SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
NEW USTC HOLDINGS CORPORATION
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(Exact name of registrant as specified in its charter)
New York 13-3818952
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(State of incorporation or organization) (I.R.S. Employer
Identification No.)
114 West 47th Street, New York, NY 10036-1532
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None
If this Form relates to the registration of a class of debt securities
and is effective upon filing pursuant to General Instruction A.(c)(1),
please check the following box. [ ]
If this Form relates to the registration of a class of debt securities
and is to become effective simultaneously with the effectiveness of a
concurrent registration statement under the Securities Act of 1933
pursuant to General Instruction A.(c)(2), please check the following
box. [ ]
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Series A
Participating Cumulative
Preferred Shares
---------------------------
(Title of Class)
<PAGE>
Item 1. Description Of Securities To Be Registered
On August 29, 1995, the Board of Directors of New
USTC Holdings Corporation (the "Company") declared a dividend
of one Right for each outstanding share of Common Stock, par
value $1 per share, of the Company (the "Common Shares"). The
Rights will be issued to the holders of record of Common
Shares outstanding on September 1, 1995, and with respect to
Common Shares issued thereafter until the Distribution Date
(as defined below) and in certain circumstances with respect
to Common Shares issued after the Distribution Date. Each
Right, when it becomes exercisable as described below, will
entitle the registered holder to purchase from the Company
one one-hundredth (1/100th) of a share of Series A
Participating Cumulative Preferred Shares, par value $1, of
the Company (the "Preferred Shares") at a price of $150 (the
"Purchase Price"). The description and terms of the Rights
are set forth in a Rights Agreement dated as of September 1,
1995 (the "Rights Agreement"), between the Company and First
Chicago Trust Company of New York, as Rights Agent (the
"Rights Agent").
Initially, the Rights are not exercisable and are
transferable only with the related Common Share certificate.
The Rights become exercisable and separately transferable on
the earlier of (i) the date that a person (other than the
401(k) Plan and ESOP of United States Trust Company of New
York and Affiliated Companies (the "Plan")) or group
(including any affiliate or associate of such person or
group) acquires beneficial ownership of 20% or more of the
outstanding Common Shares (such person or group being called
an "Acquiring Person", and such acquisition being called a
"Triggering Event") and (ii) the 10th calendar day after the
date of approval under the Bank Holding Company Act of 1956,
as amended, or the date of notice of nondisapproval under the
Change in Bank Control Act, for any person (other than the
Plan) or group to acquire beneficial ownership of 25% or more
of the outstanding Common Shares (the earlier of (i) and (ii)
being called the "Distribution Date"). After the Distribution
Date, any holder of a Right will have the right to purchase
1/100th of a Preferred Share, subject to certain adjustments.
As soon as practicable following the Distribution
Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the
Common Shares as of the close of business on the
<PAGE>
Distribution Date (and to each initial record holder of
certain Common Shares originally issued after the
Distribution Date), and such separate Right Certificates
alone will thereafter evidence the Rights.
The Rights are not exercisable until the
Distribution Date and will expire on September 1, 2005 (the
"Expiration Date"), unless earlier redeemed by the Company as
described below.
The number of Preferred Shares or other securities
issuable upon exercise of the Rights is subject to adjustment
from time to time in the event of any change in the Common
Shares or the Preferred Shares, whether by reason of stock
dividends, stock splits, recapitalizations, mergers,
consolidations, combinations or exchanges of securities,
split-ups, split-offs, spin-offs, liquidations, other similar
changes in capitalization, any distribution or issuance of
cash, assets, evidences of indebtedness or subscription
rights, options or warrants to holders of Common Shares or
Preferred Shares.
The Preferred Shares are authorized to be issued in
fractions which are an integral multiple of one one-
hundredth (1/100th) of a Preferred Share. The Company may,
but is not required to, issue fractions of shares upon the
exercise of Rights, and in lieu of fractional shares, the
Company may issue certificates or utilize a depository
arrangement as provided by the terms of the Preferred Shares
and, in the case of fractions other than one one-hundredth
(1/100th) of a Preferred Share or integral multiples thereof,
may make a cash payment based on the market price of such
shares.
In the event the Company is acquired in a merger or
other business combination by an Acquiring Person or an
associate or affiliate of an Acquiring Person that is a
publicly traded corporation or 50% or more of the Company's
assets or assets representing 50% or more of the Company's
revenues or cash flow are sold, leased, exchanged or
otherwise transferred (in one or more transactions) to an
Acquiring Person or an associate or affiliate of an Acquiring
Person that is a publicly traded corporation, each Right will
entitle its holder (subject to the next paragraph) to
purchase, for the Purchase Price, that number of common
shares of such corporation which at the time of the
transaction would have a market value of twice the Purchase
Price. In the event the Company is acquired in a
<PAGE>
merger or other business combination by an Acquiring Person
or an associate or affiliate of an Acquiring Person that is
not a publicly traded entity or 50% or more of the Company's
assets or assets representing 50% or more of the Company's
revenues or cash flow are sold, leased, exchanged or
otherwise transferred (in one or more transactions) to an
Acquiring Person or an associate or affiliate of an Acquiring
Person that is not a publicly traded entity, each Right will
entitle its holder (subject to the next paragraph) to
purchase, for the Purchase Price, at such holder's option,
(i) that number of shares of the surviving corporation in the
transaction with such entity (which surviving corporation
could be the Company) which at the time of the transaction
would have a book value of twice the Purchase Price, (ii)
that number of shares of such entity which at the time of the
transaction would have a book value of twice the Purchase
Price or (iii) if such entity has an affiliate which has
publicly traded common shares, that number of common shares
of such affiliate which at the time of the transaction would
have a market value of twice the Purchase Price.
Any Rights that are at any time beneficially owned
by an Acquiring Person (or any affiliate or associate of an
Acquiring Person) will be null and void and nontransferable
and any holder of any such Right (including any purported
transferee or subsequent holder) will be unable to exercise
or transfer any such Right.
At any time prior to the earlier of (i) the
occurrence of a Triggering Event and (ii) the Expiration
Date, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price (in cash or
Common Shares or other securities of the Company deemed by
the Board of Directors to be at least equivalent in value) of
$.01 per Right (which amount shall be subject to adjustment
as provided in the Rights Agreement) (the "Redemption
Price"). However, after a person (other than the Plan)
receives regulatory approval to acquire beneficial ownership
of 25% or more of the outstanding Common Shares, any
redemption would require the approval of a majority of the
Disinterested Directors (as defined in the Rights Agreement).
Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, and without any further action and without any
notice, the right to exercise the Rights will terminate and
<PAGE>
the only right of the holders of Rights will be to receive
the Redemption Price. Within 10 business days after the
action of the Board of Directors ordering the redemption of
the Rights, the Company shall give notice of such redemption
to the holders of the then outstanding Rights by mail. Each
such notice of redemption will state the method by which
payment of the Redemption Price will be made.
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.
At any time prior to the Distribution Date, the
Company may, without the approval of any holder of the
Rights, supplement or amend any provision of the Rights
Agreement (including the date on which the Distribution Date
shall occur, the time during which the Rights may be redeemed
or the terms of the Preferred Shares), except that no
supplement or amendment shall be made which reduces the
Redemption Price (other than pursuant to certain adjustments
therein) or provides for an earlier Expiration Date. From and
after the Distribution Date and subject to applicable law,
the Company may amend the Rights Agreement without the
approval of any holders of Right Certificates (i) to cure any
ambiguity or to correct or supplement any provision contained
in the Rights Agreement which may be defective or
inconsistent with any other provision of the Rights Agreement
or (ii) to make any other provisions which the Company may
deem necessary or desirable and which shall not adversely
affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an affiliate or associate
of an Acquiring Person).
The Rights Agreement between the Company and the
Rights Agent specifying the terms of the Rights, the form of
Right Certificate (Exhibit A to the Rights Agreement) and the
description of the Preferred Shares specifying the terms of
the Preferred Shares are filed herewith as exhibits and are
incorporated herein by reference. The foregoing description
of the Rights and the Preferred Shares is qualified by
reference to such exhibits.
<PAGE>
Item 2. Exhibits
1. Rights Agreement dated as of September 1, 1995,
between New USTC Holdings Corporation and First Chicago Trust
Company of New York, as Rights Agent.
2. Form of Right Certificate (attached as Exhibit A
to the Rights Agreement filed as Exhibit 1 hereto).
3. Description of the Voting Powers, Designations,
Preferences and Relative Participating, Optional and Other
Special Rights and Qualifications, Limitations or
Restrictions of Series A Participating Cumulative Preferred
Shares of New USTC Holdings Corporation (as set forth in
Article IV of the Restated Certificate of Incorporation of
New USTC Holdings Corporation).
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
Dated: September 5, 1995
NEW USTC HOLDINGS CORPORATION,
by /s/ Carol A. Strickland
--------------------------
Name: Carol A. Strickland
Title: Secretary
<PAGE>
INDEX OF EXHIBITS
Numbered
Page at
Exhibit Which
Number Title Located
1. Rights Agreement dated as of
September 1, 1995, between
New USTC Holdings Corporation
and First Chicago Trust Company
of New York, as Rights Agent. 9
2. Form of Right Certificate
(attached as Exhibit A to the
Rights Agreement filed as
Exhibit 1 hereto). 87
3. Description of the Voting
Powers, Preferences and Relative
Participating, Optional and
Other Special Rights and
Qualifications, Limitations or
Restrictions of Series A
Participating Cumulative
Preferred Shares of New USTC
Holdings Corporation (as set
forth in Article IV of the
Restated Certificate of
Incorporation of New USTC
Holdings Corporation). 96
RIGHTS AGREEMENT dated as of September 1,
1995, between NEW USTC HOLDINGS CORPORATION, a
New York corporation (the "Company"), and
FIRST CHICAGO TRUST COMPANY OF NEW YORK, a New
York corporation, as Rights Agent (the "Rights
Agent").
The Board of Directors of the Company has
authorized and declared a dividend of one Right (as
hereinafter defined) for each Common Share, par value $1 per
share, of the Company (the "Company Common Shares")
outstanding on September 1, 1995 (the "Record Date"), and has
authorized the issuance of one Right (as such number may
hereafter be adjusted pursuant to the provisions of this
Rights Agreement) with respect to each Company Common Share
that shall become outstanding between the Record Date and the
earliest of the Distribution Date, the Redemption Date or the
Expiration Date (as such terms are hereinafter defined);
provided, however, that Rights may be issued with respect to
Company Common Shares that shall become outstanding after the
Distribution Date and prior to the earlier of the Redemption
Date or the Expiration Date in accordance with the provisions
of Section 23 of this Rights Agreement. Each Right shall
initially represent the right to purchase one one-hundredth
(1/100th) of a share of Series A Participating Cumulative
Preferred Shares, par
<PAGE>
value $1 per share, of the Company (the "Preferred Shares"),
having the powers, rights and preferences set forth in the
Restated Certificate of Incorporation of the Company.
Accordingly, 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 Rights Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person who
or which, together with all Affiliates and Associates of
such Person, shall be the Beneficial Owner of 20% or more of
the Common Shares then outstanding, but shall not include
any Subsidiary of the Company, any employee benefit plan of
the Company or of any of its Subsidiaries or any Person
holding Common Shares for or pursuant to the terms of any
such employee benefit plan.
(b) "Affiliate" and "Associate", when used with
reference to any Person, shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules
and Regulations under the Exchange Act (as hereinafter
defined).
(c) "Affiliate Merger" shall have the meaning set
forth in clause (i) of Section 11(e) of this Rights
Agreement.
<PAGE>
(d) A Person shall be deemed the "Beneficial
Owner" of, and shall be deemed to "beneficially own", and
shall be deemed to have "Beneficial Ownership" of, any
securities:
(i) which such Person or any of such Person's
Affiliates or Associates is deemed to "beneficially
own", within the meaning of Rule 13d-3 of the General
Rules and Regulations under the Exchange Act;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding (written or oral), or upon
the exercise of conversion rights, exchange rights,
rights (other than Rights issuable under this Rights
Agreement), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own,
securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or
exchange thereunder; or (B) the right to vote pursuant
to any agreement, arrangement or understanding (written
or oral); provided, however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
<PAGE>
or to have Beneficial Ownership of, any security if the
agreement, arrangement or understanding (written or
oral) to vote such security (1) arises solely from a
revocable proxy given to such Person in response to a
public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and
regulations under the Exchange Act and (2) is not also
then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person
or any of such Person's Affiliates or Associates has
any agreement, arrangement or understanding (written or
oral), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in
clause (B) of subparagraph (ii) of this paragraph (d))
or disposing of any securities of the Company;
Notwithstanding the foregoing, nothing contained in
this paragraph (d) shall cause a Person ordinarily
engaged in business as an underwriter of securities to
be the "Beneficial Owner" of, or to "beneficially own",
or to have "Beneficial Ownership" of, any securities
acquired through such Person's participation in a bona
fide firm commitment underwriting pursuant to an
underwriting agreement with the Company for such period
<PAGE>
as shall be determined by the Board of Directors of the
Company.
(e) "Book Value", when used with reference to
Common Shares issued by any Person, shall mean the amount of
equity of such Person applicable to each Common Share,
determined (i) in accordance with generally accepted
accounting principles in effect on the date as of which such
Book Value is to be determined, (ii) using all the
consolidated assets and all the consolidated liabilities of
such Person on the date as of which such Book Value is to be
determined, except that no value shall be included in such
assets for goodwill arising from consummation of a Business
Combination, and (iii) after giving effect to (A) the
exercise of all rights, options and warrants to purchase
such Common Shares (other than the Rights), and the
conversion of all securities convertible into such Common
Shares, at an exercise or conversion price, per Common
Share, which is less than such Book Value before giving
effect to such exercise or conversion, (B) all dividends and
other distributions on the capital stock of such Person
declared prior to the date as of which such Book Value is to
be determined and to be paid or made after such date and (C)
any other agreement, arrangement or understanding (written
or oral), or transaction or other action prior to the date
as of which such Book Value is to be determined
<PAGE>
which would have the effect of thereafter reducing such Book
Value.
(f) "Business Combination" shall have the meaning
set forth in Section 13(a) of this Rights Agreement.
(g) "Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in the Borough of Manhattan,
The City of New York, are authorized or obligated by law or
executive order to close.
(h) "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, "Close of
Business" shall mean 5:00 p.m., New York City time, on the
next succeeding Business Day.
(i) "Common Shares", when used with reference to
the Company prior to a Business Combination, shall mean the
Company Common Shares or any other shares of capital stock
of the Company into which the Company Common Shares shall be
reclassified or changed. "Common Shares", when used with
reference to any Person (other than the Company prior to a
Business Combination), shall mean shares of capital stock of
such Person (if such Person is a corporation) of any class
or series, or units of equity interests in such Person (if
such Person is not a corporation) of any class or series,
the terms of which do not limit (as a fixed amount and not
merely in proportional terms) the amount of dividends or
<PAGE>
income payable or distributable on such class or series or
the amount of assets distributable on such class or series
upon any voluntary or involuntary liquidation, dissolution
or winding up of such Person and do not provide that such
class or series is subject to redemption at the option of
such Person, or any shares of capital stock or units of
equity interests into which the foregoing shall be
reclassified or changed; provided, however, that if at any
time there shall be more than one such class or series of
capital stock or equity interests of such Person, "Common
Shares" of such Person shall include all such classes and
series substantially in the proportion of the total number
of shares or other units of each such class or series
outstanding at such time.
(j) "Company" shall have the meaning set forth in
the heading of this Rights Agreement; provided, however,
that, following the amendment (the "Amendment") of the
Restated Certificate of Incorporation of the Company to
change the name of "New USTC Holdings Corporation" to "U.S.
Trust Corporation", which Amendment shall be effected within
10 Business Days following the date set forth in the heading
of this Rights Agreement, "Company" shall mean U.S. Trust
Corporation; provided, further, however, that if there is a
Business Combination, "Company" shall have the meaning set
forth in Section 13(b) of this Rights Agreement.
<PAGE>
(k) "Company Common Shares" shall have the meaning
set forth in the introductory paragraph of this Rights
Agreement.
(l) "Control" with respect to any Person shall
mean the power to direct the management and policies of such
Person, directly or indirectly, by or through stock
ownership, agency or otherwise, or pursuant to or in
connection with an agreement, arrangement or understanding
(written or oral) with one or more other Persons by or
through stock ownership, agency or otherwise; and the terms
"controlling" and "controlled" shall have meanings
correlative to the foregoing.
(m) "Disinterested Director" shall mean any member
of the Board of Directors of the Company who is not an
officer or employee of the Company or any of its
Subsidiaries and who is not an Acquiring Person or an
Affiliate or Associate of an Acquiring Person or a nominee
or representative of an Acquiring Person or of any such
Affiliate or Associate and who was a member of the Board of
Directors of the Company prior to the time any Person became
an Acquiring Person, and any successor to a Disinterested
Director who is not an officer or employee of the Company or
any of its Subsidiaries and who is not an Acquiring Person
or an Affiliate or Associate of an Acquiring Person or a
nominee or representative of an Acquiring Person or of any
such Affiliate or Associate and who was recommended for
<PAGE>
election or elected to succeed the Disinterested Director by
a majority of the Disinterested Directors then on the Board
of Directors of the Company.
(n) "Distribution Date" shall have the meaning set
forth in Section 3(a) of this Rights Agreement.
(o) "Equivalent Shares" shall mean Preferred
Shares and any other class or series of capital stock of the
Company which is entitled to participate in dividends and
other distributions, including distributions upon the
liquidation, dissolution or winding up of the Company on a
proportional basis with the Common Shares. In calculating
the number of any class or series of Equivalent Shares for
purposes of Section 11 of this Rights Agreement, the number
of shares, or fractions of a share, of such class or series
of capital stock that is entitled to the same dividend or
distribution as a whole Common Share shall be deemed to be
one share.
(p) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as in effect on the date in question,
unless otherwise specifically provided in this Rights
Agreement.
(q) "Expiration Date" shall have the meaning set
forth in Section 7(a) of this Rights Agreement.
(r) "Major Part" when used with reference to the
assets of the Company and its Subsidiaries as of any date
shall mean assets (i) having a fair market value aggregating
<PAGE>
50% or more of the total fair market value of all the assets
of the Company and its Subsidiaries (taken as a whole) as of
the date in question, (ii) accounting for 50% or more of the
total value (net of depreciation and amortization) of all
the assets of the Company and its Subsidiaries (taken as a
whole), as would be shown on a consolidated or combined
balance sheet of the Company and its Subsidiaries as of the
date in question, prepared in accordance with generally
accepted accounting principles then in effect, or
(iii) accounting for 50% or more of the total amount of net
income of the Company and its Subsidiaries (taken as a
whole), as would be shown on a consolidated or combined
statement of income of the Company and its Subsidiaries for
the period of 12 months ending on the last day of the
Company's monthly accounting period next preceding the date
in question, prepared in accordance with generally accepted
accounting principles then in effect.
(s) "Market Value", when used with reference to
Common Shares or Equivalent Shares on any date, shall be
deemed to be the average of the daily closing prices, per
share, of such Common Shares or Equivalent Shares for the
period which is the shorter of (1) 30 consecutive Trading
Days immediately prior to the date in question or (2) the
number of consecutive Trading Days beginning on the date of
the first public announcement of the event requiring a
determination of the Market Value and ending on the Trading
<PAGE>
Day immediately prior to the record date of such event;
provided, however, that in the event that the Market Value
of such Common Shares or Equivalent Shares is to be
determined in whole or in part during a period following the
announcement by the issuer of such Common Shares or
Equivalent Shares of any dividend, distribution or other
action of the type described in paragraph (a), (b), (c) or
(d) of Section 11 of this Rights Agreement that would
require an adjustment thereunder, then, in each such case,
the Market Value of such Common Shares or Equivalent Shares
shall be appropriately adjusted to reflect the effect of
such action on the market price of such Common Shares or
Equivalent Shares. The closing price for each Trading Day
shall be the last sale price, regular way, or, in case no
such sale takes place on such Trading Day, the average of
the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction
reporting system with respect to a security listed or
admitted to trading on a national securities exchange or, if
such security is not listed or admitted to trading on any
national securities exchange, the last quoted price or, if
not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the
National Association of Security Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in
use, or, if on any such Trading Day the applicable
<PAGE>
securities are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by
a professional market maker making a market in such
securities selected by the Board of Directors of the
Company. If on any such Trading Day no market maker is
making a market in such securities, the closing price of
such securities on such Trading Day shall be deemed to be
the fair value of such securities 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,
the holders of Rights and all other Persons); provided,
however, that for purposes of determining the closing price
of the Preferred Shares for any Trading Day on which there
is no such market maker for the Preferred Shares, the
closing price of the Preferred Shares on such Trading Day
shall be deemed to be the closing price of the Common Shares
on such Trading Day.
(t) "Person" shall mean an individual,
corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(u) "Preferred Shares" shall have the meaning set
forth in the introductory paragraph of this Rights
Agreement. Any reference in this Rights Agreement to
Preferred Shares shall be deemed to include any authorized
<PAGE>
fraction of a Preferred Share, unless the context otherwise
requires.
(v) "Principal Party" shall mean the Surviving
Person in a Business Combination; provided, however, that if
such Surviving Person is a direct or indirect Subsidiary of
any other Person, "Principal Party" shall mean the Person
which is the ultimate parent of such Surviving Person and
which is not itself a Subsidiary of another Person. In the
event ultimate control of such Surviving Person is shared by
two or more Persons, "Principal Party" shall mean that
Person that is immediately controlled by such two or more
Persons.
(w) "Purchase Price" with respect to each Right
shall mean $150, as such amount may from time to time be
adjusted as provided herein, and shall be payable in lawful
money of the United States of America. All references herein
to the Purchase Price shall mean the Purchase Price as in
effect at the time in question.
(x) "Record Date" shall have the meaning set forth
in the introductory paragraph of this Rights Agreement.
(y) "Redemption Date" shall mean the time when the
Rights are ordered to be redeemed by the Board of Directors
of the Company as provided in Section 24(a) of this Rights
Agreement.
<PAGE>
(z) "Redemption Price" shall have the meaning set
forth in Section 24 of this Rights Agreement.
(aa) "Registered Common Shares" shall mean Common
Shares which are, as of the date of consummation of a
Business Combination, and have been continuously registered
under Section 12 of the Exchange Act during the preceding 12
months.
(bb) "Right Certificate" shall mean a certificate
evidencing a Right in substantially the form attached as
Exhibit A to this Rights Agreement.
(cc) "Rights" shall mean the rights to purchase
Preferred Shares (or other securities) as provided in this
Rights Agreement.
(dd) "Securities Act" shall mean the Securities
Act of 1933, as in effect on the date in question, unless
otherwise specifically provided in this Rights Agreement.
(ee) "Subsidiary" shall mean a Person, a majority
of the total outstanding Voting Power of which is owned,
directly or indirectly, by another Person or by one or more
other Subsidiaries of such other Person or by such other
Person and one or more other Subsidiaries of such other
Person.
(ff) "Summary of Rights" shall have the meaning
set forth in Section 3(b) of this Rights Agreement.
(gg) "Surviving Person" shall mean (1) the Person
which is the continuing or surviving Person in a
<PAGE>
consolidation or merger specified in clause (i) or (ii) of
Section 13(a) of this Rights Agreement or (2) the Person to
which the Major Part of the assets of the Company and its
Subsidiaries are sold, leased, exchanged or otherwise
transferred or disposed of in a transaction specified in
clause (iii) of Section 13(a) of this Rights Agreement;
provided, however, that if the Major Part of the assets of
the Company and its Subsidiaries is sold, leased, exchanged
or otherwise transferred or disposed of in one or more
related transactions specified in clause (iii) of
Section 13(a) of this Rights Agreement to more than one
Person, the "Surviving Person" in such case shall mean the
Person that acquired assets of the Company and/or its
Subsidiaries with the greatest fair market value in such
transaction or transactions.
(hh) "Trading Day" shall mean a day on which the
principal national securities exchange (or principal
recognized foreign stock exchange, as the case may be) on
which any shares or Rights, as the case may be, are listed
or admitted to trading is open for the transaction of
business or, if the shares or Rights in question are not
listed or admitted to trading on any national securities
exchange (or recognized foreign stock exchange, as the case
may be), a Business Day.
<PAGE>
(ii) "Triggering Event" shall have the meaning set
forth in clause (ii) of Section 11(e) of this Rights Agree-
ment.
(jj) "Voting Power" when used with reference to
the capital stock of, or units of equity interests in, any
Person shall mean the power under ordinary circumstances
(and not merely upon the happening of a contingency) to vote
in the election of directors of such Person (if such Person
is a corporation) or to participate in the management and
control of such Person (if such Person is not a
corporation).
SECTION 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent for
the Company and the holders of the Rights (who prior to the
Distribution Date shall also be the holders of the Common
Shares) in accordance with the terms and conditions hereof,
and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint one or more co-Rights
Agents as it may deem necessary or desirable (the term
"Rights Agent" being used herein to refer, collectively, to
the Rights Agent together with any such co-Rights Agents).
In the event the Company appoints one or more co-Rights
Agents, the respective duties of the Rights Agent and any
co-Rights Agents shall be as the Company shall determine.
SECTION 3. Issue of Right Certificates. (a) Until
the earlier of (i) the occurrence of a Triggering
<PAGE>
Event or (ii) the Close of Business on the tenth calendar
day after the date of (x) notice of approval under the Bank
Holding Company Act of 1956, as amended (12 U.S.C. ss.ss. 1841
et. seq.), (y) notice of nondisapproval under the Change in
Bank Control Act (12 U.S.C. ss. 1817(j)) or (z) the
expiration, without a notice of disapproval having been
issued, of the prior notification period under the Change in
Bank Control Act with respect to a notification thereunder,
in each case for any Person (other than the 401(k) Plan and
ESOP of United States Trust Company of New York and
Affiliated Companies (the "Plan")) to acquire beneficial
ownership of 25% or more of the outstanding Common Shares
(including any such date which is after the date of this
Rights Agreement and prior to the issuance of the Rights)
(the earlier of the occurrence of a Triggering Event and the
Close of Business on the earliest of such dates being herein
referred to as the "Distribution Date"), (1) the Rights will
be evidenced (subject to Section 3(b) of this Rights
Agreement) by the certificates for Common Shares registered
in the names of the holders thereof and not by separate
Right Certificates, and (2) the Rights, including the right
to receive Right Certificates as herein provided, will be
transferable only in connection with the transfer of Common
Shares. One Right shall be associated with each Common
Share outstanding on the Record Date and each additional
Common Share that shall become outstanding between the
<PAGE>
Record Date and the Distribution Date and each additional
Common Share with which Rights are issued after the
Distribution Date as provided in Section 23 of this Rights
Agreement; provided, however, that if the number of
outstanding Rights are combined into a smaller number of
outstanding Rights pursuant to the last sentence of
Section 11(a) of this Rights Agreement, the appropriate
fractional Right determined pursuant to such sentence shall
thereafter be associated with each such Common Share. 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 Common Shares as of the
Distribution Date and to each initial record holder of
Common Shares issued or sold after the Distribution Date in
accordance with Section 23 of this Rights Agreement, at the
address of such holder shown on the records of the Company,
a Right Certificate, evidencing one whole Right for each
Common Share (or for the number of Common Shares with which
one whole Right is then associated if the number of Rights
per Common Share has been adjusted in accordance with the
proviso of the preceding sentence) held by such record
holder. In the event that the number of Rights associated
with each Common Share has been adjusted in accordance with
the proviso of the second sentence of this paragraph (a), at
the time of distribution of the Right Certificates the
Company shall make the necessary and appropriate rounding
<PAGE>
adjustments in accordance with the last sentence of
Section 11(a) of this Rights Agreement so that Right
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Right
in accordance with Section 15(a) of this Rights Agreement.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) With respect to certificates for Common Shares
outstanding as of the Record Date, until the Distribution
Date, the Rights associated with the Common Shares
represented by such certificates shall be evidenced by such
certificates for the Common Shares and the registered
holders of the Common Shares shall also be the registered
holders of the associated Rights. Until the earliest of the
Distribution Date, the Redemption Date or the Expiration
Date, the surrender for transfer of any of the certificates
for the Common Shares outstanding on the Record Date shall
also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate.
(c) Certificates issued for Common Shares after
the Record Date (including, without limitation, upon
transfer or exchange of outstanding Common Shares), but
prior to the earliest of the Distribution Date, the
<PAGE>
Redemption Date or the Expiration Date, shall have printed
on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a Rights
Agreement dated as of September 1, 1995 (the "Rights
Agreement"), between New USTC Holdings Corporation and
First Chicago Trust Corporation of New York, as Rights
Agent, the terms of which are hereby incorporated herein
by reference and a copy of which is on file at the
principal executive offices of U.S. Trust Corporation.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. U.S. Trust Corporation will mail to the
holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written
request therefor. Under certain circumstances, Rights
beneficially owned by Acquiring Persons or their
Affiliates or Associates (as such terms are defined in
the Rights Agreement) and by any subsequent holder of
such Rights may become null and void.
With respect to such certificate containing the foregoing
legend, until the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, the Rights
associated with the Common Shares represented by such
certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate shall
also constitute the transfer of the Rights associated with
the Common Shares represented thereby.
SECTION 4. Form of Right Certificates. (a) The
Right Certificates (and the form of election to purchase and
form of assignment to be printed on the reverse side
thereof) shall be in substantially the form set forth as
<PAGE>
Exhibit A 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 Rights
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
on which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Sections 11
and 23 hereof, the Right 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
Preferred Shares as shall be set forth therein for the
Purchase Price set forth therein.
(b) Notwithstanding any other provision of this
Rights Agreement, (i) any Right Certificate issued pursuant
to Section 3(a) or Section 23 of this Rights Agreement that
represents Rights known by the Company to be beneficially
owned by an Acquiring Person or any Affiliate or Associate
of an Acquiring Person, (ii) any Right Certificate issued at
any time upon the transfer of any Right to an Acquiring
Person or Person known by the Company to be an Affiliate or
an Associate of an Acquiring Person or to any Person known
by the Company to be a nominee of such Acquiring Person,
Affiliate or Associate, and (iii) any Right Certificate
issued pursuant to Section 6 or Section 11 of this Rights
<PAGE>
Agreement upon transfer, exchange, replacement or adjustment
of any other Right Certificate referred to in this sentence,
shall contain the following legend:
The Rights represented by this Right Certificate
are or were beneficially owned by a Person who was an
Acquiring Person or an Affiliate or an Associate of an
Acquiring Person. The Right Certificate and the Rights
represented hereby may become void in the circumstances
specified in Section 7(e) of the Rights Agreement.
SECTION 5. Execution, Countersignature and
Registration. (a) The Right Certificates shall be executed
on behalf of the Company by the Chairman of the Board, the
President or any Vice President of the Company, either
manually or by facsimile signature, and 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
Right Certificates shall be manually countersigned by the
Rights Agent and shall not be valid or obligatory for any
purpose unless so countersigned. In case any officer of the
Company who shall have signed any of the Right Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates may
nevertheless be countersigned by the Rights Agent, and
issued and delivered by the Company with the same force and
effect as though the person who signed such Right
Certificates had not ceased to be such officer of the
<PAGE>
Company; and any Right Certificate may be signed on behalf
of the Company by any person who, at the actual date of the
execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights
Agreement any such person was not such an officer of the
Company.
(b) Following the Distribution Date, the Rights
Agent will keep or cause to be kept, at its principal office
in New York, New York, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Right Certificates, the number of Rights evidenced by
each of the Right Certificates, the certificate number of
each of the Right Certificates and the date of each of the
Right Certificates.
SECTION 6. Transfer, Split-Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates. (a) Subject to the provisions
of Section 4(b), Section 7(e) and Section 15 of this Rights
Agreement, at any time after the Distribution Date, and at
or prior to the Close of Business on the earlier of the
Redemption Date or the Expiration Date, any Right
Certificate or Right Certificates may be transferred,
split-up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered
<PAGE>
holder to purchase a like number of Preferred Shares as the
Right Certificate or Right Certificates surrendered then
entitled such holder to purchase. Any registered holder
desiring to transfer, split-up, combine or exchange any
Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate or Right Certificates to be transferred,
split-up, combined or exchanged at the principal office of
the Rights Agent; provided, however, that neither the Rights
Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any Right
Certificate surrendered for transfer until the registered
holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of
such Right Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner
(or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request. Thereupon
the Rights Agent shall, subject to Section 4(b),
Section 7(e) and Section 15 of this Rights Agreement,
countersign and deliver to the Person entitled thereto a
Right Certificate or Right Certificates, as the case may be,
as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may
be imposed in connection with any transfer, split-up,
combination or exchange of Right Certificates.
<PAGE>
(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 valid Right
Certificate, and, in the case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them,
and, at the Company's request, reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and
cancelation of the Right Certificate if mutilated, the
Company will make a new Right Certificate of like tenor and
deliver such new Right Certificate to the Rights Agent for
delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
SECTION 7. Exercise of Rights; Expiration Date of
Rights. (a) Subject to Section 7(e) of this Rights Agreement
and except as otherwise provided in this Rights Agreement,
each Right shall entitle the registered holder thereof, upon
the exercise thereof as provided herein, to purchase, for
the Purchase Price, at any time after the earlier of the
Distribution Date or the occurrence of a Triggering Event
and at or prior to the earlier of (i) the Close of Business
on September 1, 2005 (the Close of Business on such date
being herein referred to as the "Expiration Date"), or (ii)
the Redemption Date, one one-hundredth (1/100th) of a
Preferred Share, subject to adjustment from
<PAGE>
time to time as provided in Sections 11 and 13 of this
Rights Agreement.
(b) The registered holder of any Right
Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein) in whole or in part
at any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on
the reverse side duly executed, to the Rights Agent at the
principal office of the Rights Agent in New York, New York,
together with payment of the Purchase Price for each one
one-hundredth (1/100th) of a Preferred Share as to which the
Rights are exercised, at or prior to the earlier of (i) the
Expiration Date or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate
representing exercisable Rights, with the form of election
to purchase duly executed, accompanied by payment of the
Purchase Price for the Preferred Shares to be purchased
together with an amount equal to any applicable transfer
tax, in lawful money of the United States of America, in
cash or by certified check or money order payable to the
order of the Company, the Rights Agent shall thereupon
promptly (i) either (A) requisition from any transfer agent
of the Preferred Shares (or make available, if the Rights
Agent is the transfer agent) certificates for the number of
one one-hundredths (1/100ths) of Preferred Shares to be
purchased and the Company hereby irrevocably authorizes its
<PAGE>
transfer agent to comply with all such requests, or (B) if
the Company shall have elected to deposit the Preferred
Shares issuable upon exercise of the Rights with a
depositary agent, requisition from the depositary agent
depositary receipts representing the number of one
one-hundredths (1/100ths) of Preferred Shares to be
purchased (in which case certificates for the Preferred
Shares to be 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 all
such requests, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of
fractional shares in accordance with Section 15 hereof,
(iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or
upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after
receipt, promptly deliver such cash to or upon the order of
the registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise fewer than all the Rights
evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent and delivered to the registered
holder of such Right Certificate or to his duly authorized
<PAGE>
assigns, subject to the provisions of Section 15 of this
Rights Agreement.
(e) Notwithstanding anything in this Rights
Agreement to the contrary, any Rights that are or were, at
any time on or after the Distribution Date, beneficially
owned by an Acquiring Person or any Affiliate or Associate
of an Acquiring Person shall become null and void upon the
occurrence of an Affiliate Merger or a Triggering Event and
any holder of any such Right (including any subsequent
holder), whether or not the Right Certificate contains the
legend described in Section 4(b) of this Rights Agreement,
shall not have any right to exercise any such Right under
this Rights Agreement from and after the occurrence of an
Affiliate Merger or a Triggering Event.
(f) Notwithstanding anything in this Rights
Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with
respect to a registered holder of any Right Certificates
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 Right Certificate surrendered for such exercise and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
<PAGE>
Affiliates or Associates thereof as the Company shall
reasonably request.
SECTION 8. Cancelation and Destruction of Right
Certificates. All Right Certificates surrendered for the
purpose of exercise, transfer, split-up, combination or
exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancelation
or in canceled form, or, if surrendered to the Rights Agent,
shall be canceled by it, and no Right Certificates shall be
issued in lieu thereof except as expressly permitted by any
of the provisions of this Rights Agreement. The Company
shall deliver to the Rights Agent for cancelation and
retirement, and the Rights Agent shall so cancel and retire,
any Right Certificate purchased or acquired by the Company.
The Rights Agent shall deliver all canceled Right
Certificates to the Company, or shall, at the written
request of the Company, destroy such canceled Right
Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
SECTION 9. Reservation and Availability of
Preferred Shares. (a) The Company covenants and agrees that
it will cause to be reserved and kept available out of its
authorized and unissued Preferred Shares or any authorized
and issued Preferred Shares held in its treasury, free from
preemptive rights or any right of first refusal, a
<PAGE>
number of Preferred Shares sufficient to permit the exercise
in full of all outstanding Rights.
(b) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all
Preferred Shares delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such Preferred
Shares (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and
nonassessable shares.
(c) If the Preferred Shares issuable upon the
exercise of Rights are to be listed on any national
securities exchange, the Company covenants and agrees to use
its best efforts to cause, from and after such time as the
Rights become exercisable, all Preferred Shares reserved for
such issuance to be listed on such exchange upon official
notice of issuance upon such exercise.
(d) The Company further covenants and agrees that
it will pay when due and payable any and all Federal and
state transfer taxes and charges which may be payable in
respect of the issuance or delivery of Right Certificates or
of any Preferred Shares upon the exercise of the Rights. The
Company shall not, however, be required to pay any transfer
tax which may be payable in respect of any transfer or
delivery of Right Certificates to a Person other than, or in
respect of the issuance or delivery of certificates for the
Preferred Shares in a name other than that of, the
<PAGE>
registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any
certificates for Preferred Shares upon the exercise of any
Rights until any such tax shall have been paid (any such tax
being payable by the holder of such Right 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 Shares Record Date. Each
Person in whose name any certificate for Preferred Shares is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the Preferred
Shares represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable transfer taxes) was made;
provided, however, that if the date of such surrender and
payment is a date upon which the Preferred
Shares transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next
succeeding Business Day on which the Preferred Shares
transfer books of the Company are open.
SECTION 11. Adjustment of Number and Kind of
Shares and the Purchase Price; Adjustment of Number of
Rights. The number and kind of shares subject to purchase
upon the exercise of each Right and the Purchase Price, and
<PAGE>
the number of outstanding Rights, are subject to adjustment
from time to time as provided in this Section 11.
(a) In the event at any time after the date of
this Rights Agreement and prior to the Distribution Date the
Company shall (i) declare a dividend, or make a
distribution, on its Common Shares payable in Common Shares,
(ii) subdivide (by stock split or otherwise) the outstanding
Common Shares into a larger number of Common Shares or (iii)
combine (by reverse stock split or otherwise) its
outstanding Common Shares into a smaller number of Common
Shares, then, in each such event, (1) the number of
Preferred Shares issuable upon exercise of each Right at the
time of the record date for such dividend or distribution or
the effective date of such subdivision or combination, shall
be adjusted so that the number of Preferred Shares
thereafter issuable upon exercise of each Right shall equal
the result obtained by multiplying the number of Preferred
Shares issuable upon exercise of each Right immediately
prior to such time by a fraction, the numerator of which
shall be the total number of Rights outstanding immediately
prior to such time and the denominator of which shall be the
total number of Rights outstanding immediately following
such time, and (2) the Purchase Price in effect at such time
shall be adjusted so that the Purchase Price thereafter
shall equal the result obtained by multiplying the Purchase
Price in effect immediately prior to such time by the
<PAGE>
fraction referred to in the preceding clause (1). In the
event at any time after the date of this Rights Agreement
and prior to the Distribution Date the Company shall combine
(by reverse stock split or otherwise) the outstanding Common
Shares into a smaller number of Common Shares then, in each
such event, the Rights outstanding at the time of the
effective date of such combination shall be reduced to that
fraction of a Right (calculated to the nearest
one ten-thousandth (1/10,000th) of a Right) equal to the
result obtained by multiplying each such Right by a
fraction, the numerator of which shall be the total number
of Common Shares outstanding immediately following such time
and the denominator of which shall be the total number of
Common Shares outstanding immediately prior to such time.
(b) In the event at any time after the date of
this Rights Agreement the Company shall (i) declare a
dividend, or make a distribution, on its outstanding
Preferred Shares payable in Preferred Shares, (ii) subdivide
(by stock split or otherwise) or split the outstanding
Preferred Shares into a larger number of Preferred Shares,
(iii) combine (by a reverse stock split or otherwise) the
outstanding Preferred Shares into a smaller number of
Preferred Shares or (iv) issue any shares of its capital
stock in a reclassification or change of the outstanding
Preferred Shares (including any such reclassification or
change in connection with a merger in which the Company is
<PAGE>
the continuing or surviving corporation), then, in each such
event, the number and kind of shares of capital stock
issuable upon the exercise of each Right at the time of the
record date for such dividend or distribution or the
effective date of such subdivision, combination or
reclassification shall be adjusted so that the holder of any
Right exercised after such time shall be entitled to
receive, for the Purchase Price, the aggregate number and
kind of shares of capital stock which such holder would have
owned and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification if
such holder had exercised such Right immediately prior to
such time.
(c) If at any time after the date of this Rights
Agreement the Company shall fix a record date for the
issuance of rights, options or warrants (other than the
Rights) to all holders of Common Shares or of any class or
series of Equivalent Shares entitling such holders (for a
period expiring within 45 calendar days after such record
date) to subscribe to or purchase Common Shares or
Equivalent Shares (or securities convertible into Common
Shares or Equivalent Shares) at a price per share (or having
a conversion price per share, in the case of securities
convertible into Common Shares or Equivalent Shares) less
than the Market Value of such Common Shares or Equivalent
Shares on such record date, then, in each such case, each
<PAGE>
Right outstanding immediately prior to such record date
shall thereafter evidence the right to purchase, for the
Purchase Price, that number of one one-hundredths (1/100ths)
of a Preferred Share obtained by multiplying the number of
one one-hundredths (1/100ths) of a Preferred Share issuable
upon exercise of a Right immediately prior to such record
date by a fraction, the numerator of which shall be the
number of Common Shares and Equivalent Shares (if any)
outstanding on such record date plus the number of
additional Common Shares or Equivalent Shares, as the case
may be, to be offered for subscription or purchase (or into
which the convertible securities so to be offered are
initially convertible) and the denominator of which shall be
the total number of Common Shares and Equivalent Shares (if
any) outstanding on such record date plus the number of
Common Shares or Equivalent Shares, as the case may be,
which the aggregate offering price of the total number of
Common Shares or Equivalent Shares, as the case may be, so
to be offered (and/or the aggregate initial conversion price
of the convertible securities so to be offered) would
purchase at such Market Value. In case such subscription
price may be paid in a consideration, part or all of which
shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the
Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent.
<PAGE>
Common Shares and Equivalent Shares owned by or held for the
account of the Company or any Subsidiary of the Company
shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that
such rights, options or warrants are not so issued, each
Right shall be adjusted to evidence the right to receive
that number of one one-hundredths (1/100ths) of a Preferred
Share which such Right would have entitled the holder to
receive, for the Purchase Price, if such record date had not
been fixed.
(d) If at any time after the date of this Rights
Agreement the Company shall fix a record date for the making
of a distribution to all holders of the Common Shares or of
any class or series of Equivalent Shares (including any such
distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation) of cash (other than a regular periodic cash
dividend at a rate not in excess of 133% of the rate of the
last regular cash dividend theretofore paid on the Common
Shares), evidences of indebtedness, assets, securities
(other than Common Shares or Preferred Shares) or
subscription rights, options or warrants (excluding those
referred to in Section 11(c) of this Rights Agreement),
then, in each such case, each Right outstanding immediately
prior to such record date shall thereafter evidence the
<PAGE>
right to purchase, for the Purchase Price, that number of
one one-hundredths (1/100ths) of a Preferred Share obtained
by multiplying the number of one one-hundredths (1/100ths)
of a Preferred Share issuable upon exercise of a Right
immediately prior to such record date by a fraction, the
numerator of which shall be the Market Value of such Common
Shares or Equivalent Shares on the record date and the
denominator of which shall be the Market Value of such
Common Shares or Equivalent Shares on such record date less
the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall
be described in a statement filed with the Rights Agent) of
the portion of the cash, evidences of indebtedness, assets
or securities so to be distributed or of such subscription
rights, options or warrants applicable to one Common Share
or Equivalent Share, as the case may be. Such adjustments
shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so
made, each Right shall be adjusted to evidence the right to
receive that number of one one-hundredths (1/100ths) of a
Preferred Share which such Right would have entitled the
holder to receive, for the Purchase Price, if such record
date had not been fixed.
(e) (i) If any Acquiring Person or any Affiliate
or Associate of any Acquiring Person, at any time after the
date of this Rights Agreement, directly or indirectly, shall
<PAGE>
merge into the Company or any Subsidiary of the Company or
otherwise combine with the Company or any such Subsidiary
and the Company or such Subsidiary shall be the continuing
or surviving corporation of such merger or combination and
all the Common Shares shall remain outstanding and unchanged
(such merger or combination being herein referred to as an
"Affiliate Merger") then, in each such case, proper
provision shall be made so that each holder of a Right,
except as provided in Section 7(e) of this Rights Agreement
and below, shall thereafter have a right to receive, upon
exercise thereof for the Purchase Price in accordance with
the terms of this Rights Agreement, such number of Common
Shares as shall have an aggregate Market Value on the date
of the occurrence of such merger or combination equal to the
result obtained by multiplying the Purchase Price by two.
The Company shall not consummate any Affiliate Merger unless
upon such consummation it shall have sufficient authorized
Common Shares that have not been issued or reserved for
issuance to permit the exercise in full of the Rights in
accordance with this Section 11(e)(i) and unless prior
thereto a registration statement under the Securities Act on
an appropriate form, with respect to the Common Shares
purchasable upon exercise of the Rights, shall be effective
<PAGE>
under the Securities Act. The Company covenants and agrees
to use its best efforts to:
(A) cause a registration statement under the
Securities Act on an appropriate form, with respect to
the Common Shares purchasable upon exercise of the
Rights, to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act)
until the Expiration Date;
(B) qualify or register the Common Shares
purchasable upon exercise of the Rights under the blue
sky or securities laws of such jurisdictions as may be
necessary or appropriate; and
(C) list the Common Shares purchasable upon the
exercise of the Rights on each national securities
exchange on which the Common Shares were listed prior
to the consummation of such Affiliate Merger or, if the
Common Shares were not so listed prior to the
consummation of such Affiliate Merger, arrange for
quotation of the Common Shares purchasable upon the
exercise of the Rights on NASDAQ (or any successor
inter-dealer quotation system on which the Common
Shares were quoted prior to the Affiliate Merger).
(ii) If any Person shall become an Acquiring
Person (such event being herein referred to as a "Triggering
Event"), then, each holder of a Right, except as provided in
Section 7(e) of this Rights Agreement and below, shall
<PAGE>
thereafter have a right to receive, upon exercise thereof
for the Purchase Price in accordance with terms of this
Rights Agreement, such number of one one-hundredths
(1/100ths) of a Preferred Share as shall equal the result
obtained by multiplying the Purchase Price by a fraction,
the numerator of which is the number of one one-hundredths
(1/100ths) of a Preferred Share for which a Right is then
exercisable and the denominator of which is 50% of the
Market Value of the Common Shares on the date of the
occurrence of such Triggering Event. If a Triggering Event
has occurred, as soon as practicable thereafter, the Company
covenants and agrees to use its best efforts to:
(i) prepare and file a registration statement
under the Securities Act, on an appropriate form, with
respect to the Preferred Shares purchasable upon
exercise of the Rights;
(ii) cause such registration statement to become
effective as soon as practicable after such filing;
(iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the
Expiration Date; and
(iv) qualify or register the Preferred Shares
purchasable upon exercise of the Rights under the blue
sky or securities laws of such jurisdictions as may be
necessary or appropriate.
<PAGE>
The Company may temporarily suspend, for a period
of time not to exceed 90 calendar days after the date of
such Triggering Event, the exercisability of the Rights in
order to prepare and file such registration statement and
permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating 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 Rights Agreement to the contrary, the
Rights shall not be exercisable in any jurisdiction if the
requisite qualification under the blue sky or securities
laws of such jurisdiction shall not have been obtained or
the exercise thereof shall not be permitted under applicable
law.
(iii) If an event occurs which would require an
adjustment under both subparagraph (e)(i) or (e)(ii) of this
Section 11 and paragraph (a), (b), (c) or (d) of this
Section 11, the adjustment provided for in paragraph (a),
(b), (c) or (d) of this Section 11 shall be in addition to,
and shall be made prior to, any adjustment required pursuant
to subparagraph (e)(i) or (e)(ii) of this Section 11;
provided, however, that if a single event occurs that
represents both an Affiliate Merger or Triggering Event and
a Business Combination, the Rights exercisable upon such
event shall be exercisable only in a manner set forth in
<PAGE>
Section 13(a) of this Rights Agreement and no adjustment
shall be made pursuant to any paragraph of this Section 11.
(f) All calculations under this Section 11 shall
be made to the nearest one ten-thousandth (1/10,000th) of a
share.
(g) If as a result of an adjustment made pursuant
to Section 11(b) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
the Preferred Shares contained in paragraphs (a) through
(e), inclusive, of this Section 11 and the provisions of
Sections 7, 9, 10 and 13 of this Rights Agreement with
respect to the Preferred Shares shall apply on like terms to
any such other shares.
(h) All Rights originally issued by the Company
subsequent to any adjustment made to the amount of Preferred
Shares or other capital stock relating to a Right shall
evidence the right to purchase, for the Purchase Price, the
adjusted number and kind of shares of capital stock
purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided
herein.
<PAGE>
(i) Irrespective of any adjustment or change in
the Purchase Price or the number of Preferred Shares or
number or kind of other shares of capital stock issuable
upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express
the terms which were expressed in the initial Right
Certificates issued hereunder.
(j) In any case in which this Section 11 shall
require that an adjustment be made effective as of a record
date for a specified event, the Company may elect to defer
until the occurrence of such event the issuing to the holder
of any Right exercised after such record date the Preferred
Shares and/or other shares of capital stock or, securities
of the Company, if any, issuable upon such exercise over and
above the Preferred Shares and/or other shares of capital
stock or securities of the Company, if any, issuable before
giving effect to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the
event requiring such adjustment.
(k) After the occurrence of an Affiliate Merger or
a Business Combination the number of Common Shares
thereafter receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions
<PAGE>
with respect to the Preferred Shares contained in
Sections 7, 9, 10, 11 and 13 of this Rights Agreement.
SECTION 12. Certificate of Adjustment. Whenever
an adjustment is made as provided in Section 11 or
Section 13 of this Rights Agreement, 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 Shares a copy of
such certificate and (c) mail a brief summary thereof to
each holder of a Right Certificate in accordance with
Section 26 of this Rights Agreement. 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 Major Part of Assets. (a) In the event that,
following the Distribution Date, directly or indirectly, any
transactions specified in the following clauses (i), (ii) or
(iii) hereof (each such transaction, following the
Distribution Date, being herein referred to as a "Business
Combination") shall be consummated:
(i) the Company shall consolidate with, or merge
with and into, any other Person;
(ii) any Person shall merge with and into the
Company and, in connection with such merger, all or
part of the Common Shares shall be changed into or
<PAGE>
exchanged for capital stock or other securities of any
other Person or cash or any other property; or
(iii) the Company shall sell, lease, exchange or
otherwise transfer or dispose of (or one or more of its
Subsidiaries shall sell, lease, exchange or otherwise
transfer or dispose of), in one or more transactions,
the Major Part of the assets of the Company and its
Subsidiaries (taken as a whole) to any other Person or
Persons,
then, in each such case, proper provision shall be made so
that each holder of a Right, except as provided in Section
7(e) of this Rights Agreement, shall thereafter have the
right to receive, upon the exercise thereof for the Purchase
Price in accordance with the terms of this Rights Agreement,
the securities specified below:
(A) If the Principal Party in such Business
Combination has Registered Common Shares outstanding,
each Right shall thereafter represent the right to
receive, upon the exercise thereof for the Purchase
Price in accordance with the terms of this Rights
Agreement, such number of Registered Common Shares of
such Principal Party, free and clear of all liens,
encumbrances or other adverse claims, as shall have an
aggregate Market Value on the date of such Business
Combination equal to the result obtained by multiplying
the Purchase Price by two.
<PAGE>
(B) If the Principal Party in such Business
Combination does not have Registered Common Shares
outstanding, each Right shall thereafter represent the
right to receive, upon the exercise thereof for the
Purchase Price in accordance with the terms of this
Rights Agreement, at the election of the holder of such
Right at the time of the exercise thereof:
(1) such number of Common Shares of the
Surviving Person in such Business Combination as
shall have an aggregate Book Value immediately
after giving effect to such Business Combination
equal to the result obtained by multiplying the
Purchase Price by two;
(2) such number of Common Shares of the
Principal Party in such Business Combination (if
the Principal Party is not also the Surviving
Person in such Business Combination) as shall have
an aggregate Book Value immediately after giving
effect to such Business Combination equal to the
result obtained by multiplying the Purchase Price
by two; or
(3) if the Principal Party in such Business
Combination is an Affiliate of one or more Persons
which has Registered Common Shares outstanding,
such number of Registered Common Shares of
whichever of such Affiliates of the Principal
<PAGE>
Party has Registered Common Shares with the
greatest aggregate Market Value on the date of
consummation of such Business Combination as shall
have an aggregate Market Value on the date of such
Business Combination equal to the result obtained
by multiplying the Purchase Price by two.
All Common Shares of any Person for which any Right may be
exercised after consummation of a Business Combination as
provided in this Section 13(a) shall, when issued upon
exercise thereof in accordance with this Rights Agreement,
be validly issued, fully paid and nonassessable and free of
preemptive rights, rights of first refusal or any other
restrictions or limitations on the transfer or ownership
thereof.
(b) After consummation of any Business Combination
(i) each issuer of Common Shares for which Rights may be
exercised as set forth in paragraph (a) of this Section 13
shall be liable for, and shall assume, by virtue of such
Business Combination, all the obligations and duties of the
Company pursuant to this Rights Agreement, (ii) the term
"Company" shall thereafter be deemed to refer to such
issuer, (iii) each such issuer shall take such steps in
connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to
its Common Shares thereafter deliverable upon the exercise
<PAGE>
of the Rights, and (iv) the number of Common Shares of each
such issuer thereafter receivable upon exercise of any Right
shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Shares contained in
Sections 7, 9, 10, 11 and 13 of this Rights Agreement.
(c) The Company shall not consummate any Business
Combination unless each issuer of Common Shares for which
Rights may be exercised, as set forth in paragraph (a) of
this Section 13, shall have sufficient authorized Common
Shares 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:
(i) a registration statement under the Securities
Act on an appropriate form, with respect to the Rights
and the Common Shares of such issuer purchasable upon
exercise of the Rights, shall be effective under the
Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights
Agent a supplemental agreement providing for the
obligation of such issuer to issue Common Shares
upon the exercise of Rights in accordance with the
terms set forth in paragraphs (a) and (b) of this
<PAGE>
Section 13 and further providing that such issuer,
at its own expense, will:
(I) use its best efforts to cause a
registration statement under the Securities
Act on an appropriate form, with respect to
the Rights and the Common Shares of such
issuer purchasable upon exercise of the
Rights, to 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 Common Shares of
such issuer purchasable upon exercise of the
Rights under the blue sky or securities laws
of such jurisdictions as may be necessary or
appropriate; and
(III) use its best efforts to list the
Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights on
each national securities exchange on which
the Common Shares were listed prior to the
consummation of the Business Combination or,
if the Common Shares were not listed on a
national securities exchange prior to the
<PAGE>
consummation of the Business Combination, on
a national securities exchange;
(B) furnished to the Rights Agent an opinion
of independent counsel stating that such
supplemental agreement is a valid, binding and
enforceable agreement of such issuer; and
(C) filed with the Rights Agent a certificate
of a nationally recognized firm of independent
accountants setting forth the number of Common
Shares of such issuer which may be purchased upon
the exercise of each Right after the consummation
of such Business Combination.
(d) In the event a Business Combination shall be
consummated at any time after the occurrence of an Affiliate
Merger or a Triggering Event, the Rights that have not been
exercised prior to such time shall thereafter become
exercisable in the manner set forth in paragraph (a) of this
Section 13.
SECTION 14. Additional Covenants. (a) Notwith-
standing any other provision of this Rights Agreement, no
adjustment to the number of Preferred Shares (or fractions
of a share) or other shares of capital stock for which a
Right is exercisable or the number of Rights outstanding or
associated with each Common Share or any similar or other
adjustment shall be made or be effective if such adjustment
would have the effect of reducing or limiting the benefits
<PAGE>
the holders of the Rights would have had absent such
adjustment, including, without limitation, the benefits
under Section 11 and Section 13 of this Rights Agreement,
unless the terms of this Rights Agreement are amended so as
to preserve such benefits.
(b) The Company covenants and agrees that it shall
not effect any Business Combination or Affiliate Merger if
(i) at the time of or immediately after such Business
Combination or Affiliate Merger, there are outstanding any
rights, options, warrants or other instruments or securities
of any Person which is a party to such Business Combination
or Affiliate Merger (or any Affiliate or Associate of any
such Person) which would eliminate or diminish the benefits
intended to be afforded by the Rights, or (ii) prior to,
simultaneously with or immediately after such Business
Combination, the Principal Party or any other issuer of
Common Shares for which Rights may be exercised after such
Business Combination shall have distributed, or proposed to
distribute, Rights previously owned by such Principal Party
or other issuer or any of their respective Affiliates and
Associates.
(c) The Company covenants and agrees that, after
the Distribution Date, except as permitted by Section 27 of
this Rights Agreement, it will not take (or permit any
Subsidiary of the Company to take) any action if at the time
such action is taken it is reasonably foreseeable that such
<PAGE>
action will reduce or otherwise limit the benefits the
holders of the Rights would have had absent such action,
including, without limitation, the benefits under Section 11
and Section 13 of this Rights Agreement.
(d) In the event the nature of the organization of
any Person shall preclude or limit the acquisition of Common
Shares of such Person upon exercise of the Rights as
required by Section 13(a) of this Rights Agreement as a
result of a Business Combination, it shall be a condition to
such Business Combination that such Person shall take such
steps (including, but not limited to, a reorganization) as
may be necessary to assure that the benefits intended to be
derived under Section 13 of this Rights Agreement upon the
exercise of the Rights are assured to the holders thereof.
SECTION 15. Fractional Rights and Fractional
Shares. (a) The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates
which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered
holders of the Right Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value
of a whole Right. For the purposes of this Section 15(a),
the current market value of a whole Right shall be the
closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would have
<PAGE>
been otherwise issuable. The closing price for any day
shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to Rights listed or admitted to trading
on a national securities exchange or, if the Rights are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other
system then in use or, if on any such date the Rights are
not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the
Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights, the fair
value of the Rights on such date as determined in good faith
by the Board of Directors of the Company shall be used.
(b) The Company may, but shall not be required to,
issue fractions of shares upon exercise of the Rights or
distribute certificates which evidence fractional shares. In
lieu of fractional shares, the Company may elect to (i)
utilize a depository arrangement as provided by the terms of
the Preferred Shares or (ii) in the case of a fraction of a
share other than one one-hundredth (1/100th)
<PAGE>
of a share or any integral multiple thereof, pay to the
registered holders of Right Certificates at the time such
Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of
one Preferred Share, if any are outstanding and publicly
traded (or the Current market value of one Common Share if
the Preferred Shares are not outstanding and publicly
traded). For purposes of this Section 15(b), the current
market value of a Preferred Share (or Common Share) shall be
the closing price of a Preferred Share (or Common Share) (as
determined pursuant to the second sentence of Section 1(s)
of this Rights Agreement) for the Trading Day immediately
prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the
Rights expressly waives his right to receive any frac-
tional Rights or any fractional shares upon exercise of a
Right, except as provided in this Section 15.
SECTION 16. Rights of Action. (a) All rights of
action in respect of this Rights Agreement are vested in the
respective registered holders of the Right Certificates
(and, prior to the Distribution Date, the registered holders
of the Common Shares); and any registered holder of any
Right Certificate (or, prior to the Distribution Date, of
the Common Shares), without the consent of the Rights Agent
or of the holder of any other Right Certificate (or, prior
to the Distribution Date, of the Common Shares), may, in his
<PAGE>
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 Right
Certificate in the manner provided in such Right Certificate
and in this Rights 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 Rights Agreement and shall be entitled to
specific performance of the obligations of any Person under,
and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this
Rights Agreement.
(b) Any holder of Rights who prevails in an action
to enforce the provisions of this Rights Agreement shall be
entitled to recover the reasonable costs and expenses,
including attorneys' fees, incurred in such action.
SECTION 17. Transfer and Ownership of Rights and
Right Certificates. (a) Prior to the Distribution Date, the
Rights will be transferable only in connection with transfer
of the Common Shares.
(b) After the Distribution Date, the Right
Certificates will be transferable, subject to Section 7(e)
of this Rights Agreement, only on the registry books of the
<PAGE>
Rights Agent if surrendered at the principal office of the
Rights Agent, duly endorsed or accompanied by a proper
instrument of transfer.
(c) The Company and the Rights Agent may deem and
treat the Person in whose name a Right Certificate (or,
prior to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates
or the associated certificate for Common Shares made by
anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights
Agent shall be affected by any notice to the contrary.
SECTION 18. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate
shall be entitled to vote or receive dividends or be deemed,
for any purpose, the holder of the Preferred Shares or of
any other securities of the Company which may at any time be
issuable on the exercise of the Rights represented thereby,
nor shall anything contained herein or in any Right Certifi-
cate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of
the Company, including, without limitation, 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
<PAGE>
notice of meetings or other actions affecting shareholders
(except as provided in Section 25 of this Rights Agreement),
or to receive dividends or other distributions or subscrip-
tion rights, or otherwise, until the Right or Rights evi-
denced by such Right Certificate shall have been exercised
in accordance with the provisions hereof.
SECTION 19. Concerning the Rights Agent. (a) The
Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and
from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the administration and execution of this Rights
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights
Agent for, and to hold it harmless against, any loss,
liability, or expense, incurred without negligence, bad
faith or wilful misconduct on the part of the Rights Agent,
for anything done or omitted by the Rights Agent in
connection with the acceptance and administration of this
Rights Agreement, including the costs and expenses of
defending against any claim of liability arising therefrom,
directly or indirectly.
(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 Rights Agreement in reliance upon any
<PAGE>
Right Certificate or certificate for Common Shares or for
other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons.
SECTION 20. Merger or Consolidation or Change 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 stock transfer or corporate
trust business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this
Rights Agreement without the execution or filing of any
paper or any further act on the part of any of the parties
hereto, provided that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions
of Section 22 of this Rights Agreement. In case, at the time
such successor Rights Agent shall succeed to the agency
created by this Rights Agreement, any of the Right
Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver
<PAGE>
such Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor
Rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates
and in this Rights Agreement.
(b) In case at any time the name of the Rights
Agent shall be changed and at such time any of the Right
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its
prior name or in its changed name; and in all such cases
such Right Certificates shall have the full force provided
in the Right Certificates and in this Rights Agreement.
SECTION 21. Duties of Rights Agent. The Rights
Agent undertakes the duties and obligations imposed by this
Rights Agreement upon the following terms and conditions, by
<PAGE>
all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and the
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 Rights Agreement the Rights Agent shall deem it
necessary or desirable that any fact or matter (including,
without limitation, the identity of any Acquiring Person) 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 any one of the
Chairman of the Board, the President, the Chief Financial
officer, a Vice President, the Treasurer or the 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 Rights Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder
only for its own negligence, bad faith or wilful misconduct.
<PAGE>
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Rights Agreement or in the Right
Certificates (except as to its countersignature thereof) or
be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Rights
Agreement or the execution and delivery hereof (except the
due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Right Certificate (except
its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition
contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or Section 13 of
this Rights Agreement or responsible for the manner, method
or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment
(except with respect to the exercise of Rights evidenced by
Right Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be deemed to
make any representation or warranty as to the authorization
or reservation of any Preferred Shares or Common Shares to
be issued pursuant to this Rights Agreement or any Right
<PAGE>
Certificate or as to whether any Preferred Shares or Common
Shares will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will perform,
execute, acknowledge and deliver or cause to be performed,
executed, acknowledged and delivered all such further and
other acts, instruments and assurances as may reasonably be
required by the Rights Agent for the carrying out or per-
forming by the Rights Agent of the provisions of this Rights
Agreement.
(g) The Rights Agent is hereby authorized and
directed to accept instructions with respect to the
performance of its duties hereunder from any one of the
Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply
to such officers for advice or instructions in connection
with its duties and it shall not be liable for any action
taken or 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 the Rights Agent under this
<PAGE>
Rights Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any
of the rights or powers hereby vested in it or perform any
duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided that reasonable care was exercised in the selection
and continued employment thereof.
SECTION 22. Change of Rights Agent. The Rights
Agent or any successor Rights Agent may resign and be
discharged from its duties under this Rights Agreement upon
30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares and the Preferred Shares
by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon
30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares and the Preferred Shares
by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
<PAGE>
incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice
of such removal or after it has been notified in writing of
such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the
registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation
organized and doing business under the laws of the United
States or of the State of New York (or of any other State of
the United States so long as such corporation is authorized
to conduct a stock transfer or corporate trust business in
the State of New York), in good standing, having a principal
office in the State of New York, which is authorized under
such laws to exercise stock transfer or corporate trust
powers and is subject to supervision or examination by
Federal or state authority and which corporation, together
with its wholly-owned subsidiaries, has at the time of its
appointment as Rights Agent a combined capital and surplus
of at least $50,000,000. After appointment, the successor
Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the
<PAGE>
predecessor Rights Agent shall deliver and transfer to the
successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the
Common Shares and the Preferred Shares, and mail a notice
thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in
this Section 22, 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 23. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Rights
Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Right Certificates evidencing
Rights in such form as may be approved by its Board of
Directors to reflect any adjustment or change made in
accordance with the provisions of this Rights Agreement. In
addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the
earlier of the Redemption Date or the Expiration Date, the
Company (a) shall, with respect to Common Shares so issued
or sold pursuant to the exercise of stock options or under
<PAGE>
any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities, notes or debentures
issued by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of Directors of
the Company, issue Right Certificates representing the
appropriate number of Rights in connection with such
issuance or sale; provided, however, that (i) no such Right
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 Right
Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof.
SECTION 24. Redemption and Termination. (a) The
Board of Directors of the Company may, at its option, at any
time prior to the earliest of (i) the occurrence of a
Triggering Event or (ii) the Expiration Date, order the
redemption of all, but not fewer than all, the then
outstanding Rights at a Redemption Price of $.01 per Right,
which amount shall be appropriately adjusted to reflect any
dividend or distribution of Common Shares, and any
subdivision, split or combination of outstanding Common
Shares, after the date of this Rights Agreement which
results in a change in the number of outstanding Rights
<PAGE>
(such redemption price being hereinafter referred to as the
"Redemption Price"), and the Company, at its option, may pay
the Redemption Price either in cash or Common Shares or
other securities of the Company deemed by the Board of
Directors, in the exercise of its sole discretion, to be at
least equivalent in value to the Redemption Price; provided,
however, that immediately upon the date of (x) notice of
approval under the Bank Holding Company Act of 1956, as
amended, (y) notice of nondisapproval under the Change in
Bank Control Act, or (z) the expiration, without a notice of
disapproval having been issued, of the prior notification
period under the Change in Bank Control Act with respect to
a notification thereunder, in each case for any Person
(other than the Plan) to acquire beneficial ownership of 25%
or more of the outstanding Common Shares, and thereafter
until the earliest of (1) the occurrence of a Triggering
Event or (2) the Expiration Date, the Rights may be redeemed
only if (A) there are Disinterested Directors then in office
and (B) the Board of Directors of the Company, with the
concurrence of a majority of the Disinterested Directors
then in office, determines that such redemption is, in their
judgment, in the best interests of the Company and its
shareholders.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the
Rights, and without any further action and without any
<PAGE>
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. Within 10 calendar days
after the action of the Board of Directors of the Company
ordering the redemption of the Rights, the Company shall
give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such
holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer
agent for the Common Shares. Each such notice of redemption
will state the method by which the payment of the Redemption
Price will be made. The notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been
duly given, whether or not the holder of Rights receives
such notice. In any case, failure to give such notice by
mail, or any defect in the notice, to any particular holder
of Rights shall not affect the sufficiency of the notice to
other holders of Rights.
(c) (i) The Board of Directors of the Company may,
at its option, at any time after any Person becomes an
Acquiring Person, exchange all or part of the then
outstanding and exercisable Rights (which shall not include
Rights that shall have become void pursuant to the
provisions of Section 7(e) hereof) for such number of Common
Shares as shall have an aggregate Market Value on the date
<PAGE>
of such exchange equal to the Purchase Price (such number of
Common Shares being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at
any time after any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the
Company or of any of its Subsidiaries or any Person holding
Common Shares for or pursuant to the terms of any such
employee benefit plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of
50% or more of the Common Shares then outstanding.
(ii) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to Section 24(c)(i) and without any further action
and without any notice, the right to exercise such Rights
shall terminate and the only right thereafter of a holder of
such Rights shall be to receive that number of Common Shares
equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly
give public notice 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 the
Rights Agent and to each of the holders of such Rights at
their last addresses as they appear upon the registry books
of the Rights Agent. Any notice which is mailed in
<PAGE>
the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of
exchange will state the method by which the exchange of the
Common Shares for Rights will be effected and, in the event
of any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights which shall
have become void pursuant to the provisions of Section 7(e))
held by each holder of Rights.
(iii) In any exchange pursuant to this Section
24(c), the Company, at its option, may substitute Preferred
Shares for Common Shares exchangeable for Rights, at the
initial rate of one-hundredth of a Preferred Share for each
Common Share, as appropriately adjusted to reflect
adjustments in the Preferred Shares pursuant to the terms
thereof.
(iv) In the event that there shall not be
sufficient Common Shares or Preferred Shares issued but not
outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this
Section 24(c), the Company shall take all such action as may
be necessary to authorize additional Common Shares or
Preferred Shares for issuance upon exchange of the Rights.
(v) The Company shall not be required to issue
fractions of Common Shares or to distribute certificates
which evidence fractional Common Shares. In lieu of such
<PAGE>
fractional Common Shares, the Company shall pay to the
registered holders of the Right Certificates with regard to
which such fractional Common Shares would otherwise be
issuable an amount in cash equal to the same fraction of the
current Market Value of a whole Common Share.
SECTION 25. Notice of Certain Events. (a) In case
the Company shall propose (i) to take any action of the type
described in paragraph (a), (b), (c) or (d) of Section 11 of
this Rights Agreement that would require an adjustment
thereunder, (ii) to effect any Business Combination or (iii)
to effect the liquidation, dissolution or winding up of the
Company, then, in such case, the Company shall give to each
holder of a Rights Certificate, in accordance with Section
26 of this Rights Agreement, a notice of such proposed
action, which notice shall specify any record date for the
purposes of determining any participation therein by the
holders of the Preferred Shares, or the date on which such
action is to take place and the date of any participation
therein by the holders of the Preferred Shares, if any such
date is to be fixed, and such notice shall be so given at
least 20 days prior to any such record date, the taking of
such action or the date of participation therein by the
holders of the Preferred Shares, whichever shall be the
earliest.
(b) In case an Affiliate Merger or Triggering
Event shall occur, then, in any such case, the Company shall
<PAGE>
as soon as practicable thereafter give to each holder of a
Right Certificate, in accordance with Section 26 of this
Rights Agreement, a notice of the occurrence of such
Affiliate Merger or Triggering Event, which notice shall
specify the Affiliate Merger and the Triggering Event and
the consequences of such Affiliate Merger or Triggering
Event to holders of Rights under Section 11(e) of this
Rights Agreement.
SECTION 26. Notices. Notices or demands authorized
by this Rights Agreement to be given or made by the Rights
Agent or by the holder of any Right Certificate to or on the
Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Rights Agent) as
follows:
U.S. Trust Corporation
114 West 47th Street
New York, NY 10036-1532
Attention: Corporate Secretary
Subject to the provisions of Section 22 of this Rights
Agreement, any notice or demand authorized by this Rights
Agreement to be given or made by the Company or by the
holder of any Right Certificate to or on the Rights Agent
shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
First Chicago Trust Company of New York
525 Washington Boulevard, Suite 4660
Jersey City, NJ 07310
Attention: Tenders & Exchange Administration
<PAGE>
Attention:
Notices or demands authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to any
holder of a Right Certificate shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed
to such holder at the address of such holder as shown on the
registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer
agent for the Common Shares.
SECTION 27. Supplements and Amendments. At any
time prior to the Distribution Date and subject to the last
sentence of this Section 27, the Company may, and the Rights
Agent shall if the Company so directs, supplement or amend
any provision of this Rights Agreement (including, without
limitation, the date on which the Distribution Date shall
occur) without the approval of any holder of the Rights.
From and after the Distribution Date and subject to
applicable law, the Company may, and the Rights Agent shall
if the Company so directs, amend this Rights Agreement
without the approval of any holders of Right Certificates
(i) to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or
inconsistent with any other provision of this Rights
Agreement or (ii) to make any other provisions in regard to
<PAGE>
matters or questions arising hereunder which the Company may
deem necessary or desirable and which shall not adversely
affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate
of an Acquiring Person). Upon the delivery of a certificate
from an appropriate officer of the Company which states that
a proposed supplement or amendment to this Rights Agreement
is in compliance with the provisions of this Section 27, the
Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Rights Agreement
to the contrary, (1) upon (x) notice of approval under the
Bank Holding Company Act of 1956, as amended, (y) notice of
nondisapproval under the Change in Bank Control Act, or
(z) the expiration, without a notice of disapproval having
been issued, of the prior notification period under the
Change in Bank Control Act with respect to a notification
thereunder, in each case for any Person (other than the
Plan) to acquire beneficial ownership of 25% or more of the
outstanding Common Shares, this Rights Agreement may be
supplemented or amended only if (A) there are Disinterested
Directors then in office and (B) the Board of Directors of
the Company, with the concurrence of a majority of the
Disinterested Directors then in office, determines that such
supplement or amendment is in their judgment in the best
interest of the Company and its shareholders and (2) no
supplement or amendment to this Rights Agreement shall be
<PAGE>
made which reduces the Redemption Price or provides for an
earlier Expiration Date; provided, that the entering into by
the Company, and approval by the requisite holders of Common
Stock, of a merger agreement prior to the Distribution Date
in which the Rights are converted with the Common Stock into
the merger consideration shall not constitute an amendment
or supplement accelerating the Expiration Date which is
otherwise prohibited pursuant to the terms of this sentence.
SECTION 28. Successors. All the covenants and
provisions of this Rights Agreement by or for the benefit of
the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
SECTION 29. Benefits of This Rights Agreement;
Determinations and Actions by the Board of Directors, etc.
(a) Nothing in this Rights Agreement shall be construed to
give to any person or corporation other than the Company,
the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the
Common Shares) any legal or equitable right, remedy or claim
under this Rights Agreement; but this Rights Agreement shall
be for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the
Common Shares).
<PAGE>
(b) The Board of Directors of the Company (with,
where specifically provided for herein, the concurrence of a
majority of the Disinterested Directors then in office)
shall have the exclusive power and authority to administer
this Rights Agreement and to exercise all rights and power
specifically granted to the Board of Directors of the
Company (with, where specifically provided for herein, the
concurrence of a majority of the Disinterested Directors
then in office) or to the Company, or as may be necessary or
advisable in the administration of this Rights Agreement,
including, without limitation, the right and power to (i)
interpret the provisions of this Rights Agreement and (ii)
make all determinations deemed necessary or advisable for
the administration of this Rights Agreement (including,
without limitation, a determination to redeem or not redeem
the Rights or to amend this Rights Agreement and a
determination of whether a Triggering Event has occurred).
SECTION 30. Severability. If any term, provision,
covenant or restriction of this Rights Agreement is held by
a court of competent jurisdiction or other authority to be
invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in
no way be affected, impaired or invalidated.
<PAGE>
SECTION 31. Governing Law. This Rights Agreement
and each Right 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 to be made and performed entirely within such
State.
SECTION 32. Counterparts. This Rights Agreement
may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together
constitute but one and the same instrument.
SECTION 33. Descriptive Headings. Descriptive
headings of the several Sections of this Rights Agreement
are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions
of this Rights Agreement.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused
this Rights Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
NEW USTC HOLDINGS CORPORATION,
by
----------------------------
Name:
Title:
Attest:
- --------------------------
Name:
Title:
FIRST CHICAGO TRUST COMPANY OF
NEW YORK,
by
----------------------------
Name:
Title:
Attest:
- -------------------------
Name:
Title:
[DOCUMENT 2]
EXHIBIT A
[Form of Right Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER SEPTEMBER 1, 2005, OR
EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS ARE
SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT, ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUM-
STANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIR-
ING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND BY ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED
TO A PERSON WHO WAS AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON.
THIS RIGHT CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREE-
MENT.]*
Right Certificate
NEW USTC HOLDINGS CORPORATION
This certifies that , or regis-
tered 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 1, 1995 (the
"Rights Agreement"), between New USTC Holdings Corporation,
a New York corporation (the "Company"), and First Chicago
Trust Corporation of New York, a New York corporation, as
Rights Agent (the "Rights Agent"), unless the Rights
evidenced hereby shall have been previously redeemed, to
purchase from the Company at any time after the Distribution
Date (as defined in the Rights Agreement) and prior to 5:00
p.m., New York City time, on September 1, 2005 (the
"Expiration Date"), at the principal office of the Rights
- --------
* The portion of the legend in brackets shall be
inserted only if applicable.
<PAGE>
Agent, or its successors as Rights Agent, in New York, New
York, one onehundredth (1/100th) of a fully paid,
nonassessable share of Series A Participating Cumulative
Preferred Shares, par value $1 per share, of the Company
(the "Preferred Shares"), at a purchase price of $150 per
one one-hundredth (1/100th) of a share (the "Purchase
Price") payable in cash, upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase
duly executed.
The Purchase Price and the number and kind of
shares which may be purchased upon exercise of each Right
evidenced by this Right Certificate, as set forth above, are
the Purchase Price and the number and kind of shares which
may be so purchased as of September 1, 1995. As provided in
the Rights Agreement, the Purchase Price and the number and
kind of shares which may be purchased upon the exercise of
each Right evidenced by this Right Certificate are subject
to modification and adjustment upon the happening of certain
events.
If the Rights evidenced by this Right Certificate
are or were at any time on or after the Distribution Date
(as defined in the Rights Agreement) beneficially owned by
an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), such Rights shall, under certain circumstances,
become null and void upon the occurrence of an Affiliate
Merger or a Triggering Event (as such terms are defined in
the Rights Agreement) and the holder of any such Right
(including any subsequent holder) shall not have any right
to exercise any such Right from and after the occurrence of
an Affiliate Merger or a Triggering Event.
This Right Certificate is subject to all the
terms, provisions and conditions of the Rights Agreement,
which terms, provisions and conditions are hereby incorpo-
rated herein by reference and made a part hereof and to
which reference to the Rights Agreement is hereby made for a
full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certifi-
cates. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also
available from the Company upon written request.
This Right Certificate, with or without other
Right Certificates, upon surrender at the principal stock
<PAGE>
transfer or corporate trust office of the Rights Agent, may
be exchanged for another Right Certificate or Right Certifi-
cates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number and kind of
shares as the Rights evidenced by the Right Certificate or
Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive
upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Right Certificate may be
redeemed by the Company at its option at a redemption price
(in cash or Common Shares or other securities of the Company
deemed by the Board of Directors to be at least equivalent
in value) of $.01 per Right (which amount shall be subject
to adjustment as provided in the Rights Agreement) at any
time prior to the earliest of (i) the occurrence of a
Triggering Event or (ii) the Expiration Date; provided,
however, that after a Person (other than the 401(K) Plan and
ESOP of United States Trust Company and Affiliated Companies
(the "Plan")) shall have received notice of approval under
the Bank Holding Company Act of 1956, as amended, or notice
of nondisapproval under the Change in Bank Control Act, to
acquire beneficial ownership of 25% or more of the Company's
Common Shares, the Rights may be redeemed only if a majority
of the Disinterested Directors determine that such
redemption is in the best interest of the Company (all terms
as defined in the Rights Agreement).
The Company may, but shall not be required to,
issue fractions of Preferred Shares or distribute certifi-
cates which evidence fractions of Preferred Shares upon the
exercise of any Right or Rights evidenced hereby. In lieu of
issuing fractional shares, the Company may elect to make a
cash payment as provided in the Rights Agreement for
fractions of a share other than one one-hundredth (1/100th)
of a share or any integral multiple thereof or to issue
certificates or utilize a depository arrangement as provided
in the terms of the Rights Agreement and the Preferred
Shares.
No holder of this Right Certificate shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of the Preferred Shares or of any other
securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained in the
<PAGE>
Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder
of the Company, including, without limitation, 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 other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in
accordance with the provisions of the Rights Agreement.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been counter-
signed by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of: .
NEW USTC HOLDINGS CORPORATION,
by
--------------------------
[Name]
[Title]
Attest:
by
--------------------------
[Name]
[Title]
<PAGE>
Countersigned:
FIRST CHICAGO TRUST
COMPANY OF NEW YORK,
as Rights Agent,
by
----------------------------
Authorized Signature
<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this Right Certificate.)
FOR VALUE RECEIVED
---------------------------
hereby sells, assigns and transfers unto
-----------------------
- ---------------------------------------------------------------
(Please print name and address of transferee)
- ---------------------------------------------------------------
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within
-----------------------
Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ,
-------------------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Right Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or
<PAGE>
Associate of any such Acquiring Person (as such terms are
defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of
the undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is
or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: , ---------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment
and Certificate must correspond to the name as written upon
the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
<PAGE>
[On Reverse Side of Right Certificate)
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise the Rights
represented by this Right Certificate.)
To the Rights Agent:
The undersigned hereby irrevocably elects to
exercise Rights represented by this Right
------------
Certificate to purchase the Preferred Shares (or other
securities) issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares (or
other securities) be issued in the name of:
- ---------------------------------------------------------
(Please print name and address)
- ---------------------------------------------------------
Please insert social security
or other identifying number: ---------------------------
If such number of Rights shall not be all the
Rights evidenced by this Right Certificate, a new Right
Certificate for the balance remaining of such Rights shall
be registered in the name of and delivered to:
- ---------------------------------------------------------
(Please print name and address)
- ---------------------------------------------------------
<PAGE>
Please insert social security
or other identifying number:
---------------------
Dated: ,
--------------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Right Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are
defined in 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 Right Certificate from any Person who is
or was an Acquiring Person or an Affiliate or Associate of
an Acquiring Person.
Dated: , ------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
[DOCUMENT 3]
EXHIBIT 99
The Certificate of Incorporation
of
New USTC Holdings Corporation Corporation
(the "Corporation")
Article FOURTH, Section 6:
6. There is hereby established a series of the
Corporation's authorized Preferred Shares, to be designated
as the Series A Participating Cumulative Preferred Shares,
par value $1 per share. The relative rights, preferences and
limitations of the Series A Preferred Shares, insofar as not
already fixed by any other provision of this Certificate of
incorporation shall, as fixed by the Board of Directors of
the Corporation in the exercise of authority conferred by
this Certificate of Incorporation, and as permitted by
Section 502 of the Business Corporation Law, be as follows:
(i) Designation and Number of Shares. The shares
of such series shall be designated as "Series A Participat-
ing Cumulative Preferred Shares" (the "Series A Preferred
Shares"). The par value of each share of the Series A
Preferred Shares shall be $1. The number of shares initially
constituting the Series A Preferred Shares shall be 300,000;
provided, however, that the number of Series A Preferred
Shares may be increased, by an amendment of this paragraph
(i) of this Section 6, approved by the Board of Directors of
the Corporation, if within the authority of the Board of
Directors of the Corporation under Article FOURTH of the
Certificate of Incorporation, to such greater number of
Series A Preferred Shares as are at any time issuable upon
exercise of the Rights (the "Rights") issued pursuant to the
Rights Agreement to be entered into between the Corporation
and Morgan Shareholder Services Trust Company, as Rights
Agent (the "Rights Agreement").
(ii) Dividends or Distributions.
(a) Subject to the prior and superior rights of
the holders of shares of any other series of Preferred
Shares or other class or series of capital stock of the
Corporation ranking prior and superior to the Series A
Preferred Shares with respect to dividends, the holders of
shares of the Series A Preferred Shares shall be entitled to
<PAGE>
receive, when, as and if declared by the Board of Directors,
out of the assets of the Corporation legally available
therefor, (1) quarterly dividends payable in cash on the
first day of March, June, September and December in each
year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance of
a share or a fraction of a share of the Series A Preferred
Shares, in the amount of $25 per whole share (rounded to the
nearest cent) less the amount of all cash dividends declared
on the Series A Preferred Shares pursuant to the following
clause (2) 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 the Series A Preferred
Shares, and (2) dividends payable in cash on the payment
date for each cash dividend declared on the Common Shares in
an amount per whole share (rounded to the nearest cent)
equal to the Formula Number then in effect times the cash
dividends then to be paid on each Common Share. In addition,
if the Corporation shall pay any dividend or make any
distribution on the Common Shares payable in assets,
securities or other forms of noncash consideration (other
than dividends or distributions solely in Common Shares),
then, in each such case, the Corporation shall
simultaneously pay or make on each outstanding whole share
of the Series A Preferred Shares a dividend or distribution
in like kind equal to the Formula Number then in effect
times such dividend or distribution on each Common Share. As
used in this Section 6, the "Formula Number" shall be 100;
provided, however, that if at any time after September 1,
1995, the Corporation shall (i) declare or pay any dividend
on the Common Shares payable in Common Shares or make any
distribution on the Common Shares in Common Shares, (ii)
subdivide (by a stock split or otherwise) outstanding Common
Shares into a larger number of Common Shares or (iii)
combine (by a reverse stock split or otherwise) the
outstanding Common Shares into a smaller number of Common
Shares, then in each such event the Formula Number shall be
adjusted to a number determined by multiplying the Formula
Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of Common
Shares that are outstanding immediately after such event and
the denominator of which is the number of Common Shares that
are outstanding immediately prior to such event (and
rounding the result to the nearest whole number); and
provided further, that if at any time after September 1,
1995, the Corporation shall issue any shares of
<PAGE>
its capital stock in a reclassification or change of the
outstanding Common Shares (including any such
reclassification or change in connection with a merger in
which the Corporation is the surviving corporation), then in
each such event the Formula Number shall be appropriately
adjusted to reflect such reclassification or change.
(b) The Corporation shall declare a dividend or
distribution on the Series A Preferred Shares as provided in
paragraph (ii)(a) above immediately prior to or at the same
time it declares a dividend or distribution on the Common
Shares (other than a dividend or distribution solely in
Common Shares); provided, however, that, in the event no
dividend or distribution (other than a dividend or
distribution in Common Shares) shall have been declared on
the Common Shares during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly
Dividend Payment Date, a dividend of $25 per share on the
Series A Preferred Shares shall nevertheless be payable on
such subsequent Quarterly Dividend Payment Date. The Board
of Directors may fix a record date for the determination of
holders of shares of Series A Preferred Shares entitled to
receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any
corresponding dividend or distribution on the Common Shares.
(c) Dividends shall begin to accrue and be
cumulative on outstanding Series A Preferred Shares from and
after the Quarterly Dividend Payment Date next preceding the
date of original issue of such Series A Preferred Shares;
provided, however, that dividends on Series A Preferred
shares which are originally issued after the record date for
the determination of holders of Series A Preferred Shares
entitled to receive a quarterly dividend and on or prior to
the next succeeding Quarterly Dividend Payment Date shall
begin to accrue and be cumulative from and after such
Quarterly Dividend Payment Date. Notwithstanding the
foregoing, dividends on Series A Preferred Shares which are
originally issued prior to the record date for the first
Quarterly Dividend Payment, shall be calculated as if
cumulative from and after the March 1, June 1, September 1
or December 1, as the case may be, next preceding the date
of original issuance of such Series A Preferred Shares.
Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Preferred Shares in
an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be
<PAGE>
allocated pro rata on a share-by-share basis among all such
shares at the time outstanding.
(d) So long as any shares of the Series A
Preferred Shares are outstanding, no dividends or other
distributions shall be declared, paid or distributed, or set
aside for payment or distribution, on the Common Shares
unless, in each case, the dividend required by this
paragraph (ii) to be declared on the Series A Preferred
Shares shall have been declared and paid or set apart.
(e) The holders of the shares of Series A
Preferred Shares shall not be entitled to receive any
dividends or other distributions except as provided herein.
(iii) Voting Rights. The holders of shares of
Series A Preferred Shares shall have the following voting
rights:
(a) Each holder of Series A Preferred Shares
shall be entitled to a number of votes equal to
the Formula Number then in effect, for each share
of the Series A Preferred Shares held of record on
each matter on which holders of the Common Shares
or shareholders generally are entitled to vote,
multiplied by the number of votes per share which
the holders of the Common Shares or shareholders
generally then have with respect to such matter.
(b) Except as otherwise provided herein or by
applicable law, the holders of shares of Series A
Preferred Shares and the holders of shares of
Common Shares shall vote together as one class for
the election of directors of the Corporation and
on all other matters submitted to a vote of
shareholders of the Corporation.
(c) If at the time of any annual meeting of
shareholders for the election of directors, the
equivalent of six quarterly dividends (whether or
not consecutive) payable on any share or shares of
Series A Preferred Shares are in default, the
number of directors constituting the Board of
Directors of the Corporation shall be increased by
two, subject to any limitation set forth in this
Certificate of Incorporation on the maximum number
of directors then allowable. In addition to voting
together with the holders of Common Shares for the
election of other
<PAGE>
directors of the Corporation, the holders of
record of the Series A Preferred Shares, voting
separately as a class to the exclusion of the
holders of Common Shares, shall be entitled at
said meeting of shareholders (and at each
subsequent annual meeting of shareholders), unless
all dividends in arrears have been paid or
declared and set apart for payment prior thereto,
to vote for the election of such additional
directors, if any, of the Corporation, the holders
of any Series A Preferred Shares being entitled to
cast a number of votes per share of the Series A
Preferred Shares equal to the Formula Number.
Until the default in payments of all dividends
which permitted the election of said directors
shall cease to exist any director who shall have
been so elected pursuant to the next preceding
sentence may be removed at any time by, and be
removed without cause only by, the affirmative
vote of the holders of the Series A Preferred
Shares at the time entitled to cast a majority of
the votes entitled to be cast for the election of
any such director at a special meeting of such
holders called for that purpose, and any vacancy
thereby created may be filled by the vote of such
holders. If and when such default shall cease to
exist, the holders of the Series A Preferred
Shares shall be divested of the foregoing special
voting rights, subject to revesting in the event
of each and every subsequent like default in
payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of
office of all persons who may have been elected
directors pursuant to said special voting rights
shall forthwith terminate, and the number of
directors constituting the Board of Directors
shall be reduced by two or such other number of
directors as shall have been added pursuant to the
provisions of this subsection (c). The voting
rights granted by this subsection (c) shall be in
addition to any other voting rights granted to the
holders of the Series A Preferred Shares in this
paragraph (iii).
(d) Except as provided herein, in paragraph (xi)
or by applicable law, holders of Series A Preferred Shares
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 Shares as set forth herein) for
authorizing or taking any corporate action.
(iv) Certain Restrictions.
<PAGE>
(a) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Preferred
Shares as provided in paragraph (ii) of this Section 6 are
in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not declared, on
shares of Series A Preferred Shares outstanding shall have
been paid in full, the Corporation shall not
(1) 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 A Preferred Shares;
(2) declare or pay dividends on or make any
other distributions on any shares of stock ranking
on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Shares, except dividends paid
ratably on the Series A Preferred Shares 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;
(3) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking on a
parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A Preferred Shares; provided that the
Corporation may at any time redeem, purchase or
otherwise acquire shares of any such parity stock
in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to
the Series A Preferred Shares; or
(4) purchase or otherwise acquire for
consideration any shares of Series A Preferred
Shares, or any shares of stock ranking on a parity
with the Series A Preferred Shares, except in
accordance with a purchase offer made in writing
or by publication (as determined by the Board of
Directors) to all holders of such shares upon such
terms as the Board of Directors, after
consideration of the respective annual dividend
rates and other relative rights and preferences of
the respective series and classes, shall determine
in good faith will result in fair and equitable
treatment among the respective series or classes.
<PAGE>
(b) The Corporation shall not permit any subsidi-
ary of the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under subparagraph (a) of this
paragraph (iv), purchase or otherwise acquire such shares at
such time and in such manner.
(v) Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Corporation, whether
voluntary or involuntary, no distribution shall be made (1)
to the holders of shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution, or winding
up) to the Series A Preferred Shares unless, prior thereto,
the holders of Series A Preferred Shares shall have received
an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date
of such payment, plus an amount equal to the greater of (x)
$100 per share or (y) an aggregate amount per share equal to
the Formula Number then in effect times the aggregate amount
to be distributed per share to holders of Common Shares, or
(2) to the holders of stock ranking on a parity (either as
to dividends or Upon liquidation, dissolution or winding up)
with the Series A Preferred Shares, except distributions
made ratably on the Series A Preferred Shares and all other
such parity stock in proportion to the total amounts to
which the holders of all such shares are entitled upon such
liquidation, dissolution or winding up.
(vi) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the Common Shares
are exchanged for or changed into other stock or securities,
cash or any other property, then in any such case the then
outstanding shares of Series A Preferred Shares shall at the
same time be similarly exchanged or changed in an amount per
share equal to the Formula Number then in effect times the
aggregate amount of stock, securities, cash or any other
property (payable, in kind), as the case may be, into which
or for which each Common Share is exchanged or changed.
(vii) Redemption; No Sinking Fund.
(a) The Series A Preferred Shares shall not
be redeemable at the option of the Corporation
except as set forth in this paragraph (vii). The
outstanding Series A Preferred Shares may be
redeemed at the option of the Board of Directors
as a whole, but not in part,
<PAGE>
at any time at which, in the good faith
determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate
voting power represented by all the outstanding
shares of capital stock of the Corporation
generally entitled to vote in the election of
Directors of the Corporation, at a cash price per
share equal to (i) 125% of the product of the
Formula Number times the Market Value (as such
term is hereinafter defined) of the Common Shares,
plus (ii) all dividends which on the redemption
date have accrued on the shares to be redeemed and
have not been paid or declared and a sum
sufficient for the payment thereof set apart,
without interest. The "Market Value" on any, date
shall be deemed to be the average of the daily
closing prices, per share, of the Common Shares
for the 30 consecutive Trading Days immediately
prior to the date in question. The closing price
for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place
on such Trading Day, the average of the closing
bid and asked prices, regular way, in either case
as reported in the principal consolidated
transaction reporting system if the Common Shares
are listed or admitted to trading on a national
securities exchange or, if the Common Shares are
not listed or admitted to trading on any national
securities exchange, the last quoted price or, if
not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as
reported by the National Association of Securities
Dealers, Inc. Automated Quotation System or such
other system then in use, or, if on any such
Trading Day the Common Shares are not quoted by
any such organization, the average of the closing
bid and asked prices as furnished by a
professional market maker making a market in the
Common Shares selected by the Board of Directors
of the Corporation. If on any such Trading Day no
market maker is making a market in the Common
Shares, the closing price of such Common Shares on
such Trading Day shall be deemed to be the fair
value of the Common Shares as determined in good
faith by the Board of Directors of the
Corporation. "Trading Day" shall mean a day on
which the principal national securities exchange
on which the Common Shares are listed or admitted
to trading is open for the transaction of business
or, if the Common Shares are not listed or
admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking
institutions
<PAGE>
in the Borough of Manhattan, The City of New York,
are authorized or obligated by law or executive
order to close.
(b) The shares of Series A Preferred Shares
shall not be subject to or entitled to the
operation of a retirement or sinking fund.
(viii) Ranking. The Series A Preferred Shares
shall rank equally and on a parity with all other series of
Preferred Shares of the Corporation with respect to the
payment of dividends and the distribution of assets upon the
liquidation, dissolution or winding up of the Corporation.
(ix) Fractional Shares. The Series A Preferred
Shares shall be issuable upon exercise of the Rights issued
pursuant to the Rights Agreement in whole shares or in any
fraction of a share that is one one-hundredth (1/100th) of a
share or any integral multiple of such fraction which shall
entitle the holder, in proportion to such holder's
fractional shares, to receive dividends, exercise voting
rights, participate in distributions and to have the benefit
of all other rights of holders of Series A Preferred Shares.
The Corporation, prior to the first issuance of a share or a
fraction of a share of Series A Preferred Shares, may elect
(1) to issue certificates evidencing such authorized frac-
tion of a share of Series A Preferred Shares or (2) to issue
depository receipts evidencing such authorized fraction of a
share of Series A Preferred Shares pursuant to an
appropriate agreement between the Corporation and a
depository selected by the Corporation, provided that such
agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and
preferences to which they are entitled as holders of the
Series A Preferred Shares.
(x) Reacquired Shares. Any Series A Preferred
Shares 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 cancelation become authorized but unissued shares of
Preferred Shares, without designation as to series until
such shares are once more designated as part of a particular
series by resolution of the Board of Directors.
(xi) Amendment. None of the powers, preferences
and relative, participating, optional and other special
rights of the Series A Preferred Shares as provided herein
<PAGE>
shall be amended in any manner which would alter or change
the powers, preferences, rights or privileges of the holders
of Series A Preferred Shares so as to affect them adversely
without the affirmative vote of the holders of at least
66-2/3% of the outstanding Series A Preferred Shares, voting
as a separate class; provided, however, that no such
amendment approved by the holders of at least 66-2/3% of the
Outstanding Series A Preferred Shares shall be deemed to
apply to the powers, preferences, rights or privileges of
any holder of Series A Preferred Shares originally issued
upon exercise of the Rights after the time of such approval
of such holder.
