EXHIBIT 4(b)
MODINE MANUFACTURING COMPANY
AND
THE FIRST NATIONAL BANK OF CHICAGO
Rights Agent
Rights Agreement
Dated as of October 15, 1986
TABLE OF CONTENTS
Page
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Section 1. Certain Definitions . . . . . . . . . 1
Section 2. Appointment of Rights Agent . . . . . 4
Section 3. Issue of Right Certificates . . . . . 5
Section 4. Form of Right Certificates. . . . . . 7
Section 5. Countersignature and Registration . . 7
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates . . . . . . 8
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . 9
Section 8. Cancellation and Destruction of
Right Certificates. . . . . . . . . . 10
Section 9. Reservation and Availability of
Preferred Shares. . . . . . . . . . . 11
Section 10. Preferred Shares Record Date. . . . . 12
Section 11. Adjustment of Purchase Price,
Number of Shares or Number of
Rights. . . . . . . . . . . . . . . . 12
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares . . . . . . 24
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power . 25
Section 14. Fractional Rights and Fractional
Shares. . . . . . . . . . . . . . . . 26
Section 15. Rights of Action. . . . . . . . . . . 28
Section 16. Agreement of Right Holders. . . . . . 28
Section 17. Right Certificate Holder Not
Deemed a Shareholder. . . . . . . . . 29
Page
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Section 18. Concerning the Rights Agent . . . . . 29
Section 19. Merger or Consolidation or Change
of Name of Rights Agent . . . . . . . 30
Section 20. Duties of Rights Agent. . . . . . . . 31
Section 21. Change of Rights Agent. . . . . . . . 34
Section 22. Issuance of New Right Certificates. . 35
Section 23. Redemption. . . . . . . . . . . . . . 35
Section 24. Notice of Certain Events. . . . . . . 36
Section 25. Notices . . . . . . . . . . . . . . . 37
Section 26. Supplements and Amendments. . . . . . 38
Section 27. Successors. . . . . . . . . . . . . . 38
Section 28. Benefits of This Agreement. . . . . . 38
Section 29. Severability. . . . . . . . . . . . . 39
Section 30. Governing Law . . . . . . . . . . . . 39
Section 31. Counterparts. . . . . . . . . . . . . 39
Section 32. Descriptive Headings. . . . . . . . . 39
Signatures . . . . . . . . . . . . . . . . . . . 39
Exhibit A - Form of Resolution Establishing
Series A Participating Preferred
Stock
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase
Preferred Shares
RIGHTS AGREEMENT
THIS AGREEMENT, dated as of October 15, 1986, between
Modine Manufacturing Company, a Wisconsin corporation (the
"Company"), and The First National Bank of Chicago, a national
banking association (the "Rights Agent");
WITNESSETH THAT:
WHEREAS, the Board of Directors of the Company has
authorized and declared a dividend of one purchase right (a
"Right") for each Common Share (as hereinafter defined) of the
Company outstanding as of the close of business on October 27,
1986 (the "Record Date"), each Right representing the right to
purchase one one-hundredth of a share of Series A Participating
Preferred Stock, par value 5 cents per share, of the Company
having the rights and preferences set forth in the form of the
Resolution attached hereto as Exhibit A, upon the terms and
subject to the conditions herein set forth, and further
contemplates the issuance of one Right with respect to each
Common Share that shall become outstanding between the Record
Date and the earliest of the Distribution Date, the Redemption
Date and the Final Expiration Date (as such terms are defined in
Sections 3 and 7 hereof);
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
as follows:
Section 1. Certain Definitions. For purposes of this
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Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates and Associates (as such terms are hereinafter
defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 20% or more of the
Common Shares of the Company then outstanding, but shall not
include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company or any employee benefit
plan of the Company or any Subsidiary of the Company or any
entity holding Common Shares of the Company for or pursuant
to the terms of any such plan.
(b) "Affiliate" and "Associate" shall have the
respective meanings assigned to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(c) A Person shall be deemed the "beneficial owner" of
and shall be deemed to "beneficially own" any securities:
(i) which such Person or any of such
Person's Affiliates or Associates directly or
indirectly has the right to vote or dispose of or
"beneficial ownership" of (as defined in Rule 13d-3 of
the General Rules and Regulations under the Exchange
Act, as in effect on the date of this Agreement)
(except to the extent contemplated by the proviso to
Section 1(c)(ii)(B) hereof);
(ii) which such Person or any of such
Person's Affiliates or Associates has (A) the right to
acquire (whether such right is exercisable immediately
or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the
exercise of conversion rights, exchange rights, rights
(other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not
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be deemed the Beneficial Owner of, or to beneficially
own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or
any of such Person's Affiliates or Associates until
such tendered securities are accepted for purchase or
exchange; or (B) the right to vote pursuant to any
agreement, arrangement or understanding; provided,
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however, that a Person shall not be deemed the
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Beneficial Owner of, or to beneficially own, any
security if the agreement, arrangement or understanding
to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the Exchange Act
and the rules and regulations thereunder and (2) is not
also then reportable on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person with which such
Person or any of such Person's Affiliates or Associates
has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting (except to the
extent contemplated by the proviso to Section
1(c)(ii)(B) hereof) or disposing of any securities of
the Company.
(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,
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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 Shares" when used with reference to the
Company shall mean shares of common stock, par value $1.25
per share, of the Company. "Common Shares" when used with
reference to any Person other than the Company shall mean
the capital stock (or equity interest) with the greatest
voting power of such other Person or, if such other Person
is a Subsidiary of another Person, the Person or Persons
which ultimately control such first-mentioned Person.
(g) "Continuing Director" shall have the meaning
assigned to it in Section 23(a) hereof.
(h) the phrase "current per share market price" shall
have the meaning assigned to it in Section 11(d) hereof.
(i) "Distribution Date" shall have the meaning
assigned to it in Section 3 hereof.
(j) The phrase "equivalent preferred shares" shall
have the meaning assigned to it in Section 11(b) hereof.
(k) "Final Expiration Date" shall have the meaning
assigned to it in Section 7 hereof.
(l) "NASDAQ" shall have the meaning assigned to it in
Section 11(d) hereof.
(m) "Person" shall mean any individual, firm,
corporation or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(n) "Preferred Shares" shall mean shares of Series A
Participating Preferred Stock, par value 5 cents per share, of
the Company.
(o) "Purchase Price" shall have the meaning assigned
to it in Section 4 hereof.
(p) "Redemption Date" shall have the meaning assigned
to it in Section 7 hereof.
(q) "Redemption Price" shall have the meaning assigned
to it in Section 23 hereof.
(r) "Right Certificate" shall have the meaning
assigned to it in Section 3 hereof.
(s) "Share Exchange" shall have the meaning assigned
to it in Section 11(a)(ii)(A) hereof.
(t) "Shares Acquisition Date" shall mean the first
date of public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such.
(u) "Subsidiary" of any Person shall mean any
corporation or other entity of which a majority of the
voting power of the voting equity securities or equity
interest is owned, directly or indirectly, by such Person.
(v) "Summary of Rights" shall have the meaning
assigned to it in Section 3(b) hereof.
(w) "Trading Day" shall have the meaning assigned to
it in Section 11(d) hereof.
Section 2. Appointment of Rights Agent. The Company
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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 Shares of the Company) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such co-
Rights Agents as it may deem necessary or desirable.
Section 3. Issue of Right Certificates.
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(a) Until the earlier of the close of business on (i)
the tenth day after the Shares 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 Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which
would result in beneficial ownership by a Person of 30% or more
of the outstanding Common Shares of the Company (including any
such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earliest 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 Shares of the
Company registered in the names of the holders thereof (which
certificates shall also be deemed to be Right Certificates) and
not by separate Right Certificates, and (y) the Rights will be
transferable only in connection with the transfer of such Common
Shares. As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will
countersign for the purposes of authentication only, and the
Company will send or cause to be sent (and the Rights Agent will,
if requested, send) by first-class, insured, postage-prepaid
mail, to each record holder of Common Shares of the Company as of
the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right for each Common Share
of the Company so held. As of the Distribution Date, the Rights
will be evidenced solely by such Right Certificates.
(b) On the Record Date or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Shares, in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of its Common Shares
as of the Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for Common
Shares of the Company outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof.
Until the Distribution Date (or the earlier of the Redemption
Date or Final Expiration Date), the surrender for transfer of any
certificate for Common Shares of the Company outstanding on the
Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby and
certificates newly issued pursuant to such transfer shall have
printed onto them the legend set forth in Section 3(c) hereof.
(c) Unless the Board of Directors of the Company by
resolution adopted at the time of issuance of any Common Shares
of the Company specifies to the contrary, Rights shall be issued
in respect of all Common Shares of the Company which become
outstanding (including, without limitation, reacquired Common
Shares referred to in the last sentence of this paragraph (c))
after the Record Date, but prior to the earliest of the
Distribution Date or the Redemption Date or the Final Expiration
Date. Certificates for such Common Shares shall also be deemed
to evidence such Rights, and shall have printed on them the
following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a
Rights Agreement between Modine Manufacturing Company
and The First National Bank of Chicago, dated as of
October 15, 1986 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive
offices of Modine Manufacturing Company. Under certain
circumstances, as set forth in the Rights Agreement,
such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate.
Modine Manufacturing Company will mail to the holder of
this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor.
Under certain circumstances, Rights beneficially owned
by Acquiring Persons (as defined in the Rights
Agreement), whether currently held by or on behalf of
such person or by a subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or
acquires any of its Common Shares after the Record Date, but
prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any Rights associates
with such Common Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
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Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse thereof)
shall be substantially the same as Exhibit B hereto and may have
such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of
this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed or of the
National Association of Securities Dealers, Inc. or to conform to
usage. Subject to the provisions of Section 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such
number of Preferred Shares as shall be set forth therein at the
price per one one-hundredth of a Preferred Share set forth
therein (the "Purchase Price"), but the number of such Preferred
Shares and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. Countersignature and Registration.
---------------------------------
(a) The Right Certificates shall be executed on behalf
of the Company by its President or any Vice Presidents and by the
Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature, and have affixed thereto the
Company's seal or a facsimile thereof. The Right Certificates
shall not be valid for any purpose unless countersigned by the
Rights Agent. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such
officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Right
Certificates, nevertheless, may be countersigned by the Rights
Agent, and issued and delivered by the Company with the same
force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company;
and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such
Right Certificate, shall be a proper officer of the Company to
sign such Right Certificate, although at the date of the
execution of this Rights Agreement any such person was not such
an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept for the Company, at the Rights
Agent's principal offices in Chicago, Illinois, books for
registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the
respective holders of the Right Certificates, the number of
Rights evidenced on its face by each of the Right Certificates
and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and
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Exchange of Right Certificates; Mutilated, Destroyed, Lost or
- -------------------------------------------------------------
Stolen Right Certificates.
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(a) Subject to the provisions of Section 14 hereof, at
any time after the close of business on the Distribution Date,
and at or prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right
Certificate or Right Certificates may be transferred, split up,
combined or exchanged for another Right Certificate or Right
Certificates, entitling the registered holder to purchase a like
number of Preferred Shares as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender at the
principal offices of the Rights Agent in Chicago, Illinois the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged. Thereupon the Rights Agent shall
countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange
of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the
registered owner in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
-----------------------------------
Expiration Date of Rights.
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(a) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise
provided herein) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the principal offices of the
Rights Agent in Chicago, Illinois, together with payment of the
Purchase Price for each one one-hundredth of a Preferred Share as
to which the Rights are exercised, at or prior to the earlier of
(i) the close of business on October 27, 1996 (the "Final
Expiration Date"), or (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption
Date").
(b) The Purchase Price for each one one-hundredth of a
Preferred Share pursuant to the exercise of a Right shall
initially be $85.00, 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 Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable
transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof in cash or by
certified check or cashier's check payable to the order of the
Company or the Rights Agent, the Rights Agent shall thereupon
promptly (i) (A) requisition from any transfer agent of the
Preferred Shares (or make available if the Rights Agent is the
transfer agent) certificates for the number of Preferred Shares
to be purchased and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B)
requisition from the depositary agent depositary receipts
representing such number of one one-hundredths of a Preferred
Share as are to be purchased (in which case certificates for the
Preferred Shares represented by such receipts shall be deposited
by the transfer agent with the depositary agent) and the Company
hereby directs the depositary agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the
amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 14 hereof, (iii) promptly after
receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or
names as may be designated by such holder and, (iv) when
appropriate, after receipt, promptly deliver such cash to or upon
the order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right
Certificate shall exercise less than all the Rights evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to
his duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth
in this Section 7 unless such registered holder shall have (i)
completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise and (ii) provided such
additional evidence of the identity of the beneficial owner (or
former beneficial owner) thereof and of such beneficial owner's
Affiliates and Associates as the Company shall reasonably
request.
Section 8. Cancellation and Destruction of Right
-------------------------------------
Certificates. All Right Certificates surrendered for the purpose
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of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled
by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Right Certificates to the
Company, or shall, at the written request of the Company, destroy
such cancelled Right Certificates, and in such case shall deliver
a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Preferred
-----------------------------------------
Shares.
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(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its authorized and
unissued Preferred Shares or any Preferred Shares held in its
treasury, the number of Preferred Shares that will be sufficient
to permit the exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all Preferred
Shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such Preferred Shares (subject
to payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and non-assessable shares.
(c) The Company covenants and agrees that it shall
take all necessary action (or use its best efforts to cause all
necessary action to be taken) in connection with the issuance of
the Preferred Shares (or other securities that may be issuable)
upon exercise of the Rights to comply with any applicable
requirements of the Securities Act of 1933, as amended, and the
Exchange Act and to comply with any other applicable laws of any
state or other jurisdiction.
(d) The Company 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 Right Certificates or of any Preferred Shares
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 Right Certificates to a person
other than, or the issuance or delivery of certificates for the
Preferred Shares in a name other than that of, the registered
holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or deliver any certificates for Preferred
Shares upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such
Right Certificate at the time of surrender) or until it has been
established to the Company's satisfaction that no such tax is
due.
Section 10. Preferred Shares Record Date. Each person
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in whose name any certificate for Preferred Shares is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Preferred
Shares transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such shares
on, and such certificate shall be dated, the next succeeding
Business Day on which the Preferred Shares transfer books of the
Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled
to any rights of a holder of Preferred Shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, Number of
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Shares or Number of Rights. The Purchase Price, the number of
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Preferred Shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on
the Preferred Shares payable in Preferred Shares, (B)
subdivide the outstanding Preferred Shares, (C) combine the
outstanding Preferred Shares into a smaller number of
Preferred Shares or (D) issue any shares of its capital
stock in a reclassification of the Preferred Shares
(including any such reclassification in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise
provided in this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which,
if such Right had been exercised immediately prior to such
date and at a time when the Preferred Shares transfer books
of the Company were open, he would have owned upon such
exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If
an event occurs 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
(A) any Acquiring Person or any Associate or
Affiliate of any Acquiring Person, at any time after
the date of this Agreement, directly or indirectly, (1)
shall merge into the Company or otherwise combine with
the Company and the Company shall be the continuing or
surviving corporation of such merger or combination,
and the Common Shares of the Company shall remain
outstanding and not be changed into or exchanged for
stock or other securities of any other Person or the
Company or cash or any other property, (2) shall
participate in a statutory share exchange with the
Company pursuant to such provision therefor as may
hereafter be made in the Wisconsin Business Corporation
Law (a "Share Exchange") immediately following which
the Company is not a Subsidiary of any Acquiring Person
or any Associate or Affiliate of any Acquiring Person,
(3) shall, in one or more transactions, (i) other than
in connection with the exercise of Rights or in
connection with the exercise or conversion of
securities exchangeable for or convertible into capital
stock of the Company or any of its Subsidiaries, or
(ii) other than as part of a pro rata distribution to
all holders of such shares of any class of capital
stock of the Company or any of its Subsidiaries,
transfer any assets to the Company or any of its
Subsidiaries in exchange (in whole or in part) for
shares of any class of capital stock of the Company or
any of its Subsidiaries or for securities exercisable
for or convertible into shares of any class of capital
stock of the Company or any of its Subsidiaries or
otherwise obtain from the Company or any of its
Subsidiaries, with or without consideration, any
additional shares of any class of capital stock of the
Company or any of its Subsidiaries or securities
exercisable for or convertible into shares of any class
of capital stock of the Company or any of its
Subsidiaries, (4) shall sell, purchase, lease,
exchange, mortgage, pledge, transfer or otherwise
dispose of (in one or more transactions) to, from or
with, as the case may be, the Company or any of its
Subsidiaries, assets (including securities) on terms
and conditions less favorable to the Company than the
Company would be able to obtain in arm's-length
negotiation with an unaffiliated third party, (5) shall
receive any compensation from the Company or any of the
Company's Subsidiaries other than compensation for full-
time employment as a regular employee or director at
rates in accordance with the Company's (or its
Subsidiaries') past practices, or (6) shall receive the
benefit, directly or indirectly (except proportionately
as a shareholder), of any loans, advances, guarantees,
pledges or other financial assistance or any tax
credits or other tax advantage provided by the Company
or any of its Subsidiaries, or
(B) during such time as there is an
Acquiring Person, (1) there shall be any failure to
declare and pay at the regular date therefor any full
quarterly dividends (whether or not cumulative) on any
outstanding preferred stock (including the Preferred
Shares) of the Company (except to the extent such
declaration or payment would be prohibited under the
laws of the Company's jurisdiction of incorporation),
(2) there shall be any reduction in the annual rate of
dividends paid on the Common Shares (except as
necessary for valid business reasons or to reflect any
subdivision of the Common Shares or as required under
the laws of the Company's jurisdiction of
incorporation), (3) there shall be a failure to
increase the annual rate of dividends as necessary to
reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any
similar transaction which has the effect of reducing
the number of outstanding Common Shares of the Company
(except to the extent such increase in the rate of
dividends would be prohibited under the laws of the
Company's jurisdiction of incorporation), or (4) there
shall be any reclassification of securities (including
any reverse stock split) or recapitalization of the
Company, or any merger or consolidation or Share
Exchange of the Company with any of its Subsidiaries or
any other transaction or series of transactions
involving the Company or any Subsidiaries of the
Company (whether or not with or into or otherwise
involving an Acquiring Person) which has the effect,
directly or indirectly, of increasing by more than 1%
the proportionate share of the outstanding shares of
any class of equity securities or of securities
exercisable for or convertible into securities of the
Company or any of its Subsidiaries which is directly or
indirectly owned by any Acquiring Person or any
Associate or Affiliate of any Acquiring Person,
then, and in each such case, proper provision shall be made
so that each holder of a Right, except as provided below,
shall thereafter have a right to receive, upon exercise
thereof, in accordance with the terms of this Agreement, in
lieu of Preferred Shares, such number of Common Shares of
the Company as shall equal the result obtained by (x)
multiplying the then-current Purchase Price by the number of
one one-hundredths of a Preferred Share for which a Right
was exercisable immediately prior to the event described in
Section 11(a)(ii) necessitating such adjustment, and
dividing that product by (y) 50% of the current per share
market price of the Common Shares of the Company (determined
pursuant to Section 11(d) hereof) on the fifth day after the
earlier of the date of the occurrence or the date of the
first public announcement of any one of the events listed
above in this subparagraph (ii); 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). Notwithstanding the foregoing,
upon the occurrence of any of the events listed above in
this subparagraph (ii), any Rights that are or were on or
after the earlier of the Distribution Date or Shares
Acquisition Date beneficially owned by an Acquiring Person
(or any Associate or Affiliate of such Acquiring Person)
shall become void and any holder of such Rights shall
thereafter have no right to exercise such Rights under any
provision of this Agreement. The Company shall not enter
into any transaction of the kind listed in this subparagraph
(ii) if at the time of such transaction there are any
rights, warrants, instruments or securities outstanding or
any agreements or arrangements which, as a result of the
consummation of such transaction, would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights. Any Right Certificate issued
pursuant to Section 3 that represents Rights beneficially
owned by an Acquiring Person or any Associate or Affiliate
thereof and any Right Certificate issued at any time upon
the transfer of any Rights to an Acquiring Person or any
Associate or Affiliate thereof or to any nominee of such
Acquiring Person, Associate or Affiliate, and any Right
Certificate issued pursuant to Section 6, Section 7(d) or
Section 22 hereof, or this Section 11, upon transfer,
exchange, replacement or adjustment of any other Right
Certificate referred to in this sentence, shall contain the
following legend:
The Rights represented by this Right Certificate
were issued to a Person who was an Acquiring Person or
an Affiliate or an Associate of an Acquiring Person (as
such terms are described in the Rights Agreement).
This Right Certificate and the Rights represented
hereby may become void in the circumstances specified
in Section 11(a)(ii) of the Rights Agreement.
(iii) In the event that the Common Shares of the
Company issued but not outstanding and the Common Shares of
the Company authorized but unissued in the aggregate shall
not be sufficient to permit the exercise in full of the
Rights in accordance with the foregoing subparagraph (ii),
the Company shall take all such action as may be necessary
to authorize additional Common Shares of the Company for
issuance upon exercise of the Rights.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all holders
of Preferred Shares entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe
for or purchase Preferred Shares (or shares having the same
rights, privileges and preferences as the Preferred Shares
("equivalent preferred shares")) or securities convertible
into Preferred Shares or equivalent preferred shares at a
price per Preferred Share or equivalent preferred share (or
having a conversion price per share, if a security
convertible into Preferred Shares or equivalent preferred
shares) less than the current per share market price of the
Preferred Shares (as defined in Section 11(d) hereof) 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 Preferred Shares outstanding on such record date
plus the number of Preferred Shares which the aggregate
offering price of the total number of Preferred Shares
and/or equivalent preferred shares so to be offered (and/or
the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current
market price and the denominator of which shall be the
number of Preferred Shares outstanding on such record date
plus the number of additional Preferred Shares and/or
equivalent preferred shares to be offered for subscription
or purchase (or into which the convertible securities so to
be offered are initially convertible). In case such
subscription price may be paid in a consideration part or
all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith
by the Board of Directors of the Company, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent
and holders of the Rights. Preferred Shares owned by or
held for the account of any Subsidiary of the Company shall
not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that
such rights or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for
the making of a distribution to all holders of the Preferred
Shares (including any such distribution made in connection
with a consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash
dividend or a dividend payable in Preferred Shares) or
subscription rights or warrants (excluding those referred to
in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be
the current per share market price of the Preferred Shares
(as defined in Section 11(d) hereof) on such record date,
less the fair market value (as determined in good faith by
the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights
Agent and shall be binding on the Rights Agent and holders
of the Rights) of the portion of the assets or evidences of
indebtedness so to be distributed or of such subscription
rights or warrants applicable to one Preferred Share and the
denominator of which shall be such current per share market
price of the Preferred Shares. Such adjustments shall be
made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had
not been fixed.
(d) (i) For the purpose of any computation hereunder,
the "current per share market price" of Common Shares on any
date shall be deemed to be the average of the daily closing
prices per share of such Common Shares for the 30
consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date; provided, however,
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that in the event that the current per share market price of
the Common Shares is determined during a period following
the announcement by the issuer of such Common Shares of (x)
a dividend or distribution on such Common Shares payable in
such Common Shares or securities convertible into such
Common Shares, or (ii) any subdivision, combination or
reclassification of such Common Shares, and prior to the
expiration of 30 Trading Days after the ex-dividend date for
such dividend or distribution or the record date for such
subdivision, combination or reclassification, then, and in
each such case, the current market price shall be
appropriately adjusted to reflect the current market price
per Common Share equivalent. 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 Common
Shares 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 Common Shares are listed or admitted to trading
or, if the Common Shares are not listed or admitted to
trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or such other system
then in use, or, if on any such date the Common Shares are
not quoted by any such organization, the average of the
closing bid and asked prices as furnished by a professional
market maker making a market in the Common Shares selected
by the Board of Directors of the Company. The term "Trading
Day" shall mean a day on which the principal national
securities exchange on which the Common Shares are listed or
admitted to trading is open for the transaction of business
or, if the Common Shares are not listed or admitted to
trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder,
the "current per share market price" of the Preferred Shares
shall be determined in the same manner as set forth above
for Common Shares in clause (i) of this Section 11(d). If
the current per share market price of the Preferred Shares
cannot be determined in the manner provided above, the
"current per share market price" of the Preferred Shares
shall be conclusively deemed to be the current per share
market price of the Common Shares of the Company
(appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof), multiplied by one hundred.
(iii) If neither the Common Shares nor the
Preferred Shares are publicly held or so listed or traded,
"current per share market price" shall mean the fair value
per share as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided,
--------
however, that any adjustments which by reason of this
-------
Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
All calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a Common
Share or other share or one-millionth of a Preferred Share
as the case may be. Notwithstanding the first sentence of
this Section 11(e), any adjustment required by this Section
11 shall be made no later than the earlier of (i) three
years from the date of the transaction which requires such
adjustment or (ii) the date of the expiration of the right
to exercise any Rights.
(f) If as a result of an adjustment made pursuant to
Section 11(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any shares of
capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable
upon exercise of any Right shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to
the shares contained in Section 11(a) through (c),
inclusive, and the provisions of Sections 7, 9, 10 and 13
hereof with respect to the Preferred Shares shall apply on
like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of Preferred Shares
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) hereof, upon each
adjustment of the Purchase Price as a result of the
calculations made in Section 11(b) and (c) hereof, each
Right outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-
hundredths of a Preferred Share (calculated to the nearest
one one-millionth of a Preferred Share) obtained by (i)
multiplying (x) the number of one one-hundredths of a share
covered by a Right immediately prior to this adjustment by
(y) the Purchase Price in effect immediately prior to such
adjustment of the Purchase Price and (ii) dividing the
product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in substitution for any adjustment in the number of
Preferred Shares purchasable upon the exercise of a Right.
Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of one
one-hundredths of a Preferred Share for which a Right was
exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number
of Rights shall become that number of Rights (calculated to
the nearest one ten-thousandth) obtained by dividing the
Purchase Price in effect immediately prior to adjustment of
the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for
the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter,
but, if the Right Certificates have been issued, shall be at
least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon
each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as
practicable, cause to be distributed to holders of record of
Right Certificates on such record date Right Certificates
evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in
substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates
so to be distributed shall be issued, executed and
countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Right
Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number of Preferred Shares issuable
upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express
the Purchase Price per one one-hundredth of a share and the
number of shares which were expressed in the initial Right
Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below one one-
hundredth of the then par value, if any, of the Preferred
Shares issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
Preferred Shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective
as of a record date for a specified event, the Company may
elect to defer until the occurrence of such event the
issuing, to the holder of any Right exercised after such
record date, of the Preferred Shares and other capital stock
or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Shares and other
capital stock or securities of the Company, if any, issuable
upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; provided, however, that the
-------- -------
Company shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision
of the Preferred Shares, issuance wholly for cash of any of
Preferred Shares at less than the current market price,
issuance wholly for cash of Preferred Shares or securities
which by their terms are convertible into or exchangeable
for Preferred Shares, dividends on Preferred Shares payable
in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in subsection (b) of this
Section 11, hereafter made by the Company to holders of its
Preferred Shares shall not be taxable to such shareholders.
(n) In the event that at any time after the date of
this Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common
Shares payable in Common Shares or (ii) effect a
subdivision, combination or consolidation of the Common
Shares (by reclassification or otherwise than by payment of
dividends in Common shares) into a greater or lesser number
of Common shares, then in any such case (i) the number of
one one-hundredths of a Preferred Share purchasable after
such event upon proper exercise of each Right shall be
determined by multiplying the number of one one-hundredths
of a Preferred Share so purchasable immediately prior to
such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such
event and the denominator of which is the number of Common
Shares outstanding immediately after such event and (ii)
each Common Share outstanding immediately after such event
shall have issued with respect to it that number of Rights
which each Common Share outstanding immediately prior to
such event had issued with respect to it. The adjustments
provided for in this Section 11(n) shall be made
successively whenever such a dividend is declared or paid or
such a subdivision, combination or consolidation is
effected. If an event occurs which would require an
adjustment under Section 11(a)(ii) hereof and this Section
11(n), the adjustments provided for in this Section 11(n)
shall be in addition and prior to any adjustment required
pursuant to Section 11(a)(ii) hereof.
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, with 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 Shares and the Preferred Shares a copy of such
certificate and (c) mail a brief summary thereof to each holder
of a Right Certificate in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on the terms of
any such certificate.
Section 13. Consolidation, Merger or Sale or Transfer
-----------------------------------------
of Assets or Earning Power. In the event, directly or
- --------------------------
indirectly, (a) the Company shall consolidate with or merge with
and into any other Person (other than a corporation wholly owned
by any employee benefit plan of the Company or any entity holding
Common Shares of the Company for or pursuant to the terms of any
such plan), (b) any Person (other than a corporation wholly owned
by any employee benefit plan of the Company, or any entity
holding Common Shares of the Company for or pursuant to the terms
of any such plan) shall merge with and into the Company and the
Company shall be the continuing or surviving corporation of such
merger and, in connection with such merger, all or part of the
Common Shares of the Company shall be changed into or exchanged
for stock or other securities of any other Person (or other
securities of the Company) or cash or any other property, (c) the
Company shall be a party to a Share Exchange immediately
following which the Company is a Subsidiary of any other Person,
or (d) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in
one or more transactions, assets or earning power aggregating 50%
or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person other than
the Company or one or more of its wholly-owned Subsidiaries,
then, and in each such case, proper provision shall be made so
that (i) each holder of a Right shall thereafter have the right
to receive, upon the exercise thereof, in accordance with the
terms of this Agreement, such number of Common Shares of such
other Person (including the Company as successor thereto or as
the surviving corporation), or, if such Person is a Subsidiary of
or controlled by another Person, then the Person which ultimately
controls the first-mentioned Person, as shall be equal to the
result obtained by (X) multiplying the then current Purchase
Price by the number of one one-hundredths of a Preferred Share
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 (Y) 50% of the
current per share market price of the Common Shares of such other
Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale or transfer;
(ii) the issuer of such Common Shares shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger,
sale or transfer, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Common Shares in
accordance with Section 9 hereof) in connection with such
consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably
may be, in relation to the Common Shares thereafter deliverable
upon the exercise of the Rights; and the Company shall not
consummate any such consolidation, merger, Share Exchange, sale
or transfer unless prior thereto the Company and such issuer
shall have executed and delivered to the Rights Agent a
supplemental agreement so providing. The Company shall not enter
into any transaction of the kind referred to in this Section 13
if at the time of such transaction there are any rights,
warrants, instruments or securities outstanding or any agreements
or arrangements which, as a result of the consummation of such
transaction, would substantially diminish or otherwise eliminate
the benefits intended to be afforded by the Rights. The
provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates which
evidence fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the Right
Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the
purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted
to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by
NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average
of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected
by the Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights, the fair
value of the Rights on such date as determined in good faith by
the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue
fractions of Preferred Shares (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share)
upon exercise of the Rights or to distribute certificates which
evidence fractional Preferred Shares (other than fractions which
are integral multiples of one one-hundredth of a Preferred
Share). Fractions of Preferred Shares in integral multiples of
one one-hundredth of a Preferred Share may, at the election of
the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that
the holders of such depositary receipts shall have all the
rights, privileges and preferences to which they are entitled as
beneficial owners of the Preferred Shares. In lieu of fractional
Preferred Shares that are not integral multiples of one one-
hundredth of a Preferred Share, the Company shall pay to the
registered holders of Right Certificates at the time such Rights
are exercised as herein provided an amount in cash equal to the
same fraction of the current market value of one Preferred Share.
For purposes of this Section 14(b), the current market value of a
Preferred Share shall be the closing price of a Preferred Share
(as determined pursuant to the second sentence of clause (i) of
Section 11(d) hereof) for the Trading Day immediately prior to
the date of such exercise.
(c) The holder of a Right by the acceptance of the
Right expressly waives his right to receive any fractional Rights
or any fractional shares upon exercise of a Right (except as
provided above).
Section 15. Rights of Action. All rights of action in
----------------
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and,
prior to the Distribution Date, the registered holders of the
Common Shares of the Company in respect of which Rights have been
issued); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of such Common Shares), without
the consent of the Rights Agent or of the holder of any other
Right Certificate (or, prior to the Distribution Date, of such
Common Shares), may, on his own behalf and for his own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such
Right Certificate in the manner provided in such Right Certificate
and in this Agreement. Without limiting the foregoing or any remedies
available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and will be entitled to specific
performance of the obligations under, and injunctive relief against
actual or threatened violations of, the obligations of any Person
subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder
--------------------------
of a Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the
Common Shares;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of
the Rights Agent if surrendered at the principal offices of
the Rights Agent in Chicago, Illinois, duly endorsed or
accompanied by a proper instrument of transfer;
(c) the Company and the Rights Agent may deem and
treat the person in whose name the Right Certificate (or,
prior to the Distribution Date, the associated Common Shares
certificate) is registered as the absolute owner thereof and
of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificate
or the associated Common Shares certificate made by anyone
other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary; and
(d) any restriction on transfer deemed to be imposed
by this Agreement is valid and enforceable against the
holder and any transferee of the holder.
Section 17. Right Certificate Holder Not Deemed a
-------------------------------------
Shareholder. No holder, as such, of any Right Certificate shall
- -----------
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the Preferred Shares 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 Right Certificate be
construed to confer upon the holder of any Right Certificate, as
such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting shareholders (except as
provided in Section 24 hereof), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its
reasonable expenses and counsel fees and other disbursements
incurred in the 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 in the premises.
(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 Right Certificate or
certificate for the Preferred Shares or Common Shares or for
other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the
proper person or persons, or otherwise upon the advice of counsel
as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name
-----------------------------------------
of Rights Agent.
- ---------------
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto,
provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any
such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
----------------------
undertakes the duties and obligations imposed by this Agreement
upon the following terms and conditions, by all of which the
Company and the holders of Right Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel
(who may be legal counsel for the Company), and the opinion
of such counsel shall be full and complete authorization and
protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such
opinion.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established
by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in
respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by any one of the President, a Vice
President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken
or suffered in good faith by it under the provisions of this
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own negligence,
bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Right Certificates
(except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are
and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition
contained in this Agreement or in any Right Certificate; nor
shall it be responsible for any change in the exercisability
of the Rights (including the Rights becoming void pursuant
to Section 11(a)(ii) hereof) or any adjustment in the terms
of the Rights (including the manner, method or amount
thereof) provided for in Sections 3, 11, 13 or 23, or the
ascertaining of the existence of facts that would require
any such change or adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after
actual notice that such change or adjustment is required);
nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or
reservation of any Preferred Shares to be issued pursuant to
this Agreement or any Right Certificate or as to whether any
Preferred Shares will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from any one of the President, a Vice
President, the Secretary or the Treasurer of the Company,
and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for
any action taken or suffered to be taken by it in good faith
in accordance with instructions of any such officer or for
any delay in acting while waiting for those instructions.
(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, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided reasonable care was exercised in the selection and
continued employment thereof.
(j) In the event that any Person becomes an Acquiring
Person, the Company shall notify the Rights Agent of such
event and of the identity of such Person. The Rights Agent
thereupon shall undertake a reasonable investigation to
ascertain which Common Shares are held beneficially by such
Acquiring Person, including Common Shares of the Company
held by nominees of such Acquiring Person. If the Rights
Agent undertakes such reasonable investigation on a
continuing basis after notification by the Company as
provided herein, the Rights Agent shall not be liable for
its failure in good faith to insert the legend provided for
in Section 11(a)(ii) hereof into Right Certificates owned by
or transferred to such Acquiring Person or its nominees.
(k) The Rights Agent shall only be required to perform
the duties expressly set forth herein and no implied duties or
obligations shall be read into this Agreement against the
Rights Agent.
Section 21. Change of Rights Agent. The Rights Agent
----------------------
or any successor Rights Agent may resign and be discharged from
its duties under this Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Shares of the Company and Preferred Shares by registered or
certified mail, and to the holders of the Right Certificates by
first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be,
and to each transfer agent of the Common Shares of the Company
and Preferred Shares by registered or certified mail, and to the
holders of the Right Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by
the holder of a Right Certificate (who shall, with such notice,
submit his Right Certificate for inspection by the Company), then
the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new
Rights Agent. Any successor Rights Agent, whether appointed by
the Company or by such a court, shall be a corporation organized
and doing business under the laws of the United States or of the
State of 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,
having its principal offices in the State of Illinois, which is
authorized under such laws to exercise 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 million.
After appointment, the successor Rights Agent shall be vested
with the same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without further act
or deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment, the
Company shall file notice thereof in writing with the predecessor
Rights Agent and each transfer agent of the Common Shares of the
Company and Preferred Shares, and mail a notice thereof in
writing to the registered holders of the Right Certificates.
Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates.
----------------------------------
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price per share and the number or kind or
class of shares or other securities or property purchasable under
the Right Certificates made in accordance with the provisions of
this Agreement.
Section 23. Redemption.
----------
(a) The Board of Directors of the Company may, at its
option, at any time prior to 5:00 P.M., Chicago time, on the
earlier of (x) the thirtieth day following the Shares Acquisition
Date or (y) the Final Expiration Date, redeem all but not less
than all the then outstanding Rights at a redemption price of
5 cents 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"); provided, however, that in connection
with a transaction to be accounted for as a pooling of interests,
the Board of Directors shall have the option to pay the
Redemption Price in securities or other property, and provided
further, however, that for the purposes hereof the Board of
Directors of the Company shall be entitled to so redeem the
Rights only if such Board consists of a majority of Continuing
Directors (as hereinafter defined). "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 vote of a majority of
the Continuing Directors then on the Board of Directors of the
Company.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights,
and without any further action and without any notice, the right
to exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the action of the Board
of Directors ordering the redemption of the Rights, the Company
shall give notice of such redemption to the holders of the then
outstanding Rights by mailing such notice to all such holders at
their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Shares of the
Company. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be
made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23, and other than in connection with the
repurchase of Common Shares prior to the Distribution Date.
Section 24. 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 its Preferred Shares or to make any
other distribution to the holders of its Preferred Shares (other
than a regular quarterly cash dividend), or (b) to offer to the
holders of its Preferred Shares rights or warrants to subscribe
for or to purchase any additional Preferred Shares or shares of
stock of any class or any other securities, rights or options, or
(c) to effect any reclassification of its Preferred Shares (other
than a reclassification involving only the subdivision of
outstanding Preferred Shares), or (d) to effect any consolidation
or merger into or with, or to effect any sale or other transfer
(or to permit one or more of its Subsidiaries to effect any sale
or other transfer), in one or more transactions, of 50% or more
of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person, or (e) to
effect the liquidation, dissolution or winding up of the Company,
or (f) to declare or pay any dividend on the Common Shares of the
Company payable in Common Shares of the Company or to effect a
subdivision, combination or consolidation of the Common Shares of
the Company (by reclassification or otherwise than by payment of
dividends in such Common Shares) then, in each such case, the
Company shall give to each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights or warrants, or
the date on which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the holders
of the Common Shares of the Company and/or Preferred Shares, if
any such date is to be fixed, and such notice shall be so given
in the case of any action covered by clause (a) or (b) above at
least 20 days prior to the record date for determining holders of
the Preferred Shares 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 Common Shares of the Company and/or
Preferred Shares, whichever shall be the earlier.
In case any of the events set forth in Section
11(a)(ii) hereof shall occur, then, in any such case, the Company
shall as soon as practicable thereafter give to each holder of a
Right Certificate, in accordance with Section 25 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 25. Notices. Notices or demands authorized by
-------
this Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Modine Manufacturing Co.
1500 DeKoven Avenue
Racine, Wisconsin 53401
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
The First National Bank of Chicago
One First National Plaza - Suite 0126
Chicago, Illinois 60670
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 26. Supplements and Amendments. The Company
--------------------------
and the Rights Agent may from time to time supplement or amend
this Agreement without the 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 for redemption provided for in Section 23 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, including but
not limited to extending the Final Expiration Date, provided,
however, that this Agreement shall not be supplemented or amended
in any way after the Distribution Date unless the majority of the
members of the Company's Board of Directors approving such
supplement or amendment are Continuing Directors.
Section 27. 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 28. Benefits of This Agreement. Nothing in
--------------------------
this Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the
Common Shares) any legal or equitable right, remedy or claim
under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares).
Section 29. 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 30. Governing Law. This Agreement and each
-------------
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Wisconsin and for
all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts to be made
and performed entirely within such State.
Section 31. 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 32. Descriptive Headings. Descriptive
--------------------
headings of the several Sections of this Agreement are inserted
for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
(SEAL)
MODINE MANUFACTURING COMPANY
Attest:
By: s/W. E. Pavlick By: s/F. W. Jones
------------------------- ----------------------------
Title: Secretary Title: Executive Vice President,
Administration
(SEAL)
THE FIRST NATIONAL BANK OF CHICAGO
Attest:
By: s/M. Phalen By: s/A. E. Grinton
------------------------- ----------------------------
Title: Ast. Secty. Title: Vice President
Exhibit A
---------
FORM OF
RESOLUTION ESTABLISHING
SERIES A PARTICIPATING PREFERRED STOCK
of
MODINE MANUFACTURING COMPANY
RESOLVED, by the Board of directors of Modine
Manufacturing Company (the "Corporation"), that pursuant to the
authority granted to and vested in this Board (hereinafter called
the "Board of Directors" the "Board") in accordance with the
provisions of the Restated Articles of Incorporation, as amended,
of the Corporation, there is hereby authorized the creation and
establishment of a separate series of the Preferred Stock, par
value 5 cents per share, of the Corporation (such class of Preferred
Stock being hereinafter called the "Preferred Stock"), and the
issuance of the shares constituting such series, with such series
to have the designation, to be comprised of the number of shares,
and to have the preferences, limitations and relative rights (in
addition to the provisions set forth in the Restated Articles of
Incorporation of the Corporation, as amended, which are
applicable to the Preferred Stock of all series, and subject to
the limitations prescribed by law) as follows:
A. Designation and Amount. The shares of such series
----------------------
shall be designated as "Series A Participating Preferred Stock"
(the "Series A Preferred Stock") and the number of shares of
Preferred Stock constituting such series shall be 76,000. Such
number of shares may be increased or decreased by resolution of
the Board of Directors; provided, that no decrease shall reduce
the number of shares of Series A Preferred Stock to a number less
than the number of shares then outstanding plus the number of
shares issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by
the Corporation. All shares removed from the Series A Preferred
Stock by any such decrease shall become authorized but unissued
shares of Preferred Stock and may be reissued by the Corporation
as part of a new series of the Preferred Stock, subject to the
restrictions and conditions set forth herein.
B. Dividends and Distribution.
--------------------------
(i) Subject to the prior and superior rights of the
holders of any shares of any class or series of stock of the
Corporation ranking prior and superior to the shares of
Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference
to the holders of the Common Stock of the Corporation and of
any other junior stock of the Corporation, shall be entitled
to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable on the first day of March, June,
September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share
of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $8.50
(payable in cash) or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate
per share amount (payable in cash) of all cash dividends,
and 100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions,
other than a dividend payable in shares of Common Stock of
the Corporation or a subdivision of the outstanding shares
of such Common Stock (by reclassification or otherwise),
declared on the Common Stock of the Corporation since the
immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date,
since the first issuance of any share or fraction of a share
of Series A Preferred Stock. In the event the Corporation
shall at any time after the date hereof declare or pay any
dividend on its Common Stock payable in shares of such
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of its Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of such Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of Series A
Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common Stock
of the Corporation outstanding immediately after such event
and the denominator of which is the number of shares of
Common Stock that were outstanding immediately prior to such
event.
(ii) The Corporation shall not declare and set aside
for payment a dividend or distribution on its Common Stock
(other than a dividend payable in shares of such Common
Stock) until it shall declare and set aside for payment a
dividend or distribution on the Series A Preferred Stock as
provided in paragraph (i) of this Section. In the event no
dividend or distribution shall have been declared on the
Common Stock of the Corporation during the period between
any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $8.50 per
share on the Series A Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock
from the Quarterly Dividend Payment Date next preceding the
date of issue of such shares of Series A Preferred Stock,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date,
in which case dividends on such shares shall begin to accrue
from the date of issue of such shares, or unless the date of
issue is a Quarterly Dividend Payment Date or is a date
after the record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall
begin to accrue and be cumulative from such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall
not bear interest. Dividends paid on the shares of Series A
Preferred Stock in an amount less than the total amount of
such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Preferred Stock entitled to
receive payment of a dividend or distribution declared
thereon, which record date shall be not more than 50 days
prior to the date fixed for the payment thereof.
C. Voting Rights. The holders of shares of Series A
-------------
Preferred Stock shall have the following voting rights:
(i) Each share of Series A Preferred Stock shall
entitle the holder thereof to one vote on all matters
submitted to a vote of the stockholders of the Corporation.
(ii) Except as otherwise provided herein or by law, the
holders of shares of Series A Preferred Stock and the
holders of shares of Common Stock and any other capital
stock of the Corporation having general voting rights shall
vote together as one voting group on all matters submitted
to a vote of stockholders of the Corporation.
(iii) The Restated Articles of Incorporation of the
Corporation, as heretofore amended, shall not be amended in
any manner which would materially alter or change the
powers, preferences or special rights of the Series A
Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of
the outstanding shares of Series A Preferred Stock, voting
together as a single voting group.
(iv) Except as set forth herein or as otherwise
provided by law or by the Restated Articles of Incorporation
of the Corporation, holders of Series A Preferred Stock
shall have no voting rights.
D. Certain Restrictions.
--------------------
(i) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preferred Stock as
provided in Section B in this resolution are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series
A Preferred Stock outstanding shall have been paid in full,
the Corporation shall not:
(a) declare or pay, or set apart for
payment, dividends on, make any other distributions on,
or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(b) declare or pay dividends on or make any
other distributions on any shares of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the aggregate amounts of the deficiencies in payments
due to the respective series and classes of parity
stock;
(c) purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity with the
Series A Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
(ii) The Corporation shall not permit any subsidiary of
the Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation unless
the Corporation could, under paragraph (i) of this Section
D, purchase or otherwise acquire such shares at such time
and in such manner,
E. Reacquired Shares, Any shares of Series A
-----------------
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock of the Corporation and may be
reissued as part of a new series of Preferred Stock, subject to
the conditions and restrictions on issuance set forth herein.
F. Liquidation, Dissolution or Winding Up. Upon any
--------------------------------------
voluntary or involuntary liquidation, dissolution or winding up
of the Corporation, no distribution shall be made (1) to the
holders of shares of stock ranking junior (either as to dividends
or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of
Series A Preferred Stock shall have received an amount equal to
accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment plus an amount equal
to the greater of (a) $85.00 per share and (b) an aggregate
amount per share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate amount to
be distributed per share to holders of Common Stock of the
Corporation, or (2) to the holders of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and
all other such parity stock in proportion to the full
preferential amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on Common Stock of the Corporation payable in shares of
such Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock of the
Corporation (by reclassification or otherwise than by payment of a
dividend in shares of such Common Stock) into a greater or lesser
number of shares of Common Stock, then for each such case the
aggregate amount to which holders of shares of Series A Preferred
Stock were entitled immediately prior to such event under the
provisions in clause (1) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock of the Corporation
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock of the Corporation
that were outstanding immediately prior to such event.
G. Consolidation, Merger, etc. In case the
--------------------------
Corporation shall enter into any consolidation, merger, share
exchange, combination or other transaction in which the shares of
Common Stock of the Corporation are exchanged for or changed into
other stock or securities, cash and/or any other property, then
in any such case the shares of Series A Preferred Stock shall at
the same time be similarly exchanged or changed in an amount per
share (subject to the provision for adjustment hereinafter set
forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock of the Corporation is changed or exchanged. In the event
the Corporation shall at any time declare or pay any dividend on
Common Stock of the Corporation payable in shares of such Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock of the Corporation (by
reclassification or otherwise) into a greater or lesser number of
shares of such Common Stock, then in each such case the amount
set forth in the preceding sentence with respect to the exchange
or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which
is the number of shares of Common Stock of the Corporation
outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock of the Corporation
that were outstanding immediately prior to such event.
H. Redemption; Repurchase. The outstanding shares of
----------------------
Series A Preferred Stock may be redeemed at the option of the
Board of Directors, in whole, but not in part, at any time, or
from time to time, at a cash price per share equal to (i) the
greater of (a) $85.00 or, (b) subject to the provision for
adjustment hereinafter set forth, the product of 100 times the
Current Market Price, as such term is hereinafter defined, of the
Common Stock of the Corporation, plus (ii) all dividends which on
the redemption date have accrued on the shares to be redeemed and
have neither been paid nor declared with a sum sufficient for the
payment thereof set apart in trust for such purpose, without
interest. The Corporation may, from time to time and to the
extent allowed by law, purchase or otherwise acquire shares of
Series A Preferred Stock provided, however, that if and whenever
any quarterly dividend shall have accrued on the Series A Preferred
Stock which has neither been paid nor declared with a sum sufficient
for the payment thereof set apart in trust for such purpose, the
Corporation may not purchase or otherwise acquire any shares of
Series A Preferred Stock unless all shares of such stock at the time
outstanding are so purchased or otherwise acquired. In the event the
Corporation shall at any time after October 27, 1986 pay any dividend
on Common Stock of the Corporation payable in shares of such Common
Stock, or effect a subdivision or combination or consolidation of
the outstanding shares of Common Stock of the Corporation (by
reclassification or otherwise than by payment of a dividend in shares
of such Common Stock) into a greater or lesser number of shares of
Common Stock of the Corporation, then in each such case the amount
to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under subsection (i) of the preceding
sentence shall be adjusted by multiplying such amount by a fraction
the numerator of which is the number of shares of Common Stock of the
Corporation outstanding immediately after such event and the denominator
of which is the number of shares of Common Stock of the Corporation that
were outstanding immediately prior to such event.
The "Current Market Price" shall be deemed to be the
average of the daily closing prices per share of the Common Stock of
the Corporation for the thirty (30) consecutive Trading Days (as such
term is hereinafter defined) immediately prior to the day before the
redemption date; provided, however, that in the event that the Current
Market Price per share of the Common Stock of the Corporation is
determined during a period in whole or in part following the
announcement by the Corporation 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
ex-dividend date or record date (whichever first occurs) for such
dividend, distribution, 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 prices. 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 of the Corporation 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 such Common Stock are listed or admitted to trading
or, if the shares of Common Stock of the Corporation are not listed or
admitted to trading on any national securities exchange, the average of
the last quoted 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 of the
Corporation 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 of the Corporation selected
by the Board of Directors. If on any such date no market maker is
making a market in the Common Stock of the Corporation, the fair value
of such shares on such date as determined in good faith by the Board
of Directors shall be used. The term "Trading Day" shall mean a day
on which the principal national securities exchange on which the shares
of Common Stock of the Corporation are listed or admitted to trading is
open for the transaction of business or, if the shares of the Common
Stock of the Corporation are not listed or admitted to trading on any
national securities exchange, a business day.
I. Fractional Shares. The Series A Preferred Stock may be
-----------------
issued in fractions of a share which shall entitle the holder, in
proportion to such holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the benefit
of all other rights of holders of shares of Series A Preferred Stock.
J. Rank. Nothing herein shall preclude the Corporation
----
from creating or authorizing, in a manner and by proceedings required
by applicable law and the Restated Articles of Incorporation, as amended,
of the Corporation, any class or series of stock ranking on a parity with
or prior to the Series A Preferred Stock as to the payment of dividends
or the distribution of assets.
Exhibit B
[Form of Right Certificate]
Certificate No. R- Rights
------------
NOT EXERCISABLE AFTER OCTOBER 27, 1996
OR EARLIER IF REDEMPTION HAS TAKEN PLACE.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT
THE OPTION OF THE COMPANY, AT 5 CENTS PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS (AS DESCRIBED IN SECTION 11(a)(ii)
OF THE RIGHTS AGREEMENT) OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. [THE RIGHTS REPRESENTED BY THIS
RIGHT CERTIFICATE WERE ISSUED TO A PERSON
WHO WAS AN ACQUIRING PERSON OR AN AFFILIATE
OR AN ASSOCIATE OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DESCRIBED IN THE RIGHTS
AGREEMENT). THIS RIGHT CERTIFICATE AND THE
RIGHTS REPRESENTED HEREBY MAY BECOME VOID
IN THE CIRCUMSTANCES SPECIFIED IN SECTION
11(a)(ii) OF THE RIGHTS AGREEMENT.]*
Right Certificate
Modine Manufacturing Company
This certifies that , or registered
----------------
assigns, is the registered owner of the number of Rights set
forth above, each of which entitled the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement
dated as of October ___, 1986 (the "Rights Agreement") between
Modine Manufacturing Company, a Wisconsin corporation (the
"Company"), and The First National Bank of Chicago, 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 October 27, 1996 at the principal office of the Rights
Agent in Chicago, Illinois, or at the office of its successor as
Rights Agent, one one-hundredth of a fully paid non-assessable
share of Series A Participating Preferred Stock, par value 5 cents
per share (the "Preferred Shares"), of the Company, at a purchase
price of $___ per one one-hundredth of a Preferred Share (the
"Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
The number of Rights evidenced by this Right Certificate (and the
- -------------------------
*The portion of the legend in brackets shall be inserted only if
applicable.
number of Preferred Shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of October 27,
1986, based on the Rights and the Preferred Shares as constituted
at such date.
As provided in the Rights Agreement, the Purchase Price
and the number of Preferred Shares which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate
are subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and at the
principal office of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the
Rights Agent, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
Preferred Shares as the Rights evidenced by the Right Certificate
or Right Certificates surrendered shall have entitled such holder
to purchase. If this Right Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the
number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may, but are not required
to, be redeemed by the Company at a redemption price of 5 cents
per Right.
No fractional Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-hundredth of a
Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled
to vote or receive dividends or be deemed for any purpose the
holder of the Preferred Shares or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the 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 of the Company 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 of the Company
(except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Right
or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory
for any purpose until it shall have been countersigned by the
Rights Agent for purposes of authentication only.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of , 19 .
------------- -- ---
ATTEST Modine Manufacturing Company
- ----------------------- ------------------------------
Title: Title:
Countersigned (for purposes of
authentication):
- --------------------------------
By
------------------------------
Authorized Signature
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED
----------------------------------
hereby sells, assigns and transfers unto
--------------------------
- -------------------------------------------------------------------
(Please print name and address of transferee)
- -------------------------------------------------------------------
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint Attorney, to transfer the within Right
-----------------
Certificate on the books of the within-named Company, with full
power of substitution.
Dated: , 19
----------------------- --
--------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
- ------------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
Signature
- ----------------------------------------------------------------
[Form of Reverse Side of Right Certificate -- continued]
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if the registered holder
desires to exercise the Right Certificate)
To: Modine Manufacturing Company
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate
- ------------------
to purchase the Series A Participating Preferred Stock issuable
upon the exercise of such Rights and requests that certificates
for such Series A Participating Preferred Stock be issued in the
name of:
Please insert social Security
or other identifying number
- ----------------------------------------------------------------
(Please print name and address)
- ----------------------------------------------------------------
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
- -----------------------------------------------------------------
(Please print name and address)
- -----------------------------------------------------------------
Dated: , 19
--------------------- --
--------------------------
Signature
[Form of Reverse Side of Right Certificate -- continued]
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States
- -----------------------------------------------------------------
The undersigned hereby certifies that the Rights evidenced by
this Right Certificate are not beneficially owned by an Acquiring
Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement).
---------------------------------
Signature
- -----------------------------------------------------------------
NOTICE
------
The signatures in the foregoing Forms of Assignment and
Election to Purchase must correspond to the name as written upon
the face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the
Forms of Assignment and Election to Purchase is not completed,
the Company will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or
an Affiliate or Associate thereof (as defined in the Rights
Agreement) and, in the case of an Assignment, will affix a legend
to that effect on any Right Certificates issued in exchange for
this Right Certificate.
Exhibit C
---------
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On October 15, 1986, the Board of Directors of Modine
Manufacturing Company (the "Company") declared a dividend
distribution of one preferred share purchase right (a "Right")
for each outstanding share of common stock, $1.25 par value per
share, of the Company (the "Common Shares"). The distribution is
payable on October 27, 1986 to the shareholders of record on that
date. The action by the Board of Directors contemplates that one
Right also will be issued with respect to each Common Share that
becomes outstanding between the record date for the dividend
distribution and the Distribution Date (referred to below).
Each Right entitles the registered holder to purchase
from the Company one one-hundredth of a share of Series A
Participating Preferred Stock, par value 5 cents per share, of the
Company (the "Preferred Shares") at a price of $85.00 per one one-
hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set
forth in a Rights Agreement (the "Rights Agreement") between the
Company and The First National Bank of Chicago, as Rights Agent
(the "Rights Agent").
Until the earlier to occur of (i) 10 days following a
public announcement that a person or group, other than a
subsidiary of the Company or an employee benefit plan of the
Company or a subsidiary (an "Acquiring Person"), has acquired, or
obtained the right to acquire, beneficial ownership of 20% or
more of the outstanding Common Shares or (ii) 10 days following
the commencement or announcement of an intention to make a tender
offer or exchange offer the consummation of which would result in
the beneficial ownership by a person or group, other than a
subsidiary of the Company or an employee benefit plan of the
Company or a subsidiary, of 30% or more of such outstanding
Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced by the
certificates for outstanding Common Shares. A copy of this
Summary of Rights to Purchase Preferred Shares should be attached
to the Common Share certificates which are outstanding on October
27, 1986. The Rights Agreement provides that, until the
Distribution Date, the Rights will be transferred with and only
with the Common Shares. Until the Distribution Date (or earlier
redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares, with or without a
copy of this Summary of Rights to Purchase Preferred Shares
attached, will also constitute the transfer of the Rights
associated with the Common Shares represented by such
certificate. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Share certificates
issued after October 27, 1986 upon transfer or new issuance of
the Common Shares will contain a notation incorporating the
Rights Agreement by reference. As soon as practicable following
the Distribution Date, separate certificates evidencing the
Rights ("Right Certificates") will be mailed to holders of record
of the Common Shares as of the close of business on the
Distribution Date and such separate Right Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution
Date. The Rights will expire on October 27, 1996 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed by the Company, in each
case as described below.
The Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon exercise of
the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a
subdivision, combination or reclassification of the Preferred
Shares, (ii) upon the grant to holders of the Preferred Shares of
certain rights or warrants to subscribe for Preferred Shares or
convertible securities at less than the current market price of
the Preferred Shares or (iii) upon the distribution to holders of
the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends out of earnings or
retained earnings or dividends payable in Preferred Shares) or of
subscription rights or warrants (other than those referred to
above).
The number of one one-hundredths of a Preferred Share
for which a Right is exercisable and the number of Rights
outstanding are also subject to adjustment in the event of
dividends on the Common Shares payable in Common Shares or
subdivisions, combinations or consolidations of the Common
Shares, occurring, in any such case, before the Distribution
Date.
Preferred Shares purchasable upon exercise of the
Rights will be redeemable in whole (but not in part) at any time
at the option of the Company at a price per share equal to the
greater of (i) $85.00 or (ii) 100 times the Current Market Price
(as defined in the Rights Agreement) of the Common Shares, plus
accrued but unpaid dividends. Such redemption price is subject
to adjustment as provided in the Rights Agreement for the events
referred to in the preceding paragraph. Each Preferred Share
will have a minimum preferential quarterly dividend rate of $8.50
per share, but will be entitled to an aggregate dividend of 100
times the per share dividend declared on the Common Shares. In
the event of liquidation, the holders of the Preferred Shares
will be entitled to a minimum preferential liquidation payment of
$85.00 per share but will be entitled to an aggregate payment 100
times the payment made per Common Share. Each Preferred Share
will have one vote, voting together with the Common Shares. In
the event of any merger, share exchange, consolidation or other
transaction in which Common Shares are exchanged, each Preferred
Share will be entitled to receive 100 times the amount received
per Common Share. These rights are protected by customary anti-
dilution provisions.
Because of the nature of the dividend and liquidation
rights of the Preferred Shares, the value of a one one-hundredth
interest in a Preferred Share purchasable upon exercise of each
Right should approximate the value of one Common Share.
In the event that the Company is acquired in a merger
or other business combination transaction or 50% or more of its
consolidated assets or earning power were sold, proper provision
will be made so that each holder of a Right will thereafter have
the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of shares of
common stock of the acquiring company which at the time of such
transaction would have a market value of two times the exercise
price of the Right. In the event that the Company were the
surviving corporation in a merger and the Common Shares were not
changed or exchanged, or in the event that an Acquiring Person
engages in one of a number of self-dealing transactions specified
in the Rights Agreement, proper provisions will be made so that
each holder of a Right, other than Rights that were beneficially
owned by the Acquiring Person on the earlier of the Distribution
Date or the date an Acquiring Person acquires 20% or more of the
outstanding Common Shares (which Rights will thereafter be void),
will thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times the
exercise price of the Right.
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preferred Shares will be issued (other than fractions which are
integral multiples of one one-hundredth of a Preferred Share,
which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Shares on
the last trading date prior to the date of exercise.
At any time prior to 5:00 p.m. on the thirtieth day
following a public announcement that a person or group (other
than a subsidiary of the Company or an employee benefit plan of
the Company or a subsidiary) has acquired a beneficial ownership
of 20% or more of the outstanding Common Shares, the Company may
redeem the Rights in whole, but not in part, at a price of 5 cents
per Right (the "Redemption Price"). Immediately upon the action of
the Board of Directors ordering 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.
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, including an amendment to extend the Final Expiration
Date, an amendment to extend the period in which the Rights may
be redeemed, and other amendments that may be deemed necessary or
advisable and which do not adversely affect the interests of the
holders of the Rights, provided that no such amendment is
permitted after the Distribution Date unless the majority of the
members of the Company's Board of Directors approving the
amendment are "Continuing Directors" (as defined in the Rights
Agreement).
Until a Right is exercised, the holder thereof, as
such, will have no rights as a shareholder of the Company,
including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement is available free of
charge from the Company. This summary description of the Rights
does not purport to be complete and is qualified in its entirety
by reference to the Rights Agreement, which is hereby
incorporated herein by reference.