missouri as designated in the notice.
Written notice of each special meeting of the Board, stating the place,
day, and hour of the meeting shall be given to each director at least two days
before the date on which the meeting is to be held. The notice shall be given
(i) in the manner provided for in these By-laws or (ii) may be given
telephonically, if confirmed promptly in writing, in which case the notice shall
be deemed to have been given at the time of telephonic communication. The notice
may be given by any officer directed to do so by any officer having authority to
call the meeting or by the director(s) who have called the meeting.
Neither the business to be transacted at nor the purpose need be specified
in the notice or any waiver of notice of any special meeting of the Board of
Directors.
Section 6. Action in Lieu of Meetings. Unless otherwise restricted by the
Articles of Incorporation or these By-laws or by law, any action required to be
taken at a meeting of the Board of Directors or any other action which may be
taken at a meeting of the Board of Directors may be taken without a meeting if a
consent in writing setting forth the action so taken shall be signed by all the
directors entitled to vote with respect to the subject matter thereof. Any such
consent signed by all the directors shall have the same effect as a unanimous
vote and may be stated
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as such in any document describing the action taken by the Board of Directors.
Section 7. Meeting by Conference Telephone or Similar Communications
Equipment. Unless otherwise restricted by the Articles of Incorporation or these
By-laws or by law, members of the Board of Directors of the corporation, or any
committee designated by the Board, may participate in a meeting of the Board or
such committee by means of conference telephone or similar communications
equipment whereby all persons participating in the meeting can hear each other,
and participation in a meeting in such manner shall constitute presence in
person at such meeting.
Section 8. Quorum. At all meetings of the Board a majority of the full
Board of Directors shall, unless a greater number as to any particular matter is
required by the Articles of Incorporation or these By-laws, constitute a quorum
for the transaction of business. The act of a majority of the directors present
at any meeting at which there is a quorum, except as may be otherwise
specifically provided by statute, by the Articles of Incorporation, or by these
By-laws, shall be the act of the Board of Directors.
Less than a quorum may adjourn a meeting successively until a quorum is
present, and no notice of adjournment shall be required.
Section 9. Waiver of Notice; Attendance at Meeting. Any notice provided or
required to be given to the directors may be waived in writing by any of them,
whether before, at, or after the time stated therein.
Attendance of a director at any meeting shall constitute a waiver of notice
of such meeting except where the director attends for the express purpose, and
so states at the opening of the meeting, of objecting to the transaction of any
business because the meeting is not lawfully called or convened.
Section 10. Vacancies. If the office of any director is or becomes vacant
by reason of death, resignation, or due to an increase in the number of
directors, a majority of the survivors or remaining directors, though less than
a quorum, may appoint a director to fill the vacancy until a successor shall
have been duly elected at a shareholders' meeting.
Section 11. Executive Committee. The Board of Directors may, by resolution
passed by a majority of the full Board, designate an executive committee, such
committee to consist of two or more directors of the corporation. Such
committee, except to the extent limited in said resolution, shall have and may
exercise
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all of the powers of the Board of Directors in the management of the
corporation. The members constituting the executive committee shall be
determined from time to time by resolution adopted by a majority of the full
Board; and any director may vote for himself as a member of the executive
committee. In no event, however, shall the executive committee have any
authority to amend the Articles of Incorporation, to adopt any plan of merger or
consolidation with another corporation or corporations, to recommend to the
shareholders the sale, lease, exchange, mortgage, pledge, or other disposition
of all or substantially all of the property and assets of the corporation if not
made in the usual and regular course of its business, to recommend to the
shareholders a voluntary dissolution of the corporation or a revocation thereof,
to amend, alter or repeal the By-laws of the corporation, to elect or remove
officers of the corporation or members of the executive committee, to declare
any dividend, or to amend, alter or repeal any resolution of the Board of
Directors which by its terms provides that it shall not be amended, altered or
repealed by the executive committee.
The executive committee shall keep regular minutes of its proceedings and
the same shall be recorded in the minute book of the corporation. The Secretary
or an Assistant Secretary of the corporation may act as secretary for the
executive committee if the executive committee so requests.
Section 12. Audit Committee and Compensation Committee. The Board shall
designate an audit committee and a compensation committee, each such committee
to consist of two or more outside directors who are independent of management
and free from any relationships that, in the opinion of the Board, would
interfere with their exercise of independent judgment as a committee member. Any
director who would be eligible to serve on either such committee under the rules
of the exchange or national market on which the corporation's shares are traded
shall be considered "independent" for the purpose of serving on such committee.
Each such committee, to the extent provided in the enabling resolution and
permitted by law, shall have and may exercise the power of the Board of
Directors. The members constituting each such committee shall be determined from
time to time by resolution adopted by a majority of the full Board; and any
eligible director may vote for himself as a member of any such committee.
The audit committee shall assist the Board in fulfilling its
responsibilities for the corporation's accounting and financial reporting
responsibilities and provide a channel of communication between the Board and
the corporation's independent auditors. The audit committee's duties shall
include: recommending to the Board
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the accounting firm to be selected as independent auditor of the corporation by
the Board or to be recommended by it for shareholder approval; and acting on
behalf of the Board in meeting and reviewing with such independent auditors, the
chief internal auditor and the appropriate corporate officers (a) matters
relating to corporate financial reporting and accounting procedures and
policies, (b) the adequacy of financial, accounting, and operating controls, (c)
regular quarterly and annual financial reports required to be prepared and filed
with the Securities and Exchange Commission, as well as any registration
statements or other documents to be filed which relate to the corporation's
financial condition, and (d) the scope of the respective audits of the
independent auditors and the internal auditor. The audit committee shall review
the results of such audits with the respective auditors and shall promptly
report to the full Board. The committee shall additionally submit to the Board
any recommendations it may have from time to tie with respect to financial
reporting and accounting practices and policies and financial, accounting, and
operation controls and safeguards.
The compensation committee shall assist the Board in fulfilling its
responsibilities to provide appropriate compensation arrangements and plans for
the corporation's principal executive officers, in order to attract, retain,
motivate, and properly compensate effective, talented persons for the employ of
the corporation. The compensation committee's duties shall include: recommending
to the Board the base salary and any incentive compensation for the
corporation's principal executive officers, including without limitation
establishing performance goals for compensation and determining and certifying
whether such performance goals and other material terms of such compensation
arrangements have been satisfied; and recommending to the Board other executive
compensation plans and benefit programs, including retirement plans, appropriate
for executives in business concerns comparable to the corporation.
Each such committee shall, to the extent required by resolution of the
Board of Directors (or, in the absence of any such resolution, to the extent a
majority of its members determines is appropriate) keep minutes of its
proceedings and the same shall be recorded in the minute book of the
corporation. The Secretary or Assistant Secretary of the corporation may act as
secretary for any such committee if the committee so requests.
Section 13. Other Committees. The Board of Directors may, by resolution
passed by a majority of the full Board, designate one or more standing or ad hoc
committees, each committee to consist of two or more of the directors of the
corporation and
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such other person(s) as may be appointed as advisory members under authority
provided in the resolution. Each such committee, to the extent provided in the
resolution and permitted by law, shall have and may exercise the power of the
Board of Directors. The members constituting each such committee shall be
determined from time to time by resolution adopted by a majority of the full
Board; and any director may vote for himself as a member of any such committee.
Each such committee shall, to the extent required by resolution of the
Board of Directors (or, in the absence of any such resolution, to the extent a
majority of its members determines is appropriate) keep minutes of its
proceedings and the same shall be recorded in the minute book of the
corporation. The Secretary or Assistant Secretary of the corporation may act as
secretary for any such committee if the committee so requests.
Section 14. Compensation of Directors and Committee Members. Directors and
members of all committees shall receive such compensation for their services as
may be determined from time to time by resolution adopted from time to time by
the Board, as well as such expenses, if any, as may be allowed pursuant to
resolution adopted from time to time by the Board. Nothing herein contained
shall be construed to preclude any director or committee member from serving the
corporation in any other capacity and receiving compensation therefor.
Section 15. Protection of Director for Reliance on Corporate Records. No
director shall be liable for dividends legally declared, distributions legally
made to shareholders, or any other action taken in reliance in good faith upon
financial statements of the corporation represented to him to be correct by the
Chairman of the Board (if any), the President or the officer of the corporation
having charge of the books of account, or certified by an accountant to fairly
represent the financial condition of the corporation; nor shall any such
director be liable for determining in good faith the amount available for
dividends or distributions by considering the assets to be of their book values.
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ARTICLE V
Officers
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Section 1. Officers--Who Shall Constitute. The officers of the corporation
shall be a Chairman of the Board, a President, one or more Vice Presidents, a
Secretary, a Treasurer, one or more Assistant Secretaries, and one or more
Assistant Treasurers. The Board shall elect or appoint a President and Secretary
at its first meeting and at each annual meeting of the Board of Directors which
shall follow the annual meeting of the shareholders. The Board then, or from
time to time, may also elect or appoint one or more of the other prescribed
officers as it shall deem advisable, but need not elect or appoint any officers
other than a President and a Secretary. The Board may, if it desires, further
identify or describe any one or more of such officers.
An officer need not be a shareholder unless required by law or the Articles
of Incorporation. Any two or more of such offices may be held by the same
person.
An officer shall be deemed qualified when he enters upon the duties of the
office to which he has been elected or appointed and furnishes any bond required
by the Board; but the Board may also require of such person his written
acceptance and promise faithfully to discharge the duties of such office.
Section 2. Term of Office. Each officer of the corporation shall hold his
office for the term for which he was elected, or until he resigns or is removed
by the Board, whichever first occurs.
Section 3. Appointment of Officers and Agents--Terms of Office. The Board
from time to time may also appoint such other officers and agents for the
corporation as it shall deem necessary or advisable. All appointed officers and
agents shall hold their respective positions at the pleasure of the Board or for
such terms as the Board may specify, and they shall exercise such powers and
perform such duties as shall be determined from time to time by the Board, or by
an elected officer empowered by the Board to make such determination.
Section 4. Removal. Any officer or agent elected or appointed by the Board
of Directors, and any employee, may be removed or discharged by the Board
whenever in its judgment the best interests of the corporation would be served
thereby, but such removal shall be without prejudice to the contract rights, if
any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
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Section 5. Salaries and Compensation. Salaries and compensation of the
principal executive officers of the corporation shall be fixed, increased or
decreased by the Board of Directors, upon recommendation of the compensation
committee, and to the extent that the compensation committee deems appropriate,
upon approval by the shareholders of the corporation. Salaries and compensation
of all other elected or appointed officers and agents, and employees of the
corporation, may be fixed, increased or decreased by the Board of Directors or a
committee thereof, but until action is taken with respect thereto by the Board
of Directors or a committee thereof, the same may be fixed, increased or
decreased by the Chairman of the Board (if any), the President, or by such other
officer or officers as may be empowered by the Board of Directors or a committee
thereof to do so.
Section 6. Delegation of Authority to Hire, Discharge, Etc. The Board, from
time to time, may delegate to the Chairman of the Board (if any), the President,
or any other officer or executive employee of the Corporation, authority to
hire, discharge, and fix and modify the duties, salary, or other compensation of
employees of the corporation under their jurisdiction; and the Board may
delegate to such officer or executive employee similar authority with respect to
obtaining and retaining for the corporation the services of attorneys,
accountants, and other experts.
Section 7. The Chairman of the Board and the President. The Chairman of the
Board shall be the chief executive officer of the corporation. The President
shall be the chief operating officer of the corporation. Except as otherwise
provided for in these By-laws, the Chairman of the Board, or in his absence the
President, shall preside at all meetings of the shareholders and of the Board of
Directors. Both shall have general and active management of the business of the
corporation and shall carry into effect all directions and resolutions of the
Board.
Either the Chairman of the Board or the President may execute all bonds,
notes, debentures, mortgages and other contracts requiring a seal, under the
seal of the corporation, and may cause the seal to be affixed thereto, and all
other instruments for and in the name of the corporation, except that if, by
law, such instruments are required to be executed only by the President, he or
she shall execute them.
Either the Chairman of the Board or the President, when authorized to do so
by the Board, may execute powers of attorney from, for, and in the name of the
corporation, to such proper person or persons as he may deem fit, in order that
thereby the business of the corporation may be furthered or action taken as may
be deemed by him or her necessary or advisable in furtherance
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of the interests of the corporation.
Either the Chairman of the Board or the President, except as may be
otherwise directed by the Board, shall attend meetings of shareholders of other
corporations to represent this corporation thereat and to vote or take action
with respect to the shares of any such corporation owned by this corporation in
such manner as he or she shall deem to be for the interest of the corporation or
as may be directed by the Board.
The Chairman of the Board and, in his absence, the President, shall, unless
the Board otherwise provides, be ex officio a member of all standing committees.
Each of said officers shall have such general executive powers and duties of
supervision and management as are usually vested in the office of a managing
executive of a corporation, provided that the President shall report to and
follow the directives of the Chairman of the Board.
Each shall have such other or further duties and authority as may be
prescribed elsewhere in these By-laws or from time to time by the Board of
Directors, and the Board may from time to time divide the responsibilities,
duties, and authority between them to such extent as it may deem advisable.
Notwithstanding anything to the contrary herein stated, the Chairman of the
Board shall not be authorized to do any act required by law to be done by the
President of the corporation until written notice of his designation as chief
executive officer, attested to by the Secretary of the corporation, has been
filed in writing with the Secretary of State of Missouri.
Section 8. Vice Presidents. The Vice Presidents, in the order of their
seniority as determined by the Board, shall, in the absence, disability or
inability to act of the Chairman of the Board and the President, perform the
duties and exercise the powers of the Chairman of the Board and the President,
and shall perform such other duties as the Board of Directors shall from time to
time prescribe.
Section 9. The Secretary and Assistant Secretaries. The Secretary shall
attend all sessions of the Board and except as otherwise provided for in these
By-laws, all meetings of the shareholders, and shall record or cause to be
recorded all votes taken and the minutes of all proceedings in a minute book of
the corporation to be kept for that purpose. The Secretary shall perform like
duties for the executive and other standing committees when requested by the
Board or such committee to do so.
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The Secretary shall have the principal responsibility to give, or cause to
be given, notice of all meetings of the shareholders and of the Board of
directors, but this shall not lessen the authority of others to give such notice
as is authorized elsewhere in these By-laws.
The Secretary shall see that all books, records, lists and information, or
duplicates, required to be maintained at the registered office or at some office
of the corporation in Missouri, or elsewhere, are so maintained.
The Secretary shall keep in safe custody the seal of the corporation, and
when duly authorized to do so, shall affix the same to any instrument requiring
it, and when so affixed, shall attest the same by his signature.
The Secretary shall perform such other duties and have such other authority
as may be prescribed elsewhere in these By-laws or from time to time by the
Board of Directors or the President, under whose direct supervision the
Secretary shall be.
The Secretary shall have the general duties, powers and responsibilities of
a Secretary of a corporation.
The Assistant Secretaries, in the order of their seniority, in the absence,
disability, or inability to act of the Secretary, shall perform the duties and
exercise the powers of the Secretary, and shall perform such other duties as the
Board may from time to time prescribe.
Section 10. The Treasurer and Assistant Treasurers. The Treasurer shall
have responsibility for the safekeeping of the funds and securities of the
corporation, and shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the corporation. The Treasurer
shall keep, or cause to be kept, all other books of account and accounting
records of the corporation, and shall deposit or cause to be deposited all
moneys and other valuable effects in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse, or permit to be disbursed, the funds of the
corporation as may be ordered, or authorized generally, by the Board and shall
render to the chief executive officer of the corporation and the directors,
whenever they may require it, an account of all of his transactions as Treasurer
and of those under his jurisdiction, and of the financial condition of the
corporation.
The Treasurer shall perform such other duties and shall have
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such other responsibility and authority as may be prescribed elsewhere in these
By-laws or from time to time by the Board or Directors.
The Treasurer shall have the general duties, powers and responsibility of a
Treasurer of a corporation, and shall be the chief financial and accounting
officer of the corporation.
If required by the Board, the Treasurer shall give the corporation a bond
in a sum and with one or more sureties satisfactory to the Board for the
faithful performance of the duties of his or office, and for the restoration to
the corporation, in the case of his death, resignation, retirement, or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control which belong to the
corporation.
The Assistant Treasurers in the order of their seniority shall, in the
absence, disability or inability to act of the Treasurer, perform the duties and
exercise the powers of the Treasurer, and shall perform such other duties as the
Board of Directors shall from time to time prescribe.
Section 11. Bond. At the option of the Board of Directors, any officer may
be required to give bond for the faithful performance of his duties.
Section 12. Checks and Other Instruments. All checks, drafts, notes,
acceptances, bills of exchange and other negotiable and non-negotiable
instruments and obligations for the payment of money, and all contracts, deeds,
mortgages and all other papers and documents whatsoever, unless otherwise
provided for by these By-laws, shall be signed by such officer or officers or
such other person or persons and in such manner as the Board of Directors from
time to time shall designate. If no such designation is made, and unless and
until the Board otherwise provides, the Chairman of the Board (if any) or the
President and the Treasurer, shall have power to sign all such instruments for,
and on behalf of and in the name of the corporation, which are executed or made
in the ordinary course of the corporation's business.
Section 13. Duties of Officers May be Delegated. If any officer of the
corporation shall be absent or unable to act, or for any other reason the Board
may deem sufficient, the Board may delegate, for the time being, some or all of
the functions, duties, powers and responsibilities of any officer to any other
officer, or to any other agent or employee of the corporation or other
responsible person, provided a majority of the then sitting Board concurs
therein.
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ARTICLE VI
Shares of Stock
Section 1. Payment for Shares of Stock. The corporation shall not issue
shares of stock except for (i) money paid, (ii) labor done or services actually
received, or (iii) property actually received; provided, however, that shares
may also be issued (iv) in consideration of the cancellation of valid bona fide
antecedent debts, (v) as stock dividends, (vi) pursuant to stock splits, reverse
stock splits, stock combinations, reclassifications of outstanding shares into
shares of another class or classes, exchanges of outstanding shares for shares
of another class or classes, or (vii) other bona fide changes respecting
outstanding shares. No note or obligation given by any shareholder, whether
secured by deed of trust, mortgage or otherwise shall be considered as payment
of any part of any share or shares.
Section 2. Certificates for Shares of Stock. The certificates for shares of
stock of the corporation shall be numbered, shall be in such form as may be
prescribed by the Board of Directors in conformity with law, and shall be
entered in the stock books of the corporation as they are issued, and such
entries shall show the name and address of the person, firm, partnership,
corporation or association to whom each certificate is issued. Each certificate
shall have printed, typed or written thereon the name of the person, firm,
partnership, corporation, or association to whom it is issued, and the number of
shares represented thereby and shall be signed by the Chairman of the Board (if
any) or the President or a Vice President, and the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the corporation and
sealed with the seal of the corporation, which seal may be facsimile, engraved
or printed. If the corporation has a registrar, a transfer agent, or a transfer
clerk who actually signs such certificates, the signature of any of the other
officers above mentioned may be facsimile, engraved, or printed. In case any
such officer who has signed or whose facsimile signature has been placed upon
any such certificate shall have ceased to be such officer before such
certificate is issued, such certificate may nevertheless be issued by the
corporation with the same effect as if such officer were an officer at the date
of its issue.
Section 3. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate for shares of stock of the corporation, upon due
proof of the registered owner thereof or his representative, by affidavit of
such loss or otherwise, the
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Chairman of the Board (if any) or the President and Secretary may issue a
duplicate certificate or replacement certificate in its place, upon the
corporation being fully indemnified therefor. Any such officer may request the
posting of an indemnity bond in favor of the corporation whenever and to the
extent that they deem appropriate as a precondition to the issuance of any
duplicate or replacement certificate.
Section 4. Transfers of Shares, Transfer Agent, Registrar. Transfers of
shares of stock shall be made on the stock record or transfer books of the
corporation only by the person named in the stock certificate, or by his
attorney lawfully constituted in writing, and upon surrender of the certificate
therefor. The stock record book and other transfer records shall be in the
possession of the Secretary (or other person appointed and empowered by the
Board to do so) or of a transfer agent or clerk for the corporation. The
corporation, by resolution of the Board, may from time to time appoint a
transfer agent, and, if desired, a registrar, under such arrangements and upon
such terms and conditions as the Board deems advisable; but until and unless the
Board appoints some other person, firm or corporation as its transfer agent (and
upon the revocation of any such appointment, thereafter until a new appointment
is similarly made) the Secretary of the corporation (or other person appointed
and empowered by the Board) shall be the transfer agent or clerk of the
corporation, without the necessity of any formal action of the Board, and the
Secretary or other person shall perform all of the duties thereof.
Section 5. Closing of Transfer Books, Record Date. The Board of Directors
shall have the power to close the stock transfer books of the corporation for a
period not exceeding seventy days preceding the date of any meeting of the
shareholders, or the date for payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares shall go into effect; provided, however, that in lieu of closing the
stock transfer books as aforesaid, the Board of Directors may fix in advance a
date not exceeding seventy days preceding the date of any meeting of
shareholders, or the date for the payment of any dividend, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
shares shall go into effect, as a record date for the determination of the
shareholders entitled to notice of, and to vote at, the meeting or any
adjournment thereof, or entitled to receive payment of the dividends, or
entitled to the allotment of rights, or entitled to exercise the rights in
respect of the change, conversion, or exchange of shares. In such case, only the
shareholders who are shareholders of record on the date of closing of the
transfer books or on the record date so fixed
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shall be entitled to such notice of, and to vote at, the meeting, and any
adjournment thereof, or to receive payment of the dividend, or to receive the
allotment of rights, or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the date of closing of the transfer books or the record date fixed as aforesaid.
If the Board of Directors does not close the transfer books or set a record date
for the determination of the shareholders entitled to notice of, and to vote at,
the meeting, and any adjournment of the meeting, the record date shall be the
date that is twenty days previous to the meeting; except that, if prior to the
meeting written waivers of notice of the meeting are signed and delivered to the
corporation by all of the shareholders of record at the time the meeting is
convened, only the shareholders who are shareholders of record at the time the
meeting is convened shall be entitled to vote at the meeting and at any
adjournment of the meeting.
Section 6. Fractional Share Interests or Scrip. The corporation may issue
fractions of a share and it may issue a certificate for a fractional share, or
by action of the Board of Directors, the corporation may issue in lieu thereof
scrip or other evidence or ownership which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip or other evidence
of ownership aggregating a full share. A certificate for a fractional share
shall (but scrip or other evidence of ownership shall not, unless otherwise
provided by resolution of the Board of Directors) entitle the holder to all of
the rights of a shareholder, including without limitation the right to exercise
any voting right, or to receive dividends thereon or to participate in any of
the assets of the corporation in the event of liquidation. The Board of
Directors may cause such scrip or evidence of ownership (other than a
certificate for a fractional share) to be issued subject to the condition that
it shall become void if not exchanged for share certificates before a specified
date, or subject to the condition that the shares for which such scrip or
evidence of ownership is exchangeable may be sold by the corporation and the
proceeds thereof distributed to the holders of such scrip or evidence of
ownership, or subject to any other condition which the Board of Directors may
deem advisable.
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ARTICLE VII
Indemnification
Section 1. Third Party Actions. The corporation shall indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director or officer of
the corporation, or is or was serving at the request of the corporation as a
director or officer of another corporation, partnership, joint venture, trust,
or other enterprise, against expenses, including attorney fees, judgments,
fines, and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit, or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had
no reasonable cause to believe his conduct was unlawful. The termination of any
action, suit, or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 2. Actions By or in the Right of the Corporation. The corporation
shall indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending, or completed action or suit by or in the right
of the corporation to procure a judgment in its favor by reason of the fact that
he is or was a director or officer of the corporation, or is or was serving at
the request of the corporation, as a director or officer of another corporation,
partnership, joint venture, trust, or other enterprise against expenses,
including attorney fees and amounts paid in settlement, actually and reasonably
incurred by him in connection with the defense or settlement of the action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made in respect of any claim, issue, or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation unless and only to
the extent that the court in which such action or suit was brought determines
upon application that, despite the adjudication of liability and in view of all
the circumstances of the case, the person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
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Section 3. Indemnity if Successful. To the extent that a director, officer,
employee, or agent of the corporation has been successful on the merits or
otherwise in defense of any action, suit, or proceeding referred to in Sections
1 and 2 of this Article, or in defense of any claim, issue or matter therein, he
shall be indemnified against expenses (including attorney fees) actually and
reasonably incurred by him in connection with the action, suit, or proceeding.
Section 4. Standard of Conduct. Any indemnification under Sections 1 and 2
of this Article (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper in the circumstances
because he has met the applicable standard of conduct set forth in this Article.
The determination shall be made (i) by the Board of Directors by a majority vote
of a quorum consisting of directors who were not parties to such action, suit,
or proceeding, or (ii) if such a quorum is not obtainable, or, even if
obtainable a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion, or (iii) by the shareholders by majority vote of
the shares eligible to vote for directors and actually voted, where shares held
by the individual about whom such indemnification is at issue shall not be
eligible to vote.
Section 5. Expenses. Expenses incurred in defending a civil or criminal
action, suit, or proceeding may be paid by the corporation in advance of the
final disposition of the action, suit, or proceeding as authorized by the Board
of Directors in the specific case upon receipt of an undertaking by or on behalf
of the director or officer to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation as
authorized in this Article.
Section 6. Nonexclusivity. The indemnification provided by this Article
shall not be deemed exclusive of any other rights to which those seeking
indemnification may be entitled under the Articles of Incorporation, these By-
laws, or any agreement, vote of the shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director or officer and shall inure to the benefit of the
heirs, personal representatives, and administrators of such a person.
Section 7. Further Indemnity Permissible. The corporation shall have the
power to give further indemnity, in addition to the indemnity authorized or
contemplated under the various sections of
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this Article, including Section 6 thereof, to any person who is or was a
director, officer, employee, or agent, or to any person who is or was serving at
the request of the corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or other enterprise,
provided such further indemnity is either (i) authorized, directed, or provided
for in the Articles of Incorporation of the corporation or a duly adopted
amendment thereof or (ii) authorized, directed, or provided for in these By-laws
or in any agreement of the corporation which has been adopted by the
shareholders of the corporation, and provided further that no such indemnity
shall indemnify any person from or on account of such person's conduct which has
been finally adjudged to have been knowingly fraudulent, deliberately dishonest,
or willful misconduct. Nothing in this Section 7 shall be deemed to limit the
power of the corporation under Section 6 of this Article to enact By-laws or to
enter into agreements without shareholder adoption of the same.
Section 8. Insurance. The corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under the provisions of this
Article.
Section 9. Corporation. For the purpose of this Article, references to "the
corporation" include all constituent corporations absorbed in a consolidation or
merger as well as the resulting or surviving corporation so that any person who
is or was a director or officer of such a constituent corporation or is or was
serving at the request of such constituent corporation as a director or officer
of another corporation, partnership, joint venture, trust, or other enterprise
shall stand in the same position under the provisions of this Article with
respect to the resulting or surviving corporation as he would if he had served
the resulting or surviving corporation in the same capacity.
Section 10. Other Definitions. For purposes of this Article, the term
"other enterprise" shall include without limitation employee benefit plans; the
term "fines" shall include without limitation any excise taxes assessed on a
person with respect to an employee benefit plan; and the term "serving at the
request of the corporation" shall include without limitation any service as a
director, officer, employee, or agent of the corporation which imposes duties
on, or involves services by, such
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director, officer, employee, or agent with respect to an employee benefit plan,
its participants, or beneficiaries; and a person who acted in good faith and in
a manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the corporation" as referred to in
this Article.
Section 11. Indemnity for Agents and Employees. The corporation may, by
resolution duly adopted by a majority of the disinterested members of the Board
of Directors, grant such indemnity rights and reimbursement for such expenses as
it determines to be appropriate to any person who was or is a party to any
threatened, pending, or completed action or suit, whether civil, criminal,
administrative, or investigative, including any action by or in the right of the
corporation, by reason of the fact that such person is or was an agent or
employee of the corporation, or is or was serving as an agent or employee, at
the request of the corporation, of another corporation, partnership, joint
venture, trust, or other enterprise. Any such grant of indemnification shall be
only to the extent so provided in the resolution granting indemnification, but
shall, in no event, be greater than the rights of indemnification and
reimbursement of expenses granted to directors and officers of this corporation.
ARTICLE VIII
General Provisions
Section 1. Fixing of Capital, Transfers of Surplus. Except as may be
specifically otherwise provided in the Articles of Incorporation, the Board of
Directors is expressly empowered to exercise all authority conferred upon it or
the corporation by any law or statute, and in conformity therewith, relative to:
The determination of what part of the consideration received for
shares of the corporation shall be capital, if any;
Increasing capital;
The consideration to be received by the corporation for its shares;
and
All similar or related matters;
provided that any concurrent action or consent by or of the corporation and its
shareholders required to be taken or given pursuant to law shall be duly taken
or given in connection
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therewith.
Section 2. Dividends. Ordinary dividends upon the shares of the
corporation, subject to the provisions of the Articles of Incorporation and of
any applicable law or statute, may be declared by the Board of Directors at any
regular or special meeting. Dividends may be paid in cash, in property, or in
shares of its stock.
Liquidating dividends or dividends representing a distribution of paid-in
surplus or a return of capital shall be made only when and in the manner
permitted by law.
Section 3. Creation of Reserves. Before the payment of any dividend, there
may be set aside out of any funds of the corporation available for dividends
such sum or sums as the directors from time to time, in their reasonable
discretion, think proper as a reserve fund or funds, to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
corporation, or for such other purposes as the Board of Directors shall
determine in the best interests of the corporation, and the Board may abolish
any such reserve in the manner in which it was created.
Section 4. Fiscal Year. The Board of Directors shall have the paramount
power to fix, and from time to time, to change, the fiscal year of the
corporation. In the absence of action by the Board of Directors, however, the
fiscal year of the corporation shall commence on the first day of May of each
year and conclude on the thirtieth day of April of the next following year.
Section 5. Notices. Except as otherwise specifically provided herein with
respect to notice to shareholders or otherwise, or as otherwise required by law,
all notices required to be given by any provision of these By-laws shall be in
writing and shall be deemed to have been given: (i) when received if delivered
in person; (ii) on the date of acknowledgment or confirmation of receipt if sent
by telex, facsimile, or other electronic transmission; (iii) one day after
delivery, properly addressed and fees prepaid, to a reputable courier for same
day or overnight delivery; or (iv) two days after being deposited, properly
addressed and postage prepaid, in the United States mail.
Section 6. Amendments to By-laws. The By-laws of the corporation may from
time to time be repealed, amended or altered, or new and/or restated By-laws may
be adopted, in either of the following ways:
By such vote of the shareholders entitled to vote
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at any annual or special meeting thereof as may be required by the Articles
of Incorporation, and if there is no such specific requirement, then by the
vote of a majority of said shareholders; or
By resolution adopted by the Board of Directors if such power shall
have been vested in the Board of Directors by the Articles of
Incorporation; provided, however, that such power shall be exercisable only
by such number or percentage of the Directors as is required by the
Articles of Incorporation, and if there is no such specific requirement,
then by a majority of the Board of Directors. Notwithstanding the
foregoing, the Board of Directors shall not have the power to suspend,
repeal, amend or otherwise alter the By-laws or portion thereof enacted by
the shareholders if at the time of such enactment or thereafter the
shareholders shall so expressly provide.
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FOR IMMEDIATE RELEASE For more information contact:
J. Michael Bowles, Wave
314-692-1888
[email protected]
Sonja Anderson, Wave
314-692-1949
[email protected]
Wave Technologies International Adopts Stockholder Rights Plan
ST. LOUIS, Sept. 18, 1998 (NASDAQ:WAVT)--Wave Technologies International
Inc., announced that its Board of Directors has adopted a stockholder rights
plan designed to protect the long-term value of the company for its stockholders
during any future unsolicited acquisition attempt.
The plan is designed to give Wave's Board of Directors sufficient time to
study and respond to an unsolicited tender offer or other attempted acquisition.
Adoption of the plan was not made in response to any specific attempt to acquire
Wave or its shares, and Wave is not aware of any current efforts to do so.
In connection with the plan, the Board declared a dividend of one preferred
share purchase right for each share of the company's common stock outstanding on
Sept. 28, 1998 (the "Record Date") and further directed the issuance of one such
right with respect to each share of the company's common stock that is issued
after the Record Date, except in certain circumstances. The rights will expire
on Sept. 28, 2008.
The rights are initially attached to the company's common stock and will
not trade separately. If a person or a group (an "Acquiring Person") acquires 15
percent or more of the company's common stock, or announces an intention to make
a tender offer for 15 percent or more of the company's common stock, then,
unless delayed by the Board, the rights will be distributed and will thereafter
trade separately from the common stock.
Each right will be exercisable for 1/1000 of a share of a newly designated
Series B Junior Participating Preferred Stock at an exercise price of $25. Upon
a person becoming an Acquiring Person, holders of the rights (other than the
Acquiring Person) will have the right to acquire shares of the company's common
stock at a substantially discounted price.
If a person becomes an Acquiring Person and the company is acquired in a
merger or other business combination, or 50 percent or more of its assets are
sold to an Acquiring Person, the holders of rights (other than the Acquiring
Person) will have the right to receive shares of common stock of the acquiring
corporation at a substantially discounted price.
After a person has become an Acquiring Person, the company's board of
directors may, at its option, require the exchange of outstanding rights (other
than those held by the Acquiring Person) for common stock at an exchange ratio
of one share of the company's common stock per right.
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The Board may redeem outstanding rights at any time prior to a person
becoming an Acquiring Person at a price of $0.001 per right. Prior to such time,
the terms of the rights may be amended by the Board.
In connection with the adoption of its stockholder rights plan, the Board
of Directors also amended the company's bylaws to increase the shareholder vote
required to remove a director without cause from 50 percent to two-thirds of the
company's shares entitled to vote for the election of directors.
Wave Technologies International Inc., develops, markets and delivers
training and instructional products related to sophisticated information
technologies. Identified in 1997 as one of the nation's fastest growing
technology companies, the company provides its products and services through
instructor-led courses, seminars, multimedia-published products and over the
Internet. Wave markets its services to information management systems
professionals, system integrators, value-added resellers and others with systems
management responsibilities.
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