EXHIBIT 4.1
EMS TECHNOLOGIES, INC.
Stockholder Rights Plan
Dated as of April 6, 1999
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Table of Contents
Section Page
1 Certain Definitions ` ` 1
2 Authority to Appoint Rights Agent 6
3 Issue of Rights Certificates 6
4 Form of Rights Certificates 8
5 Registration 9
6 Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates 10
7 Exercise of Rights; Purchase
Price; Expiration Date of Rights 11
8 Cancellation and Destruction of
Rights Certificates 13
9 Reservation and Availability of
Capital Stock 13
10 Record Date for Securities Issued
Upon Exercise 15
11 Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights 16
12 Certificate of Adjusted Purchase
Price or Number of Shares 26
13 Consolidation, Merger or Sale
or Transfer of Assets or Earning
Power 26
14 Fractional Rights and Fractional
Shares 29
15 Rights of Action 30
16 Agreement of Rights Holders 30
Section Page
17 Rights Certificate Holder Not Deemed
a Stockholder 31
18 Indemnification of Corporate Officers 32
19 Issuance of New Rights Certificates 32
20 Redemption and Termination 33
21 Notice of Certain Events 34
22 Notices 35
23 Supplements and Amendment; Substituted
Plan 36
24 Successors 37
25 Determinations and Actions
by the Board of Directors, etc. 37
26 Establishment of Fund for Disinterested 38
Directors
27 Benefits of this Plan 38
28 Severability 38
29 Governing Law 39
30 Descriptive Headings 39
Exhibit A -- Form of Rights Certificate
Exhibit B -- Form of Summary of Rights
STOCKHOLDER RIGHTS PLAN
Section 1. Certain Definitions. For purposes of this Plan, the following
terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person or group of Persons
acting together, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, who or which, together with all
Affiliates and Associates of such Person(s), shall be the Beneficial Owner of
20% or more of the shares of Common Stock then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary of the Company, or (iii) any
employee benefit plan of the Company or any Subsidiary of the Company, or any
Person or entity organized, appointed or established by the Company acting in
accordance with and for or pursuant to the terms of any such plan.
Notwithstanding the foregoing,"Acquiring Person" shall not include any
such Person who has reported or is required to report such ownership (but less
than 25%) on Schedule 13G under the Exchange Act (or any comparable or successor
report or on Schedule 13D under the Exchange Act (or any comparable or successor
report) which Schedule 13D does not state any intention to or reserve the right
to control or influence the management or policies of the Company or engage in
any of the actions specified in Item 4 of such Schedule (other than the
disposition of the Common Stock) and within 10 Business Days of being requested
by the Company to advise it regarding the same, certifies to the Company that
such Person acquired Common Stock equal to or exceeding 20% inadvertently or
without knowledge of the terms of the Rights and who, together with all
Affiliates and Associates, thereafter does not acquire additional Common Stock
while the Beneficial Owner of 20% or more of the Common Stock then outstanding;
provided, however, that if the Person requested to so certify fails to do so
within 10 Business Days, then such Person shall become an Acquiring Person
immediately after such 10 Business Day Period. Notwithstanding the foregoing, no
Person shall become an "Acquiring Person" solely as the result of an acquisition
of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by
a Person to 20% or more of the Common Stock of the Company then outstanding as
determined above; provided, however, that if a Person becomes the Beneficial
Owner of 20% or more of the Common Stock of the Company then outstanding (as
determined above) solely by reason of purchases of Common Stock by the Company
and shall, after becoming aware of such purchases by the Company or of the
resulting decrease in the number of outstanding shares of the Common Stock,
become the Beneficial Owner of any additional Common Stock by any means
whatsoever, then such Person shall be deemed to be an "Acquiring
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Person".
(b) "Act" shall mean the Securities Act of 1933. as amended.
(c) "Adjustment Shares" shall have the meaning set forth in Section
ll(a)(ii) hereof.
(d) "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 and in effect on the date of
this Plan (the "Exchange Act").
(e) 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,
rights, warrants or options, or otherwise; provided, however, that a
Person shall not be deemed the "Beneficial Owner" of, or to "beneficially
own," (A) securities tendered pursuant to a tender or exchange offer made
by such Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, (B) securities
issuable upon exercise of Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon exercise of Rights from
and after the occurrence of a Triggering Event which Rights were acquired
by such Person or any of such Person's Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3(a) or Section 19 hereof
(the "Original Rights") or pursuant to Section 11(a)(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
has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Exchange Act), 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
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to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and
Regulations under the Exchange Act, and (B) is not 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 provision to subparagraph (ii) of this paragraph
(e)) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (e) 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 forty days after the date of such acquisition.
(f) "Board" shall mean the Board of Directors of the Company.
(g) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in the State of Georgia are authorized or
obligated by law or executive order to close.
(h) "Close of Business" on any given date shall mean 5:00 P.M.
Eastern time on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M. Eastern time on the next succeeding
Business Day.
(i) "Common Stock" shall mean the common stock, $.10 per share par
value, of the Company, except that "Common Stock" or "common stock" 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.
(j) "Common Stock Equivalent" shall have the meaning set forth in
Section 11(a))(iii) hereof.
(k) "Company" shall mean EMS Technologies, Inc., a Georgia
corporation, until a successor corporation shall have become such or until a
Principal Party shall assume, and
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thereafter be liable for, all obligations and duties of the Company hereunder,
pursuant to the applicable provisions of this Plan, and thereafter "Company"
shall mean such successor corporation or Principal Party.
(1) "Current Market Price" shall have the meaning set forth in
Section ll(d) hereof.
(m) "Current Value" shall have the meaning set forth in Section
ll(a)(iii) hereof.
(n) "Disinterested Director" shall mean any member of the Board,
while such Person is a member of the Board, who (i) is not an Acquiring Person
or an Affiliate or Associate of an Acquiring Person, (ii) was not nominated by
or is not in any other manner representative of an Acquiring Person or of an
Affiliate or Associate of an Acquiring Person, (iii) does not control and is not
controlled by an Acquiring Person or an Affiliate or Associate of an Acquiring
Person, and (iv) does not have a substantial interest (whether by beneficial
ownership of securities or otherwise) in an Acquiring Person or an Affiliate or
Associate of an Acquiring Person. An interest of less than 5% shall not be
considered "substantial" for purposes of this definition.
(o) "Distribution Date" shall have the meaning set forth in Section
3 (a) hereof.
(p) "Equivalent Common Stock" shall have the meaning set forth in
Section ll(b) hereof.
(q) "Exchange Act" shall have the meaning set forth in Section l(d)
hereof.
(r) "Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(s) "Fair Value Offer" shall have the meaning set forth in section
ll(a)(ii)(A) hereof.
(t) "Final Expiration Date" shall mean the Close of Business on
August 6, 2009.
(u) "Original Rights" shall have the meaning set forth in Section
l(e)(I) hereof.
(v) "Person" shall mean any individual, firm, corporation,
partnership, unincorporated association, syndicate or other entity.
(w) "Plan" shall mean this Stockholder Rights Plan as
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originally adopted or as it may from time to time be supplemented or amended
pursuant to the applicable provisions hereof.
(x) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(y) "Purchase Price" shall have the meaning set forth in Section
4(a) hereof.
(z) "Record Date" shall mean April 16, 1999.
(aa) "Redemption Price" shall have the meaning set forth in Section
20(a).
(bb) "Right" shall mean the right to purchase one share of Common
Stock (subject to adjustment) as provided herein
(cc) "Rights Agent" shall have the meaning set forth in Section 2
hereof.
(dd) "Rights Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(ee) "Rights Dividend Declaration Date" shall mean April 6, 1999,
the effective date of this Plan.
(ff) "Section ll(a)(ii) Event" shall mean any event described in
Section ll(a)(ii) hereof.
(gg) "Section ll(a)(ii) Trigger Date" shall have the meaning set
forth in Section ll(a)(iii) hereof.
(hh) "Section 13 Event" shall mean any event described in clauses
(x), (y) or (z) of Section 13(a) hereof.
(ii) "Spread" shall have the meaning set forth in Section ll(a)(iii)
hereof.
(jj) "Stock Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) under the Exchange Act) by
the Company or an Acquiring Person that an Acquiring Person has become such
without the consent of a majority of the Disinterested Directors.
(kk) "Subsidiary" shall mean, with reference to any Person, any
corporation of which an amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is beneficially owned, directly
or indirectly, by such Person, or otherwise controlled by such Person.
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(ll) "Substitute Consideration" shall have the meaning set forth in
Section ll(a)(iii) hereof.
(mm) "Substitution Period" shall have the meaning set forth in
Section ll(a)(iii) hereof.
(nn) "Summary of Rights" shall have the meaning set forth in Section
3(b) hereof.
(oo) "Trading Day" shall have the meaning set forth in Section ll(d)
hereof.
(pp) "Triggering Event" shall mean any Section ll(a)(ii) Event or
any Section 13 Event.
Section 2. Authority to Appoint Rights Agent.
The Company may appoint a rights agent (or one or more co-rights agents)
to act as agent for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the Distribution Date also be
the holders of the Common Stock) in accordance with the terms and conditions
hereof (the "Rights Agent"), and may amend or supplement this Plan in accordance
with Section 23 hereof in any manner necessary or desirable to induce such
Rights Agent to accept its appointment hereunder.
Section 3. Issue of Rights Certificates.
(a) Until the earliest of (i) the Close of Business on the tenth day
after the Stock Acquisition Date, (ii) the Close of Business on the tenth day
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 or entity organized,
appointed or established by the Company acting in accordance with and 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 General Rules and Regulations under
the Exchange Act, if upon consummation thereof, such Person would be the
Beneficial Owner of 20% or more of the shares of Common Stock then outstanding,
(iii) the Close of Business on the tenth day after the occurrence of any of the
events described in Section ll(a)(ii)(B), or (iv) the Close of Business on the
tenth day after the date that an offer to effect any of the transactions
described in Section 13(a) made, encouraged or supported by Acquiring Person is
first announced, published, sent or given (the earliest of (I), (ii), (iii) and
(iv) 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 the Common Stock registered in the names of the holders of
the Common Stock (which certificates for Common Stock shall be deemed also to be
certificates for Rights) and not
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by separate certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Common Stock (including
a transfer to the Company). As soon as practicable after the Distribution Date,
the Company will send by first class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Company, one or more rights certificates, in substantially the form of Exhibit A
hereto (the "Rights Certificates"), evidencing one Right for each share of
Common Stock so held, subject to adjustment as provided herein. In the event
that an adjustment in the number of Rights per share of Common Stock has been
made pursuant to Section ll(p) hereof, at the time of distribution of the Rights
Certificates, the Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are distributed and cash
is paid in lieu of any fractional Rights. As of and after the Distribution Date,
the Rights will be evidenced solely by such Rights Certificates.
(b) Upon the request of any record holder of the Common Stock, the
Company will send a copy of a Summary of Rights, in substantially the form
attached hereto as Exhibit B (the "Summary of Rights"), by first class, postage
prepaid mail, to such holder at the address of such holder shown on the records
of the Company. With respect to certificates for the Common Stock outstanding as
of the Record Date, until the Distribution Date the Rights will be evidenced by
such certificates for the Common Stock and the registered holders of the Common
Stock shall also be the registered holders of the associated Rights. Until the
earlier of the Distribution Date or the Expiration Date, the transfer of any
certificates representing shares of Common Stock in respect of which Rights have
been issued shall also constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Except as may otherwise be determined by the Board, Rights shall
be issued in respect of all shares of Common Stock which are issued (whether
originally issued or from the Company's treasury) after the Record Date but
prior to the earlier of the Distribution Date or the Expiration Date, and in the
event of such a determination by the Board, no other provisions of this Plan
shall apply to any shares of Common Stock which the Board has determined to be
issued without Rights. Certificates representing such shares of Common Stock
shall also be deemed to be certificates for Rights, and shall bear the following
legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Stockholder Rights Plan of EMS Technologies,
Inc. (the "Company") dated
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as of April 6, 1999, as it may be from time to time amended (the "Plan"),
the terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal offices of the Company. Under certain
circumstances, as set forth in the Plan, 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
Plan, as in effect on the date of mailing, without charge promptly after
receipt of a written request therefor. Under certain circumstances set
forth in the Plan, Rights issued to or held by any Person who is, was or
becomes an Acquiring Person or any Affiliate or Associate thereof (as such
terms are defined in the Plan), 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 Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the transfer
of any of such certificates shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase
and of assignment to be printed on the reverse thereof) 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 Plan, 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 19 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 shares of Common Stock as shall be set forth therein
at the price set forth therein (such exercise price per share, the "Purchase
Price"), but the amount and type of securities purchasable upon the exercise of
each Right and the Purchase Price thereof shall be subject to adjustment as
provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or
Section 19 hereof that represents Rights beneficially
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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 such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which a majority of the
Disinterested Directors have 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, modified as applicable to such Person:
The Rights represented by this Rights Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Plan).
Accordingly, this Rights Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Section 7(e) of
such Plan.
Section 5. Registration.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be attested by the Secretary
or an Assistant Secretary of the Company, either manually or by facsimile
signature. 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
issuance and delivery by the Company, such Rights Certificates, nevertheless,
may be issued and delivered by the Company with the same force and effect as
though the person who signed such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may be signed on behalf of
the Company by any person who, at the actual date of the execution of such
Rights Certificate, shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this Plan any such person
was not such an officer.
(b) Following the Distribution Date, the Company or the
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Rights Agent, if any, will keep or cause to be kept, at the principal executive
office of the Company or at the principal stockholder services office or offices
of the Rights Agent designated for such purposes, as the case may be, books for
registration and transfer of the Rights Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates 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 Certificates, entitling the
registered holder to purchase a like number of shares of Common Stock (or,
following a Triggering Event, other securities, cash or other assets, as the
case may be) as the Rights Certificate or Certificates surrendered then entitle
such holder (or former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in writing delivered to the
Company or the Rights Agent, if any, and shall surrender the Rights Certificate
or Certificates to be transferred, split up, combined or exchanged, with the
form of assignment and certificate duly executed, at the principal executive
office of the Company, or the principal stockholder services office or offices
of the Rights Agent designated for such purposes, as the case may be. Neither
the Company nor the Rights Agent, if any, as the case may be, 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 set forth on the
reverse side of each 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 Secretary of the
Company or the Rights Agent, as the case may be, shall reasonably request.
Thereupon the Secretary of the Company or the Rights Agent, as the case may be,
shall, subject to Section 4(b), Section 7(e) and Section 14 hereof, 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
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Certificates.
(b) Upon receipt by the Company or the Rights Agent, if any, of
evidence reasonably satisfactory to either of them of the loss, theft,
destruction or mutilation of a Rights Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to either of
them, and reimbursement to the Company or the Rights Agent, as the case may be,
of all reasonable expenses incidental thereto, and upon surrender to the Company
or the Rights Agent, as the case may be, and cancellation of the Rights
Certificate if mutilated, the Company or the Rights Agent, as the case may be,
will execute and deliver a new Rights Certificate of like tenor 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 9(c), Section ll(a)(iii) and Section 20(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 Company or the
Rights Agent, if any, at the principal executive office of the Company or the
principal stockholder services office or offices of the Rights Agent designated
for such purposes, as the case may be, together with payment of the aggregate
Purchase Price with respect to the total number of shares of Common Stock (or
other securities, cash or other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to the earlier of (i) the
Final Expiration Date or (ii) the time at which the Rights are redeemed as
provided in Section 20 hereof (the earlier of (i) or (ii) being herein referred
to as the "Expiration Date").
(b) The Purchase Price for each share of Common Stock pursuant to
the exercise of a Right shall initially be $45.00, and shall be subject to
adjustment from time to time as provided in Sections 11 and 13(a) hereof and
shall be payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing exercisable
Rights, with the form of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the Purchase
Price per share of Common Stock (or, following a Triggering Event, other
securities, cash or other assets, as the case may be) to be purchased as set
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forth below and an amount equal to any applicable transfer tax, the Company
shall promptly (I)(A) requisition from any transfer agent of the shares of
Common Stock, if any (but only to the extent such transfer agent expressly
assumes such duty), or, if none, from the Company's Secretary, as the case may
be, certificates for the total number of shares of Common Stock to be purchased
and the Company hereby irrevocably authorizes its transfer agent to comply with
all such requests, or (B) if the Company shall have elected to deposit the total
number of shares of Common Stock issuable upon exercise of the Rights hereunder
with a depository agent, requisition from the depository agent depository
receipts representing such number of shares of Common Stock as are to be
purchased (in which case certificates for the shares of Common Stock represented
by such receipts shall be deposited by the transfer agent (but only to the
extent such transfer agent expressly assumes such duty), or, if none, from the
Company's Secretary, as the case may be, with the depository agent) and the
Company will direct the depository agent to comply with such request, (ii) when
appropriate, requisition the amount of cash, if any, to be paid in lieu of
fractional shares of Common Stock in accordance with Section 14 hereof, (iii)
after receipt of such certificates or depository receipts for shares of Common
Stock, cause the same to be delivered to or upon the order of the registered
holder of such Rights Certificate, registered in such name or names as may be
designated by such holder, and (iv) after receipt thereof, deliver such cash, if
any, to or upon the order of the registered holder of such Rights Certificate.
The payment of the Purchase Price (as such amount may be reduced pursuant to
Section ll(a)(iii) hereof) may be made (x) in cash or by certified check,
cashier's check or bank draft payable to the order of the Company or (y) if the
Board so determines, by delivery of a certificate or certificates (with
appropriate stock powers executed in blank attached thereto) evidencing a number
of shares of Common Stock equal to the then Purchase Price divided by the
closing price (as determined pursuant to Section ll(d) hereof) per share of
Common Stock on the Trading Day immediately preceding the date of such exercise.
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 ll(a)
hereof, the Company will make all arrangements necessary so that such other
securities, cash and/or other property are available for distribution, if and
when appropriate. The Company reserves the right to require, prior to the
occurrence of a Section ll(a)(ii) Event or a Section 13 Event, that upon
exercise of any Rights, an appropriate number of Rights be exercised so that any
Common Stock issuable hereunder shall only be issued as whole shares.
(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
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the Rights remaining unexercised shall be issued by the Company and delivered
to, or upon the order of, the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such holder, subject to
the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Plan to the contrary, from and
after the first occurrence of a Section ll(a)(ii) Event, any Rights beneficially
owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person, (ii) a transferee of any such Acquiring Person (or of any such Associate
or Affiliate) who becomes a transferee after such Acquiring Person becomes such,
or (iii) a transferee of any such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with such Acquiring
Person becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from such Acquiring Person to holders of
equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (B) a transfer which a majority of the
Disinterested Directors have 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 no
holder of such Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Plan or otherwise. The Company shall
use all reasonable efforts to ensure that the provisions of this Section 7(e)
and Section 4(b) hereof are complied with, but shall have no liability to any
holder of Rights Certificates or other Person as a result of its failure to make
any determinations with respect to an Acquiring Person or any Affiliates,
Associates or transferees of an Acquiring Person hereunder.
(f) Notwithstanding anything in this Plan to the contrary, the
Company shall not 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 following 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
13
exercise, transfer, Split up, combination or exchange shall, upon surrender to
the Company or any of its agents, 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 Plan. The Company shall cancel and retire any other Rights
Certificate purchased or acquired by the Company otherwise than upon the
exercise thereof.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company shall use reasonable efforts to cause to be reserved
and kept available out of its authorized and unissued shares of Common Stock
(and, following the occurrence of a Triggering Event, other securities) or out
of its authorized and issued Common Stock held in its treasury, the number of
shares of Common Stock (and, following the occurrence of a Triggering Event,
other securities) that, as provided in this Plan, including Section ll(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Common Stock (and, following the
occurrence of a Triggering Event, other securities) issuable and deliverable
upon the exercise of the Rights are listed on any national securities exchange,
the Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable, all shares reserved for such issuance to be listed on
such exchange 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 a Section
ll(a)(ii) Event on which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance with Section ll(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 Act with respect to the
securities purchasable upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are no longer
exercisable for such securities, and (B) the date of the expiration of the
Rights. 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
14
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 Plan to the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained, the
exercise thereof shall not be permitted under applicable law, or any necessary
registration statement, the effectiveness of which in such jurisdiction is
required to make the offering not illegal, shall not have been declared
effective.
(d) The Company shall take all such action as may be necessary to
ensure that all shares of Common Stock (and, following the occurrence of a
Triggering Event, other securities), delivered upon exercise of Rights shall, at
the time of delivery of the certificates for such shares and of such other
securities (subject to payment of the Purchase Price), be duly and validly
authorized and issued and that all shares shall be fully paid and nonassessable.
(e) The Company shall 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, any certificates for shares of
Common Stock (or other securities, as the case may be) issued 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 a number of
shares of Common Stock (or other securities, as the case may be) in respect of a
name other than that of, the registered holder of the Rights Certificates
evidencing Rights surrendered for exercise, or to issue or deliver any
certificates for a number of shares of Common Stock (or other securities, as the
case may be) in a name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid (any such tax being
payable by the holder of such Rights Certificate at the time of surrender), or
until it has been established to the Company's satisfaction that no such tax is
due.
Section 10. Record Date for Securities Issued Upon Exercise.
Each Person in whose name any certificate for a number of shares of Common
Stock (or other securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be
15
deemed to have become the holder of record of such shares of Common Stock (or
other securities, as the case may be) represented thereby on, and such
certificate shall be dated, the date upon which the Rights Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Common Stock (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 stock (or
other securities, as the case may be) on, and such certificate shall be dated,
the next succeeding Business Day on which the Common Stock (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 stockholder of the Company with respect
to stock for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to receive any notice
of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights.
The Purchase Price, the number and kind of securities 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 this Plan
is adopted (A) declare a dividend on the Common Stock payable in shares of
Common Stock, (B) subdivide the outstanding Common Stock, (C) combine the
outstanding Common Stock into a smaller number of shares, or (D) issue any
shares of its capital stock in a reclassification of the Common Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section ll(a) and Section 7(e)
hereof, the Purchase Price in effect at the time of the record date for
such dividend or of the effective date of such subdivision, combination or
reclassification, and the number of shares of Common Stock (or the number
and kind of other securities, as the case may be), shall be
proportionately adjusted so that if a holder of Rights after such time
were to exercise that number of Rights which would result in the aggregate
amount of the Purchase Price payable upon such exercise tat the Purchase
Price then in effect) being equal to the amount of the Purchase Price that
was payable prior to such time upon
16
exercise of a Right, the holder would be entitled to receive the aggregate
number of shares of Common Stock (or the number and kind of other
securities, as the case may be) which, if a Right had been exercised
immediately prior to such time and at a time when the Common Stock (or
other securities, as the case may be) transfer books of the Company were
open, the holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment
under both this Section ll(a)(I) and Section ll(a)(ii) hereof, the
adjustment provided for in this Section ll(a)(I) shall be in addition to,
and shall be made prior to, any adjustment required Pursuant to Section
ll(a)(ii) hereof.
(ii) In the event:
(A) any Person or group of Persons shall at any time after the Rights
Dividend Declaration Date, without the consent of a majority of the
Disinterested Directors, become an Acquiring Person unless the event
causing the 20% threshold to be crossed is a transaction set forth in
Section 13(a) hereof, or is an acquisition of shares of Common Stock
pursuant to a tender offer or an exchange offer for all outstanding shares
of Common Stock at a price and on terms determined by at least a majority
of the Disinterested Directors after receiving advice from one or more
investment banking firms, to be (a) at a price which is fair to
stockholders (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 stockholders (such offer herein
referred to as a "Fair Value Offer"), or
(B) any Acquiring Person whose acquisition of 20% or more of the Company's
Common Stock has been consented to by a majority of the Disinterested
Directors, or any Associate or Affiliate of any such Acquiring Person,
shall, without the consent of a majority of the Disinterested Directors,
(1) acquire, directly or indirectly, in one or a series of transactions,
an additional 2% or more of the Company's Common Stock, (2) sell,
purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire
or dispose of, in one or a series of transactions, to, from or with the
Company or any of its Subsidiaries, assets on terms and conditions less
favorable to the Company than the Company would be able to obtain in arm's
length negotiation with an unaffiliated third party, other than pursuant
to a transaction set forth in Section 13(a) hereof, (3) sell, purchase,
lease, exchange, mortgage, pledge, transfer or otherwise acquire or
17
dispose of, in one or a series of transactions, to, from or with the
Company or any of its Subsidiaries (other than incidental to the lines of
business, if any, engaged in as of the date of this Plan between the
Company and such Acquiring Person or Associate or Affiliate thereof)
assets having an aggregate fair market value of more than $5,000,000,
other than pursuant to a transaction set forth in Section 13(a) hereof,
(4) receive any compensation from the Company or any of the Company's
Subsidiaries other than compensation for full-time employment as a regular
employee at rates in accordance with the Company's or such Subsidiary's
normal practices, or (5) receive the benefit, directly or indirectly
(except resulting from a requirement of law or governmental regulation),
of any loans, advances, guarantees, pledges or other financial assistance
or any tax credits or other tax advantage provided by the Company or any
of its Subsidiaries.
then, ten days following the first occurrence of a Section ll(a)(ii) Event (or
such shorter or longer period as a majority of the Disinterested Directors shall
from time to time determine), proper provision shall be made so that each holder
of a Right (except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Plan such number of shares
of Common Stock of the Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then number of shares of
Common Stock for which a Right was exercisable immediately prior to the first
occurrence of a Section ll(a)(ii) Event, and (y) dividing that product (which,
following such first occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes of this Plan) by 50% of the
Current Market Price per share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment Shares"); provided that, in
no event shall the Company issue or be obligated to issue Common Stock at a
Purchase Price per share of Common Stock that is less than the per share par
value of the Common Stock as the same may be adjusted from time to time; and
provided further that after the occurrence of any Section ll(a)(ii) event, the
Company, by action of a majority of the Disinterested Directors in office at the
time, may permit the Rights to be exercised, or may require and specify that the
Rights may only be exercised, for 50% of the shares of Common Stock (or cash or
other securities or assets to be substituted for the Adjustment Shares pursuant
to Section ll(a)(iii) below) that would otherwise be purchasable pursuant to the
preceding clauses of this Section ll(a)(ii) in consideration of the surrender to
the Company of the Rights so exercised and without payment of the Purchase
Price(except to the extent, if any, as may, in the opinion of the Company"s
legal counsel, be necessary in order that the Company may validly and legally
thereupon issue
18
fully paid and nonassessable shares of Common Stock), and all Rights so
exercised under this proviso without payment of the Purchase Price shall be
deemed to have been exercised in full and shall be cancelled; and provided
further that during the ten days following the first occurrence of a Section
ll(a)(ii) Event (or such shorter or longer period as a majority of the
Disinterested Directors shall from time to time determine), the Rights may be
redeemed only by the vote of a majority of the Disinterested Directors who are
Directors of the Company on the day before the occurrence of such Section
ll(a)(ii) Event.
(iii) In the event that the number of shares of Common Stock 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 is not
sufficient to permit the exercise in full of the Rights in accordance with the
foregoing subparagraph (ii) of this Section ll(a), the Company shall: (A)
determine the excess of (i) the value of the Adjustment Shares issuable upon the
exercise of a Right (the "Current Value") over (2) the Purchase Price (such
excess being referred to as 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) other equity securities of the Company (including, without limitation,
shares, or units of shares of preferred stock, if any exists at such time),
which the Board has deemed to have the same value as shares of Common Stock
(such shares of preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing (whichever substituted, the "Substitute
Consideration"), having an aggregate value equal to the Current Value, where
such aggregate value has been determined by the Board based upon the advice of a
nationally recognized investment banking firm selected by the Board; 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 date of the
first occurrence of a Section ll(a)(ii) Event (such date being referred to
herein as the "Section ll(a)(ii) Trigger Date"), then, subject to subsection (k)
hereof, the Company shall be obligated to deliver, upon the surrender for
exercise of a Right and without requiring payment of the Purchase Price, shares
of Common Stock (to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread. If the Board
shall determine in good faith that it is likely that sufficient additional
shares of Common Stock could be authorized for issuance upon exercise in full of
the Rights, the thirty (30) day period set forth above may be extended to the
extent necessary, but not more than ninety (90) days after the Section ll(a)(ii)
Trigger Date, in order that the Company may seek
19
stockholder approval for the authorization of such additional shares (such
period, as it may be extended, being referred to herein as the "Substitution
Period"). To the extent that the Company determines that some action need be
taken pursuant to the first and/or second sentences of this Section ll(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 to such first sentence and
to determine the value thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this Section ll(a)(iii),
the value of the Common Stock shall be the Current Market Price per share of the
Common Stock on the Section ll(a)(ii) Trigger Date and the value of any Common
Stock Equivalent shall be deemed to have the same value as the Common Stock on
such date.
(b) In case the Company shall fix a record date for issuance of
rights, options or warrants to all holders of Common Stock, entitling them to
subscribe for or purchase (for a period expiring within forty-five (45) calendar
days after such record date) Common Stock (or shares having the same rights,
privilege and preferences as the shares of Common Stock ("Equivalent Common
Stock")) or securities convertible into Common Stock or Equivalent Common Stock
at a price per share of Common Stock or per share of Equivalent Common Stock (or
having a conversion price per share, if a security convertible into Common Stock
or Equivalent Common Stock) less than the Current Market Price per share of
Common Stock on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Common Stock outstanding on such record date,
plus the number of shares of Common Stock which the aggregate offering price of
the total number of shares of Common Stock and/or Equivalent Common Stock so to
be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such Current Market Price, and
the denominator of which shall be the number of shares of Common Stock
outstanding on such record date, plus the number of additional shares of Common
Stock and/or Equivalent Common Stock to be offered for subscription or purchase
(or into which the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by delivery of
consideration part or all of which may be in a form other than cash, the value
of such consideration shall be as
20
determined in good faith by the Board whose determination shall be conclusive
for all purposes. Shares of Common Stock owned by or held for the account of the
Company shall not be deemed outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such a record date is fixed,
and in the event that such rights or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution
to all holders of Common Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
corporation) of evidences of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but including any dividend
payable in stock other than Common Stock) or subscription rights or warrants
(excluding those referred to in Section ll(b) hereof), the Purchase Price to be
in effect after such record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price per share of Common Stock
on such record date, less the fair market value (as determined in good faith by
the Board whose determination shall be conclusive for all purposes) of the
portion of the cash, assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to a share of Common Stock
and the denominator of which shall be such Current Market Price per share of
Common Stock. 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 be adjusted to be the Purchase Price which would have been
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 ll(a)(iii) hereof, the "Current Market
Price" per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock for the thirty (30)
consecutive Trading Days immediately prior to such date, and for purposes of
computations made pursuant to Section ll(a)(iii) hereof, the "Current Market
Price" per share of Common Stock on any date shall be deemed to be the average
of the daily closing prices per share of such Common Stock for the ten (10)
consecutive Trading Days immediately following such date; provided, however,
that in the event that the Current Market Price per share of the Common Stock is
determined during a period following the announcement by the issuer of such
Common Stock of (i) a dividend or distribution on such Common Stock payable in
shares of such Common Stock or
21
securities convertible into shares of such Common Stock (other than the Rights),
or (ii) any subdivision, combination or reclassification of such Common Stock,
and prior to the expiration of the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the tax-dividend date for such
dividend or distribution, or the record date for such subdivision, combination
or reclassification, then, and in each such case, the Current Market Price shall
be properly adjusted to take into account tax-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 on the principal
national securities exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are not listed or admitted
to trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers, Inc., Automated Quotation System or such other system then in use, or,
if on any such date the shares of Common Stock are not quoted by any such
organization, the average of the Closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock selected by the
Board. If on any such date no market maker is making a market in the Common
Stock, the fair value of such stock on such date as determined in good faith by
the Board shall be used. The term "Trading Day" shall mean a day on which the
principal national securities exchange on which the shares of Common Stock are
listed or admitted to trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is not publicly held or
not so listed or traded, Current Market Price per share shall mean the fair
value per share as determined in good faith by the Board whose determination
shall be conclusive for all purposes. The Current Market Price of any fraction
of a share of Common Stock hereunder shall be determined by multiplying the
Current Market Price per share of Common Stock, determined in accordance with
this paragraph, by such fraction.
(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 one percent (1%) in the Purchase Price;
provided, however, that any adjustments which by reason of this Section ll(e)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 11 shall be made
to the nearest cent or to the nearest ten-thousandth of a share, as the case may
be. Notwithstanding
22
the first sentence of this Section ll(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (I) three (3) years from
the date of the transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made pursuant to Section
ll(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital stock other than Common
Stock, thereafter the number of such other shares so receivable upon exercise of
any Right and the Purchase Price thereof shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in Sections ll(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 Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, that number of shares of Common Stock
purchasable from time to time hereunder (or, if applicable, preferred stock)
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 ll(I), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections ll(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of shares of Common Stock
(calculated to the nearest ten-thousandth) obtained by (i) multiplying (x) the
number of shares covered by a Right immediately prior to this adjustment, by (y)
the Purchase Price in effect immediately prior to such adjustment of the
Purchase Price, and (ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of shares of Common Stock purchasable upon the exercise of a Right.
In that event, each of the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for that number of shares of Common Stock for
which a Right was exercisable immediately prior to such adjustment; and each
Right held of record prior to such adjustment of the number of Rights shall
become the number of Rights (calculated to the nearest one-ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to
23
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 ll(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. All costs associated with such adjustments, including without
limitation any taxes required to be paid on account of such adjustment, shall be
borne by the Company. Rights Certificates so to be distributed shall be issued
and executed 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 stock issuable upon the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the Purchase Price per
share of Common Stock and the shares of Common Stock which were expressed in the
initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then par value, if any, of the shares of Common
Stock 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 loyally issue fully paid and nonassessable s hares of
Common Stock at such adjusted Purchase Price.
(1) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the
24
holder of any Right exercised after such record date the shares of Common Stock
and other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the shares of Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in its good faith judgment the Board shall determine to be
advisable in order that any (i) consolidation or subdivision of the Common
Stock, (ii) issuance wholly for cash of any shares of Common Stock at less than
the Current Market Price, (iii) issuance wholly for cash of shares of Common
Stock or securities which by their terms are convertible into or exchangeable
for shares of Common Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to in this Section 11, hereafter made by the
Company to holders of its Common Stock shall not be taxable to such
stockholders.
(n) The Company 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 hereof), (ii) merge with or into
any other Person (other than a Subsidiary of the Company in a transaction which
complies with Section 11 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 50% 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 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 to the holders of the Rights
or (y) prior to, simultaneously with or immediately after such consolidation,
merger or sale, the stockholders 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.
25
(o) After the Distribution Date, the Company shall not, except as
permitted by Section 20 or Section 23 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 Plan to the contrary notwithstanding, in the
event that the Company shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a dividend on the
outstanding shares of Common Stock, (ii) subdivide the outstanding shares of
Common Stock, or (iii) combine the outstanding shares of Common Stock into a
smaller number of shares, the number of Rights associated with each share of
Common Stock then outstanding, or issued or delivered thereafter but prior to
the Distribution Date, shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number of Rights
associated with each share of Common Stock immediately prior to such event by a
fraction the numerator of which shall be the total number of shares of Common
Stock outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares.
Whenever an adjustment is made as provided in Section 11 and Section
13 hereof, the Company shall (a) promptly prepare a certificate setting forth
such adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent, if any, or if no Rights
Agent has been appointed, with the Company's Secretary, and with each transfer
agent for the Common Stock, a copy of such certificate, and " 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 shares of Common
Stock) in accordance with Section 22 hereof. The Rights Agent, if any, shall be
fully protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power.
(a) In the event that, following or simultaneously with
26
the Distribution Date, directly or indirectly, without the consent of a majority
of the Disinterested Directors, (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 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 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 shares of Common Stock 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 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 Right, 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 Plan, such number of
validly authorized and issued, fully paid, non-assessable and freely traceable
shares of Common Stock of the Principal Party, 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 shares of Common Stock (or, if applicable, preferred stock) for which
a Right is exercisable immediately prior to the first occurrence of a Section 13
Event (or, if a Section ll(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number of shares of Common
Stock (or, if applicable, preferred stock) for which a Right was exercisable
immediately prior to the first occurrence of a Section ll(a)(ii) Event by the
Purchase Price in effect immediately prior to such first occurrence), and
dividing that product (which, following the first occurrence of a Section 13
Event, shall be referred to as the "Purchase Price" for each Right and for all
purposes of this Plan) by (2) 50% of the Current Market Price per share of the
Common Stock 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 Plan; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
27
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 shares of its Common Stock) in
connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; and (v) the provisions of Section
ll(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 shares of Common Stock of the Company are converted in
such merger or consolidation, and if no securities are so issued, the Person
that is the other party to 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 Stock of such Person is not at such time and has 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 Stock of which is and has 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 Stocks of two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons is the issuer of the
Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger,
sale or transfer unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock 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, if any, or if no Rights Agent
shall have been appointed, to the Company's Secretary, a supplemental agreement,
satisfactory in form and substance to a majority of the Disinterested Directors,
providing for the terms set forth in Paragraphs (a) and (b) of this Section 13
and further providing
28
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:
(i) will prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon exercise of the
Rights on an appropriate form, 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 Act) until the Expiration Date; and
(ii) 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 a Section ll(a)(ii) Event, 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 Plan 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 (or a wholly owned subsidiary of any such Person or Persons) who
acquired shares of Common Stock pursuant to a Fair Value Offer, (ii) the price
per share of Common Stock offered in such transaction is not less than the price
per share of Common Stock paid to all holders of shares of Common Stock whose
shares were purchased pursuant to such Fair Value Offer, and (iii) the form of
consideration being offered to the remaining holders of shares of Common Stock
pursuant to such transaction is cash. Upon consummation of any such transaction
contemplated by this Section 13(d), all Rights hereunder shall expire.
(e) The provisions of this Section 13 shall be applicable to a
transaction described in subparagraphs (x), (y), and (z) of Section 13(a)
regardless of the business form of the Principal Party (e.g., corporation,
partnership, or other form). In the event that the Principal Party is an entity
other than a corporation, the term "Common Stock," as used in reference to the
Principal Party in this Section 13 or otherwise, shall be construed to refer to
the equity securities or other equity interest having power to control or direct
the management of, or representing the fundamental economic interest in, such
Principal Party.
29
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights
or to distribute Rights Certificates which evidence fractional Rights. In lieu
of such fractional Rights, there may be paid to the registered holders of the
Rights Certificates with regard to which such fractional Rights would otherwise
be issuable an amount in cash equal to the same fraction of the current market
value of a whole Right. For purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights for the Trading
Day immediately prior to the date on which such fractional Rights would have
been otherwise issuable. The closing price of the Rights for any day shall be
the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if the Rights are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotation System or such other system then
in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished by a
professional market maker selected by the Board making a market in the Rights.
If on any such date no such market maker is making a market in the Rights, then
the fair value of the Rights on such date as determined in good faith by the
Board shall be used.
(b) The Company shall not be required to issue fractions of shares
of Common Stock (or other securities) upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Common Stock (or
other securities). In lieu of fractional shares of Common Stock (or other
securities), the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of a share of
Common Stock (or other securities). For purposes of this Section 14(b), the
current market value of one share of Common Stock shall be the closing price per
share of Common Stock (as determined pursuant to Section ll(d) hereof) for the
Trading Day immediately prior to the date of such exercise, and the current
market value of any other securities shall be determined utilizing the
principles of Section ll(d) hereof as applied by the Board in its sole
discretion.
(c) The holders of Rights by the acceptance of the Rights expressly
waive any right to receive any fractional Rights
30
and/or any fractional shares upon exercise of a Right.
Section 15. Rights of Action.
All rights of action in respect of this Plan are vested in the
respective registered holders of the Rights Certificates (and, prior to the
Distribution Date, the registered holders of the Common Stock); and any
registered holder of any Rights Certificate (or, prior to the Distribution Date,
of the Common Stock), without the consent of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the Common Stock), may, in
such holder's own behalf and for such holder's own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the
Rights evidenced by such Rights Certificate in the manner provided in such
Rights Certificate and in this Plan. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Plan and shall be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to this Plan.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents and agrees
with the Company and with every other holder of a Right that:
(a) Prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) After the Distribution Date, the Rights Certificates are
transferable only on the registry books of the Company, if surrendered at the
principal office of the Company, or, if a Rights Agent is appointed by the
Company hereunder, only on the registry books of said Rights Agent, if
surrendered at the principal stockholder services office or offices of the
Rights Agent designated for such purposes, in either case duly endorsed or
accompanied 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, if any, may deem and treat the person in whose name a
Rights Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
31
writing on the Rights Certificates or the associated Common Stock certificate
made by anyone other than the Company or any Rights Agent) for all purposes
whatsoever, and neither the Company nor any Rights Agent appointed by the
Company, 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 Plan to the contrary, neither
the Company nor any Rights Agent appointed by the Company shall have any
liability to any holder of a Right or other Person as a result of its inability
to perform any of its obligations under this Plan 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 Stockholder.
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends or be deemed for any purpose the holder of the number of
shares of Common Stock or any other securities of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Rights Certificate be construed to confer
upon the holder of any Rights Certificate, as such, any of the rights of a
stockholder or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 21 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. Indemnification of Corporate Officers.
(a) The Company shall indemnify its officers for and hold them
harmless against any loss, liability or expense incurred without negligence, bad
faith or willful misconduct on the part of such officers for anything done or
omitted by such officers in connection with the acceptance and administration of
this Plan, including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly, and will promptly reimburse
such officers for any legal or other
32
expenses reasonably incurred in investigating or defending any such 1066,
expense, claim, damage or liability.
(b) The Company' 6 officers shall be protected by the indemnity
provided in this Section 18 and shall incur no liability for or in respect of
any action taken, suffered or omitted by any of them in connection with their
administration of this Plan in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the Company, instrument
or assignment of transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or document
believed by such officer to be genuine and to be signed, executed and, where
necessary, verified or acknowledged by the proper Person or Persons.
Section 19. Issuance of New Rights Certificates.
Notwithstanding any of the provisions of this Plan or of the Rights
to the contrary, the Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by the Board to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Rights Certificates
made in accordance with the provisions of this Plan. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution
Date and prior to the redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued or sold pursuant to the
exercise of stock options, or under any employee benefit plan or arrangement, 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, 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 20. Redemption and Termination; Exchange.
(a) The Disinterested Directors then in office may. at any time
prior to the Final Expiration Date, at their option, upon the affirmative vote
or written consent of not less than a majority of such Disinterested Directors,
redeem all but not less than all of the then outstanding Rights at a redemption
33
price of $.01 per Right, as such amount may be 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"). The Company may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the Current Market Price of the Common Stock at
the time of redemption) or any other form of consideration deemed appropriate by
a majority of the Disinterested Directors.
(b) Immediately upon the taking of action by a majority of the
Disinterested Directors 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 (without the payment of any interest thereon) for
each Right so held. Promptly after the taking of action by a majority of the
Disinterested 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 each holder's last address as it
appears upon the registry books of the Company. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
(c) The Board may, at its option, at any time after the Distribution
Date, exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that have become void pursuant to the provisions of
Section 7(e) hereof) for Common Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the Rights Dividend Declaration
Date(such number of shares of Common Stock issuable in exchange for one Right
being referred to herein as the "Exchange Shares"),subject to payment by
exchanging holders of Rights of such amount, if any, as may, in the opinion of
the Company"s legal counsel, be necessary in order that the Company may validly
and legally thereupon issue fully paid and nonassessable shares of Common Stock.
Notwithstanding the foregoing, the Board shall not be empowered to effect such
exchange at any time after any Acquiring Person, together with all Affiliates
and Associates of such Person, becomes the beneficial owner of 50% or more of
the Common Stock then outstanding.
(d) Immediately upon the action of the Board ordering the exchange
of any Rights pursuant to subsection (c) of this Section 20, without any further
action and without any notice the right to exercise such Rights shall terminate
and the only right
34
thereafter of a holder of such Rights shall be to receive the Exchange Shares.
The Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights in accordance with
Section 22 hereof. Each such notice of exchange will state the method by which
the exchange of the Common Stock for Rights will be effected and, in the event
of any partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
(e) In the event that there shall not be sufficient shares of Common
Stock issued but not outstanding, or authorized but unissued, to permit any
exchange of Rights as contemplated in accordance with this Section 20, the
Company shall either take such action as shall be necessary to authorize
additional shares of Common Stock, or take such action specified in Section
11(a)(iii) hereof as shall be necessary to substitute for each Exchange Share
other consideration having value equal to the Current Market Price per share of
the Common Stock as of the date such substitution is authorized by the Board.
Section 21. 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 shares of any class to the
holders of Common Stock or to make any other distribution to the holders of
Common Stock (other than a regular quarterly cash dividend out of earnings or
retained earnings of the Company), or (ii) to offer to the holders of Common
Stock rights or warrants to subscribe for or to purchase any additional shares
of Common Stock or shares of stock of any class or any other securities, rights
or options, or (iii) to effect any reclassification of its Common Stock (other
than a reclassification involving only the subdivision of outstanding shares of
Common Stock), 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 ll(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 transaction or a series of related 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 or Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which complies with Section ll
hereof), or (v) to effect the
35
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 22 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution, or winding up is to take place and the date of participation
therein by the holders of the shares of Common Stock, if any such date is to be
fixed, and such notice shall be so given in the case of any action covered by
clause (I) or (ii) above at least twenty (20) days prior to the record date for
determining holders of the shares of Common Stock for purposes of such action,
and in the case of any such other action, at least twenty (20) days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the shares of Common Stock, whichever shall be the earlier.
(b) If any event set forth in Section ll(a)(ii) hereof shall occur,
then, (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 22 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
ll(a)(ii) hereof, and (ii) all references in the preceding paragraph to Common
Stock shall, to the extent appropriate, also be deemed thereafter to refer to
other securities.
Section 22. Notices.
Notices or demands authorized by this Plan to be given or made to or
on the Company shall be sufficiently given or made if sent by first class mail,
postage prepaid, addressed (until another address is sent as provided below to
the holders of the Rights) as follows:
EMS Technologies, Inc.
660 Engineering Drive
Technology Park/Atlanta
Norcross, Georgia 30092
Attention: Chairman of the Board of Directors
Notices or demands authorized by this Plan to be given or made to
the holder of any Rights Certificate (or, if prior to the Distribution Date, to
the holder of certificates representing shares of Common Stock) shall be
sufficiently given or made if sent by first class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
36
Section 23. Supplements and Amendment; Substituted Plan.
Prior to the Distribution Date, the Company may supplement or amend
any provision of this Plan, terminate this Plan or adopt a new rights plan in
substitution for this Plan and all Rights outstanding hereunder (in which case
this Plan and all such Rights shall thereafter become null and void), without
the approval of any holders of certificates representing shares of Common Stock.
From and after the Distribution Date, the Disinterested Directors may supplement
or amend this Plan, or adopt a new rights plan in substitution for this Plan and
all Rights outstanding hereunder (in which case this Plan and all such Rights
shall thereafter become null and void), 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, (iv) to effect compliance with, or take advantage of, any changes in
law affecting the legality or enforceability of plans or arrangements such as
this Plan, or (v) to change or supplement the provisions hereunder in any other
manner which the Disinterested Directors may deem necessary or desirable,
including without limitation the addition of other events requiring adjustment
to the Rights under Section ll(a)(ii) or 13 or procedures relating to the
redemption of the Rights, which supplement or amendment 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,
this Plan may not be so supplemented or amended, and a new rights plan may not
be so adopted in substitution for this Plan, to lengthen, pursuant to clause
(iii) of this sentence, any time period (other than the period to the Final
Expiration Date) 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 or an Affiliate or Associate of an
Acquiring Person). Notwithstanding anything contained in this Plan to the
contrary, no supplement or amendment or substituted plan shall be made or
adopted which changes the Redemption Price, changes the Final Expiration Date to
an earlier date, reduces the Purchase Price, or reduces the number of shares of
Common Stock for which a Right is exercisable, except that any such amendment
may substitute preferred stock for the Common Stock issuable upon exercise of
the Right if the value of the preferred stock so substituted with respect to
each Right shall equal, in the sole discretion of a majority of the
Disinterested Directors, the then Current Market Value of the Common Stock then
issuable upon exercise of each Right, and any such amendment or substituted plan
effecting such substitution may amend any such provision of this Plan, including
without limitation the adjustment provisions of Section 11, to
37
reflect appropriately such substitution, or to restate this Plan in its entirety
to reflect appropriately such substitution. Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
Section 24. Successors.
All the covenants and provisions of this Plan by or for the benefit
of the Company shall bind and inure to the benefit of its successors and assigns
hereunder.
Section 25. Determinations and Actions by the Board of Directors,
etc.
For all purposes of this Plan, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for
purposes of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(I) of the General Rules
and Regulations under the Exchange Act, subject in all events to the provisions
of Section l(e) hereof including specifically, the last proviso thereof. The
Board (or, as set forth herein, certain specified members thereof) shall have
the exclusive power and authority to administer this Plan and to exercise all
rights and powers specifically granted to the Board (or, as set forth herein,
certain specified members thereof) or to the Company, or as may be necessary or
advisable in the administration of this Plan, including, without limitation,-
the right and power to (i) interpret the provisions of this Plan, and (ii) make
all determinations deemed necessary or advisable for the administration of this
Plan (including but not limited to a determination to redeem or not redeem the
Rights, to consent to a transaction in which a Person becomes an Acquiring
Person, to amend the Plan or to remit the Substitute Consideration or Spread
payable). 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 (or, as set forth herein, certain
specified members thereof) in good faith, shall (x) be final, conclusive and
binding on the Company, the holders of the Rights and all other parties, and (y)
not subject the Board (or, as set forth herein, certain specified members
thereof) to any liability to the holders of the Rights.
Section 26. Establishment of Fund for Disinterested Directors.
The Board may, at any time it deems appropriate,
38
establish or set aside one or more funds, whether in trust, escrow or otherwise
(and regardless of whether such fund is combined with any other fund established
or set aside by the Company), for the purpose of assuring that adequate
resources are available to any Disinterested Director in order to enable such
Disinterested Director to carry out his or her prescribed functions under this
Plan and to fulfill his or her fiduciary obligations to stockholders of the
Company.
Section 27. Benefits of this Plan.
Nothing in this Plan shall be construed to give to any Person other
than the Company and the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the Common Stock) any
legal or equitable right, remedy or claim under this Plan; but this Plan shall
be for the sole and exclusive benefit of the Company and the registered holders
of the Rights Certificates (and, prior to the Distribution Date, registered
holders of the Common Stock).
Section 28. Severability.
If any term, provision, covenant or restriction of this Plan is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable (including without limitation the last proviso to Section l(e)),
the remainder of the terms, provisions, covenants and restrictions of this Plan
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated; provided, however, that in the event of such a holding by such
court or authority, this Plan may be amended to take into account such holding
including by way of illustration but not limitation, an amendment raising the
percentage of beneficial ownership specified in Section l(a) or Section
ll(a)(ii). Without limiting the foregoing provisions of this Section 27, if any
provisions of this Plan requiring that a determination be made by less than the
entire Board (or at a time or with the concurrence of a group of directors
consisting less than the entire Board) is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable, such
determination shall no longer be subject to determination by such directors
constituting less than the entire Board, but shall instead be made in the best
interests of the holders of the Rights and with a view to effecting the purposes
and intent of this Plan by a court of competent jurisdiction, or, if such court
determines it is impermissible or inappropriate to discharge such function, then
such determination shall be made by the entire Board in good faith, in
accordance with applicable law and the Company's articles of incorporation and
bylaws, in the best interests of the holders of the Rights, and with a view to
effecting the purposes and intent of this Plan.
39
Section 29. Governing Law.
This Plan, each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Georgia and
for all purposes shall be governed by and construed in accordance with the laws
of such State applicable to contracts made and to be performed entirely within
such State.
Section 30. Descriptive Headings.
Descriptive headings of the several Sections of this Plan are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
40
EXHIBIT A
[Form of Face Side of Rights Certificate]
Certificate No. R- Rights
NOT EXERCISABLE AFTER AUGUST 6, 2009, OR EARLIER IF REDEEMED BY THE COMPANY. THE
RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE STOCKHOLDER RIGHTS PLAN. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS PLAN) 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 TERM IS DEFINED IN THE
STOCKHOLDER RIGHTS PLAN). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH PLAN.]*
Rights Certificate
EMS TECHNOLOGIES, INC.
This certifies that , or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Stockholder Rights Plan,
dated as of April 6, 1999 (the "Rights Plan"), of EMS Technologies, Inc., a
Georgia corporation (the "Company"), to purchase from the Company at any time
prior to 5:00 P.M. Eastern time on August 6, 2009, at the principal executive
office of the Company or the offices of the Rights Agent, if any, designated for
such purpose, one fully paid and nonassessable share of common stock, par value
$.10 per share (the "Common Stock"), of the Company, at a purchase price of
$45.00 per Right (the "Purchase Price"), upon presentation and surrender of this
Rights Certificate with a Form of Election to Purchase and related Certificate
duly executed. The number of Rights evidenced by this Rights Certificate (and
the amount of securities constituting a Right which may be purchased upon
exercise thereof) set forth above, and the Purchase Price set forth above, are
the amount of securities constituting a Right and Purchase Price as of April 6,
1999, based on the Common Stock an constituted as of such date.
* The portion of the legend in brackets shall be inserted only if applicable and
shall replace the preceding sentence.
41
In the circumstances and subject to the conditions specified in the
Rights Plan, the Company may (i) at the sole discretion of the Disinterested
Directors (as defined in the Rights Plan), permit or require the Rights to be
exercised for 50% of the shares otherwise purchasable but without payment of the
Purchase Price (except to the extent of any requirements as to payment of par
value), and (ii) at the sole discretion of the Board of Directors, exchange each
Right (other than those that have become void as specified below), for one share
of Common Stock without payment except to the extent of any requirements as to
payment of par value.
Upon the occurrence of a Section ll(a)(ii) Event (as defined in the
Rights Plan), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate
thereof (as such terms are defined in the Rights Plan), (ii) a transferee of any
such Acquiring Person (or Associate or Affiliate thereof) who becomes a
transferee after such Acquiring Person becomes such, or (iii) under certain
circumstances specified in the Rights Plan, a transferee of any such Acquiring
Person (or Associate or Affiliate thereof), who becomes a transferee prior to or
concurrently with such Acquiring Person becoming such, such Rights shall become
null and void and no holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section ll(a)(ii) Event.
As provided in the Rights Plan, the Purchase Price and the number
and kind of shares of Common Stock, securities or other property, 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,
including Triggering Events (as defined in the Rights Plan).
This Rights Certificate is subject to all of the terms, provisions
and conditions of the Rights Plan, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Plan reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, if any, 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 Plan. Copies of the Rights Plan are on file at the principal executive
office of the Company and are also available upon written request to the
Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal executive offices of the Company or the
stockholder services office or offices of
42
any Rights Agent designated for such purpose, as the case may be, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Common Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Plan, the Rights evidenced
by this Certificate may be redeemed at any time prior to the Final Expiration
Date by the Company at its option at a redemption price of $.01 per Right
(payable in cash, Common Stock or other consideration deemed appropriate by a
majority of the Disinterested Directors of the Company).
The Company is not required to issue fractional shares of Common
Stock upon the exercise of any Right or Rights evidenced thereby, but in lieu
thereof a cash payment will be made, as provided in the Rights Plan.
No holder of this Rights Certificate shall be entitled to vote or
receive dividends on or be deemed for any purpose the holder of shares of Common
Stock or any other securities of the Company which may at any time be issuable
on the exercise hereof, nor shall anything contained in the Rights Plan or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof,
or to give or withhold consent to any corporate action, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Rights Plan), or to receive dividends or subscription rights until the Right or
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Plan.
This Rights Certificate shall not be valid or effective for any
purpose until it shall have been executed by the Company.
WITNESS the facsimile signature of the proper officers of the
company and its corporate seal.
Dated as of ,
ATTEST: EMS TECHNOLOGIES, INC.
Title By:
Title
43
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires
to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint Attorney, to transfer the
within Rights Certificate on the books of the within-named Company, with full
power of substitution.
Dated: ,
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such 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 subsequently became an Acquiring Person or an
Affiliate or Associate of any such Person.
Dated: ,
Signature
NOTICE
The signatures to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without
44
alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented by the Rights
Certificate.)
To: EMS TECHNOLOGIES, INC.
The undersigned hereby irrevocably elects to exercise Rights
represented by this Rights Certificate to purchase the number of shares of
Common Stock issuable upon the exercise of the Rights (or such other securities
of the Company or of any other person which may be issuable upon the exercise of
the Rights) and requests that the certificates for shares of Common Stock (or
such other securities) constituting such Rights be issued in the name of and
delivered to:
Please insert social security or other identifying number:
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by
this Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number:
(Please print name and address)
Dated:
Signature
Signature Guaranteed:
45
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 Person (as such terms are
defined in the Rights Plan);
(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 any such Person.
Dated: ,
Signature
Signature Guaranteed:
NOTICE
The signatures to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change whatsoever.
46
EXHIBIT B
EMS TECHNOLOGIES, INC.
SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK
On March 15, 1999, the Board of Directors (the "Board") of EMS
Technologies, Inc.(the "Company") declared a dividend distribution of one Right
for each outstanding share of Company Common Stock to stockholders of record at
the close of business on April 16, 1999. The description and terms of the Rights
are set forth in a Stockholder Rights Plan (the "Plan") adopted by the Board of
Directors. Subject to becoming exercisable as described below, each Right
entitles its registered holder to purchase from the Company one share of Common
Stock at a Purchase Price of $45.00, subject to adjustment.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common Stock
on the "Distribution Date" (as defined in the next paragraph), and separate
Rights Certificates will be distributed as soon as practicable thereafter to
record holders of the Common Stock at the close of business on the Distribution
Date. As of and after the Distribution Date, the separate Rights Certificates
alone will represent the Rights. Except as otherwise determined by the Board,
all shares of Common Stock issued prior to the Distribution Date will be issued
with Rights.
The Distribution Date will occur on the earliest of (i) 10 days
following the date (the "Stock Acquisition Date") of a public announcement that
a person or group of affiliated or associated persons (an "Acquiring Person")
has acquired, or obtained the right to acquire, without the consent of a
majority of Disinterested Directors (as defined below), beneficial ownership of
20% or more of the outstanding shares of Common Stock, except in certain
inadvertent acquisitions not involving any intention of exercising control,(ii)
10 days following the commencement of a tender offer or exchange offer that
would result in a person or group beneficially owning 20% or more of such
outstanding shares of Common Stock, (iii) with respect to any Acquiring Person
whose acquisition of 20% or more of the outstanding shares of Common Stock of
the Company was consented to by a majority of the Disinterested Directors, 10
days following the date that such person, without the consent of a majority of
the Disinterested Directors, thereafter acquires an additional 2% of the
outstanding shares of Common Stock of the Company or engages in certain
self-dealing transactions with the Company, or (iv) 10 days following the date
that an offer, made, encouraged or supported by such Acquiring Person, to
acquire the
47
Company in a merger or other business combination transaction in which the
Company is not the surviving corporation or to sell or transfer 50% or more of
the Company's assets or earning power is first announced, published, sent or
given.
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued after April 16,
1999, will contain a legend incorporating the Plan by reference, and (iii) the
surrender for transfer of any certificate for Common Stock outstanding will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on April 6, 2009, unless earlier redeemed by the
Company as described below.
If at any time after the Rights dividend is declared,
(1) a Person becomes the beneficial owner of 20% or more of the then
outstanding shares of Common Stock without the consent of a majority of the
Disinterested Directors (except pursuant to an offer for all outstanding shares
of Common Stock which a majority of the Disinterested Directors determine to be
fair to and otherwise in the best interests of the Company and its stockholders,
or in certain inadvertent acquisitions not involving any intent to exercise
control), or
(2) a Person who has become the beneficial owner of 20% or more of
the then outstanding shares of Common Stock with the consent of a majority of
the Disinterested Directors thereafter acquires an additional 2% or more of the
outstanding shares of Common Stock of the Company without such consent or
engages in certain self-dealing transactions with the Company without such
consent,
then beginning ten days after such event (or such shorter or longer period as a
majority of the Disinterested Directors shall from time to time determine), each
holder of a Right will have the right to receive, upon exercise of the Right and
payment of the Purchase Price, Common Stock (or, in certain circumstances and
subject to certain limitations, cash, property or other securities of the
Company) having a value equal to two times the Purchase Price of the Right, but
in no case exceeding one share for each $.10 of Purchase Price paid by the
holder.
Alternatively, in such event and with the approval of a majority of the
Disinterested Directors, each holder of a Right will have the right, or may be
permitted only, to receive shares of Common Stock having a value equal to the
Purchase Price upon surrender of the Right to the Company and without payment of
the Purchase
48
Price, subject to any requirements as to the payment of par value.
Notwithstanding any of the foregoing, upon the occurrence of any of the events
set forth in this paragraph, all Rights that are, or (under certain
circumstances specified in the Plan) were, beneficially owned by any Acquiring
Person or its associates or affiliates will be null and void.
For example, at a Purchase Price of $45.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase $90.00
worth of Common Stock (or other consideration, as noted above) for $45.00.
Assuming that the Common Stock had a per share value of $15.00 at such time, the
holder of each valid Right would be entitled to purchase six shares of Common
Stock for $45.00.
If at any time following or simultaneously with the Distribution
Date, without the consent of a majority of Disinterested Directors, (i) the
Company is acquired in a merger or other business combination transaction in
which the Company is not the surviving corporation (other than a merger which
follows a fair offer for all outstanding shares, as described in the second
preceding paragraph), or (ii) 50% or more of the Company's assets or earning
power is sold or transferred, each holder of a Right (except Rights which have
become void as set forth above) will have the right upon exercise of the Right
to receive common stock (or other securities or property, as the case may be) of
the acquiring company having a value equal to two times the Purchase Price of
the Right.
The Purchase Price payable and the number of shares of Common Stock
(or the number and kind of other securities or property, as the case may be)
issuable upon exercise of the Rights are subject to adjustment from time to time
to prevent dilution (i) in the event of a share dividend on, or a subdivision,
combination or reclassification of, the Common Stock, (ii) if holders of the
Common Stock are granted certain rights or warrants to subscribe for Common
Stock or convertible securities at less than the current market price of the
Common Stock, or (iii) upon the distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. The Company is not required to issue fractional shares of Common Stock
and in lieu thereof an adjustment in cash may be made based on the market price
of the Common Stock on the last trading date prior to the date of exercise.
49
At any time prior to the Expiration Date, the Disinterested
Directors, by majority vote, may redeem the outstanding Rights at a redemption
price of $0.01 per Right (the "Redemption Price") (payable in cash, Common Stock
or other consideration deemed appropriate by a majority of the Disinterested
Directors). Immediately upon the action of the Disinterested Directors electing
to redeem the outstanding Rights, the right to exercise the outstanding Rights
will terminate and the holders of outstanding Rights will only have the right to
receive the Redemption Price. Also, the Board may, at any time after the
Distribution Date, elect to exchange all or a portion of outstanding Rights
(other than Rights that have become void as set forth above) for Common Stock at
a ratio of one share of Common Stock for each Right (subject to any requirements
as to payment of par value), whereupon the right to exercise the affected Rights
will terminate and their holders will only have the right to receive the
exchange shares. The Company shall promptly give notice of redemption or
exchange to all Rights holders by first-class mail.
A "Disinterested Director" is any member of the Board who is not,
does not control, is not controlled by, is not affiliated with, has not been
nominated by or is not in any other manner representative of, and does not have
a substantial interest in (whether by beneficial ownership of securities or
otherwise), any Acquiring Person or associate or affiliate thereof.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a stockholder of the Company, including, without limitation, the
right to vote or to receive dividends. Stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
securities of an acquiring company as set forth above.
Prior to the Distribution Date, any of the provisions of the Plan
may be amended by the Board, or the Board may adopt a new rights plan in
substitution for the Plan and all Rights outstanding thereunder. After the
Distribution Date, the provisions of the Plan may be amended, or a new rights
plan may be adopted in substitution for the Plan and all rights outstanding
thereunder, by a majority of the Disinterested Directors to cure any ambiguity,
correct or supplement any provision of the Plan that may be defective or
inconsistent with other provisions of the Plan, shorten or lengthen any time
period under the Plan, effect compliance with, or take advantage of, changes in
law affecting the legality or enforceability of the Plan, or change or
supplement the provisions of the Plan in any manner that the majority of the
Disinterested Directors may deem
50
desirable (including, without limitation, the addition of other events requiring
adjustment to the Rights), which change, supplement or substitution does not
adversely affect the interests of holders of Rights (other than those of an
Acquiring Person or an affiliate or associate of an Acquiring Person). However,
no amendment or substituted plan may change the Redemption Price, change the
expiration date of the Plan to an earlier date, or reduce the Purchase Price or
the number of shares for which a Right is exercisable.
The Board my establish one or more funds, in trust or otherwise, for
use by the Disinterested Directors in carrying out their responsibilities under
the Plan.
Copies of the Plan will be filed with the Securities and Exchange
Commission as an Exhibit to an interim report to be filed by the Company on Form
8-K dated April 6, 1999. Copies of the Plan are available free of charge from
the Company. This summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Plan, which is
incorporated herein by reference.
51