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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A12B/A
(Amendment No. 2)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
SUNDSTRAND CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 36-1840610
(State of incorporation or IRS Employer Identification
organization) Number)
4949 Harrison Avenue
P.O. Box 7003
Rockford, Illinois 61125-7003
(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 N/A
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 1993 pursuant to General
Instruction A.(c)(2), please check the following box. []
Securites to be registered pursuant to Section 12(g) of the Act:
None
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The undersigned Registrant hereby amends the following
items, financial statements, exhibits or other portions of
its Application for Registration on Form 8-A dated April 18,
1986 (as first amended December 18, 1987), as set forth in
the pages attached hereto.
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Item 1. Description of Registrant's Securities to be Registered.
Item 1 of Form 8-A is hereby amended and supplemented as follows:
The information set forth in the Second Amended and Restated
Rights Agreement, dated as of November 21, 1995, a copy of which is
filed as Exhibit (1) hereto, is incorporated herein by reference.
Item 2. Exhibits.
Item 2 of Form 8-A is hereby amended and supplemented as follows:
Exhibit (1) -- Form of Second Amended and Restated Rights
Agreement, between Sundstrand Corporation
and Harris Trust and Savings Bank, as Rights
Agent, dated as of November 21, 1995.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this Amendment
No. 2 to its registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
SUNDSTRAND CORPORATION
(Registrant)
Dated: November 27, 1995 By: /s/ Richard M. Schilling
__________________________________
Name: Richard M. Schilling
Title: Vice President, General
Counsel and Secretary
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EXHIBIT INDEX
Page in Sequentially
Exhibit Description Numbered Copy
(1) Form of Amended and
Restated Rights Agreement,
between Sundstrand Corporation
and Harris Trust and Savings
Bank, as Rights Agent,
dated as of November 21, 1995.
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Exhibit (1)
__________________________________________________________
SUNDSTRAND CORPORATION
and
HARRIS TRUST AND SAVINGS BANK
Rights Agent
___________________________________________
Second Amended and Restated Rights Agreement
Dated as of November 21, 1995
___________________________________________________________<PAGE>
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Table of Contents
Section Page
1 Certain Definitions 2
2 Appointment of Rights Agent 5
3 Issue of Rights Certificates 5
4 Form of Rights Certificates 7
5 Countersignature and Registration 8
6 Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates 9
7 Exercise of Rights, Purchase Price;
Expiration Date of Rights 10
8 Cancellation and Destruction of Rights
Certificates 13
9 Reservation and Availability of Common Stock 14
10 Common Stock Record Date 15
11 Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights 16
12 Certificate of Adjusted Purchase Price
or Number of Shares 26
13 Consolidation, Merger or Sale or Transfer
of Assets or Earning Power 26
14 Additional Covenants 29
15 Fractional Rights and Fractional Shares 29
16 Rights of Action 31
17 Agreement of Rights Holders 32
18 Rights Certificate Holder Not Deemed a
Shareholder 32
19 Concerning the Rights Agent 33<PAGE>
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20 Merger or Consolidation or Change of Name
of Rights Agent 33
21 Duties of Rights Agent 34
22 Change of Rights Agent 37
23 Issuance of New Rights Certificates 38
24 Redemption and Termination 39
25 Notice of Certain Events 40
26 Notices 41
27 Supplements and Amendments 42
28 Determination and Actions by the Board of
Directors, etc. 43
29 Successors 43
30 Benefits of this Agreement 43
31 Severability 44
32 Governing Law 44
33 Counterparts 44
34 Descriptive Headings 44
Exhibit A -- Form of Second Amended Rights Certificate A-1
Exhibit B -- Form of Second Amended Summary of Rights B-1
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SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
Second Amended and Restated Rights Agreement (the "Second
Amended Rights Agreement" or "Agreement"), dated as of November
21, 1995, between Sundstrand Corporation, a Delaware corporation
(the "Company"), and Harris Trust and Savings Bank (the "Rights
Agent").
W I T N E S S E T H
WHEREAS, on April 18, 1986, the Board of Directors of the
Company authorized and declared a dividend distribution of one
Right (as hereinafter defined) for each share of Common Stock,
$1.00 par value per share, of the Company (the "Common Stock")
outstanding as of the close of business on April 28, 1986 (the
"Record Date"), which dividend distribution contemplated the
issuance of one Right (subject to adjustment as provided herein)
for each share of Common Stock of the Company issued between the
Record Date and the earliest of the Distribution Date or the
Expiration Date (as such terms are hereinafter defined), each
Right representing the right to purchase one share of Common
Stock of the Company (the "Rights") upon the terms and subject to
the conditions hereinafter set forth in the Rights Agreement
dated as of April 18, 1986 (the "Original Agreement");
WHEREAS, on December 4, 1987 (the "First Amendment Date"),
the Board of Directors of the Company resolved to amend and
restate the Original Agreement, and such amendments became
effective by an Amended and Restated Rights Agreement, dated as
of December 4, 1987 (the "First Amended Agreement");
WHEREAS, on November 21, 1995 (the "Second Amendment Date"),
the Board of Directors of the Company resolved to amend and
restate the First Amended Agreement, and such amendments shall
become effective by this Second Amended Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto hereby
agree as follows:<PAGE>
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Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) and Associates
(as such term is hereinafter defined) of such Person, without the
prior approval of the Company, shall be the Beneficial Owner (as
such term is hereinafter defined) of securities representing 20%
or more of the Voting Power (as such term is hereinafter defined)
or who was such a Beneficial Owner at any time after the date
hereof, whether or not such Person continues to be the Beneficial
Owner of securities representing 20% or more of the Voting Power.
Notwithstanding the foregoing, (A) the term "Acquiring Person"
shall not include (i) the Company, (ii) any subsidiary (as such
term is hereinafter defined) of the Company, (iii) any employee
benefit plan of the Company or any of its subsidiaries, or (iv)
any Person holding securities of the Company organized, appointed
or established by the Company or any of its subsidiaries for or
pursuant to the terms of any such employee benefit plan; and (B)
no Person shall become an "Acquiring Person" (i) as a result of
the acquisition of shares of Common Stock by the Company which,
by reducing the number of shares of Common Stock outstanding,
increases the proportional number of shares beneficially owned by
such Person together with all Affiliates and Associates of such
Person, provided, that if (1) a Person would become an Acquiring
Person (but for the operation of this subclause (i)) as a result
of the acquisition of shares of Common Stock by the Company, and
(2) after such share acquisition by the Company, such Person, or
an Affiliate or Associate of such Person, becomes the Beneficial
Owner of any additional shares of Common Stock, then such Person
shall be deemed an Acquiring Person; or (ii) if (1) within five
Business Days after such Person would otherwise have become an
Acquiring Person (but for the operation of this subclause (ii)),
such Person notifies the Board of Directors that such Person did
so inadvertently, and (2) within two Business Days after such
notification, such Person divests itself of a sufficient number
of shares of Common Stock so that such Person
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is the Beneficial Owner of such number of shares of Common Stock
so that such Person no longer would be an Acquiring Person.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the
date hereof.
(c) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right or obligation to
acquire (whether such right or obligation is exercisable or
effective immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (whether or not in
writing) or upon the exercise of conversion rights, exchange
rights, rights (other than these Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed
the "Beneficial Owner" of, or to "beneficially own," securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right (sole or shared) to vote
or dispose of pursuant to any agreement, arrangement or
understanding (whether or not in writing); provided, however,
that a Person shall not be deemed the "Beneficial Owner" of, or
to "beneficially own," any security under this clause (B) if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given in response
to a public proxy or consent solicitation made pursuant to, and
in accordance with, the applicable rules and regulations of the
Exchange Act, and (2) is not also then reportable by such Person
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 (or any Affiliate or Associate
thereof) with which such Person or any such Person's Affiliates
or
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Associates has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy or consent
as described in clause (B) of subparagraph (ii) of this paragraph
(c)) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial
Ownership to the contrary, the phrase "then outstanding," when
used with reference to a Person's Beneficial Ownership of
securities of the Company, shall mean the number of such
securities then issued and outstanding together with the number
of such securities not then actually issued and outstanding which
such Person would be deemed to own beneficially hereunder.
(d) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
State of Illinois are authorized or obligated by law or executive
order to close.
(e) "Close of business" on any given date shall mean
5:00 p.m., Chicago time, on such date; provided, however, that if
such date is not a Business Day it shall mean 5:00 p.m., Chicago
time, on the next succeeding Business Day.
(f) "Common Stock" shall mean the Common Stock, $1.00
par value, of the Company, except that "Common Stock" when used
with reference to stock issued by any Person other than the
Company shall mean the capital stock with the greatest voting
power, or the equity securities or other equity interest having
power to control or direct the management of such Person or, if
such Person is a subsidiary of another Person, of the Person
which ultimately controls such first-mentioned Person and which
has issued and outstanding such capital stock, equity securities
or equity interests.
(g) "Distribution Date" shall have the meaning set
forth in Section 3(a) hereof.
(h) "Expiration Date" and "Final Expiration Date"
shall have the meaning set forth in Section 7(a) hereof.
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(i) "Person" shall mean any individual, firm,
corporation, partnership, trust, association, joint venture,
syndicate or other entity, and shall include any successor (by
merger or otherwise) of such entity.
(j) "Stock Acquisition Date" shall mean the first date
of public announcement (which shall include, without limitation,
a report filed pursuant to the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such.
(k) A "subsidiary" of any Person shall mean any
corporation or other Person of which a majority of the Voting
Power (as hereinafter defined) of the voting equity securities or
voting interests is owned, directly or indirectly, by such
Person, or which is otherwise controlled by such Person.
(l) "Voting Power" shall mean the voting power of all
securities of the Company then outstanding generally entitled to
vote for the election of directors of the Company.
Section 2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as
agent for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of the Common Stock) in accordance with
the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary or
desirable. In the event the Company appoints one or more Co-
Rights Agents, the respective duties of the Rights Agents and any
Co-Rights Agents shall be as the Company shall determine.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the tenth day after the
Stock Acquisition Date or (ii) the tenth day after the date of
the commencement of, or first public announcement of, the intent
of any Person (other than the Company, any of its subsidiaries,
or any employee benefit plan of the Company or any of its
subsidiaries) to commence (which intention to commence remains in
effect
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for five business days after such announcement) a tender
or exchange offer which would result in such Person becoming an
Acquiring Person (including any such date which is after the date
of this Agreement and prior to the issuance of the Rights; the
earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject
to the provisions of paragraph (b) of this Section 3) by the
certificates for Common Stock registered in the names of the
holders of the Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for Rights) and not by
separate certificates, and (y) the Rights (and the right to
receive certificates therefor) will be transferable only in
connection with the transfer of the underlying shares of Common
Stock. As soon as practicable after the Distribution Date, the
Rights Agent will send by first-class, insured, postage prepaid
mail, to each record holder of the Common Stock as of the close
of business on the Distribution Date, at the address of such
holder shown on the records of the Company, a certificate for
Rights, in substantially the form of Exhibit A hereto (the
"Rights Certificates"), evidencing one Right of each share of
Common Stock so held. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates.
(b) As soon as practicable following the Second
Amendment Date, the Company will send a copy of an Amended
Summary of Rights, in substantially the form attached hereto as
Exhibit B (the "Amended Summary of Rights"), by first-class,
postage prepaid mail, to each record holder of the Common Stock
as of the close of business on the Second Amendment Date, at the
address of such holder shown on the records of the Company. With
respect to certificates for the Common Stock outstanding as of
the Second Amendment Date, until the earlier of the Distribution
Date, the Rights will be evidenced by such certificates for the
Common Stock together with the Amended Summary of Rights, and the
registered holders of the Common Stock shall also be the
registered holders of the associated Rights. Until the earlier
of the Distribution Date or the Expiration Date, the surrender
for transfer of any of the certificates for the Common Stock
outstanding on the Second Amendment Date, even without a copy of
the
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Amended Summary of Rights attached thereto, shall also
constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
(c) Certificates issued for Common Stock (including,
without limitation, certificates issued upon transfer or exchange
of Common Stock) after the Second Amendment Date, but prior to
the earlier of the Distribution Date or the Expiration Date (as
such terms are defined herein), shall be deemed also to be
certificates for Rights, and shall have impressed, printed,
stamped, written or otherwise affixed onto them the following
legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in a Second Amended
and Restated Rights Agreement between Sundstrand
Corporation and Harris Trust and Savings Bank (the "Rights
Agent") dated as of November 21, 1995 (the "Second Amended
Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on
file at the principal offices of Sundstrand Corporation.
Under certain circumstances, as set forth in the Second
Amended Rights Agreement, such Rights may be redeemed, may
expire, or may be evidenced by separate certificates and
will no longer be evidenced by this certificate.
Sundstrand Corporation will mail to the holder of this
certificate a copy of the Second Amended Rights Agreement
without charge within five days after receipt of a written
request therefor. Under certain circumstances, Rights
issued to Acquiring Persons or Associates or Affiliates of
an Acquiring Person (as defined in the Second Amended
Rights Agreement) and any subsequent holder of such Rights
may become null and void with respect to certain rights
set forth in Section 11(a)(ii) and Section 13(a) of the
Second Amended Rights Agreement.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificate.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election
to purchase shares and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth in
Exhibit A hereto and may have such marks of identification or
designation and such legends,
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summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or with any rule
or regulation of any stock exchange on which the Rights may from time
to time be listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 23 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Second Amendment
Date, and on their face shall entitle the holders thereof to
purchase such number of shares of Common Stock as shall be set
forth therein at the price per share set forth therein (the
"Purchase Price"), but the number of such shares and the Purchase
Price shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section
3(a) or Section 23 hereof that represents Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate
thereof and any Rights Certificate issued at any time upon the
transfer of any Rights to such an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate, and any Rights
Certificate issued pursuant to Section 6 or Section 11 upon
transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain the
following legend:
The Rights represented by this Rights Certificate were
issued to a Person who was an Acquiring Person or an
Affiliate or an Associate of an Acquiring Person (as such
terms are defined in the Second Amended and Restated
Rights Agreement, dated as of November 21, 1995). This
Rights Certificate and the Rights represented hereby may
become void to the extent provided by, and under certain
circumstances as specified in, Section 7(e) of the Second
Amended and Restated Rights Agreement.
The provisions of Section 7(e) of this Second Amended Rights
Agreement shall be operative whether or not the foregoing legend
is contained on any such Rights Certificate.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, Vice-Chairman
of the Board or Executive Vice President, either manually or by
facsimile signature, and shall have affixed thereto the Company's
seal or a facsimile thereof
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which shall be attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent and shall not
be valid for any purpose unless so countersigned. In case any officer of
the Company who shall have signed any of the Rights Certificates
shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights Agent, and issued and delivered by
the Company with the same force and effect as though the Person
who signed such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be signed
on behalf of the Company by any Person who, at the actual date of
the execution of such Rights Certificate, shall be a proper
officer of the Company to sign such Rights Certificate, although
at the date of the execution of this Second Amended Rights
Agreement any such Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at one of its offices designated
for such purpose, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall show the
names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each
of the Rights Certificates, the certificate number and the date
of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
(a) Subject to the provisions of Section 15 hereof, at
any time after the close of business on the Distribution Date,
and at or prior to the close of business on the Expiration Date,
any Rights Certificate(s) may be transferred, split up, combined
or exchanged for other Rights Certificate(s), entitling the
registered holder to purchase a like number of shares of Common
Stock as the Rights Certificate(s) surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer,
split up, combine or exchange any Rights Certificate shall make
such request in writing delivered to the Rights Agent, and shall
surrender the Rights
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Certificate(s) to be transferred, split up, combined or exchanged, with
the form of assignment and certificate appropriately executed, at the
office of the Rights Agent designated for such purpose. Thereupon the
Rights Agent shall countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case may be, as
so requested. The Company may require payment from such Rights
Certificate holders of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case
of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancellation
of the Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner
in lieu of the Rights Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights.
(a) The registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as otherwise
provided herein and subject to prior compliance by the Company
with the provisions of Section 9(e) hereof) in whole or in part
at any time after the Distribution Date upon presentation of the
Rights Certificate, with the appropriate form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the office of the Rights Agent designated for such
purpose together with payment of the Purchase Price for each
share of Common Stock (or such other number of shares or other
securities) as to which the Rights are exercised, at or prior to
the earlier of (i) the close of business on May 11, 2006 (the
"Final Expiration Date"), or (ii) the time at which the Rights
are redeemed as provided in Section 24 hereof (such earlier time
being herein referred to as the "Expiration Date").
Notwithstanding
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any other provision of this Agreement, any Person who prior to the
Distribution Date becomes a record holder of shares of Common Stock
may exercise all of the rights of a registered holder of a Rights
Certificate with respect to the Rights associated with such shares of
Common Stock in accordance with and subject to the provisions of this
Agreement, including the provisions of Section 7(e) hereof, as of the
date such Person becomes a record holder of shares of Common Stock.
(b) The Purchase Price for each share of Common Stock
pursuant to the exercise of a Right shall initially be $200.00,
shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money of
the United States of America in accordance with paragraph (c)
below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the appropriate form of election to
purchase duly executed, accompanied by payment of the Purchase
Price for the shares (or other securities or property) to be
purchased and an amount equal to any applicable transfer tax (as
determined by the Rights Agent) in cash, or by certified check or
money order payable to the order of the Company, the Rights Agent
shall, subject to Section 21(k), thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Common Stock
(or make available, if the Rights Agent is the transfer agent)
certificates for the number of shares of Common Stock to be
purchased, and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) if the
Company, in its sole discretion, shall have elected to deposit
the shares of Common Stock issuable upon exercise of the Rights
hereunder into a depositary, requisition from the depositary
agent depositary receipts representing such number of shares of
Common Stock as are to be purchased (in which case certificates
for the shares of Common Stock represented by such receipts shall
be deposited by the transfer agent with the depositary agent) and
the Company will direct the depositary agent to comply with such
request, (ii) when appropriate, requisition from the Company the
amount of cash, if any, to be paid in lieu of issuance of
fractional shares in accordance with Section 15, (iii) promptly
after receipt of such certificates or depositary receipts, cause
the same to be delivered to
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or upon the order of the registered holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, and (iv) when appropriate, after
receipt promptly deliver such cash to or upon the order
of the registered holder of such Rights Certificate.
In the event that the Company is obligated to issue other
securities of the Company and/or distribute other property
pursuant to Section 11(a), the Company will make all arrangements
necessary so that such other securities and/or property are
available for distribution by the Rights Agent, if and when
appropriate. In addition, in the case of an exercise of the
Rights by a holder pursuant to Section 11(a)(ii), the Rights
Agent shall return such Rights Certificate to the registered
holder thereof after imprinting, stamping or otherwise indicating
thereon that the rights represented by such Rights Certificate no
longer include the rights provided by Section 11(a)(ii) of the
Second Amended Rights Agreement and if less than all the Rights
represented by such Rights Certificate were so exercised, the
Rights Agent shall indicate on the Rights Certificate the number
of Rights represented thereby which continue to include the
rights provided by Section 11(a)(ii).
(d) In case the registered holder of any Rights
Certificate shall exercise (except pursuant to Section 11(a)(ii))
less than all the Rights evidenced thereby, a new Rights
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to
the registered holder of such Rights Certificate or to its duly
authorized assigns, subject to the provisions of Section 15
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, if an Acquiring Person or an Associate or Affiliate of
an Acquiring Person engages in or there occurs one or more of the
transactions set forth in Section 11(a)(ii) or Section 13(a) on
or after the time the Acquiring Person became such, then any
Rights that are or were on or after the earlier of the
Distribution Date or the Stock Acquisition Date beneficially
owned by an Acquiring Person or any Associate or Affiliate shall
become void with respect to the rights provided under Section
11(a)(ii) and Section 13(a) and any holder of such Rights shall
thereafter have no right to exercise such Rights under the
provisions of Section 11(a)(ii) and Section 13(a); provided,
however, that
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this Section 7(e) shall not bar the exercise of any
Rights under Section 13(a) of this Agreement by an Acquiring
Person or any Associate or Affiliate thereof that were held as of
December 4, 1987.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless the certificate contained in the
appropriate form of election to purchase set forth on the reverse
side of the Rights Certificate surrendered for such exercise
shall have been properly completed and duly executed by the
registered holder thereof and the Company shall have been
provided with such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company or the Rights Agent shall
reasonably request.
Section 8. Cancellation and Destruction of Rights
Certificates. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Second Amended Rights Agreement. The Company shall deliver to
the Rights Agent for cancellation and retirement, and the Rights
Agent shall so cancel and retire, any other Rights Certificate
purchased or acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all cancelled
Rights Certificates to the Company, or shall, at the written
request of the Company, destroy such cancelled Rights
Certificates, and in such case shall deliver a certificate of
destruction thereof to the Company.
13<PAGE>
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Section 9. Reservation and Availability of Common Stock.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued shares of Common Stock, or any authorized and issued
shares of Common Stock held in its treasury, the number of shares
of Common Stock that will be sufficient to permit the exercise in
full of all outstanding Rights and, after the occurrence of an
event specified in Section 11, shall so reserve and keep
available a sufficient number of shares of Common Stock (and/or
other securities) which may be required to permit the exercise in
full of the Rights pursuant to this Agreement.
(b) So long as the shares of Common Stock (and, after
the occurrence of an event specified in Section 11, any other
securities) issuable upon the exercise of the Rights may be
listed on any national securities exchange, the Company shall use
its best efforts to cause, from and after such time as the Rights
become exercisable, all shares (or other securities) reserved for
such issuance to be listed on such exchange upon official notice
of issuance upon such exercise.
(c) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all shares of
Common Stock and/or other securities delivered upon exercise of
Rights shall, at the time of delivery of the certificates for
such shares or other securities (subject to payment of the
Purchase Price), be duly and validly authorized and issued and
fully paid and nonassessable shares or securities.
(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 the Rights Certificates or of any
certificates for shares of Common Stock and/or other securities
upon the exercise of 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 Rights Certificates to a Person
other than, or in respect of the issuance or delivery of the
shares of Common Stock and/or other securities in a name other
than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise or to issue or deliver
any
14<PAGE>
<PAGE> 23
certificates for shares of Common Stock, and/or other securities
in a name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid (any
such tax being payable by the holder of such Rights Certificate
at the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
(e) The Company shall use its best efforts to (i)
file, as soon as practicable following the Distribution Date, a
registration statement under the Securities Act of 1933, as
amended (the "Act"), with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times
meeting the requirements of the Act and the rules and regulations
thereunder) until the date of the expiration of the Rights
provided by Section 11(a)(ii). The Company will also take such
action as may be appropriate under the blue sky laws of the
various states.
Section 10. Common Stock Record Date. Each Person in whose
name any certificate for shares of Common Stock (or other
securities) is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the
shares of Common Stock (or other securities) represented thereby
on, and such certificate shall be dated, the date upon which the
Rights Certificate evidencing such Rights was duly presented and
payment of the Purchase Price (and any applicable transfer taxes)
was made; provided, however, that if the date of such
presentation and payment is a date upon which the Common Stock
(or other securities) 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 Common Stock (or other
securities) transfer books of the Company are open. Prior to the
exercise of the Rights evidenced thereby, the holder of a Rights
Certificate, as such, shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other
15<PAGE>
<PAGE> 24
distributions or to exercise any preemptive rights, and shall not be
entitled to receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind
of Shares or Number of Rights. The Purchase Price, the number of
shares covered by each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at any time
after April 18, 1986, (A) declare a dividend on the Common Stock
payable in shares of Common Stock, (B) subdivide the outstanding
Common Stock, (C) combine the outstanding Common Stock into a
smaller number of shares or (D) issue any shares of its capital
stock in a reclassification of the Common Stock (including any
such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a)
and in Section 7(e), the Purchase Price in effect at the time of
the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, and the number
and kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock and other
securities which, if such Right had been exercised immediately
prior to such date and at a time when the Common Stock transfer
books of the Company were open, he would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of
one Right. If an event occurs which would require an adjustment
under both Section 11(a)(i) and Section 11(a)(ii), the adjustment
provided for in this Section 11(a)(i) shall be in addition to,
and shall be made prior to, any adjustment required pursuant to
Section 11(a)(ii).
(ii) In the event that any Person, alone or
together with its Affiliates and Associates, shall become an
Acquiring Person (except pursuant to a tender or exchange offer
16<PAGE>
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for all outstanding shares of Common Stock at a price and on
terms determined by at least a majority of the members of the
Board of Directors who are not officers of the Company to be both
adequate and otherwise in the best interests of the Company and
its constituents, including shareholders (other than the Person
or an Affiliate or Associate thereof on whose behalf the offer is
being made)), then proper provision shall be made so that each
holder of a Right, except as provided in Section 7(e) hereof,
shall have a right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, such number of shares of Common Stock of the Company
as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the then number of shares of Common
Stock for which a Right is then exercisable and dividing that
product by (y) 50% of the current market price per one share of
Common Stock (determined pursuant to Section 11(d)) on the date
of the occurrence of the event set forth above in this
subparagraph (ii) (such number of shares being referred to as the
"number of Adjustment Shares"); provided, however, that if the
transaction that would otherwise give rise to the foregoing
adjustment is also subject to the provisions of Section 13
hereof, then only the provisions of Section 13 hereof shall apply
and no adjustment shall be made pursuant to this Section
11(a)(ii).
(iii) In the event that there shall not be
sufficient treasury shares or authorized but unissued shares of
Common Stock to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) and the Rights
become so exercisable, notwithstanding any other provision of
this Agreement, to the extent necessary and permitted by
applicable law and any agreements in effect on the date hereof to
which it is a party, each Right shall thereafter represent the
right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, a
number of shares, or units of shares, of (x) Common Stock (up to
the maximum number of shares of Common Stock which may
permissibly be issued using the allocation procedure specified in
the second sentence of Section 11(k)) and (y) preferred stock (or
other equity securities) of the Company equal in the aggregate to
the number of Adjustment Shares (as defined in subparagraph (ii)
of this Section 11(a)) where
17<PAGE>
<PAGE> 26
the Board of Directors of the Company shall have deemed such shares
or units, other than the shares of Common Stock, to have at least the
same economic value as the Common Stock (hereinafter referred to as a
"common stock equivalent"); provided, however, if there are unavailable
sufficient shares (or fractions of shares) of Common Stock and/or
common stock equivalents, then the Company shall take all such
action as may be necessary to authorize additional shares of
Common Stock or common stock equivalents for issuance upon
exercise of the Rights, including the calling of a meeting of
shareholders; and provided further, that if the Company is unable
to cause sufficient shares of Common Stock and/or common stock
equivalents to be available for issuance upon exercise in full of
the Rights, then each Right shall thereafter represent the right
to receive the Adjusted Number of Common Shares upon exercise at
the Adjusted Purchase Price (as such terms are hereinafter
defined). As used herein, the term Adjusted Number of Common
Shares shall be equal to that number of shares (or fractions of
shares) of Common Stock (and/or shares or units of common stock
equivalents) equal to the product of (x) the number of Adjustment
Shares and (y) a fraction, the numerator of which is the number
of shares of Common Stock (and/or shares or units of common stock
equivalents) available for issuance upon exercise of the Rights
and the denominator of which is the aggregate number of
Adjustment Shares otherwise issuable upon exercise in full of all
Rights (assuming there were sufficient shares of Common Stock
available) (such fraction being referred to as the "Proration
Factor"). The Adjusted Purchase Price shall mean the product of
the Purchase Price and the Proration Factor. The Board of
Directors may, but shall not be required to, establish procedures
to allocate the right to receive Common Stock and common stock
equivalents upon exercise of the Rights among holders of Rights.
(b) If the Company shall fix a record date for the
issuance of rights, options or warranties to all holders of
Common Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or
purchase Common Stock (or shares having the same or more
favorable rights, privileges and preferences as the Common Stock
(hereinafter referred to as "alternate stock")) or securities
convertible into Common Stock or
18<PAGE>
<PAGE> 27
alternate stock at a price per share of Common Stock or per share of
alternate stock (or having a conversion price per share, if a security
convertible into Common Stock or alternate stock) less than the current
market price (as defined in Section 11(d)) on such record date, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of
Common Stock which the aggregate offering price of the total
number of shares of Common Stock and/or alternate stock to be
offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such
current market price and the denominator of which shall be the
number of shares of Common Stock outstanding on such record date,
plus the number of additional shares of Common Stock and/or
alternate stock to be offered for subscription or purchase (or
into which the convertible securities so to be offered are
initially convertible); provided, however, that in no event shall
the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock
of the Company issuable upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of
which shall be in a form other than cash, the value of such
consideration shall be determined reasonably and with good faith
to the holders of Rights 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. Shares of Common Stock owned by or held for the account
of the Company shall not be deemed outstanding for the purpose of
any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such
rights or warrants are not so issued, the Purchase Price shall be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) If the Company shall fix a record date for the
making of a distribution to all holders of Common Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation) of evidences of
19<PAGE>
<PAGE> 28
indebtedness, cash (other than a regular periodic cash dividend at a
rate not in excess of 125% of the rate of the last cash dividend
theretofore paid), assets (other than a dividend payable in Common Stock,
but including any dividend payable in stock other than Common Stock) or
subscription rights or warrants (excluding those referred to in
Section 11(b)), the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price
in effect immediately prior to such record date by a fraction,
the numerator of which shall be the current market price (as
defined in Section 11(d)) per share of Common Stock on such
record date, less the fair market value (as determined reasonably
and with good faith to the holders of Rights by the Board of
Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent and shall be binding
on the Rights Agent) of the portion of the cash, assets or
evidences of indebtedness so to be distributed or of such
subscription rights or warrants distributable in respect of one
share of Common Stock and the denominator of which shall be the
current market price per share of the Common Stock; provided,
however, that in no event shall the consideration to be paid upon
the exercise of one Right be less than the aggregate par value of
the shares of capital stock of the Company issuable upon exercise
of one Right.. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would be in effect if
such record date had not been fixed.
(d) For the purpose of any computation hereunder,
other than in Section 11(a)(iii), the "current market price" per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common
Stock for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided,
however, that in the event that the current per share market
price of the Common Stock is determined during a period following
the announcement by the issuer of such Common Stock of (A) a
dividend or distribution on such Common Stock payable in shares
of such Common Stock or securities convertible into shares of
such Common Stock or (B) any subdivision, combination or
reclassification of such Common Stock, and prior to the
expiration of 30 Trading Days after
20<PAGE>
<PAGE> 29
the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in
each such case, the "current market price" shall be properly adjusted
to take into account ex-dividend trading. The closing price for
each day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the closing
bid and asked prices, regular way, in either case as reported in
the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New
York Stock Exchange or, if the shares of Common Stock are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average
of the high bid and low asked prices in the over-the-counter
market, as reported by the National Association of Securities
Dealers, Inc. Automated Quotations System ("NASDAQ") or such
other system then in use, or, if on any such date the shares of
Common Stock are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock
selected by the Board of Directors of the Company. If on any
such date no market maker is making a market in the Common Stock,
the fair value of such shares on such date as determined
reasonably and with good faith by the Board of Directors of the
Company shall be used and shall be binding on the Rights Agent.
The term, "Trading Day" shall mean a day on which the principal
national securities exchange on which the shares of Common Stock
are listed or admitted to trading is open for the transaction of
business or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange, a
Business Day. If the Common Stock are not publicly held or not
so listed or traded, "current market price" per share shall mean
the fair value per share determined reasonably and with good
faith to the holders of Rights 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.
21<PAGE>
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(e) Anything herein to the contrary notwithstanding,
no adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1%
in the Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to be made
shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which mandates such adjustment or (ii) the Expiration
Date.
(f) If, as a result of any provision of Section 11(a)
or 13(a), the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock of the
Company other than Common Stock, 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 shares contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10, 11, 13 and 15
hereof with respect to the Common Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price hereunder
shall evidence the right to purchase, at the adjusted Purchase
Price, the number of shares of Common Stock purchasable from time
to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculation made in Section
11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of shares
of Common Stock (calculated to the nearest ten-thousandth)
obtained by (i) multiplying (x) the number of shares of Common
Stock covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii)
22<PAGE>
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dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of shares of
Common Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of shares of Common
Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights
(calculated to the nearest ten-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be made. This
record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least 10 days later than the date
of the public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights pursuant to
this Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates
evidencing, subject to Section 15 hereof, the additional Rights
to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and
replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all
the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record or Rights Certificates on the record date
specified in the public announcement.
23<PAGE>
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(j) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Common Stock issuable
upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value,
if any, of the shares of Common Stock or other securities
issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and nonassessable shares of Common Stock or other
securities at such adjusted Purchase Price. If upon any exercise
of the Rights, a holder is to receive a combination of Common
Stock and common stock equivalents, a portion of the
consideration paid upon such exercise, equal to at least the then
par value of a share of Common Stock of the Company, shall be
allocated as the payment for each share of Common Stock of the
Company so received.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of
a record date for a specified event, the Company may elect to
defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date the shares
of Common Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
shares of Common Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due bill
or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything to the contrary in this Section 11
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments
24<PAGE>
<PAGE> 33
expressly required by this Section 11, as and to the extent that
it in its sole discretion shall determine to be advisable in
order that any consolidation or subdivision of the Common Stock,
issuance wholly for cash of any shares of Common Stock at less
than the current market price, issuance wholly for cash or shares
of Common Stock or securities which by their terms are
convertible into or exchangeable for share of Common Stock, stock
dividends or issuance of rights, options or warrants referred to
hereinabove in this Section 11, hereafter made by the Company to
holders of its Common Stock shall not be taxable to such
shareholders.
(n) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any time
after the Amendment Date and prior to the Distribution Date (i)
declare a dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, (iii) combine the outstanding Common Stock into a
smaller number of shares or (iv) issue any shares of its capital
stock in a reclassification of the outstanding Common Stock, the
number of Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to the
Distribution Date, shall be proportionately adjusted so that the
number of Rights thereafter associated with each share of Common
Stock following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total number of
shares of Common Stock outstanding immediately prior to the
occurrence of the event.
(o) The exercise of Rights under Section 11(a)(ii)
shall only result in the loss of rights under Section 11(a)(ii)
to the extent so exercised and shall not otherwise affect the
rights represented by the Rights under this Agreement, including
the rights represented by Section 13.
25<PAGE>
<PAGE> 34
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Sections 11 and 13 hereof, the Company shall (a) promptly prepare
a certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Common
Stock a copy of such certificate and (c) mail a brief summary
thereof to each holder of a Rights Certificate in accordance with
Section 26 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power.
(a) In the event that, following the Stock Acquisition
Date, directly or indirectly, (x) the Company shall consolidate
with, or merge with and into, any other Person (y) any Person
shall consolidate with the Company, or merge with and into the
Company and the Company shall be the continuing or surviving
corporation of such merger (other than, in the case of either
transaction described in (x) or (y), a merger or consolidation
which would result in all of the Voting Power represented by the
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into securities of the surviving entity) all of
the Voting Power represented by the securities of the Company or
such surviving entity outstanding immediately after such merger
or consolidation and the holders of such securities not having
changed as a result of such merger or consolidation), or (z) the
Company shall sell, mortgage or otherwise transfer (or one or
more of its subsidiaries shall sell, mortgage or otherwise
transfer), in one or more transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the
Company and its subsidiaries (taken as a whole) to any other
Person, then, and in each such case, proper provision shall be
made so that (i) following the Distribution Date, each holder of
a Right, subject to Section 7(e), shall have the right to
receive, upon the exercise thereof at the then current Purchase
Price in accordance with the terms of this Agreement, such number
of shares of freely tradeable Common Stock of the Principal Party
(as hereinafter defined), free and clear of liens, rights of call
or first refusal, encumbrances or other adverse claims, as shall
be equal to the result obtained by (1)
26<PAGE>
<PAGE> 35
multiplying the then current Purchase Price by the number of shares of
Common Stock for which a Right is then exercisable (without taking into
account any adjustment previously made pursuant to Section
11(a)(ii) hereof) and dividing that product by (2) 50% of the
current market price per share of the Common Stock of such
Principal Party (determined pursuant to Section 11(d) hereof) on
the date of consummation of such consolidation, merger, sale or
transfer; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11 hereof
shall apply to such Principal Party; and (iv) such Principal
Party shall take steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock
in accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in
(x) or (y) of the first sentence of this Section 13, the Person
that is the issuer of any securities into which shares of Common
Stock of the Company are converted in such merger or
consolidation, and if no securities are so issued, the Person
that is the other party to the merger or consolidation
(including, if applicable, the Company, if it is the surviving
corporation); and
(ii) in the case of any transaction described in
(z) of the first sentence in this Section 13, the Person that is
the party receiving the greatest portion of the assets or earning
power transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the common stock
of such Person is not at such time and has not been continuously
over the preceding 12-month period registered under Section 12 of
the Exchange Act, and such Person is a direct or indirect
subsidiary or Affiliate of another Person, "Principal Party"
shall refer to such other Person; (2) in case such Person is a
subsidiary, directly or
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indirectly, or an Affiliate of more than one Person, the Common Stocks
of two or more of which are and have been so registered, "Principal
Party" shall refer to whichever of such Persons is the issuer of the
common stock having the greatest aggregate market value; and (3) in
case such Person is owned, directly or indirectly, by a joint venture
formed by two or more Persons that are not owned, directly or
indirectly, by the same Person, the rules set forth in (1) and
(2) above shall apply to each of the chains of ownership having
an interest in such joint venture as if such party were a
"subsidiary" of both or all of such joint venturers and the
Principal Parties in each such chain shall bear the obligations
set forth in this Section 13 in the same ratio as their direct or
indirect interests in such Person bear to the total of such
interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto the
Company and each Principal Party and each other Person who may
become a Principal Party as a result of such consolidation,
merger, sale or transfer shall have executed and delivered to the
Rights Agent a supplemental agreement providing for the terms set
forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any
consolidation, merger, sale or transfer of assets mentioned in
paragraph (a) of this Section 13, the Principal Party at its own
expense will
(i) prepare and file a registration statement
under the Act with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form,
will use its best efforts to cause such registration statement to
become effective as soon as practicable after such filing and
will use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date;
(ii) use its best efforts to qualify or register
the Rights and the securities purchasable upon exercise of the
Rights under the blue sky laws of such jurisdictions as may be
necessary or appropriate; and
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(iii) deliver to holders of the Rights
historical financial statements for the Principal Party and each
of its Affiliates which comply in all material respects with the
requirements for registration on Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers.
The rights under this Section 13 shall be in addition to the
rights to exercise Rights and adjustments under Section 11(a)(ii)
and shall survive any exercise thereunder.
Section 14. Additional Covenants.
(a) After the Stock Acquisition Date, the Company
covenants and agrees that it shall not (i) consolidate with, (ii)
merge with or into, or (iii) sell or transfer to, in one or more
transactions, assets or earning power aggregating more than 50%
of the assets or earning power of the Company and its
subsidiaries taken as a whole, any other Person if at the time of
or after such consolidation, merger or sale there are any charter
or by-law provisions or any rights, warrants or other instruments
outstanding or any other action taken which would diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights. The Company shall not consummate any such consolidation,
merger or sale unless prior thereto the Company and such other
Person shall have executed and delivered to the Rights Agent a
supplemental agreement evidencing compliance with this
subsection.
(b) The Company covenants and agrees that, after the
Stock Acquisition Date, it will not, except as permitted by
Section 24 hereof, take any action the purpose or effect of which
is to diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
Section 15. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date as
provided in Section 11(n), or distribute Rights Certificates
which evidence fractional Rights. In lieu of such fractional
Rights, there shall be paid to the registered
29<PAGE>
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holders of the Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of a whole Right.
For 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 been otherwise issuable. The
closing price of the Rights for any day shall be the last sale
price, 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 reasonably and
with good faith to the holders of Rights by the Board of
Directors of the Company shall be used and shall be binding on
the Rights Agent.
(b) The Company shall not be required to issue
fractions of shares of Common Stock upon exercise of the Rights
or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of fractional shares of Common Stock, the
Company may pay to the registered holders of Rights Certificates
at the time such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market
value of a share of Common Stock. For purposes of this Section
15(b), the current market value of a share of Common Stock shall
be the closing price of a share of Common Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) Following the occurrence of one of the
transactions or events specified in Section 11 giving rise to the
right to receive common stock equivalents or other securities
upon the exercise of a Right, the Company shall not be required
to issue fractions of shares or units of such common stock
equivalents or other securities upon exercise of the Rights or to
distribute certificates which evidence fractional common stock
equivalents or other securities. In lieu of fractional shares or
units of such common stock equivalents or other securities, the
Company may
30<PAGE>
<PAGE> 39
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 a share or unit of such common stock equivalent or other
securities. For purposes of this Section 15(c), the current
market value shall be determined in the manner set forth in
Section 11(d) hereof for the Trading Day immediately prior to the
date of such exercise and, if such common stock equivalent is not
traded, each such common stock equivalent shall have the value of
a share of Common Stock.
(d) Except as otherwise expressly provided herein, the
holder of a Right by the acceptance of the Rights expressly
waives its right to receive any fractional Rights or any
fractional shares upon exercise of a Right.
Section 16. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered
holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock);
and any registered holder of any Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), without the consent
of the Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in its own behalf and for its own benefit, enforce,
and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of,
its right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and
in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically
acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Agreement and shall
be entitled to specific performance of the obligations hereunder
and injunctive relief against actual or threatened violations of
the obligations hereunder of any Person subject to this
Agreement. Holders of Rights shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees,
incurred by them in any action to enforce the provisions of this
Agreement.
31<PAGE>
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Section 17. Agreement of Rights Holders. Every holder of a
Right by accepting the same consents and agrees with the Company
and the Rights Agent with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the office of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and
treat the Person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
Section 18. Rights Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the shares of Common Stock or 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 Rights Certificate be
construed to confer upon the holder of any Rights Certificate, as
such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as
provided in Section 25 hereof), or to receive dividends or
32<PAGE>
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subscription rights, or otherwise, until the Right or Rights
evidenced by such Rights Certificate shall have been exercised in
accordance with the provision thereof.
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 disbursements and other
disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent
for, and to hold it harmless against, any loss, liability or
expense, incurred without negligence, bad faith or willful
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 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 Agreement in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the
Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it
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 Name of
Rights Agent.
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
stock transfer of corporate trust business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights
Agent under this
33<PAGE>
<PAGE> 42
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 hereof. In case at that time such successor Rights
Agent shall succeed to the agency created by this Agreement, any
of the Rights Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been countersigned,
any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor or in the name
of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights
Certificates in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Rights Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at the time any
of the Rights Certificates shall not have been countersigned, the
Rights Agent may countersign such Rights Certificates either in
its prior name or in its changed name; and in all such cases such
Rights Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 21. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
selected by it (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.
34<PAGE>
<PAGE> 43
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation,
the identity of any Acquiring Person) be proved or established by
the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the Chairman of
the Board, the Vice Chairman of the Board or the Executive Vice
President of the Company and delivered to the Rights Agent; and
such certificate shall be full authorization to the Rights Agent
for any action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only
for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Rights Certificates (except as to the
fact that it has countersigned the Rights Certificates) 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 to the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Rights Certificate; nor shall it be responsible for any
adjustment required under the provisions of Section 11 or 13
hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Rights Certificates after
actual notice of any such adjustment); nor shall it be
responsible for any determination by the Board of Directors of
the Company of the current market value of the Rights or Common
Stock pursuant to the provisions of Section 15 hereof; nor shall
it
35<PAGE>
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by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any shares of
Common Stock or other securities to be issued pursuant to this
Agreement or any Rights Certificate or as to whether any shares
of Common Stock or other securities 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 performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder and certificates delivered pursuant to any
provision hereof from the Chairman of the Board, the Vice
Chairman of the Board, the Executive Vice President, the
President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and is authorized to
apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken
or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any shareholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for
any act, omission, default, neglect or misconduct of any such
attorneys or agents or for any loss to the Company or
36<PAGE>
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to the holders of the Rights resulting from any such act,
omission, default, neglect or misconduct, provided reasonable
care was exercised in the selection and continued employment
thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not
reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate attached to the form of assignment or form of
election to purchase, as the case may be, has either not been
completed or indicates an affirmative response to clause 1 and/or
2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise of transfer without first
consulting with the Company.
Section 22. Change of Rights Agent. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Stock by registered or certified mail, and to holders of the
Rights 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 Stock by registered or certified mail, and to the holders
of the Rights Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Rights Certificate (who shall, with such notice,
submit its Rights Certificate for inspection by the Company),
then the registered holder of any Rights Certificate may apply to
any court of competent jurisdiction for the appointment of a new
Rights
37<PAGE>
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Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be (a) a corporation
organized and doing business under the laws of the United States
or of the State of Illinois (or of any other state of the United
States so long as such corporation is authorized to do business
as a banking institution in the State of Illinois), in good
standing, 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 has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $50,000,000 or (b) an affiliate of a
corporation described in clause (a) of this sentence. After
appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it
hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment the Company shall
file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and mail a notice
thereof in writing to the registered holders of the Rights
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 Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price per share and the number or kind or
class of shares or other securities or property purchasable under
the Rights Certificates made in accordance with the provisions of
this Agreement.
38<PAGE>
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Section 24. Redemption and Termination.
(a) (i) The Board of Directors of the Company may, at
its option, at any time prior to the earlier of (x) the Stock
Acquisition Date or (y) the close of business on the Final
Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.10 per Right,
appropriately adjusted to reflect any stock split, stock dividend
or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption
Price").
(ii) In addition, the Board of Directors of the
Company may redeem all but not less than all of the then
outstanding Rights at the Redemption Price following the
occurrence of a Stock Acquisition Date but prior to any event
described in Section 13(a) either, (x) in connection with any
event specified in Section 13(a) in which all holders of Common
Stock are treated alike and not involving an Acquiring Person or
an Affiliate or Associate of an Acquiring Person or any other
Person in which such Acquiring Person, Affiliate or Associate has
any interest, or any other Person acting directly or indirectly
on behalf of or in association with any such Acquiring Person,
Affiliate or Associate, or (y) following the occurrence of the
event set forth in Section 11(a)(ii) if and for as long as the
Acquiring Person is not thereafter the Beneficial Owner of
securities representing 20% or more of the outstanding shares of
the Voting Power, and at the time of redemption there are no
other Persons who are Acquiring Persons.
(b) In the case of a redemption permitted under
Section 24(a)(i), immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
evidence of which shall have been filed with the Rights Agent and
without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter
of the holders of Rights shall be to receive the Redemption
Price. In the case of a redemption permitted only under Section
24(a)(ii), evidence of which shall have been filed with the
Rights Agent, the right to exercise the Rights will terminate and
represent only the right to receive the Redemption Price only
after twenty days following the giving of notice of such
redemption to the holders of such Rights. Within ten days after
the action of the Board of Directors ordering any
39<PAGE>
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such redemption of the Rights, the Company shall give notice of such
redemption to the Rights Agent and the holders of the then outstanding
Rights by mailing such notice to the Rights Agent and 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 of the Common Stock.
Any notice which is mailed in the manner herein provided shall be
deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the
payment of the Redemption Price will be made.
(c) The Company may, at its option, discharge all of
its obligations with respect to the Rights by (i) issuing a press
release announcing the manner of redemption of the Rights and
(ii) mailing payment of the Redemption Price to the registered
holders of the Rights at their last addresses as they appear on
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer Agent of
the Common Stock, and upon such action, all outstanding Rights
Certificates shall be null and void without any further action by
the Company.
Section 25. Notice of Certain Events. In case the Company
shall propose (a) to pay any dividend payable in stock of any
class to the holders of Common Stock or to make any other
distribution to the holders of Common Stock (other than a regular
periodic cash dividend at a rate not in excess of 125% of the
rate of the last cash dividend theretofore paid) or (b) to offer
to the holders of Common Stock rights or warrants to subscribe
for or to purchase any additional shares of Common Stock or
shares of stock of any class or any other securities, rights or
options or (c) to effect any reclassification of its Common Stock
(other than a reclassification involving only the subdivision of
outstanding shares of Common Stock) or (d) to effect any
consolidation or merger into or with any other Person (other than
a subsidiary of the Company in a transaction which does not
violate Section 14(b) hereof), or to effect any sale or other
transfer (or to permit one or more of its subsidiaries to effect
any sale or other transfer), in one or more transactions, of more
than 50% of the assets or earning power of the Company and its
subsidiaries (taken as a whole) to, any
40<PAGE>
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other Person, or (e) to effect the liquidation, dissolution or winding
up of the Company, then, in each such case, the Company shall give to
each holder of a Rights Certificate, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the record
date for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution
or winding up is to take place and the date of participation
therein by the holders of the shares of Common Stock, if any such
date is to be fixed, and such notice shall be so given in the
case of any action covered by clause (a) or (b) above at least 20
days prior to the record date for determining holders of the
shares of Common Stock for purposes of such action, and in the
case of any such other action, at least 20 days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the shares of Common
Stock whichever shall be the earlier.
In case the event set forth in Section 11(a)(ii) of this
Agreement shall occur, then, in any such case, the Company shall
as soon as practicable thereafter give to each holder of a Rights
Certificate, in accordance with Section 26 hereof, a notice of
the occurrence of such event, which shall specify the event and
the consequences of the event to holders of Rights under Section
11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Sundstrand Corporation
4949 Harrison Avenue
Post Office Box 7003
Rockford, Illinois 61125
Attention: Secretary
Subject to the provisions of Section 22, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
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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:
Harris Trust and Savings Bank
Corporate Trust Operations
311 West Monroe Street, 11th Floor
Chicago, Illinois 60606
Attention: Division Head
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. The Company and
the Rights Agent may from time to time supplement or amend this
Agreement without approval of any holders of Right Certificates
in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent
with any other provisions herein, to extend the period of
redemption provided for in Section 24 hereof, or to make any
other provisions in regard to matters or questions arising
hereunder which the Company and the Rights Agent may deem
necessary or desirable and which shall not adversely affect the
interests of the holders of Rights Certificates; provided,
however, that this Agreement may not be supplemented or amended
in any way unless the Company's Board of Directors consists of a
majority of Continuing Directors (as hereinafter defined) at the
time of such amendment or supplement. "Continuing Director"
shall mean a director who either was a member of the Board of
Directors of the Company prior to the Record Date, or who
subsequently became a director of the Company and whose initial
election or initial nomination for election by the Company's
shareholders subsequent to such date was approved by a majority
of the Continuing Directors then on the Board of Directors of the
Company. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement
or amendment is in compliance with the terms of this Section 27,
the Rights Agent shall execute such supplement or amendment
unless the Rights Agent shall
42<PAGE>
<PAGE> 51
have determined in good faith that such supplement or amendment would
adversely affect its interest under this Agreement. Prior to this
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock.
Section 28. Determination and Actions by the Board of
Directors, etc. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
or any other securities of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the
Exchange Act as in effect on the date of this Agreement. The
Board of Directors of the Company shall have the exclusive power
and authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board, or the
Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation,
the right and power to (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed necessary or
advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the
Agreement). All such actions, calculations, interpretations and
determinations (including, for purposes of clause (y) below, all
omissions with respect to the foregoing) which are done or made
by the Board in good faith, shall (x) be final, conclusive and
binding on the Company, the Rights Agent, the holders of the
Rights Certificates and all other parties, and (y) not subject
the Board to any liability to the holders of the Rights
Certificates.
Section 29. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 30. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the
43<PAGE>
<PAGE> 52
Rights Certificate (and, prior to the Distribution Date, the
Common Stock) any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Rights Certificates (and, prior to the
Distribution Date, the Common Stock).
Section 31. Severability. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 32. Governing Law. This Agreement, each Right and
each Rights Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware 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 to
be performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 34. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
44<PAGE>
<PAGE> 53
IN WITNESS WHEREOF, the parties hereto have caused this
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.
Attest: SUNDSTRAND CORPORATION
[Seal]
/s/ William R. Coole By: /s/ Richard M. Schilling
________________________________ ________________________________________
Name: William R. Coole Name: Richard M. Schilling
Title: Assistant Secretary Title: Vice President and General
Counsel and Secretary
Attest: HARRIS TRUST AND SAVINGS BANK
/s/ Keith A. Bradley By: /s/ Wendy R. Gimbel
_______________________________ __________________________________________
Name: Keith A. Bradley Name: Wendy R. Gimbel
Title: Assistant Vice President Title: Trust Officer & Assistant Secretary
45<PAGE>
<PAGE> 54
Exhibit A
FORM OF RIGHTS CERTIFICATE
Certificate No. R-____________________________________________ Rights
NOT EXERCISABLE AFTER MAY 11, 2006, OR EARLIER IF
NOTICE OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT
TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.10
PER RIGHT ON THE TERMS SET FORTH IN THE SECOND AMENDED
AND RESTATED RIGHTS AGREEMENT BETWEEN SUNDSTRAND
CORPORATION AND HARRIS TRUST AND SAVINGS BANK (THE
"RIGHTS AGREEMENT"). [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE WERE ISSUED TO A PERSON WHO WAS AN
ACQUIRING PERSON OR AN AFFILIATE OR AN ASSOCIATE OF AN
ACQUIRING PERSON. THIS RIGHTS CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME VOID TO THE EXTENT
PROVIDED BY, AND UNDER CERTAIN CIRCUMSTANCES AS
SPECIFIED IN SECTION 7(e) OF THE RIGHTS AGREEMENT.]*
THE RIGHTS AGREEMENT AMENDS AND RESTATES THE AMENDED
AND RESTATED RIGHTS AGREEMENT, DATED AS OF DECEMBER 4,
1987, BETWEEN SUNDSTRAND CORPORATION AND THE FIRST
NATIONAL BANK OF CHICAGO.
Rights Certificate
SUNDSTRAND CORPORATION
This certifies that _______________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Second Amended and
Restated Rights Agreement, dated as of November 21, 1995 (the
"Rights Agreement"), between Sundstrand Corporation, a Delaware
corporation (the "Company"), and Harris Trust and Savings Bank, a
national banking association (the "Rights Agent"), to purchase
from the Company at any time after the Distribution Date (as such
term is defined in the Rights Agreement) and prior to 5:00 P.M.
(Chicago time) on May 11, 2006, at the principal office of the
Rights Agent in ____________, one fully paid, non-assessable
share of the Common Stock, $1.00 par value (the "Common Stock"),
of the Company, at a purchase price of $200 per share (the
"Purchase Price"), upon presentation and surrender of this Rights
Certificate with the appropriate Form of Election to Purchase
duly executed. The
___________________
* The portion of the legend in brackets shall be inserted
only if applicable.<PAGE>
<PAGE> 55
number of Rights evidenced by this Rights Certificate (and the number
of shares which may be purchased upon exercise thereof) set forth above,
and the Purchase Price set forth above, are the number and Purchase
Price as of November 21, 1995 based on the Common Stock of the Company
as constituted at such date.
As provided in the Rights Agreement, the Purchase Price
and the number of shares of Preferred Stock or other securities
which may be purchased upon the exercise of the Rights evidenced
by this Rights Certificate are subject to modification and
adjustment upon the happening of certain events.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates. Copies of the Rights Agreement are on file
at the principal office of the Company, and are also available
upon written request to the Company.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates
surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised (other than pursuant to
Section 11(a)(ii) of the Rights Agreement) in part, the holder
shall be entitled to receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of whole Rights
not exercised. If this Rights Certificate shall be exercised in
whole or in part pursuant to Section 11(a)(ii) of the Rights
Agreement, the holder shall be entitled to receive this Rights
Certificate duly marked to indicate such exercise has occurred as
set forth in the Rights Agreement.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.10 per Right.
Subject to the provisions of the Rights Agreement, the Company,
at its option, may elect to mail payment of the redemption price
to the registered holder of the Right at the time of redemption,
in which event this Certificate may become void without any
further action by the Company.
No fractional shares of Common Stock will be issued
upon the exercise of any Right or Rights evidenced hereby, but in
lieu thereof a cash payment will be made, as provided in the
Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Common Stock or of any other
A-2<PAGE>
<PAGE> 56
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting thereof,
or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to
receive dividends or subscription rights, or otherwise, until the
Right or Rights evidenced by this Rights Certificate shall have
been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned
by the Rights Agent.
WITNESS the facsimile signature of the proper officers
of the Company and its corporate seal. Dated as of November 21,
1995.
[SEAL]
ATTEST: SUNDSTRAND CORPORATION
Attest:
By __________________________ By __________________________
Name: Name:
Title: Title:
Countersigned:
HARRIS TRUST AND SAVINGS BANK
By __________________________
Authorized Signatory
Name:
Title:
A-3<PAGE>
<PAGE> 57
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED _____________________________________________ hereby
sells, assigns and transfers unto ______________________________________
________________________________________________________________________
(Please print name and address of transferee)
________________________________________________________________________
this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint ____________________ Attorney, to transfer the within
Rights Certificate on the books of the within-named Company, with
full power of substitution.
Dated: ____________, _____
___________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank,
savings association, credit union or trust company having an
office or correspondent in the United States or other eligible
guarantor institution which is a participant in a signature
guarantee medallion program.
Certificate:
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being sold, assigned or transferred by
or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such
terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is or
was or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _______________, _____ ______________________________
Signature<PAGE>
<PAGE> 58
[Form of Reverse Side of Rights Certificate -- continued]
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate pursuant to
Section 11(a)(ii) of the Rights Agreement.)
To SUNDSTRAND CORPORATION:
The undersigned hereby irrevocably elects to exercise
__________ Rights represented by this Rights Certificate to
purchase the shares of Common Stock (or other securities of the
Company) issuable upon the exercise of such Rights and requests
that certificates for such shares be issued in the name of:
________________________________________________________________
(Please insert social security or other identifying number)
________________________________________________________________
(Please print name and address)
________________________________________________________________
The Rights Certificate indicating the balance, if any,
of such Rights may still be exercised pursuant to Section
11(a)(ii) of the Rights Agreement shall be returned to the
undersigned unless such person requests that the Rights
Certificate be registered in the name of and delivered to:
_________________________________________________________________
Please insert social security or other identifying number.
(Complete only if the Rights Certificate is to be registered in a
name other than the undersigned's.)
_________________________________________________________________
(Please print name and address)
_________________________________________________________________
Dated: _______________, _____
_________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank,
savings association, credit union or trust company having an
office or correspondent in the United States or other eligible
guarantor institution which is a participant in a signature
guarantee medallion program.<PAGE>
<PAGE> 59
[Form of Reverse Side of Rights Certificate -- continued]
Certificate:
The undersigned hereby certifies that by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or
Associate of any such Acquiring Person (as such terms are defined
pursuant to the Rights Agreement);
(2) this Rights Certificate [ ] is [ ] is not
being sold, assigned and transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person;
(3) after due inquiry and to the best knowledge of the
undersigned, the it [ ] did [ ] did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _______________, _____ ___________________________
Signature
- -------------------------------------------------------------------
NOTICE
The signature on the foregoing Forms of Assignment and
Election to Purchase and Certificates must correspond to the name
as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the
Form of Assignment or the Form of Election to Purchase, as the
case may be, is not completed, the Company and the Rights Agent
will deem the Beneficial Owner of the Rights evidenced by this
Rights Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as such terms are defined in the Rights
Agreement) and such Assignment or Election to Purchase will not
be honored.<PAGE>
<PAGE> 60
Exhibit B
SUNDSTRAND CORPORATION
SECOND AMENDED SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On April 17, 1986, the Board of Directors of Sundstrand
Corporation (the "Company") declared a dividend distribution of
one Right for each outstanding share of common stock, $1.00 par
value (the "Common Stock"), of the Company to shareholders of
record at the close of business on April 28, 1986 (the "Record
Date"). The Company thereupon entered into a Rights Agreement
(dated as of April 18, 1986) with Harris Trust and Savings Bank
as Rights Agent. The distribution of Rights pursuant to the
Rights Agreement was effected on May 12, 1986. On December 4,
1987 (the "Amendment Date"), the Board of Directors resolved to
amend and restate the Rights Agreement, and such amendments
became effective by agreement with the Rights Agent. On November
21, 1995 (the "Second Amendment Date"), the Board of Directors
resolved to amend and restate the Rights Agreement, and such
amendments became effective by agreement with the Rights Agent.
Except as set forth below, each Right, when exercisable, entitles
the registered holder to purchase from the Company one share of
Common Stock at a price of $200 per share (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights
are set forth in the Second Amended and Restated Rights Agreement
(the "Rights Agreement") between the Company and Harris Trust and
Savings Bank as Rights Agent.
The Rights are now attached to all Common Stock certificates
representing shares currently outstanding, and no separate Right
certificates have been distributed. Until the earlier to occur
of (i) ten days following a public announcement that, without the
prior consent of the Company, a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or
obtained the right to acquire, beneficial ownership of securities
having 20% or more of the voting power of all outstanding voting
securities of the Company (the date of said public announcement
being the "Stock Acquisition Date") or (ii) ten days following
the commencement of (or a public announcement of an intention to
make) a tender offer or exchange offer which would result in any
person or group and related persons becoming an Acquiring Person,
without the prior consent of the Company (the earlier of such
dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any of the Common Stock certificates
outstanding as of the Record Date, by such Common Stock
certificate together with this Summary of Rights. The Rights
Agreement provides that, until the Distribution Date, the Rights
will be transferred with and only with Common Stock certificates.
From as soon as practicable after the Second Amendment Date and
until the Distribution Date (or earlier redemption or expiration
of the Rights), new Common Stock certificates issued after the
Second Amendment Date upon transfer or new issuance of the Common
Stock will contain a notation incorporating the Rights Agreement
by reference. Until the Distribution Date (or earlier redemption
or expiration of the Rights), the surrender for transfer of any
certificates for Common Stock outstanding (with or without this
Summary of Rights attached) will also constitute the transfer of
the Rights associated<PAGE>
<PAGE> 61
-2-
with the Common Stock represented by such certificate. As soon as
practicable following the Distribution Date, separate certificates
evidencing the Rights (the "Rights Certificates") will be mailed to
holders of record of the Common Stock as of the close of business on
the Distribution Date, and the separate Rights Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on May 11, 2006 unless earlier redeemed by
the Company as described below.
The Purchase Price payable, and the number of shares of the
Common Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of the Common
Stock, (ii) upon the grant to holders of the Common Stock of
certain rights or warrants to subscribe for Common Stock, certain
convertible securities or securities having the same or more
favorable rights, privileges and preferences as the Common Stock
at less than the current market price of the Common Stock or
(iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding regular periodic
cash dividends at a rate not in excess of 125% of the rate of the
last cash dividend therefore paid and dividends payable in Common
Stock) or of subscription rights or warrants (other than those
referred to above).
In the event that after a Stock Acquisition Date, (i) the
Company consolidates with, or merges into, another entity, (ii)
any other entity consolidates with, or merges into the Company
(other than, in the case of either transaction described in (i)
and (ii), certain reorganization transactions), or (iii) the
Company sells, mortgages or otherwise transfers 50% or more of
its assets or earning power (in one transaction or a series of
transactions), proper provision shall be made so that each holder
of a Right shall thereafter have the right to receive, upon the
exercise thereof at the then current exercise price of the Right,
that number of shares of common stock of the acquiring company
or, in certain cases, its affiliated company (or, in the event
there is more than one acquiring company, the acquiring company
receiving the greatest portion of the assets or earning power
transferred) which at the time of such transaction would have a
market value of two times the exercise price of the Right (such
right being called the "Flip-Over Right").
In the event that a person becomes the beneficial owner of
securities having a 20% or more of the voting power of all then
outstanding voting securities of the Company (unless pursuant to
a tender or exchange offer for all outstanding shares of Common
Stock at a price and on terms determined by at least a majority
of the members of the Board of Directors who are not officers of
the Company to be adequate and otherwise in the best interests of
the Company and its constituents, including shareholders), proper
provision shall be made so that each holder of a Right will have
the right to receive upon exercise that number of shares (or
fractional shares) of Common Stock (or shares, or units of shares
of preferred stock or other equity securities of the Company
having at least the same value and voting rights as the Common
Stock) having a market value of two times the exercise price of
the Right, subject to the availability of a sufficient number of
authorized but unissued shares (such right being called the "Flip-
In Right"). The holder of a Right will continue to have the Flip-
Over Right whether or not such holder exercises the Flip-In
Right.<PAGE>
<PAGE> 62
-3-
Upon the occurrence of the event giving rise to the
exercisability of the Flip-In Right, any Rights that are or were
at any time owned by an Acquiring Person on or after the time the
Acquiring Person becomes such shall become void insofar as they
relate to the Flip-In Right. Upon the occurrence of any of the
events giving rise to the exercisability of the Flip-Over Right,
any Rights that were acquired after December 4, 1987 by an
Acquiring Person engaging in any of such transactions or
receiving the benefit thereof on or after the time the Acquiring
Person becomes such shall become void insofar as they relate to
the Flip-Over Right. However, Rights held by an Acquiring Person
as of December 4, 1987 shall continue to be exercisable insofar
as they relate to the Flip-Over Right.
With certain exceptions, no adjustments in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractions
of shares will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Common Stock
on the last trading date prior to the date of the exercise.
At any time prior to the earlier to occur of (i) a person
becoming an Acquiring Person or (ii) the expiration of the
Rights, the Company may redeem the rights in whole, but not in
part, at a price of $.10 per Right (the "Redemption Price"),
which redemption shall be effective upon the action of the Board
of Directors. Additionally, the Company may thereafter redeem
the then outstanding Rights in whole, but not in part, at the
Redemption Price provided that such redemption is incidental to a
merger, or other business combination transaction or series of
transactions involving the Company but not involving an Acquiring
Person or any person who was an Acquiring Person or, following an
event giving rise to the Flip-In Right, if and for as long as an
Acquiring Person beneficially owns securities representing less
than 20% of the voting power of the Company's voting securities.
The redemption of Rights described in the preceding sentence
shall be effective only after 20 days prior notice. Upon the
effective date of the redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such,
will have no rights as a stockholder of the Company, including,
without limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an exhibit to a
Registration Statement on Form 8A. A copy of the Rights
Agreement is available free of charge from the Rights Agent,
Harris Trust and Savings Bank. This summary description of the
Rights does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement, which is
incorporated herein by reference.
