FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, DC
20549
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Ameriwood Industries International Corporation
(Exact Name of Registrant as Specified in its Charter)
Michigan 38-0983610
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
First of America Bldg., 171 Monroe,
N.W., Suite 600, Grand Rapids, MI 49503
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock Purchase Rights
(Title of Class)
Page 1 of 50 Pages
Exhibit Index at Page 5
Item 1. Description of Securities to be Registered.
On April 4, 1996, the Company's Board of Directors approved a Shareholder
Protection Rights Plan (the "Plan"). This Plan is essentially a renewal of
an existing rights plan that will expire by its terms on May 20, 1996. The
new Plan differs from the expiring plan in very few respects. A copy of the
Plan is filed herewith as Exhibit 4(h), and the following description is
qualified in its entirety by reference to the Plan.
The Plan provides that one right to purchase a share of the Company's
common stock, par value $1.00 (the "Common Shares"), will attach to each
outstanding Common Share. The purchase price payable upon exercise of a
Right is $80.00, subject to adjustment (the "Purchase Price"). The record
date for distribution of the Rights is May 21, 1996.
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") acquired, or obtained the right to acquire, beneficial ownership of
20 percent or more of the outstanding Common Shares (the date on which 20
percent or more of the outstanding Common Shares are acquired being known as
the "Shares Acquisition Date"), or (ii) 10 days following the commencement or
announcement of an intention to commence a tender or exchange offer, the
consummation of which would result in beneficial ownership by a person of
20 percent or more of such outstanding Common Shares (the earlier of such
dates being called the "Distribution Date"), the Rights will be evidenced
with respect to any of the Common Share certificates outstanding as of
May 21, 1996, by such Common Share certificates. The Rights Agreement
provides that, until the Distribution Date, the Rights will be transferred
with and only with the Common Shares. New Common Share certificates issued
after May 21, 1996, but prior to the Distribution Date (or, if earlier, the
redemption or expiration of the Rights) will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date (or, if
earlier, the redemption or expiration of the Rights), the surrender for
transfer of any certificates for Common Shares will also constitute the
transfer of the Rights associated with the Common Shares represented by such
certificates. As soon as practicable after the Distribution Date, separate
certificates evidencing the Rights ("Rights 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 Rights Certificates alone will evidence
the Rights. Except as otherwise determined by the Board of Directors, only
Common Shares issued prior to the Distribution Date will be issued with
Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on May 20, 2006, unless earlier redeemed by the Company as
described below.
The Purchase Price payable, and the number of Common 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
Common Shares, (ii) upon the grant to holders of the Common Shares of certain
rights or warrants to subscribe for Common Shares or convertible securities
at less than the current market price of the Common Shares or (iii) upon the
distribution to holders of the Common Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends out of earnings or retained
earnings at a rate not in excess of 125 percent of the rate of the last cash
dividend theretofore paid or dividends payable in Common Shares) or of
subscription rights or warrants (other than those referred to above).
In the event that, any time following the Shares Acquisition Date, the
Company were acquired in a merger or other business combination transaction
or in the event 50 percent or more of its assets or earning power were sold,
proper provision shall be made so that each holder of a Right shall thereafter
have the right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of the
acquiring company which at the time of such transaction would have a market
value of two times the exercise price of the Right. Alternatively, in the
event that a Person becomes an Acquiring Person (except pursuant to an offer
for all outstanding Common Shares meeting certain requirements), or any time
following the Distribution Date, the Company were the surviving corporation
in a merger and its 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 provision shall be
made so that each holder of a Right, other than the Acquiring Person (whose
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 untilcumulative adjustments require an adjustment of at least 1
percent in such Purchase Price. No fractional shares will be issued and, in
lieu thereof, an adjustment in cash will be made based on the market price
of the Common Shares on the last trading date prior to the date of exercise.
At any time prior to the close of business on the thirtieth day after
the Shares Acquisition Date, the Company may redeem the Rights in whole, but
not in part, at a price of $.005 per Right (the "Redemption Price"). Under
certain circumstances set forth in the Rights Agreement, the decision to
redeem shall require the concurrence of a majority of the Disinterested
Directors, which is defined to mean any member of the Board of Directors who
was a member of the Board prior to the date of the Rights Agreement, and any
person who is subsequently elected to the Board if such person is recommended
or approved by a majority of the Disinterested Directors. Disinterested
Directors do not include an Acquiring Person, or an affiliate or associate
of an Acquiring Person, or any representative of the foregoing entities.
After the redemption period has expired, the right to redeem may be reinstated
if an Acquiring Person reduces his ownership of Common Shares to 10 percent or
less of the then outstanding Common Shares in one or more transactions
not involving the Company. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, the Company shall
make announcement thereof, and upon such election, the right to exercise
the Rights will terminate and the only right of the holders of Rights will be
to receive the Redemption Price.
Other than those provisions relating to the principal economic terms
of the Rights, any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company prior to the Distribution Date.
After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board (in certain circumstances, with the concurrence of the
Disinterested Directors) in order to cure any ambiguity, to make changes
which do not adversely affect the interests of holders of Rights, or to
shorten or lengthen any time period under the Rights Agreement, so long as
no amendment to adjust the time period governing redemption shall be made
at a time when the Rights are not redeemable.
Item 2. Exhibits.
Form of Rights Agreement dated as of April 4, 1996, between Ameriwood
Industries International Corporation and Harris Trust and Savings Bank,
which includes Exhibit A thereto the Form of Rights Certificate.
SIGNATURES
Pursuant to the requirements of Section 12 the Securities and Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
Dated: May 17 , 1996 AMERIWOOD INDUSTRIES
INTERNATIONAL CORPORATION
By /s/ Charles R. Foley
Charles R. Foley
Its President & Chief Executive Officer
EXHIBIT INDEX
Exhibit No. Description Page
4(b) Rights Agreement dated as 6
of April 4, 1996
AMERIWOOD INDUSTRIES INTERNATIONAL CORPORATION
and
HARRIS TRUST AND SAVINGS BANK
Rights Agent
Rights Agreement
Dated as of April 4, 1996
TABLE OF CONTENTS
Page
RIGHTS AGREEMENT
Section 1. Certain Definitions. . . . . . . . . . . . . 1
Section 2. Appointment of Rights Agent. . . . . . . . . 3
Section 3. Issue of Rights Certificates . . . . . . . . 4
Section 4. Form of Rights Certificates. . . . . . . . . 5
Section 5. Countersignature and Registration. . . . . . 6
Section 6. Transfer, Split Up, Combination
and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates. . . . . . . . . . . . . 7
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. . . . . . . . . . 8
Section 8. Cancellation and Destruction of
Rights Certificates. . . . . . . . . . . . .10
Section 9. Reservation and Availability of
Common Shares. . . . . . . . . . . . . . . .10
Section 10. Common 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. . . . . . . . . .20
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power. . . . .21
Section 14. Fractional Rights and Fractional Shares. . .23
Section 15. Rights of Action . . . . . . . . . . . . . .24
Section 16. Agreement of Right Holders . . . . . . . . .25
Section 17. Rights Certificate Holder Not
Deemed a Shareholder . . . . . . . . . . . .25
Section 18. Concerning the Rights Agent. . . . . . . . .26
Section 19. Merger or Consolidation or Change
of Name of Rights Agent. . . . . . . . . . .26
Section 20. Duties of Rights Agent . . . . . . . . . . .27
Section 21. Change of Rights Agent . . . . . . . . . . .29
Section 22. Issuance of New Rights Certificates. . . . .30
Section 23. Redemption . . . . . . . . . . . . . . . . .30
Section 24. Notice of Certain Events . . . . . . . . . .31
Section 25. Notices. . . . . . . . . . . . . . . . . . .32
Section 26. Supplements and Amendments . . . . . . . . .32
Section 27. Successors . . . . . . . . . . . . . . . . .33
Section 28. Determinations and Actions by
the Board of Directors, etc. . . . . . . . .33
Section 29. Benefits of this Agreement . . . . . . . . .34
Section 30. Severability . . . . . . . . . . . . . . . .34
Section 31. Governing Law. . . . . . . . . . . . . . . .34
Page
Section 32. Counterparts . . . . . . . . . . . . . . . .34
Section 33. Descriptive Headings . . . . . . . . . . . .34
EXHIBIT A - FORM OF RIGHTS CERTIFICATE
EXHIBIT B - SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
RIGHTS AGREEMENT
Rights Agreement (the "Agreement), dated as of April 4, 1996, made
between AMERIWOOD INDUSTRIES INTERNATIONAL CORPORATION, a
Michigan corporation
(the "Company"), and HARRIS TRUST AND SAVINGS BANK, an Illinois banking
corporation (the "Rights Agent").
P R E A M B L E
The Board of Directors of the Company has authorized and declared a
dividend of one common share purchase right (the "Rights") on each share
of common stock, $1.00 par value, of the Company (the "Common Shares")
outstanding on May 21, 1996 (the "Record Date"), and has authorized the
issuance of one Right (as such number may be hereinafter adjusted pursuant
to Section 11(i) hereof) with respect to each Common Share that shall become
outstanding between May 21, 1996, and the earlier of the Distribution Date
or the Expiration Date (as such terms are defined in Sections 3 and 7 hereof)
and, in certain circumstances provided in Section 22 hereof, after the
Distribution Date, each Right representing the right to purchase one Common
Share upon the terms and subject to the conditions hereinafter set forth.
ACCORDINGLY, in consideration of the premises and the mutual agreements
herein set forth, THE PARTIES HEREBY AGREE AS FOLLOWS:
Section 1. Certain Definitions. For purposes of this 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 then outstanding, but shall not include the Company, any
wholly owned subsidiary of the Company or any employee benefit plan of the
Company or any subsidiary of the Company or an entity holding Common Shares
for or pursuant to the terms of any such employee benefit plan.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
as in effect on the date hereof.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has the right to acquire (whether
such right is exercisable immediately or only after the passage
of time) pursuant to any agreement, arrangement or understanding (whether
or not in writing) or upon the exercise of conversion rights, exchange
rights, other rights, warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the "Beneficial Owner" of, or
to "beneficially own," (A) securities tendered pursuant to a tender or
exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon exercise of Rights at any time
prior to the occurrence of an event described in Section 11(a)(ii) or a
Section 13 Event, or (C) securities issuable upon exercise of Rights from
and after the occurrence of such an event which Rights were acquired by
such Person or any of such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3(a) hereof or Section 22
hereof (the "Original Rights") or pursuant to Section 11(i) hereof in
connection with an adjustment made with respect to any Original Rights;
(ii) 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" (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act) of (including
pursuant to any agreement, arrangement or understanding, whether or not
in writing); provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under
this subparagraph (ii) as a result of an agreement, arrangement or
understanding to vote such security if such agreement, arrangement or
understanding (A) arises solely from a revocable proxy given in response
to a proxy or consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the General Rules and Regulations
under the Exchange Act (the "Rules"), and (B) is not also then reportable
by such Person on Schedule 13D under the Exchange Act (or any comparable
or successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing), for
the purpose of acquiring, holding, voting (except pursuant to a revocable
proxy as described in the proviso to subparagraph (ii) of this paragraph
(c)) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (c) shall cause a Person
engaged in business as an underwriter of securities to be the "Beneficial
Owner" of, or to "beneficially own," any securities acquired through
such Person's participation in good faith in a firm commitment underwriting
until the expiration of 40 days after the date of such acquisition.
Notwithstanding the foregoing, any communications or discussions
among two or more Persons with respect to any matter relating to the
day-to-day operation of the business of the Company, including discussing
or communicating a position with respect to any such matter with or to other
Persons, including shareholders of the Company, or to the Company, shall not
constitute an "agreement, arrangement or understanding" for purposes of this
Section 1(c).
(d) "Business Day" shall mean any day other than a Saturday,
Sunday, or a day on which banking institutions in the state of the principal
office of the Rights Agent are authorized or obligated by law or executive
order to close.
(e) "Close of business" on any given date shall mean 5:00 p.m.,
local time in the city of the principal office of the Rights Agent, on such
date; provided, however, that if such date is not a Business Day, it shall
mean 5:00 p.m., local time in such state, on the next succeeding Business Day.
(f) "Common Shares" when used with a reference to the Company shall
mean the Common Shares, $1.00 par value, of the Company. "Common Shares" when
used with reference to any Person other than the Company shall mean the
capital stock of such Person with the greatest voting power, or the equity
securities or other equity interest having power to control or direct the
management, of such Person.
(g) "Person" shall mean any individual, firm, corporation,
association, partnership, joint-venture, trust or other entity, and shall
include any successor (by merger or otherwise) of such entity.
(h) "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 (including the first date on which any filing with any
governmental authority disclosing that an Acquiring Person has become such
is made available to the public).
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior to the Distribution
Date also be the holders of the Common Shares) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Rights Agents as it may
deem necessary or desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of business on the tenth
day after the Shares Acquisition Date or (ii) the close of business on the
tenth Business Day (or such later date as the Board of Directors shall
determine) after the date that a tender or exchange offer by any Person
(other than the Company, any subsidiary of the Company, any employee benefit
plan of the Company or of any subsidiary of the Company or any Person
organized, appointed or established by the Company for or pursuant to the
terms of any such plan) is first published or sent or given within the
meaning of Rule 14d-2 (a) of the Rules, if upon consummation thereof, such
Person would be the Beneficial Owner of 20% or more of the Common Shares then
outstanding (the earlier of such dates being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for Common
Shares registered in the names of the holders thereof (which certificates for
Common Shares shall also be deemed to be Rights Certificates) and not by
separate Rights Certificates, and (y) the right to receive Rights Certificates
will be transferable only in connection with the transfer of the underlying
Common Shares (including a transfer to the Company). As soon as practicable
after the Distribution Date, the Rights Agent will send, by first-class,
insured, postage prepaid mail, to each record holder of Common Shares as of
the close of business on the Distribution Date, at the address of such holder
shown on the records of the Company, a Rights Certificate, in substantially
the form of Exhibit A hereto (the "Rights Certificate"), evidencing one Right
for each Common Share so held, subject to adjustment as provided herein. In
the event that an adjustment in the number of Rights per Common Share has
been made pursuant to Section 11(i) hereof, at the time of distribution of
the Rights Certificates, the Company shall make the necessary and appropriate
rounding adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and
cash is paid in lieu of any fractional Rights. As of the Distribution Date,
the Rights will be evidenced solely by such Rights Certificates.
(b) The Company will send a copy of a Summary of Rights to Purchase
Common Shares, in substantially the form attached hereto as Exhibit B (the
"Summary of Rights") with its 1995 Annual Report to Shareholders or by first-
class, postage prepaid mail, to each record holder of Common Shares as of the
close of business on May 21, 1996, at the address of such holder shown on the
records of the Company. With respect to certificates for Common Shares
outstanding as of May 21, 1996, until the Distribution Date, the Rights will
be evidenced by such certificates (notwithstanding a reference to the Rights
Agreement dated April 28, 1986, as amended) for Common Shares registered in
the names of the holders thereof. Until the Distribution Date (or, if
earlier, the Expiration Date), the surrender for transfer of any certificates
for Common Shares outstanding on May 21, 1996, shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
(c) Rights shall be issued in respect of all Common Shares which
are issued (whether originally issued or delivered from the Company's
treasury) after the Record Date but prior to the earlier of the Distribution
Date or the Expiration Date or, in certain circumstances provided in
Section 22 hereof, after the Distribution Date. Certificates representing
such Common Shares shall have impressed on, printed on, written on or
otherwise affixed to them the following legend or such similar legend as the
Company may deem appropriate and as is not inconsistent with the provisions
of this Agreement, or as may be required to comply with any applicable law
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:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between
Ameriwood Industries International Corporation (the
"Company") and Harris Trust and Savings Bank (the "Rights
Agent") dated as of April 4, 1996, as from time to time
amended (the "Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of the Company.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate
certificates and will no longer be evidenced by this certificate.
The Company will mail to the holder of this certificate a copy
of the Rights Agreement after receipt of a written request
therefor. Under certain circumstances, Rights issued to, or
held by, any Person who is, was or becomes an Acquiring
Person (as such terms are defined in the Rights Agreement)
whether currently held by or on behalf of such Person or by
any subsequent holder, may become null and void.
With respect to such certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Right
associated with the Common Shares represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Shares
shall be the registered holders of the associated Rights, and the surrender
for transfer of any such certificate shall also constitute the transfer of
the Rights associated with the Common Shares represented thereby.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase
and of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A hereto and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required
to comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the
Rights may from time to time be listed, or to conform to usage. Subject to
the provisions of Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and on their face
shall entitle the holders thereof to purchase such number of Common Shares
as shall be set forth therein at the price set forth therein (the "Purchase
Price"), but the number and type of securities purchasable upon the exercise
of each Right and the Purchase Price thereof shall be subject to adjustment
as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or
Section 22 hereof that represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which the Board of
Directors of the Company has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance of
Section 7(e) hereof, and any Rights Certificate issued pursuant to Section 6
or Section 11 hereof upon transfer, exchange, replacement or adjustment of
any other Rights Certificate referred to in this sentence, shall contain (to
the extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the Rights represented
hereby may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
The absence of the foregoing legend on any Rights Certificate shall in
no way affect any of the other provisions of the Agreement, including, without
limitation, the provisions of Section 7(e) hereof.
Section 5. Countersignature and Registration. The Rights
Certificates shall be executed on behalf of the Company by its Chairman of
the Board, President or any Vice President, either manually or by facsimile
signature, and have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary
of the Company, either manually or by facsimile signature. The Rights
Certificates shall be manually countersigned by the Rights Agent and shall
not be valid for any purpose unless so countersigned. In case any officer
of the Company who shall have signed any of the Rights Certificates shall
cease to be such officer of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by the Rights Agent, and issued and
delivered by the Company with the same force and effect as though the person
who signed such Rights Certificates had not ceased to be such officer of the
Company; and any Rights Certificate may be signed on behalf of the Company
by any person who, at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this Rights Agreement
any such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at it principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise or transfer, books
for registration and transfer of the Rights Certificates issued hereunder.
Such books shall show the names and addresses of the respective holders of
the Rights Certificates, each Rights Certificate's number, the number of
Rights evidenced on its face by each of the Rights Certificates and the date
of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e) and
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 Expiration Date, any
Rights Certificate or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates, entitling the
registered holder to purchase a like number of Common Shares (or, following
an event described in Section 11(a)(ii) or Section 13(a) hereof, Common
Shares, preferred stock, other securities, cash or other assets, as the case
may be) as the Rights Certificate or Rights Certificates surrendered then
entitled such holder to purchase (or former holder in the case of a transfer).
Any registered holder desiring to transfer, split up, combine or exchange any
Rights Certificate or Rights Certificates shall make such request in writing
delivered to the Rights Agent, and shall surrender the Rights Certificate or
Rights Certificates to be transferred, split up, combined or exchanged at
the principal office of the Rights Agent. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Rights Certificate until the registered
holder shall have completed and signed the certificate contained in the form
of assignment on the reverse side of such Rights Certificate and shall have
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights Agent shall, subject
to Section 4(b), Section 7(e) and Section 14 hereof, countersign and deliver
to the Person entitled thereto a Rights Certificate or Rights Certificates,
as the case may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Rights Certificate, and, in case of loss, theft or destruction, of
indemnity or security (which may include a surety bond) 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 Rights
Certificate if mutilated, the Company will make and deliver a new Rights
Certificate of like tenor to the Rights Agent for delivery to the registered
owner in lieu of the Rights Certificate so lost, stolen, destroyed, or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights. (a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein, including, without limitation, the restrictions
on exercisability set forth in Section 11(a)(iii) and Section 23(a) hereof)
in whole or in part at any time after the Distribution Date upon surrender
of the Rights Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to the Rights Agent
at the principal office of the Rights Agent designated for such purpose,
together with payment of the Purchase Price for each Common Share as to which
the Rights are exercised, at or prior to the earlier of (i) the close of
business on May 20, 2006 (the "Final Expiration Date"), or (ii) the time at
which the Rights are redeemed as provided in Section 23 hereof (the earlier
of (i) and (ii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each Common Share pursuant to the
exercise of a Right initially shall be $80 subject to adjustment from time
to time as provided in Section 11 and Section 13 hereof and shall be payable
in lawful money of the United States of America in accordance with paragraph
(c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly
executed, accompanied by payment of the Purchase Price for the Common Shares
(or other shares, securities or property, as the case may be) to be purchased
and an amount equal to any applicable transfer tax in cash, or by certified
check or bank draft payable to the order of the Company, the Rights Agent
shall, (A) subject to Section 20(j) hereof, thereupon promptly (i) requisition
from any transfer agent of the Common Shares (or make available, if the
Rights Agent is the transfer agent) certificates for the number of
Common Shares to be purchased and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company
shall have elected to deposit the total number of Common Shares issuable upon
exercise of the Rights hereunder with a depositary agent, requisition from
the depositary agent depositary receipts representing such number of Common
Shares as are to be purchased (in which case certificates for the Common
Shares represented by such receipts shall be deposited by the transfer agent
with the depositary agent) and the Company will direct the depositary agent
to comply with such request, (ii) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of fractional
shares in accordance with Section 14, (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 Rights Certificate, registered
in such name or names as may be designated by such holder, and (iv) when
appropriate, after receipt promptly deliver such cash to or upon the order
of the registered holder of such Rights Certificate. In the event that the
Company is obligated to issue other securities of the Company, pay cash
and/or distribute other property pursuant to Section 11(a) hereof, the
Company will make all arrangements necessary so that such other securities,
cash and/or other property are available for distribution by the Rights
Agent, if and when appropriate.
(d) In case the registered holder of any Rights Certificate shall
exercise less than all the Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be
issued by the Rights Agent and delivered to the registered holder of such
Rights Certificate or to his duly authorized assigns, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of an event described in Section 11(a)(ii),
any Rights beneficially owned by (i) an Acquiring Person or an Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee after the
Acquiring Person becomes such, or (iii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights
pursuant to either (A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in such Acquiring Person
or to any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (B) a
transfer which the Board of Directors of the Company has determined is part
of a plan, arrangement or understanding which has as a primary purpose or
effect the avoidance of this Section 7(e), shall become null and void without
any further action and any holder of such Rights shall thereupon have no
rights whatsoever with respect to such Rights, whether under any provision
of this Agreement or otherwise. The Company shall use all reasonable efforts
to insure that the provisions of this Section 7(e) and Section 4(b) hereof
are complied with, but shall have no liability to any holder of Rights
Certificates or any other Person as a result of its failure to make
any determinations with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise, and (ii) provided such additional
evidence of the identity of the Beneficial Owner (or former Beneficial owner)
or Affiliates or Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All
Rights Certificates surrendered for the purpose of exercise, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any of
its agents, be delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and
no Rights Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Rights Agreement. The Company
shall deliver to the Rights Agent for cancellation and retirement, and the
Rights Agent shall so cancel and retire, any other Rights Certificate
purchased or acquired by the Company other than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Rights Certificates to the
Company, or shall, at the written request of the Company, destroy such
cancelled Rights Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Common Shares.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Common Shares
(and, following the occurrence of an event described in Section 11(a)(ii) or
a Section 13 Event, out of its authorized and unissued Common Shares and/or
other securities) or any authorized and issued Common Shares held in its
treasury, the number of Common Shares (and, following the occurrence of an
event described in Section 11(a)(ii) or a Section 13 Event, out of its
authorized and unissued Common Shares and/or other securities) that will be
sufficient to permit the exercise, in full, of all outstanding Rights.
(b) If the Common Shares (and, following the occurrence of an event
described in Section 11(a)(ii) or a Section 13 Event, Common Shares and/or
other securities) issuable upon the exercise of Rights may be listed on any
national securities exchange or market, the Company shall use its best efforts
to cause, from and after such time as the Rights become exercisable (but only
to the extent that it is reasonably likely that the Rights will be
exercised) all shares reserved for such issuance to be listed on such
exchange or market upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as
practicable following the earliest date after the first occurrence of an event
described in Section 11(a)(ii) on which the consideration to be delivered by
the Company upon exercise of the Rights has been determined pursuant to this
Agreement (including in accordance with Section 11(a)(iii) hereof), or as soon
as is required by law following the Distribution Date, as the case may be, a
registration statement under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Common Shares or other securities
purchasable upon exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as practicable after
such filing, and (iii) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Securities
Act) until all of the securities issuable upon exercise of Rights that have
been validly exercised on or before the Expiration Date have been issued. The
Company will also take such action as may be appropriate under, or to ensure
compliance with, the securities or "blue sky" laws of the various states in
connection with the exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety (90) days after the date
set forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability
of the Rights has been temporarily suspended, as well as a public announcement
at such time as the suspension is no longer in effect. In addition, if the
Company shall determine that a registration statement is required following
the Distribution Date, the Company may temporarily suspend the exercisability
of the Rights until such time as a registration statement has been declared
effective. Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been obtained or the
exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Common Shares (and, following
the occurrence of an event described in Section 11(a)(ii) or a Section 13
Event, Common Shares and/or other securities) delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares or other securities.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges
which may be payable in respect of the issuance or delivery of the Rights
Certificates or of any Common Shares (or other securities, as the case may
be) upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or the
issuance or delivery of certificates for the Common Shares (or other
securities, as the case may be) in a name other than that of, the registered
holder of the Rights Certificate evidencing Rights surrendered for exercise
or to issue or deliver any certificates for Common Shares (or the securities,
as the case may be) upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such Rights
Certificate at the time of surrender) or until it has been established to
the Company's satisfaction that no such tax is due.
Section 10. Common Shares Record Date. Each person in whose name any
certificate for Common Shares (or other securities, as the case may be) is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Common Shares (or other securities, as the
case may be) represented thereby on, and such certificates shall be dated,
the date upon which the Rights 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 Common Shares (or other securities, as the
case may be) transfer books of the Company are closed, such person shall
be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the
Common Shares (or other securities, as the case may be) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to shares for which the Rights shall
be exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of the Company,
except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares or Number
of Rights. The Purchase Price, the number and kind of shares covered by each
Right and the number of Rights outstanding are subject to adjustment from time
to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date
of this Agreement (A) declare a dividend on the Common Shares payable in
Common Shares, (B) subdivide the outstanding Common Shares, (C) combine the
outstanding Common Shares into a smaller number of shares or (D) issue any
shares of its capital stock in a reclassification of the Common 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) and Section 7(e) hereof,
the Purchase Price in effect at the time of the record date for such dividend
or on 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, upon payment of the
Purchase Price then in effect, 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 Common 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;
provided, however, that if the record date for any such dividend, subdivision,
combination or reclassification shall occur prior to the Distribution Date,
the Company shall make an appropriate adjustment to the Purchase Price (taking
into account any additional Rights which may be issued as a result of such
dividend, subdivision, combination or reclassification), in lieu of adjusting
(as described above) the number of Common Shares (or other capital stock, as
the case may be) issuable upon exercise of the Rights and Section 11(i)
hereof shall not be applicable. If an event occurs which would require an
adjustment under both Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person, at any time after the Record
Date, shall become an Acquiring Person (unless the event causing such Person
to become an Acquiring Person is a transaction set forth in Section 13(a)
hereof, or is an acquisition of Common Shares pursuant to a tender offer or
exchange offer for all outstanding Common Shares at a price and on terms
determined by at least a majority of the members of the Board of Directors
who are not officers of the Company and who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person, after receiving advice from
one or more investment banking firms, to be (a) at a price which is fair to
shareholders (taking into account all factors which such members of the Board
deem relevant, including, without limitation, prices which could reasonably
be achieved if the Company or its assets were sold on an orderly basis
designed to realize maximum value) and (b) otherwise in the best interests
of the Company and its shareholders) then, promptly following the first
occurrence of the event described above in this subparagraph (ii), proper
provision shall be made so that each holder of a Rights Certificate (except
as provided below and in Section 7(e) hereof), shall thereafter have a right
to receive, upon exercise thereof at the then-current Purchase Price in
accordance with the terms of this Agreement, such number of Common Shares of
the Company as shall equal the result obtained by (x) multiplying the then
current Purchase Price by the number of Common Shares for which a Rights
Certificate is then exercisable and (y) dividing that product by 50% of the
current per share market price of the Common Shares (determined pursuant to
Section 11(d) ) on the earlier of the date of the occurrence or the date
of the first public announcement of the event described above in this
subparagraph (ii) (such number of shares being referred to as the "Adjustment
Shares"), provided, however, that if the 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). Any Rights Certificate issued pursuant to Section 3 hereof that
represents Rights beneficially owned by an Acquiring Person or any Associate
or Affiliate thereof and any Rights Certificate issued at any time
upon the transfer of any Rights to an Acquiring Person or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person, Associate or
Affiliate, and any Rights Certificate issued pursuant to Section 6 or this
Section 11 upon transfer, exchange, replacement or adjustment of any other
Rights Certificate referred to in this sentence, shall contain the legend
set forth in Section 4(b) hereof.
(iii) In the event that the number of Common Shares which
are authorized by the Company's articles of incorporation but not outstanding
or reserved for issuance for purposes other than upon exercise of the Rights
are not sufficient to permit the exercise in full of the Rights in accordance
with the foregoing subparagraph (ii) of this Section 11(a), the Company
shall: (A) determine the excess of (1) the value of the Adjustment Shares
issuable upon the exercise of a Right (the "Current Value"), over (2) the
Purchase Price (such excess, the "Spread") and (B) with respect to each Right,
make adequate provision to substitute for the Adjustment Shares, upon payment
of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase
Price, (3) Common Shares or other equity securities of the Company (including,
without limitation, shares, or units of shares, of preferred stock which the
Board of Directors of the Company has deemed to have the same value as Common
Shares (such shares of preferred stock, "common share equivalents")), (4) debt
securities of the Company, (5) other assets, or (6) any combination of the
foregoing having an aggregate value equal to the Current Value, where such
aggregate value has been determined by the Board of Directors of the Company
based upon the advice of a recognized expert selected by the Board of
Directors of the Company; provided, however, if the Company shall not have
made adequate provision to deliver value pursuant to clause (B) above within
thirty (30) days following the later of (x) the first occurrence of an event
described in Section 11(a)(ii) hereof or (y) the first date that the right to
redeem the Rights pursuant to Section 23 hereof, as such date may be amended
pursuant to Section 26 hereof, shall expire, then the Company shall be
obligated to deliver, upon the exercise of a Rights Certificate and without
requiring payment of the Purchase Price, Common Shares (to the extent
available) and then, if necessary, cash, securities and/or assets that in the
aggregate are equal to the Spread. If the Board of Directors of the Company
shall determine in good faith that it is likely that sufficient additional
Common Shares could be authorized for issuance upon exercise in full of the
Rights, the thirty (30) day period set forth above may be extended to the
extent necessary, but not more than ninety (90) days following the first
occurrence of an event described in Section 11(a)(ii) hereof, in order that
the Company may seek shareholder approval for the authorization of such
additional shares (such period as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some action is to
be taken pursuant to the first and/or second sentences of this Section
11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof,
that such action shall apply uniformly to all outstanding Rights, and (y)
may suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant
o such first sentence and to determine the value thereof. In the event of any
such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended, as well
as a public announcement at such time as the suspension is no longer in
effect. For purposes of this Section 11(a)(iii), the value of the Common
Shares shall be the current per share market price of Common Shares (as
determined pursuant to Section 11(d) hereof) on the later of the date of the
first occurrence of an event described in Section 11(a)(ii) hereof and the
first date that the right to redeem the Rights pursuant to Section 23 hereof,
as such date may be amended pursuant to Section 26 hereof, shall expire and
the value of any "common share equivalents" shall be deemed to have the same
value as the Common Shares on such date.
(b) In the event the Company shall fix a record date for the
issuance of rights (other than the Rights) or warrants to all holders of
Common Shares entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Common Shares or shares
having the same rights, privileges and preferences as the Common Shares
("equivalent common shares") (or securities convertible into Common Shares or
equivalent common shares) at a price per Common Share or per equivalent common
share (or having a conversion price per share, if a security convertible into
Common Shares or equivalent common shares) less than the current per share
market price of the Common Shares (as defined in Section 11(d)) on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
Common Shares outstanding on such record date plus the number of Common Shares
which the aggregate offering price of the total number of Common Shares and/or
equivalent common 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 Common Shares outstanding on such record date plus the number
of additional Common Shares and/or equivalent common 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. Common Shares owned by or held
for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights 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 the event the Company shall fix a record date for the making
of a distribution to all holders of the Common 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 periodic cash dividend
at a rate not in excess of 125% of the rate of the last regular periodic
cash dividend theretofore paid or a dividend payable in Common Shares) or
subscription rights or warrants (excluding those referred to in Section 11(b)),
the Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the current per share
market price of the Common Shares (as defined in Section 11(d)) 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 the 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 Common Share and the denominator of which shall
be such current per share market price of the Common Shares (as defined in
Section 11(d)). 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) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) hereof, the "current per
share market price" of the Common Shares on any date shall be deemed to be
the average of the daily closing prices per Common Share for the thirty (30)
consecutive Trading Days (as such term is hereinafter defined) immediately
prior to such date, and for purposes of computations made pursuant to Section
11(a)(iii) hereof, the "current per share market price" of the Common Shares
on any date shall be deemed to be the average of the daily closing prices
per Common Share for ten (10) consecutive Trading Days (as such term is
hereinafter defined) immediately following such date; provided, however,
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 (i) a dividend or distribution on such Common Shares
payable in such Common Shares or securities convertible into such Common
Shares (other than the Rights which are the subject of this Agreement) or
(ii) any subdivision, combination or reclassification of such Common Shares,
and prior to the expiration of thirty (30) Trading Days or ten (10) Trading
Days, as set forth above, 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 per share market
price" shall be appropriately adjusted to take into account ex-dividend
trading. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the 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
on the Nasdaq Stock Market or such other system then in use, or, if on any
such date the Common Shares are not quoted on the Nasdaq Stock Market, 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. If on any such date no market maker is making a
market in the Common Shares, the fair value of such shares on such date as
determined in good faith by the Board of Directors of the Company shall be
used. 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
Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions
in the State of Michigan are not authorized or obligated by law or executive
order to close. If the Common Shares are not publicly held or not 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 and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, no adjustment
in the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in such 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
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)(ii) or Section 13(a), the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock of the Company
other than Common Shares, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price thereof shall
be subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Common Shares
contained in Section 11(a), (b), (c), (e), (g), (h), (i), (j), (k), and (m),
and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Common 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 Common 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), upon each adjustment of the Purchase Price as
a result of the calculations made in Section 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of shares (calculated to the nearest ten-thousandth) obtained by
(i) multiplying (x) the number of shares covered by a Right immediately prior
to this adjustment by (y) the Purchase Price in effect immediately prior to
such adjustments 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 Common Shares issuable 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 Common Shares 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 Rights Certificates have been
issued, shall be at least ten (10) days later than the date of the public
announcement. If Rights Certificates have been issued, upon each adjustment
of the number of Rights pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders of record of
Rights Certificates on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of record in
substitution and replacement for the Rights Certificates held by such holders
prior to the date of adjustment, and upon surrender thereof, if required by
the Company, new Rights Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Rights Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein (and may bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of Common Shares issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may continue to
express the Purchase Price per share and the number of shares which were
expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the Common
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 Common 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
the Common Shares and other capital stock or securities of the Company, if
any, issuable upon such exercise over and above the Common 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 and other capital stock or securities upon the occurrence
of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase Price,
in addition to those adjustments expressly required by this Section 11, as
and to the extent that in their good faith judgment the Board of Directors
of the Company shall determine to be advisable in order that any (i)
consolidation or subdivision of the Common Shares, (ii) issuance wholly for
cash of any Common Shares at less than current per share market price, (iii)
issuance wholly for cash of any of Common Shares or securities which by their
terms are convertible into or exchangeable for Common Shares, (iv) stock
dividends, or (v) issuance of rights, options or warrants referred to
hereinabove in this Section 11, hereafter made by the Company to holders of
its Common Shares shall not be taxable to such shareholders.
(n) The Company covenants and agrees that it shall not, at any
time after the Distribution Date, (i) consolidate with any other Person
(other than a subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any other Person (other
than a subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or (iii) sell or transfer (or permit any subsidiary to
sell or transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 25% of the assets or earning
power of the Company and its subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of its subsidiaries in
one or more transactions each of which complies with Section 11(o) hereof),
if (x) at the time of or immediately after such consolidation, merger
or sale there are any rights, warrants or other instruments or securities
outstanding or agreements in effect which would substantially diminish
or otherwise eliminate the benefits intended to be afforded by the Rights or
(y) prior to, simultaneously with or immediately after such consolidation,
merger or sale, the shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section 13(a) hereof shall
have received a distribution of Rights previously owned by such Person or any
of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23 or Section 26 hereof,
take (or permit any subsidiary to take) any action if at the time such action
is taken it is reasonably foreseeable that such action will diminish
substantially or otherwise eliminate the benefits intended to be afforded
by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in
the event that the Company shall at anytime after the Record Date and prior
to the Distribution Date consolidate with, or merge with or into, any other
Person for the primary purpose of a change of domicile of the Company, and,
in connection with such consolidation or merger, all of the outstanding
Common Shares shall be changed into or exchanged for shares of common stock
of the surviving corporation of such consolidation or merger (the "Surviving
Corporation"), then proper provision shall be made so that Rights shall be
associated with each share of common stock of the Surviving Corporation,
except as provided in Section 7(e) hereof, such that the number of Rights
associated with each share of common stock of the Surviving Corporation
following any such event shall equal the result obtained by multiplying the
number of Rights associated with each Common Share immediately prior to such
event by a fraction the numerator of which shall be the total number of
Common Shares outstanding immediately prior to the occurrence of the event
and the denominator of which shall be the total number of shares of common
stock of the Surviving Corporation which the Common Shares were changed into
or exchanged for pursuant to the consolidation or merger. Following such a
consolidation or merger, this Agreement shall remain in effect and all
references to the Company shall be deemed to be references to the Surviving
Corporation.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13
hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment, and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Common Shares a copy of such certificate, and (c) mail a brief
summary thereof to each holder of a Rights Certificate (or, if prior to the
Distribution Date, to each holder of a certificate representing Common Shares)
in accordance with Section 25 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following the Shares Acquisition Date,
directly or indirectly, (x) the Company shall consolidate with, or merge with
and into, any other Person (other than a subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) and the Company shall
not be the continuing or surviving corporation of such consolidation or
merger, (y) any Person (other than a subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) shall consolidate
with, or merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or merger, and, in
connection with such consolidation or merger all or part of the outstanding
Common Shares shall be changed into or exchanged for stock or other securities
of any other Person or cash or any other property, or (z) the Company shall
sell or otherwise transfer (or one or more of its subsidiaries shall sell or
otherwise transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power of the Company and its subsidiaries (taken as a whole) to any Person
or Persons (other than the Company or any subsidiary of the Company in one or
more transactions each of which complies with Section 11(o) hereof), then,
and in each such case (except as may be contemplated by Section 13(d) hereof),
proper provision shall be made so that: (i) each holder of a Rights
Certificate, except as provided in Section 7(e) hereof, shall thereafter
have the right to receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, nonassessable and freely tradeable
Common Shares of the Principal Party (as such term is hereinafter defined),
not subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall be equal to the result obtained by (1) multiplying
the then current Purchase Price by the number of Common Shares for which
a Right is exercisable immediately prior to the first occurrence of an event
described in clauses (x), (y) or (z) of this Section 13(a) (a "Section 13
Event") (or, if an event described in Section 11(a)(ii) has occurred prior
to the Section 13 Event, multiplying the number of such Common Shares for
which a Right was exercisable immediately prior to the first occurrence of
such an event described in Section 11(a)(ii) by the Purchase Price in effect
immediately prior to such first occurrence), and (2) dividing that product
(which, following the Section 13 Event, shall be referred to as the "Purchase
Price" for each Right and for all purposes of this Agreement) by 50% of the
current per share market price (determined pursuant to Section 11(d)(i)
hereof) per Common Share of such Principal Party on the date of consummation
of such Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the
term "Company" shall thereafter be deemed to refer to such Principal Party,
it being specifically intended that the provisions of Section 11 hereof shall
apply only to such Principal Party following the first occurrence of a
Section 13 Event, (iv) such Principal Party shall take such steps (including,
but not limited to, the reservation of a sufficient number of its Common
Shares) in connection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its Common Shares
thereafter deliverable upon the exercise of the Rights; and (v) the provisions
of Section 11(a)(ii) hereof shall be of no effect following the first
occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (x)
or (y) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which Common Shares of the Company are
converted in such merger or consolidation, and if no securities are so
issued, the Person that is the other party to such merger or
consolidation; and
(ii) in the case of any transaction described in clause (z)
of the first sentence of Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power transferred
pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the Common Shares of such
Person are not at such time and have not been continuously over the preceding
twelve (12) month period registered under Section 12 of the Exchange Act, and
such Person is a direct or indirect subsidiary of another Person the Common
Shares of which are and have been so registered, "Principal Party" shall
refer to such other Person; and (2) in case such Person is a subsidiary,
directly or indirectly, of more than one Person, the Common Shares of two
or more of which are and have been so registered, "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common Shares having
the greatest aggregate market value.
(c) After the Shares Acquisition Date, the Company shall not
consummate any such consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of authorized Common Shares
which have not been issued or reserved for issuance to permit the exercise
in full of the Rights in accordance with this Section 13 and unless prior
thereto the Company and such Principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further providing that, as
soon as practicable after the date of any consolidation, merger or sale of
assets mentioned in paragraph (a) of this Section 13, the Principal Party
will
(i) prepare and file a registration statement under the
Securities Act, with respect to the Rights and the securities purchasable
upon exercise of the Rights on an appropriate form, and will use its best
efforts to cause such registration statement to (A) become effective as
soon as practicable after such filing and (B) remain effective (with a
prospectus at all times meeting the requirements of the Securities
Act) until the Expiration Date;
(ii) use its best efforts to qualify or register the Rights
and the securities purchasable upon exercise of the Rights under blue
sky laws of such jurisdiction, as may be necessary or appropriate; and
(iii) will deliver to holders of the Rights historical
financial statements for the Principal Party and each of its Affiliates
which comply in all respects with the requirements for registration on
Form 10 under the Exchange Act.
The provisions of this Section 13 shall similarly apply to successive mergers
or consolidations or sales or other transfers. In the event that a Section 13
Event shall occur at any time after the occurrence of an event described in
Section 11(a)(ii) hereof, the Rights which have not theretofore been exercised
shall thereafter become exercisable in the manner described in Section 13(a).
(d) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is consummated with a
Person or Persons who acquired Common Shares pursuant to a tender offer or
exchange offer for all outstanding Common Shares which complies with the
provisions of Section 11(a)(ii) hereof (or a wholly-owned subsidiary of any
such Person or Persons), (ii) the price per Common Share offered in such
transaction is not less than the price per Common Share paid to all holders
of Common Shares whose shares were purchased pursuant to such tender offer or
exchange offer, and (iii) the form of consideration being offered to the
remaining holders of Common Shares pursuant to such transaction is the same
as the form of consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in Section 11(p) hereof, or
to distribute Rights Certificates which evidence fractional Rights. In lieu
of such fractional Rights, there shall be paid to the registered holders of
the Rights Certificates with regard to which such fractional Rights that would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purpose 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 or 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 on the Nasdaq Stock Market or, if on
such date the Rights are not quoted on the Nasdaq Stock Market, 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 shares
upon exercise of the Rights or to distribute certificates which evidence
fractional shares. In lieu of fractional shares, the Company may pay to
the registered holders of Rights Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of
the current market value of one Common Share. For purposes of this
Section 14(b), the current market value of a Common Share shall be the
closing price of a Common Share (as determined pursuant to the second
sentence 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 Rights expressly
waives his right to receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Shares); and any registered holder of any Rights Certificates (or,
prior to the Distribution Date, of the Common Shares), without the consent
of the Rights Agent or of the holder of any other Rights Certificate (or,
prior to the Distribution Date, of the Common Shares), may, in his own
behalf and for his own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise
act in respect of, his right to exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing of 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 hereunder and
will be entitled to 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 the Rights
by accepting the same consents and agrees with the Company and the Rights
Agent and with every other holder of the Rights 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 Rights Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accomplished by a
proper instrument of transfer and with the appropriate forms and certificates
fully executed;
(c) Subject to Section 6(a) and Section 7(f) hereof, the Company
and the Rights Agent may deem and treat the person in whose name the Rights
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 Rights Certificates 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, subject to the last
sentence of Section 7(e) hereof, shall be required to be affected by any
notice to the contrary; and
(d) Notwithstanding anything in this Agreement to the contrary,
neither the Company nor the Rights Agent shall have any liability to any
holder of a Right or other Persons as a result of its inability to perform
any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order
promulgated or enacted by any governmental authority prohibiting or otherwise
restraining performance of such obligation; provided, however, the Company
must use its best efforts to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Rights Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Common 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 Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting shareholders (except as provided in Section 24 hereof), or
to receive dividends or subscription rights, or otherwise, until the Right
or Rights evidenced by such Rights Certificate shall have been
exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable com-
pensation 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
Rights Certificate or certificate for the Common Shares or for other
securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged by the proper Person or Persons.
Section 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 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 Rights Certificates shall have
been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time any of the
Rights Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Rights Certificate either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and
in all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Rights Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights Certificates
so countersigned; and in case at that time any of the Rights Certificates
shall not have been countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its changed name; and
in all such cases such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following
terms and conditions, by all of which the Company and the holders of Rights
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be full
and complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement
the Rights Agent shall deem it necessary or desirable that any fact or matter
(including, without limitation, the identity of any Acquiring Person and the
determination of "current market price") be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate
signed by any one of the Chairman of the Board, 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 only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Rights Certificates (except as to 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 Rights Certificate (except its countersignature
thereof); nor shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or in any Rights
Certificate; nor shall it be responsible for any adjustment required under
the provisions of Sections 11 or 13 hereof or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the existence
of facts that would require any such adjustment (except with respect to the
exercise of Rights evidenced by Rights Certificates after actual notice of any
such adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any
Common Shares to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any Common Shares will, when so issued, be
validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the 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 by any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or for any
other legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, 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) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate attached to the form
of assignment or form of election to purchase, as the case may be, has either
not been completed or indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further action with respect to
such requested exercise or transfer without first consulting the Company.
(k) The Company hereby represents and warrants that the issuance
of the Rights has been validly authorized by all necessary corporate action
on the part of the Company, that upon issuance, the Rights will constitute
valid and binding obligations in accordance with and subject to the terms of
the Rights Agreement, and that upon issuance, the Company will have complied
with all requirements set forth in the Securities Act and the Exchange Act,
and all rules and regulations promulgated thereunder, and the Rights Agent
shall not be liable in the event that the statements and recitals contained
in this Section 20(k) shall be deemed to be inaccurate or untrue.
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 thirty (30) days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares by registered or certified mail, and to
the holders of the Rights Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon thirty (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 by registered
or certified mail, and to the holders of the Rights Certificates by first-
class mail. If the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to make such appointment within a
period of thirty (30) days after giving notice of such removal or after it has
been notified in writing of such resignation or incapacity by the resigning
or incapacitated Rights Agent or by the holder of a Rights Certificate (who
shall, with such notice, submit his Rights Certificate for inspection by the
Company), then the registered holder of any Rights Certificate may apply to
any court of competent jurisdiction for the appointment of a new Rights 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 Michigan or 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 Michigan or Illinois),
in good standing, having a principal office in the State of Michigan or
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, and
mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the Rights, Rights Agreement or the resignation or removal of
the Rights Agent or the appointment of the successor Rights Agent, as the
case may be.
Section 22. Issuance of New Rights Certificates. Notwithstanding any
of the provisions of this Agreement or of the Rights Certificate to the
contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its Board of Directors
to reflect any adjustment or change in the Purchase Price per share and the
number or kind or class of shares or other securities or property purchasable
under the Rights Certificates made in accordance with the provisions of this
Agreement. In addition, in connection with the issuance or sale of Common
Shares following the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with respect to Common
Shares so issued or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, granted or awarded as of the Distribution
Date, or upon the exercise, conversion or exchange of securities hereinafter
issued by the Company, and (b) may, in any other case, if deemed necessary
or appropriate by the Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of Rights in connection
with such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall
be advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate shall
be issued if, and to the extent that, appropriate adjustment shall otherwise
have been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at
any time prior to the earlier of (i) the close of business on the tenth day
following the Shares Acquisition Date, or (ii) the Final Expiration Date,
redeem all but not less than all the then outstanding Rights at a redemption
price of $.005 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").
Notwithstanding anything contained in this Agreement to the contrary, the
Rights shall not be exercisable following an adjustment made pursuant to
Section 11(a)(ii) prior to the expiration of the Company's right of redemption
hereunder. Neither the Board of Directors nor the Company shall have any
liability to any Person as a result of the redemption of Rights pursuant to
the terms hereof, other than the obligation of the Company to pay $.005 per
Right upon redemption. The Company may, at its option, pay the Redemption
Price in cash, Common Shares (based on the current market price of the
Common Shares at the time of redemption) or any other form of consideration
deemed appropriate by the Board of Directors.
(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. 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.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the
Distribution Date, (i) to pay any dividend payable in stock of any class to
the holders of Common Shares or to make any other distribution to the holders
of Common Shares (other than a regular periodic cash dividend at a rate not
in excess of 125% of the rate of the last regular periodic cash dividend
theretofore paid), or (ii) to offer to the holders of Common Shares rights
or warrants to subscribe for or to purchase any additional Common Shares
or shares of stock of any class or any other securities, rights or options,
or (iii) to effect any reclassification of its Common Shares (other than a
reclassification involving only the subdivision of outstanding Common Shares),
or (iv) to effect any consolidation or merger into or with any other Person
(other than a subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), or to effect any sale or other transfer (or to
permit one or more of its subsidiaries to effect any sale or other transfer),
in one or more transactions, of more than 50% of the assets or earning power
of the Company and its subsidiaries (taken as a whole) to, any other Person
(other than the Company and/or any of its subsidiaries in one or more
transactions each of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights Certificate,
to the extent feasible and 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, 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, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least 20 days prior to the record date for determining
holders of the Common 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 whichever shall be the earlier.
(b) In case any of the events set forth in Section 11(a)(ii) of
this Agreement shall occur, then, in any such case, (i) the Company shall as
soon as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and 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, and (ii) all references in the preceding paragraph to Common Shares
shall be deemed thereafter to refer to Common Shares and/or other securities,
if appropriate.
(c) Notwithstanding anything in this Agreement to the contrary,
prior to the Distribution Date a filing by the Company with the Securities
and Exchange Commission shall constitute sufficient notice to the holders
of securities of the Company, including the Rights, for purposes of this
Agreement and no other notice need be given.
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 Rights
Certificate to or on the Company shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Rights Agent) as follows:
Ameriwood Industries International Corporation
171 Monroe Avenue, N.W., Suite 600
Grand Rapids, Michigan 49503
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 Rights Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company)
as follows:
Harris Trust and Savings Bank
311 West Monroe, 14th Floor
Chicago, Illinois 60690
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 Rights Certificate (or, if
prior to the Distribution Date, to the holder of certificates representing
Common Shares) 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. Prior to the Distribution
Date and subject to the penultimate sentence of this Section 26, the Company
may and the Rights Agent shall, if the Company so directs, supplement
or amend any provision of this Agreement without the approval of any holders
of certificates representing Common Shares and associated Rights. From and
after the Distribution Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of
Rights Certificates in order (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein, (iii) to shorten or lengthen
any time period hereunder, or (iv) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or desirable
and which shall not adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate or Associate
of an Acquiring Person); provided, however, that this Agreement may not
be supplemented or amended to lengthen, pursuant to clause (iii) of this
sentence, (A) a time period relating to when the Rights may be redeemed at
such time as the Rights are not then redeemable, or (B) any other time period
unless such lengthening is for the purpose of protecting, enhancing or
clarifying the rights of, and/or the benefits to, the holders of Rights
(other than an Acquiring Person and its Affiliates and Associates). Upon the
delivery of a certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in compliance with the
terms of this Section 26, the Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes the
Redemption Price, the Final Expiration Date, the Purchase Price or the
number of Common Shares for which a Right is exercisable. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Shares.
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. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of Common
Shares outstanding at any particular time, including for purposes of
determining the particular percentage of such outstanding Common Shares of
which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act as in effect as of the date hereof. The Board of
Directors of the Company shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and powers specifically
granted to the Board, or the Company, or as may be necessary or advisable in
the administration of this Agreement, including, without limitation, the
right and power to (i) interpret the provisions of this Agreement, and (ii)
make all determinations deemed necessary or advisable for the administration
of this Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) which are done or
made by the Board in good faith, shall (x) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights Certificates and
all other parties, and (y) not subject the Board to any liability to the
holders of the Rights Certificates.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Rights Certificates (and, prior to
the Distribution Date, 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 Rights Certificates (and, prior to the Distribution Date, the Common
Shares).
Section 30. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that notwithstanding anything
in this Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid, void or
unenforceable and the Board of Directors of the Company determines in its
good faith judgment that severing the invalid language from this Agreement
would adversely affect the purpose or effect of this Agreement, the right
of redemption set forth in Section 23 hereof shall be reinstated and shall
not expire until the close of business on the tenth day following the date
of such determination by the Board of Directors.
Section 31. Governing Law. This Agreement and each Rights Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Michigan and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 32. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. Descriptive Headings. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and their respective corporate seals to be hereunder affixed
and attested, all as of the day and year first above written.
ATTEST: AMERIWOOD INDUSTRIES
INTERNATIONAL CORPORATION
By
Craig G. Wassenaar Charles R. Foley
Treasurer and Chief President and Chief
Accounting Officer Executive Officer
ATTEST: HARRIS TRUST AND
SAVINGS BANK
By
Richard C. Carlson Keith A. Bradley
Vice President Assistant Vice President
EXHIBIT A
[Form of Rights Certificate]
Certificate No. R- ____________ Rights
NOT EXERCISABLE AFTER MAY 20, 2006, OR EARLIER IF
REDEEMED BY THE COMPANY. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.005 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER
OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE
AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.]*
RIGHTS CERTIFICATE
AMERIWOOD INDUSTRIES INTERNATIONAL CORPORATION
This certifies that ________________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions
of the Amended and Restated Rights Agreement dated as of April 4, 1996 (the
"Rights Agreement") between AMERIWOOD INDUSTRIES INTERNATIONAL
CORPORATION,
a Michigan corporation (the "Company"), and HARRIS TRUST AND SAVINGS BANK
(the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
_________________________________
* The portion of the legend in brackets shall be inserted only if applicable.
and prior to 5:00 P.M. (Detroit time) on May 20, 2006, at the principal office
of the Rights Agent, or its successors as Rights Agent, one fully paid,
nonassessable share of common stock (the "Common Shares") of the Company, at
a purchase price of $80 per share (the "Purchase Price"), upon presentation
and surrender of this Rights Certificate with the Form of Election to Purchase
duly executed. The number of Rights evidenced by this Rights Certificate
(and the number of shares which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth above, are the number
and Purchase Price as of April 4, 1996, based on the Common Shares as
constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the number of
Common Shares which may be purchased upon the exercise of the Rights evidenced
by this Rights Certificate are subject to modification and adjustment upon the
happening of certain events.
Upon the occurrence of an event described in Section 11(a)(ii) of the
Rights Agreement, if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate
of any such Person (as such terms are defined in the Rights Agreement), (ii)
a transferee of any such Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee
of a person who, concurrently with or after such transfer, became an Acquiring
Person, or an Affiliate or Associate of an Acquiring Person, such Rights shall
become null and void and no holder hereof shall have any rights whatsoever
with respect to such Rights from and after the occurrence of such event
described in Section 11(a)(ii) of the Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to
which Rights Agreement reference is hereby made for a full description of the
rights, limitations of rights, and the obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the temporary suspension
of the exercisability of such Rights under the specific circumstances set
forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the office of the Rights
Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like aggregate number
of Common Shares as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If
this Rights Certificate shall be exercised in part the holder shall be
entitled to receive upon surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate may be redeemed by the Company at its option at the
redemption price of $.005 per Right.
No fractional Common Shares will be issued upon the exercise of any
Rights evidenced hereby, but in lieu thereof a cash payment will be made, as
provided in the Rights Agreement.
No holder, as such, of this Rights Certificate shall be entitled to vote
or receive dividends or be deemed for any purpose the holder of the Common
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, including the right to vote
for the election of directors or upon any matter submitted to shareholders at
any meeting thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting shareholders
(except as provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by this Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of_____________, 19__________.
ATTEST: AMERIWOOD INDUSTRIES
INTERNATIONAL CORPORATION
By
Secretary Its
Countersigned:
HARRIS TRUST AND SAVINGS BANK
By
Its
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED,____________________________________________
hereby sells, assigns and transfer unto__________________________________
_________________________________________________________________________
(Please print name and address of transferee)
the Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint__________________________
Attorney, to transfer the Rights Certificate on the books of the Company, with
full power of substitution.
Dated:_____________________, 19________.
________________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate ____________ is ________________
is not being sold, assigned or transferred by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it ________________________ did ___________________ not
acquire the Rights evidenced by this Rights Certificate from any person
who is, was or subsequently became an Acquiring Person or an Affiliate
or Associate of an Acquiring Person.
Dated:_______________, 19________. _______________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Rights Certificate.)
To Ameriwood Industries International Corporation:
The undersigned hereby irrevocably elects to exercise ____________ Rights
represented by this Rights Certificate to purchase the Common Shares (or such
other securities of the Company or of any other person that may be issuable
upon the exercise of the Rights) issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number:
____________________________________________________________________
(Please print name and address)
____________________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of remaining
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
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate __________
are ___________ are not being exercised by or on behalf of a Person who
is or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it _________ did __________ did not acquire the Rights
evidenced by this Rights Certificate from any Person who is, was or
became an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ____________________, 19______ _________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE
COMMON SHARES
On April 4, 1996, the Board of Directors of Ameriwood Industries
International Corporation (the "Company") approved a Common Share Purchase
Rights Plan. Under the plan, one Common Share Purchase Right will attach to
each outstanding share of common stock, $1.00 par value (the "Common Shares"),
of the Company. Each Right entitles the registered holder to purchase from
the Company one Common Share at a price of $80 per share (the "Purchase
Price"), subject to adjustment. The record date for the Rights will be
May 21, 1996. The description and terms of the Rights are set forth in a
Rights Agreement (the "Rights Agreement") between the Company and Harris
Trust and Savings Bank, as Rights Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") acquired, or obtained the right to acquire, beneficial ownership of
20% or more of the outstanding Common Shares (the date on which 20% or more
of the outstanding Common Shares are acquired being known as the "Shares
Acquisition Date"), or (ii) 10 days following the commencement or announcement
of an intention to commence a tender or exchange offer, the consummation of
which would result in beneficial ownership by a person of 20% or more of such
outstanding Common Shares (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced with respect to any of the
Common Share certificates outstanding as of May 21, 1996, by such Common Share
certificates. The Rights Agreement provides that, until the Distribution
Date, the Rights will be transferred with and only with the Common Shares.
New Common Share certificates issued after May 21, 1996, but prior to the
Distribution Date (or, if earlier, the redemption or expiration of the Rights)
will contain a notation incorporating the Rights Agreement by reference.
Until the Distribution Date (or, if earlier, the redemption or expiration of
the Rights), the surrender for transfer of any certificates for Common Shares
will also constitute the transfer of the Rights associated with the Common
Shares represented by such certificates. As soon as practicable after the
Distribution Date, separate certificates evidencing the Rights ("Rights
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 Rights
Certificates alone will evidence the Rights. Except as otherwise determined
by the Board of Directors, only Common Shares issued prior to the Distribution
Date will be issued with Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on May 20, 2006, unless earlier redeemed by the Company as
described below.
The Purchase Price payable, and the number of Common 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 Common
Shares, (ii) upon the grant to holders of the Common Shares of certain rights
or warrants to subscribe for Common Shares or convertible securities at less
than the current market price of the Common Shares or (iii) upon the
distribution to holders of the Common Shares of evidences of indebtedness or
assets (excluding regular periodic cash dividends out of earnings or retained
earnings at a rate not in excess of 125% of the rate of the last cash dividend
theretofore paid or dividends payable in Common Shares) or of subscription
rights or warrants (other than those referred to above).
In the event that, any time following the Shares Acquisition Date, the
Company were acquired in a merger or other business combination transaction
or in the event 50% or more of its assets or earning power were sold, proper
provision shall be made so that each holder of a Right shall thereafter have
the right to receive, upon the exercise thereof at the then current exercise
price of the Right, that number of shares of common stock of the acquiring
company which at the time of such transaction would have a market value of
two times the exercise price of the Right. Alternatively, in the event that
a Person becomes an Acquiring Person (except pursuant to an offer for all
outstanding Common Shares meeting certain requirements), or any time following
the Distribution Date, the Company were the surviving corporation in a merger
and its 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 provision shall be made so that
each holder of a Right, other than the Acquiring Person (whose 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 shares will be issued and in lieu thereof,
an adjustment in cash will be made based on the market price of the Common
Shares on the last trading date prior to the date of exercise.
At any time prior to the close of business on the thirtieth day after
the Shares Acquisition Date, the Company may redeem the Rights in whole, but
not in part, at a price of $.005 per Right (the "Redemption Price"). Under
certain circumstances set forth in the Rights Agreement, the decision to
redeem shall require the concurrence of a majority of the Disinterested
Directors, which is defined to mean any member of the Board of Directors who
was a member of the Board prior to the date of the Rights Agreement, and any
person who is subsequently elected to the Board if such person is recommended
or approved by a majority of the Disinterested Directors. Disinterested
Directors do not include an Acquiring Person, or an affiliate or associate
of an Acquiring Person, or any representative of the foregoing entities.
After the redemption period has expired, the right to redeem may be
reinstated if an Acquiring Person reduces his ownership of Common Shares to
10% or less of the then outstanding Common Shares in one or more transactions
not involving the Company. Immediately upon the action of the Board of
Directors of the Company electing to redeem the Rights, the Company shall
make announcement thereof, and upon such election, the right to exercise the
Rights will terminate and the only right of the holders of Rights will be to
receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to the shareholders or to the Company, shareholders will
recognize taxable income if the Rights are redeemed and may, depending on the
circumstances, recognize taxable income when the Rights become exercisable or
are exercised.
Other than those provisions relating to the principal economic terms
of the Rights, any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company prior to the Distribution Date.
After the Distribution Date, the provisions of the Rights Agreement may be
amended by the Board (in certain circumstances, with the concurrence of the
Disinterested Directors) in order to cure any ambiguity, to make changes
which do not adversely affect the interests of holders of Rights, or to
shorten or lengthen any time period under the Rights Agreement, so long as
no amendment to adjust the time period governing redemption shall be made at
a time when the Rights are not redeemable.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Agreement is available 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.