Exhibit 4(b)
NORDSON CORPORATION
AND
NATIONAL CITY BANK, RIGHTS AGENT
RESTATED RIGHTS AGREEMENT
Dated as of
November 7, 1997
TABLE OF CONTENTS
Page
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INDEX OF DEFINED TERMS................................................................................. iii
RESTATED RIGHTS AGREEMENT.............................................................................. 1
Section 1. Certain Definitions............................................................... 1
Section 2. Appointment of Rights Agent....................................................... 7
Section 3. Issue of Right Certificates....................................................... 7
Section 4. Form of Right Certificates........................................................ 10
Section 5. Countersignature and Registration................................................. 12
Section 6. Transfer, Split Up, Combination, and Exchange of Right Certificates; Mutilated,
Destroyed, Lost, or Stolen Right Certificates.................................. 13
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights..................... 14
Section 8. Cancellation and Destruction of Right Certificates................................ 18
Section 9. Reservation and Availability of Shares............................................ 19
Section 10. Common Share Record Date......................................................... 22
Section 11. Adjustment of Purchase Price, and Exercise Price Number and Type of Shares, or
Number of Rights ............................................................. 23
Section 12. Certificates of Adjusted Purchase Price or Number of Shares...................... 34
Section 13. Fractional Rights and Fractional Shares.......................................... 35
Section 14. Rights of Action................................................................. 37
Section 15. Agreement of Rights Holders...................................................... 38
Section 16. Right Certificate Holder Not Deemed a Shareholder................................ 38
Section 17. Concerning the Rights Agent...................................................... 39
Section 18. Merger or Consolidation or Change of Name of Rights Agent........................ 40
Section 19. Duties of Rights Agent........................................................... 41
Section 20. Change of Rights Agent........................................................... 45
Section 21. Issuance of New Right Certificates............................................... 47
Section 22. Redemption....................................................................... 47
Section 23. Notice of Certain Events......................................................... 48
Section 24. Notices.......................................................................... 50
Section 25. Supplements and Amendments....................................................... 51
Section 26. Successors....................................................................... 52
Section 27. Determinations and Actions by the Board of Directors, etc........................ 52
Section 28. Benefits of this Agreement....................................................... 53
Section 29. Severability..................................................................... 53
Section 30. Governing Law.................................................................... 54
Section 31. Counterparts..................................................................... 54
Section 32. Descriptive Headings............................................................. 54
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Exhibit A
"EXPRESS" TERMS OF SERIES B CONVERTIBLE PREFERRED SHARES............................................... A-1
Exhibit B
FORM OF RIGHT CERTIFICATE.............................................................................. B-1
Exhibit C
SUMMARY OF RIGHTS TO PURCHASECOMMON SHARES............................................................. C-1
ii
INDEX OF DEFINED TERMS
Page
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Acquiring Person.......................................................... 2
Affiliate ................................................................ 3
Associate ................................................................ 3
Beneficial Owner ......................................................... 3
beneficially own ......................................................... 3
Business Day ............................................................. 5
close of business ........................................................ 5
Common Shares ............................................................ 5
Company .................................................................. 1
Continuing Director....................................................... 5
Control Event ............................................................ 5
Distribution Date ........................................................ 7
equivalent common shares.................................................. 25
Exchange Act ............................................................. 3
Exercise Price ........................................................... 6
Expiration Date .......................................................... 14
Final Expiration Date..................................................... 14
Flip-in Event ............................................................ 6, 24
Issuance ................................................................. 6
market price ............................................................. 28
NASDAQ ................................................................... 19
NYSE ..................................................................... 7
Person ................................................................... 6
Preferred Shares ......................................................... 6
Purchase Price ........................................................... 6
Record Date .............................................................. 1
Redemption Price ......................................................... 47
Right .................................................................... 1
Right Certificate ........................................................ 8
Rights Agent ............................................................. 1
Securities Act ........................................................... 20
Shares Acquisition Date................................................... 6
Subsidiary ............................................................... 7
Summary of Rights ....................................................... 8
Trading Day .............................................................. 29
iii
RESTATED RIGHTS AGREEMENT
This Agreement, dated as of November 7, 1997, between Nordson
Corporation, an Ohio corporation (the "Company"), and National City Bank, a
national banking association organized and existing under the laws of the United
States (the "Rights Agent"), amends and restates the Rights Agreement, dated as
of August 26, 1988, between the Company and AmeriTrust Company National
Association, as Rights Agent.
The Board of Directors of the Company has authorized and
declared a dividend consisting of one right (a "Right") for each Common Share
with a par value of $1.00 of the Company outstanding on September 9, 1988 (the
"Record Date"), and has authorized the issuance of one Right in respect of each
Common Share of the Company issued between the Record Date and the earlier of
the occurrence of a Shares Acquisition Date, the Expiration Date, or the Final
Expiration Date (as such terms are hereinafter defined), including Common Shares
that are treasury shares as of the Record Date and subsequently become
outstanding. Each Right initially represents the right to purchase one Common
Share of the Company.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this
Agreement, the following terms have the meanings indicated:
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(a) An "Acquiring Person" means any Person that, together with
all Affiliates and Associates of such Person, is the Beneficial Owner of 15% or
more of the Common Shares of the Company then outstanding; provided that, (w) an
Acquiring Person shall not include the Company, any Subsidiary, any employee
benefit plan or employee stock ownership plan of the Company or of any
Subsidiary, or any Person organized, appointed, or established by the Company or
any Subsidiary for or pursuant to the terms of any such plan, (x) a Person shall
not be deemed to have become an Acquiring Person solely as a result of a
reduction in the number of Common Shares outstanding, unless subsequent to such
reduction such Person, or any Affiliate or Associate of such Person, becomes the
Beneficial Owner of any additional Common Shares other than as a result of a
stock dividend, stock split, or similar transaction effected by the Company in
which all shareholders are treated equally, (y) for purposes of determining
whether Eric T. Nord or Evan W. Nord, together with each of their Affiliates or
Associates, is the Beneficial Owner of 15% or more of the Common Shares then
outstanding, the Common Shares then held by the Walter G. Nord Trust, by the
Nord Family Foundation, and by the Eric and Jane Nord Foundation shall be
excluded; for purposes of determining whether the Walter G. Nord Trust, the Nord
Family Foundation, or the Eric and Jane Nord Foundation, together with each of
their Affiliates and Associates, is the Beneficial Owner of 15% or more of the
Common Shares then outstanding, the Common Shares then held by Eric T. Nord and
by Evan W. Nord shall be excluded; for purposes of determining whether the Nord
Family Foundation, together with its Affiliates and Associates, is the
Beneficial Owner of 15% or
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more of the Common Shares then outstanding, the Common Shares then held by the
Eric and Jane Nord Foundation will be excluded; and, for purposes of determining
whether the Eric and Jane Nord Foundation, together with its Affiliates and
Associates, is the Beneficial Owner of 15% or more of the Common Shares then
outstanding, the Common Shares then held by the Nord Family Foundation will be
excluded, and (z) a Person will not be deemed to be an Acquiring Person if the
Person becomes the Beneficial Owner of more than 15% of the Common Shares
inadvertently and, as soon as practicable after the Person learns about such
beneficial ownership, divests a sufficient number of Common Shares so that the
Person ceases to be the Beneficial Owner of more than 15% of the Common Shares.
(b) An "Affiliate" and "Associate" have the respective
meanings given them in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in effect
on the date hereof.
(c) A Person is deemed to be the "Beneficial Owner" of, and is
deemed to "beneficially own," any securities:
(i) that such Person, or any of such PersonSections
Affiliates or Associates, beneficially owns, directly or
indirectly;
(ii) that 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), upon the
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exercise of any conversion right, exchange right, other right,
warrant, or option, or otherwise, except that a Person is not
deemed to be the "Beneficial Owner" of, or to "beneficially
own," (A) securities tendered pursuant to a tender offer or
exchange offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange or (B) securities issuable
upon exercise of these Rights;
(iii) that such Person, or any of such Person's
Affiliates or Associates, has the right, directly or
indirectly, to vote or dispose of pursuant to any agreement,
arrangement, or understanding (whether or not in writing),
except that a Person is not deemed to be the Beneficial Owner
of, or to "beneficially own," any security under this
subparagraph (iii) if the agreement, arrangement, or
understanding to vote such security (A) arises solely from a
revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations of the Exchange Act and (B)
is not then reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iv) that are beneficially owned, directly or
indirectly, by any other Person with whom or 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
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revocable proxy as described in subparagraph (iii) of this
paragraph (c)), or disposing of any securities of the Company.
Notwithstanding the foregoing, (x) a Person shall not be deemed to be the
Beneficial Owner of, or to "beneficially own," any security if such beneficial
ownership arises solely as a result of such Person's status as a "clearing
agency," as defined in Section 3(a)(23) of the Exchange Act, and (y) a Person
engaged in business as an underwriter of securities shall not be deemed to be
the Beneficial Owner of, or to "beneficially own," any securities acquired
through such Person's participation in good faith in an underwriting syndicate
pursuant to an agreement to which the Company is a party until expiration of 40
calendar days after the date on which such securities are acquired.
(d) A "Business Day" means any day other than a
Saturday, Sunday, or a day on which banking institutions in the State of Ohio
are authorized or obligated by law or executive order to close.
(e) The "close of business" on any given date means
5:00 P.M., Cleveland time, on such date.
(f) "Common Shares" means the Common Shares with a
par value of $1.00 of the Company and any shares other than Common Shares issued
in a subdivision, combination, or reclassification of the Common Shares, for
which an adjustment is made under Section 11(a)(i).
(g) A "Continuing Director" means any individual who
is a member of the Board of Directors of the Company, who is not an Acquiring
Person, an Affiliate or
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Associate of an Acquiring Person, or a representative or nominee of an Acquiring
Person or of any such Affiliate or Associate and who either (i) was a member of
the Board prior to the occurrence of a Control Event or (ii) was recommended or
elected to succeed a Continuing Director by a majority of the Continuing
Directors then in office.
(h) A "Control Event" will be deemed to occur upon
the earlier of (i) a Shares Acquisition Date and (ii) a change in the
composition of the Board of Directors of the Company as a result of a
solicitation of consents or proxies, such that a majority of the directors in
office following the completion of the solicitation were not directors at the
commencement of the solicitation, if any Person who is a participant in the
solicitation has stated (or a majority of the directors in office at the
commencement of the solicitation has determined in good faith) that such Person,
or any Affiliate or Associate of such Person, intends to take, or may consider
taking, any action that would result in such Person, or any Affiliate or
Associate of such Person, becoming an Acquiring Person.
(i) "Exercise Price" means the exercise price per
share set forth in Section ll(a)(ii).
(j) "Flip-in Event" means an event described in
Section ll(a)(ii).
(k) "Issuance" includes the issuance of authorized
but unissued shares and the transfer of treasury shares.
(l) A "Person" means any individual, corporation,
business trust, partnership, or other organization.
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(m) "Preferred Shares" means Series B Convertible
Preferred Shares of the Company with the express terms set forth in Exhibit A to
this Agreement.
(n) "Purchase Price" means the purchase price per
share set forth in Section 7(b).
(o) The "Shares Acquisition Date" means the first
date of public announcement by the Company or an Acquiring Person (by press
release, filing made with the Securities and Exchange Commission, or otherwise)
that a Person has become an Acquiring Person.
(p) A "Subsidiary" means any corporation or other
entity of which a majority of the voting power of the voting equity securities
or other equity interests is owned, directly or indirectly, by the Company.
Section 2. Appointment of Rights Agent. The Company
hereby appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts such
appointment and hereby certifies that it complies with the requirements of the
National Association of Securities Dealers Inc. and the New York Stock Exchange,
Inc. (the "NYSE") governing transfer agents and registrars. The Company may from
time to time appoint such Co-Rights Agents as it may deem necessary or
desirable. Any actions that may be taken by the Rights Agent pursuant to the
terms of this Agreement may be taken by any such Co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the
close of business on (i) the 20th calendar day after the occurrence of a Shares
Acquisition Date or
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(ii) any earlier date designated by the Board of Directors of the Company (the
earlier of these dates being herein referred to as the "Distribution Date"), the
Rights will be evidenced (subject to the provisions of Section 3(b)) by the
certificates for Common Shares registered in the names of the holders of the
Common Shares (which certificates for Common Shares shall also be deemed to be
Right certificates) and not by separate Right certificates, and the Rights will
be transferable only in connection with the transfer of the Common Shares on the
transfer books of the Company maintained by the Company or its appointed
transfer agent. As soon as practicable after the Distribution Date, the Rights
Agent will send, by first-class, insured, postage prepaid mail, to each record
holder of Common Shares as of the close of business on the Distribution Date at
the address of such holder shown on the records of the Company, a Right
certificate, in substantially the form of Exhibit B hereto ("Right
Certificate"), evidencing one Right for each Common Share held of record as of
the close of business on the Distribution Date. As of the close of business on
the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) As soon as practicable after the date of this
Agreement, the Company will send a copy of a Summary of Rights to Purchase
Common Shares, in substantially the form attached hereto as Exhibit C (the
"Summary of Rights") to each record holder of Common Shares. Until the
Distribution Date (or the earlier redemption or expiration of the Rights), the
Rights will be evidenced by the certificates for the associated Common Shares.
Until the Distribution Date (or the earlier redemption or expiration of the
8
Rights), the surrender for transfer of any of the certificates for outstanding
Common Shares, with or without a copy of the Summary of Rights, shall also
constitute the surrender for transfer of the Rights associated with the Common
Shares represented by such certificate.
(c) Rights shall be issued in respect of all Common
Shares issued or surrendered for transfer or exchange after the Record Date but
prior to the earlier of the occurrence of a Shares Acquisition Date, the
Expiration Date, or the Final Expiration Date (as such terms are defined in
Section 7). Certificates representing Common Shares issued or surrendered for
transfer or exchange after the Record Date but prior to the earlier of the
Distribution Date, the Expiration Date, or the Final Expiration Date shall have
impressed on, printed on, written on, or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Restated Rights Agreement between
Nordson Corporation and a Rights Agent, as amended from time to time
(the "Restated Rights Agreements"), the terms of which are hereby
incorporated in this certificate by reference and a copy of which is on
file at the principal executive offices of Nordson Corporation. Under
certain circumstances, as set forth in the Restated Rights Agreement,
such Rights will be evidenced by separate certificates and will no
longer be evidenced by this certificate. Nordson Corporation will mail
to the holder of this certificate a copy of the Restated Rights
Agreement (as in effect on the date of mailing) without charge promptly
after receipt of a written request therefor. Under certain
circumstances, Rights that are or were beneficially owned by an
Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as such terms are defined in the Restated Rights Agreement) and any
subsequent holder of such Rights may become null and void.
Until the Distribution Date, the Rights associated with the Common Shares
represented by certificates containing the foregoing legend shall be evidenced
by such certificates alone,
9
and the surrender for transfer of any such certificate shall also constitute the
surrender for transfer of the Rights associated with the Common Shares
represented by such certificate.
Section 4. Form of Right Certificates. (a) Each Right
Certificate (and the forms of assignment and of election to purchase shares to
be printed on the reverse of the Right Certificate) shall be substantially the
same as Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries, or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of
this Agreement, as may be required to comply with any applicable law, with any
rule or regulation made pursuant thereto, or with any rule or regulation of any
stock exchange on which the Rights may from time to time be listed or of any
association on which the Rights may from time to time be authorized for
quotation, or to conform to usage. Subject to the provisions of Section 21, the
Right Certificates, whenever issued, shall be dated as of the Record Date and,
on their face, shall entitle the holders thereof to purchase such number of
Common Shares of the Company as shall be set forth therein (or, at the close of
business on the 20th calendar day following the occurrence of a Shares
Acquisition Date, two Common Shares of the Company) at the Purchase Price per
share (or, at the close of business on the 20th calendar day following the
occurrence of a Shares Acquisition Date, at the Exercise Price per share); the
number of such Common Shares, the Purchase Price, and the Exercise Price shall
be subject to adjustment as provided in this Agreement.
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(b) Notwithstanding any other provisions of this
Agreement, any Right Certificate issued pursuant to Section 3 or Section 21 that
represents Rights beneficially owned by (i) an Acquiring Person or any Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) that becomes a transferee after the
Acquiring Person became an Acquiring Person, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) that becomes a
transferee prior to or concurrently with the Acquiring Person's becoming an
Acquiring Person and that either (A) holds an equity interest in such Acquiring
Person (or any such Associate or Affiliate) or has any continuing agreement,
arrangement, or understanding with such Acquiring Person (or any such Associate
or Affiliate) regarding the transferred Rights or (B) receives such Rights
pursuant to a transfer that the Board of Directors of the Company has determined
is part of a plan, arrangement, or understanding that has as a primary purpose
or effect the avoidance of Section 7(e), any Right Certificate issued at any
time to any nominee of an Acquiring Person, of any Associate or Affiliate of an
Acquiring Person, or of any such transferee, and any Right Certificate issued
pursuant to Section 6 or Section 11 upon transfer, exchange, replacement, or
adjustment of any other Right Certificate referred to in this sentence, shall
contain the following legend:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Rights Agreement). Accordingly, this Right Certificate
and the Rights represented hereby may become null and void in the
circumstances specified in Section 7(e) of the Rights Agreement.
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Section 5. Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by its Chairman of
the Board, Chief Executive Officer, President, or any Vice President, either
manually or by facsimile signature, and have affixed thereto the Company's seal
or a facsimile thereof attested by the Secretary or an Assistant Secretary of
the Company, either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who has
signed any of the Right Certificates ceases to be such officer of the Company
before countersignature by the Rights Agent and issuance and delivery by the
Company, such Right Certificates may nevertheless be countersigned by the Rights
Agent, issued, and delivered with the same force and effect as though the person
who signed such Right Certificates had not ceased to be such officer of the
Company; and any Right Certificate may be signed on behalf of the Company by any
person who, at the date such Right Certificate is signed, is a proper officer of
the Company to sign such Right Certificate, although at the date of the
execution of this Rights Agreement such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept books for registration and transfer of the Right
Certificates. Such books shall show the names and addresses of the respective
holders of the Right Certificates, the number of Rights evidenced on its face by
each of the Right Certificates, and the date of each of the Right Certificates.
12
Section 6. Transfer, Split Up, Combination, and
Exchange of Right Certificates; Mutilated, Destroyed, Lost, or Stolen Right
Certificates. (a) Subject to the provisions of Section 4(b), Section 7(e), and
Section 13, any Right Certificate may, at any time after the close of business
on the Distribution Date and at or prior to the close of business on the earlier
of the Expiration Date or the Final Expiration Date, be transferred, split up,
combined, or exchanged for another Right Certificate or Right Certificates
entitling the registered holder to purchase the same number of Common Shares (or
Preferred Shares or other securities) as the Right Certificate surrendered then
entitled 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
Right Certificate or Right Certificates shall make such request in writing
delivered to the Rights Agent and shall surrender the Right Certificate or Right
Certificates to be transferred, split up, combined, or exchanged at the
principal office of the Rights Agent or such other office as the Rights Agent
may designate from time to time for that purpose. Neither the Rights Agent nor
the Company shall be obligated to take any action with respect to the transfer
of any such surrendered Right Certificate until the registered holder has
completed and signed the certificate contained in the form of assignment on the
reverse side of such Right Certificate and has provided such additional evidence
of the identity of the Beneficial Owner or former Beneficial Owner, or the
Affiliates or Associates of the Beneficial Owner or former Beneficial Owner, as
the Company has reasonably requested. Thereupon the Rights Agent shall, subject
to Section 4(b), Section 7(e), and Section 13, countersign and deliver to the
13
person entitled thereto a Right Certificate or Right Certificates, as the case
may be, as so requested. The Company may require payment of a sum sufficient to
cover any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination, or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft, destruction, or
mutilation of a Right Certificate, and, in case of the loss, theft, or
destruction of a Right Certificate, of indemnity or security reasonably
satisfactory to them and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and, in case of the mutilation of a
Right Certificate, upon surrender to the Rights Agent and cancellation of the
mutilated Right Certificate, the Company shall make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed, or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e), the registered holder of
any Right Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein), in whole or in part, at any time after the
Distribution Date upon surrender of the Right Certificate, with the form of
election to purchase on the reverse side thereof duly executed, to the Rights
Agent at its principal office or such other office as the Rights Agent may
designate from time to time for that purpose, together with payment of the
aggregate Purchase Price with respect to the total number of Common Shares (or
Preferred Shares or other securities) as
14
to which such surrendered Rights are being exercised, at or prior to the close
of business on the earlier of (i) October 31, 2007 (the "Final Expiration
Date"), or (ii) the date on which the Rights are redeemed as provided in Section
22 (such earlier date being herein referred to as the "Expiration Date").
(b) Each Right shall initially represent the right to
purchase one Common Share, subject to adjustment as provided in Section 11. The
Purchase Price for each Common Share upon the exercise of one of the Rights
shall initially be $175.00, subject to adjustment from time to time as provided
in Section 11, and shall be payable in lawful money of the United States of
America in accordance with Section 7(c).
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase and the certificate
duly executed, accompanied by payment of the Purchase Price for the Common
Shares (or Preferred Shares or other securities) to be purchased and an amount
equal to any applicable transfer tax, in cash or by certified check or bank
draft payable to the order of the Company, the Rights Agent shall, subject to
Section 19(k), promptly (i) requisition from the Company's transfer agent
certificates for the total number of Common Shares (or Preferred Shares or other
securities) to be purchased, and the Company hereby irrevocably authorizes and
directs its transfer agent to comply with all such requests, (ii) if the Company
has elected to cause the total number of Common Shares (or Preferred Shares or
other securities) issuable upon exercise of the Rights to be deposited with a
depositary agent, requisition from the depositary agent depositary receipts
representing such number of Common Shares (or
15
Preferred Shares or other securities) as are to be purchased (in which case the
Company hereby authorizes and directs its transfer agent to deposit with the
depositary agent certificates for the Common Shares (or Preferred Shares or
other securities) represented by such receipts), and the Company hereby
authorizes and directs the depositary agent to comply with all such requests,
(iii) when appropriate, requisition from the Company's transfer agent
certificates for the total number the Common Shares (or Preferred Shares or
other securities) to be purchased in accordance with Section 11(a)(ii), and the
Company hereby authorizes and directs its transfer agent to comply with all such
requests, (iv) when appropriate, requisition from the Company the amount of cash
to be paid in accordance with Section 11(a)(iii) or in lieu of the issuance of
fractional shares in accordance with Section 13, (v) promptly after the receipt
of such certificates or depositary receipts, cause them to be delivered to or
upon the order of the registered holder of such Right Certificate, registered in
such name or names as may be designated by such holder, and (vi) when
appropriate, promptly after receipt deliver such cash to or upon the order of
the registered holder of such Right Certificate. In the event the Company is
obligated to issue Common Shares (or Preferred Shares or other securities) or to
pay cash pursuant to Section 11(a)(iii), the Company will make all arrangements
necessary so that such Common Shares (or Preferred Shares or other securities)
and cash are available for issuance and payment by the Rights Agent, as and when
appropriate.
(d) In case the registered holder of any Right
Certificate exercises less than all of the Rights evidenced thereby, a new Right
Certificate evidencing Rights
16
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent to the registered holder of such Right Certificate or to his duly
authorized assign, subject to the provisions of Section 13.
(e) Notwithstanding anything in this Agreement to the
contrary, any Rights that are or were at any time on or after the earlier of the
Distribution Date or the date on which any Person becomes an Acquiring Person
beneficially owned by (i) the Acquiring Person or any Associate or Affiliate of
the Acquiring Person, (ii) a transferee of the Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
became an Acquiring Person, or (iii) a transferee of the Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming an Acquiring Person and who
either (A) holds an equity interest in such Acquiring Person (or any such
Associate or Affiliate) or has any continuing agreement, arrangement, or
understanding with such Acquiring Person (or any such Associate or Affiliate)
regarding the transferred Rights or (B) receives such Rights pursuant to a
transfer that the Board of Directors of the Company has determined is part of a
plan, arrangement, or understanding that has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void when such Person
becomes an Acquiring Person, and no holder of such Rights shall have any right
with respect to such Rights under any provision of this Agreement from and after
such Person becomes an Acquiring Person. The Company shall use all reasonable
efforts to insure that the provisions of this Section 7(e) and of Section 4(b)
are complied with, but shall have no
17
liability to any holder of Rights or any other Person as a result of its failure
properly to make any determinations with respect to an Acquiring Person or its
Affiliates, Associates, or transferees in accordance with this Section 7(e).
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of Rights upon the
occurrence of any purported exercise as set forth in this Section 7 unless such
registered holder has (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise and (ii) provided such additional
evidence of the identity of the Beneficial Owner or former Beneficial Owner, or
the Affiliates or Associates of the Beneficial Owner or former Beneficial Owner,
as the Company may reasonably request.
Section 8. Cancellation and Destruction of Right
Certificates. All Right Certificates surrendered for the purpose of exercise,
transfer, split up, combination, or exchange shall, if surrendered to the
Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in cancelled form or, if surrendered to the Rights Agent, shall
be cancelled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancellation and retirement, and
the Rights Agent shall cancel and retire, any Right Certificate purchased or
acquired by the Company otherwise than upon the exercise of the Right
Certificate. The Rights Agent shall deliver all
18
cancelled Right Certificates to the Company or shall, at the written request of
the Company, destroy such cancelled Right Certificates and deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares.
(a) The Company will cause to be reserved and kept available out of Common
Shares that have been authorized by the Company's shareholders but are unissued,
or that are held in the Company's treasury, a number of Common Shares that will
be sufficient to permit the exercise in full of all of the outstanding Rights.
(b) In the event that, notwithstanding Section 9(a),
the number of authorized and unissued Common Shares and Common Shares held in
the Company's treasury is not sufficient to permit the exercise in full of all
of the outstanding Rights, including the exercise in full of all of the
outstanding Rights following any adjustment under Section 11, at any time after
the Distribution Date, the Company shall promptly (i) file an amendment to the
Company's articles of incorporation which creates the Preferred Shares and
authorizes a number of Preferred Shares that, together with authorized and
unissued Common Shares and Common Shares held in the Company's treasury, is
sufficient to permit the exercise in full of all of the outstanding Rights and
(ii) make the Preferred Shares available in place of Common Shares to permit the
exercise of the Rights. Under such circumstances, all rights and obligations of
the Company and the Rights Agent with respect to the Common Shares shall apply
with respect to Preferred Shares.
19
(c) Unless the Common Shares of the Company have been
theretofore listed on the NYSE or another national securities exchange, the
Company shall, as soon as practicable following the Distribution Date, use its
best efforts to cause transactions in the Rights to be quoted in the National
Association of Securities Dealers Inc. Automated Quotation System ("NASDAQ")
and, if Preferred Shares or other securities are to be made available in place
of Common Shares to be issued upon exercise of the Rights, shall use its best
efforts, as soon as practicable after the Rights become exercisable, to cause
transactions in the Preferred Shares or other securities issuable upon exercise
of the Rights to be quoted in NASDAQ. In the event that the Common Shares are
listed on the NYSE or another national securities exchange, the Company shall
use its best efforts to cause, from and after such time as the Rights become
exercisable, all Common Shares (or Preferred Shares or other securities)
reserved for such issuance upon exercise of the Rights to be listed on the NYSE
or such other exchange upon official notice of issuance.
(d) The Company shall (i) prepare and file, as soon
as practicable following the occurrence of a Shares Acquisition Date, a
registration statement under the Securities Act of 1933 (the "Securities Act")
on an appropriate form with respect to the Rights and the securities purchasable
upon exercise of the Rights, (ii) use its best efforts to cause such
registration statement to become effective as soon as practicable after such
filing, and (iii) use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the
20
earlier of the exercise of all of the Rights, the Expiration Date, or the Final
Expiration Date. The Company will also take such action as may be appropriate to
comply with the securities laws of each state in which holders of the Rights
reside. The Company may temporarily suspend, for a period of time not to exceed
90 days, the exercisability of the Rights in order to prepare and file such
registration statement. Upon any such suspension, the Company shall issue a
public announcement and notice to the Rights Agent stating that the
exercisability of the Rights has been temporarily suspended, and the Company
shall issue a public announcement and notice to the Rights Agent at such time as
the suspension is no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction in which any requisite registration or qualification has not been
obtained or any requisite notice of exemption has not been filed.
(e) The Company covenants and agrees that it will
take all such action as may be necessary to ensure that all Common Shares (or
Preferred Shares or other securities) delivered upon exercise of Rights are, at
the time of delivery of the certificates therefor (subject to payment of the
Purchase Price or the Exercise Price, as the case may be), duly and validly
authorized and issued, fully paid and nonassessable, freely tradeable, free and
clear of any liens, encumbrances or other adverse claims, and not subject to any
rights of call or first refusal.
(f) The Company further covenants and agrees that it
will pay, when due and payable, any and all federal and state transfer taxes and
charges that may be payable in respect of the issuance, delivery, or transfer of
the Right Certificates or of any
21
Common Shares (or Preferred Shares or other securities) upon exercise of the
Rights. The Company shall not, however, be required (i) to pay any transfer tax
that may be payable in respect of any transfer or delivery of Right Certificates
to a Person other than, or any issuance, delivery, or transfer of certificates
for the Common Shares (or Preferred Share or other securities, as the case may
be) in a name other than that of, the registered holder of the Right Certificate
evidencing the Rights surrendered for exercise or (ii) to issue or deliver any
certificates for a number of Common Shares (or Preferred Shares or other
securities) upon the exercise of any Rights until any such tax has been paid or
until it has been established to the Company's satisfaction that no such tax is
due. Any such tax shall be payable by the holder of such Right Certificate at
the time of surrender.
Section 10. Common Share Record Date. Each Person in
whose name any certificate for a number of Common Shares (or Preferred Shares or
other securities) is issued upon the exercise of Rights shall for all purposes
be deemed to have become the holder of record of such Common Shares (or
Preferred Shares or other securities) represented by such certificate on, and
such certificate shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Purchase Price
(or Exercise Price, as the case may be) and any applicable transfer tax was
made. Prior to the exercise of the Rights evidenced thereby, the holder of a
Right Certificate shall not be entitled to any rights of a shareholder of the
Company with respect to shares for which the Rights shall be exercisable,
including the right to vote, to receive dividends or other distributions, or to
exercise any preemptive rights, and shall not
22
be entitled to receive any notice of any proceedings of the Company, except as
provided herein.
Section 11. Adjustment of Purchase Price, and
Exercise Price Number and Type of Shares, or Number of Rights. The Purchase
Price and the Exercise Price, the number and type of shares covered by each of
the Rights, and the number of Rights outstanding is subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In the event the Company at any time after
the date of this Agreement (A) declares a dividend on the Common Shares
payable in Common Shares, (B) subdivides the outstanding Common Shares,
(C) combines the outstanding Common Shares into a smaller number of
shares, or (D) issues any shares other than Common Shares in a
reclassification of the Common Shares (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), the Purchase
Price and the Exercise Price in effect at the time of the record date
for such dividend or of the effective date of such subdivision,
combination, or reclassification, shall be proportionately adjusted
(except as otherwise provided in this Section 11(a) and Section 7(e))
so that the holder of any Rights exercised after such time shall be
required to pay the same aggregate Purchase Price or Exercise Price, as
the case may be, as such holder would be required to pay if such Rights
had been exercised immediately prior to such date, and the number of
Common Shares or the number
23
and kind of shares other than Common Shares, as the case may be,
issuable on such date shall be proportionately adjusted (except as
otherwise provided in this Section 11(a) and Section 7(e)) so that such
holder would be entitled to receive the same aggregate number of Common
Shares or the same number and kind of shares other than Common Shares,
as the case may be, that such holder would have owned and been entitled
to receive by virtue of such dividend, subdivision, combination, or
reclassification if such Rights had been exercised immediately prior to
such date. If an event occurs that would require an adjustment under
both Section 11(a)(i) and Section 11(a)(ii), the adjustment provided
for in this Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section 11(a)(ii).
(ii) In the event that a Shares Acquisition Date
occurs (a "Flip-in Event"), proper provision shall be made so that,
from and after the close of business on the 20th calendar day after
such Flip-in Event has occurred, each holder of a Right (except as
provided in Section 7(e)) shall thereafter have the right to receive,
upon exercise of each of the Rights held by such holder in accordance
with the terms of this Agreement, two Common Shares for an Exercise
Price of $1.00 per Common Share. The number of such Common Shares and
the Exercise Price shall be subject to adjustment as provided in this
Section 11.
(iii) In the event the number of authorized but
unissued Common Shares of the Company and Common Shares held in the
Company's treasury is not
24
sufficient to permit the exercise in full of all of the outstanding
Rights in accordance with paragraph (ii) of this Section 11(a), the
Company shall apportion among all of the outstanding Rights, on a pro
rata basis, the Common Shares available for delivery upon exercise of
the Rights and, upon exercise of each Right, shall deliver to the
holder thereof (A) the number or fraction of Common Shares apportioned
to the Right and (B) the number or fraction of Preferred Shares equal
to the balance of the Common Shares otherwise deliverable to the holder
upon exercise of the Right. If the number of Common Shares and
Preferred Shares that are authorized and unissued or held in the
Company's treasury is not sufficient to permit the exercise in full of
all of the outstanding Rights, the Company shall apportion among all of
the outstanding Rights, on a pro rata basis, the Common Shares and
Preferred Shares available for delivery upon exercise of the Rights
and, upon exercise of each Right, shall deliver to the holder thereof
(x) the number or fraction of Common Shares and Preferred Shares
apportioned to the Right and (y) cash in an amount equal to the product
of the balance of the Common Shares otherwise deliverable to the holder
upon exercise of the Right multiplied by the excess of the market price
per Common Share at the close of business on the 20th calendar day
following the occurrence of the Flip-in Event over the Exercise Price,
as adjusted pursuant to the provisions of this Section 11. To the
extent any legal or contractual restrictions prevent the Company from
paying the full amount of the cash payable in accordance with the
foregoing sentence, the Company shall pay to
25
holders of the Rights on a pro rata basis all of the funds that are not
then restricted. The Company shall continue to make payments to holders
of the Rights on a pro rata basis as funds become available until such
amount has been paid in full.
(b) In case the Company fixes a record date for the
issuance of rights or warrants to all holders of Common Shares entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares (or shares having the same rights,
privileges, and preferences as the Common Shares ("equivalent common shares") or
securities convertible into Common Shares or equivalent common shares) at a
price per Common Share or per equivalent common share (or having a conversion
price per share, if a security convertible into Common Shares or equivalent
common shares) less than the current market price (as defined in Section 11(d))
per Common Share on such record date, the Purchase Price and the Exercise Price
to be in effect after such record date shall be determined by multiplying the
Purchase Price and the Exercise Price in effect immediately prior to such record
date by a fraction the numerator of which is the number of Common Shares
outstanding on such record date plus the number of Common Shares that the
aggregate offering price of the total number of Common Shares or equivalent
preferred shares so to be offered (or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase at such market price
and the denominator of which is the number of Common Shares outstanding on such
record date plus the number of additional Common Shares or equivalent common
shares to be offered for subscription or purchase (or into which the convertible
securities so
26
to be offered are initially convertible). In case any part of such subscription
price is paid in a form other than cash, the value of such consideration shall
be as determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Common Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustment
shall be made successively whenever such a record date is fixed, and, in the
event such rights or warrants are not so issued, the Purchase Price and the
Exercise Price shall be adjusted to be the Purchase Price and the Exercise Price
that would then be in effect if such record date had not been fixed.
(c) In case the Company fixes a record date for the
making of a distribution to all holders of Common Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) or evidences of indebtedness
or assets (other than a regular periodic cash dividend at a rate per share not
in excess of 150% of the last quarterly cash dividend per share theretofore paid
or a dividend payable in Common Shares, but including any dividend payable in
shares other than Common Shares) or subscription rights or warrants (excluding
those referred to in Section 11(b)), the Purchase Price and the Exercise Price
to be in effect after such record date shall be determined by multiplying the
Purchase Price and the Exercise Price in effect immediately prior to such record
date by a fraction the numerator of which is the market price (as defined in
Section 11(d)) per Common Share on such record date, less the fair market value
(as determined in good faith by the Board of Directors of the
27
Company, whose determination shall be described in a statement filed with the
Rights Agent) of the portion of the assets (in the case of regular periodic cash
dividends at a rate per share in excess of 150% of the last quarterly cash
dividend per share theretofore paid, only that portion in excess of 150% of such
quarterly cash dividend per share) or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one Common
Share and the denominator of which shall be such market price per Common Share.
Such adjustments shall be made successively whenever such a record date is
fixed, and, in the event such distribution is not so made, the Purchase Price
and the Exercise Price shall be adjusted to be the Purchase Price and the
Exercise Price that would then be in effect if such record date had not been
fixed.
(d) For the purpose of any computation under Section
11(a), (b), or (c) hereof, the "market price" of a Common Share on any date of
determination shall be deemed to be the average of the daily closing prices per
Common Share for the 30 consecutive Trading Days (as such term is hereinafter
defined) immediately prior to such date, except that, in the event the "market
price" per Common Share is determined during the period following the
announcement by the issuer of such Common Share of (A) a dividend or
distribution on such Common Share payable in Common Shares or securities
convertible into Common Shares or (B) any subdivision, combination, or
reclassification of such Common Shares and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution or the record
date for such subdivision, combination, or reclassification, the "market price"
shall, in each such case, be appropriately adjusted to
28
take into account ex-dividend trading. The closing price for each day shall be
the last sale price, regular way, or, in case no such sale takes place on such
day, the average of the closing bid and asked prices, regular way, in either
case as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the NYSE or, if the
Common Shares are not listed or admitted to trading on the NYSE, as reported in
the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted sale price or, if no sale price is quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by NASDAQ or
such other system then in use or, if on any such date the Common Shares are not
reported by NASDAQ or such other system, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
Common Shares selected by the Board of Directors of the Company, except that if
on any such date no market maker is making a market in the Common Shares the
closing price on such date shall be the value of a Common Share on such date as
determined in good faith (i) by the Board of Directors if no Control Event has
occurred, (ii) by a majority of the Continuing Directors then in office if a
Control Event has occurred and one or more Continuing Directors remain in office
at the time the determination is made, or (iii) by an independent investment
banking firm selected by the Board of Directors if a Control Event has occurred
and no Continuing Director remains in office at the time the determination is
29
made; any such determination shall be described in a statement filed with the
Rights Agent and shall be conclusive for all purposes. The term "Trading Day"
shall mean a day on which the principal national securities exchange on which
the Common Shares are listed or admitted to trading is open for the transaction
of business or, if the Common Shares are not listed or admitted to trading on
any national securities exchange, a Business Day. If the Common Shares are not
publicly held or not so listed or traded, "market price" per Common Share shall
mean the value per Common Share as determined in good faith (i) by the Board of
Directors if no Control Event has occurred, (ii) by a majority of the Continuing
Directors then in office if a Control Event has occurred and one or more
Continuing Directors remain in office at the time the determination is made, or
(iii) by an independent investment banking firm selected by the Board of
Directors if a Control Event has occurred and no Continuing Director remains in
office at the time the determination is made; and such determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for
all purposes.
(e) No adjustment in the Purchase Price and the
Exercise Price shall be required unless such adjustment would require an
increase or decrease of at least 1% in the Purchase Price and the Exercise
Price, except that any adjustments that by reason of this Section 11(e) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest ten-thousandth of a Common Share, as the case
may be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this
30
Section 11 shall be made no later than the earlier of (i) three years from the
date of the transaction that mandates such adjustment and (ii) the date of the
expiration of the right to exercise any of the Rights.
(f) If, as a result of an adjustment made pursuant to
Section 11(a), the holder of any of the Rights exercised after such adjustment
becomes entitled to receive upon exercise of the Rights any shares of the
Company other than Common Shares, the number of such other shares so receivable
shall be subject to adjustment from time to time in a manner and on terms as
nearly equivalent as practicable to the provisions with respect to the Common
Shares contained in Section 11, and the provisions of Sections 7, 9, 10, and 13
with respect to the Common Shares shall apply on like terms to any such other
shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price and the Exercise Price
shall evidence the right to purchase, at the adjusted Purchase Price and (at the
close of business on the 20th calendar day following the occurrence of a Shares
Acquisition Date) the adjusted Exercise Price, the number of Common Shares
purchasable from time to time upon exercise of the Rights, all subject to
further adjustment as provided in this Agreement.
(h) Upon each adjustment of the Purchase Price and
the Exercise Price as a result of the calculations made in Sections 11(b) and
(c), each of the Rights outstanding immediately prior to the making of such
adjustment shall, unless the Company has exercised its election as provided in
Section 11(i), thereafter evidence the right to purchase, at the adjusted
Purchase Price or the adjusted Exercise Price, as the case may be,
31
that number of Common Shares (calculated to the nearest ten-thousandth) obtained
by (i) multiplying (x) the number of Common Shares purchasable upon exercise of
one of the Rights immediately prior to this adjustment by (y) the Purchase Price
or the Exercise Price, as the case may be, in effect immediately prior to such
adjustment and (ii) dividing the product so obtained by the Purchase Price or
the Exercise Price, as the case may be, in effect immediately after such
adjustment.
(i) The Company may elect, on or after the date of
any adjustment of the Purchase Price and the Exercise Price, to adjust the
number of Rights, in substitution for any adjustment in the number of Common
Shares purchasable upon the exercise of one of the Rights. Each of the Rights
outstanding after such adjustment of the number of Rights shall be exercisable
for the number of Common Shares for which one of the Rights was exercisable
immediately prior to such adjustment. Each of the Rights held of record prior to
such adjustment of the number of Rights shall become that number of Rights
(calculated to the nearest ten-thousandth) obtained by dividing the Purchase
Price and the Exercise Price in effect immediately prior to the adjustment by
the Purchase Price and the Exercise Price in effect immediately after the
adjustment. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the adjustment to be
made. This record date may be the date on which the Purchase Price and the
Exercise Price are adjusted or any day thereafter but, if the Right Certificates
have been issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, the Company shall, upon
each
32
adjustment of the number of Rights pursuant to this Section 11(i) and as
promptly as practicable, cause to be distributed to holders of Right
Certificates on such record date Right Certificates evidencing, subject to
Section 13, the additional Rights to which such holders are entitled as a result
of such adjustment or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof if required by the Company, new Right Certificates
evidencing all the Rights to which such holders are entitled after such
adjustment. Right Certificates so to be distributed shall be issued, executed,
and countersigned in the manner provided for in this Agreement (and may bear, at
the option of the Company, the adjusted Purchase Price and the adjusted Exercise
Price) and shall be registered in the names of the holders of record of Right
Certificates on the record date specified in the public announcement.
(j) Notwithstanding any adjustment or change in the
Purchase Price and the Exercise Price or the number of Common Shares issuable
upon the exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the Exercise
Price per Common Share and the number of Common Shares that were expressed in
the initial Right Certificates issued under this Agreement.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price or the Exercise Price below the then
stated capital, if any, of a Common Share issuable upon exercise of the Rights,
the Company shall take any corporate action that may, in the opinion of its
counsel, be necessary in order that the Company may
33
validly and legally issue fully paid and nonassessable Common Shares at such
adjusted Purchase Price or such adjusted Exercise Price.
(1) In any case in which this Section 11 requires
that an adjustment in the Purchase Price and the Exercise Price be made
effective as of a record date for a specified event, the Company may elect to
defer until the occurrence of such event the issuing to the holder of any Rights
exercised after such record date the number of Common Shares (or Preferred
Shares or other securities) issuable upon such exercise over and above the
number of Common Shares (or Preferred Shares or other securities) issuable upon
such exercise on the basis of the Purchase Price or the Exercise Price, as the
case may be, in effect prior to such adjustment, except that the Company shall
deliver to such holder a due bill or other appropriate instrument evidencing
such holder's right to receive such additional Common Shares (or Preferred
Shares or other 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 reduction in the
Purchase Price and the Exercise Price, in addition to those adjustments
expressly required by this Section 11, as and to the extent that the Board of
Directors of the Company in its discretion determines to be advisable.
Section 12. Certificates of Adjusted Purchase Price
or Number of Shares. Whenever an adjustment is made as provided in Sections 11
and 13, the Company shall promptly (a) prepare a certificate setting forth such
adjustment and a brief statement
34
of the facts accounting for such adjustment, (b) file with the Rights Agent and
with each transfer agent for the Common Shares a copy of such certificate, and
(c) mail a brief summary thereof to each holder of a Right Certificate (or, if
prior to the Distribution Date, to each holder of a certificate representing
Common Shares) in accordance with Section 25. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment contained in
such certificate.
Section 13. Fractional Rights and Fractional Shares.
(a) Prior to the occurrence of a Shares Acquisition Date, the Company shall not
be required to issue fractions of Rights or to distribute Right Certificates
that evidence fractional Rights. In lieu of such fractional Rights, the Company
may pay to the registered holders of the Right Certificates with regard to which
such fractional Rights would otherwise be issuable an amount in cash equal to
the same fraction of the market value of one of the Rights. For the purposes of
this Section 13(a), the market value of one of the Rights shall be the closing
price of the Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The closing price for
any day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the NYSE or, if the Rights are not listed or admitted to trading on
the NYSE, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights
35
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 sale price or,
if no sale price is quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such other system then in
use or, if on any such date the Rights are not quoted by NASDAQ or any such
other system, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the market value of one of the Rights shall be the value
of the Rights on such date as determined in good faith (i) by the Board of
Directors if no Control Event has occurred, (ii) by a majority of the Continuing
Directors if a Control Event has occurred and at least one or more Continuing
Directors remain in office at the time the determination is made, or (iii) by an
independent investment banking firm selected by the Board of Directors if a
Control Event has occurred and no Continuing Director remains in office at the
time the determination is made; and such determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
(b) The Company shall not be required to issue
fractions of a Common Share upon exercise of the Rights or to distribute
certificates that evidence fractional Common Shares. In lieu of fractional
shares, the Company may pay to the registered holders of Right Certificates at
the time such Right Certificates are exercised an amount in cash equal to the
same fraction of the market price of a Common Share on the
36
date of exercise. For purposes of this Section 14(b), the market price of a
Common Share shall be determined in accordance with Section 11(d).
(c) The holder of Rights by the acceptance of the
Rights expressly waives his right to receive any fractional Rights or any
fractional Common Shares upon exercise of the Rights.
Section 14. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered holders of the
Right Certificates (and, prior to the Distribution Date, the registered holders
of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of
the Rights Agent or of the holder of any other Right Certificate (or, prior to
the Distribution Date, of any other Common Shares), may, in his own behalf and
for his own benefit, enforce, and may institute and maintain any suit, action,
or proceeding against the Company to enforce, or otherwise act in respect of,
his right to exercise the Rights evidenced by such Right Certificate. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this Agreement and will be entitled to specific
performance of, and injunctive relief against actual or threatened violations
of, the obligations of any Person subject to this Agreement.
37
Section 15. Agreement of Rights Holders. Holders of
the Rights by accepting the Rights consent and agree with the Company and the
Rights Agent and with other holders of Rights that:
(a) prior to the Distribution Date, the Rights will
be transferable only in connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right
Certificates will be transferable only on the registry books of the Rights Agent
if surrendered at the principal office of the Rights Agent or such other office
as the Rights Agent may designate from time to time for that purpose, duly
endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed; and
(c) the Company and the Rights Agent may, subject to
Section 6(a), Section 7(e), and Section 7(f), deem and treat the Person in whose
name the Right Certificate (or, prior to the Distribution Date, the associated
Common Share certificate) is registered as the absolute owner of such Right
Certificate and of the Rights evidenced thereby (notwithstanding any notations
of ownership or writing on the Right Certificates or the associated Common Share
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
required to be affected by any notice to the contrary.
Section 16. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate shall be entitled to
vote, receive dividends, or be deemed for any purpose the holder of the number
of Common Shares (or Preferred
38
Shares or other securities) that may at any time be issuable on the exercise of
the Rights represented thereby, nor shall anything contained in this Agreement
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote in the election of directors or upon any matter submitted to
shareholders at any meeting thereof, to give or withhold consent to any
corporate action, to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 23), to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by such Right
Certificate have been exercised in accordance with the provisions of this
Agreement.
Section 17. Concerning the Rights Agent. (a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it under this Agreement and, from time to time on demand of
the Rights Agent, to reimburse it for or pay its reasonable expenses and counsel
fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties under this
Agreement. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense incurred without
negligence, bad faith, or willful misconduct on the part of the Rights Agent as
a result of anything done or omitted to be done by the Rights Agent in
connection with the acceptance and administration of this Agreement, including
the costs and expenses of defending against any claim of liability in the
premises.
39
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken, suffered, or omitted
by it in connection with its administration of this Agreement in reliance upon
any Right Certificate or certificate for Common Shares or for other securities
of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed, and, if necessary, verified or acknowledged by the proper
person or persons.
Section 18. Merger or Consolidation or Change of Name
of Rights Agent. (a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be consolidated, any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent is a party, or any corporation succeeding to the
corporate trust business of the Rights Agent or any successor Rights Agent shall
be the successor to the Rights Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the parties to
this Agreement, provided such corporation is eligible for appointment as a
successor Rights Agent under the provisions of Section 20. In case at the time
such successor Rights Agent succeeds to the agency created by this Agreement any
of the Right Certificates have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor so
countersigned; in case at that time any of the Right Certificates have not been
countersigned, any successor Rights Agent may
40
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and, in all such cases, such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
(b) In case at any time the name of the Rights Agent
is changed and at such time any of the Right Certificates have been
countersigned but not delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; in case at
that time any of the Right Certificates have not been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and, in all such cases, such Right Certificates shall have the
full force provided in the Right Certificates and in this Agreement.
Section 19. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance of the Right Certificates, shall be
bound:
(a) The Rights Agent may consult with legal counsel,
and the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion,
regardless of whether such counsel is also counsel to the Company.
(b) Whenever in the performance of its duties under
this Agreement the Rights Agent deems it necessary or desirable that
any fact or matter be proved
41
or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect of
such fact or matter is specifically prescribed in this Agreement) may
be deemed to be conclusively proved and established by a certificate
signed by any one of the Chairman of the Board, the President, any Vice
President, the Treasurer, or the Secretary of the Company and delivered
to the Rights Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or omitted in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable under this Agreement only
for its own negligence, bad faith, or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Agreement
or in the Right Certificates (except its countersignature thereof) or
be required to verify such statements or recitals, but all such
statements and recitals are and shall be deemed to have been made only
by the Company.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
of this Agreement (except the due execution of this Agreement by the
Rights Agent) or in respect of the validity or execution of any Right
Certificate (except the countersignature of the Right Certificates by
the Rights Agent); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in
any
42
Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or responsible for the
manner, method, or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except
with respect to the exercise of Rights evidenced by Right Certificates
after actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Common Shares or Preferred Shares
to be issued pursuant to this Agreement or any Right Certificate or as
to whether any Common Shares or Preferred Shares will, when issued, be
validly authorized and issued, fully paid, and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts,
instruments, and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) Prior to the earlier of the occurrence of a Control Event,
the Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties under this
Agreement from any one of the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President, the Treasurer, or
the Secretary of the Company and to apply to such officers for advice
or instructions in connection with its duties, and it shall not be
43
liable for any action taken or suffered to be taken by it in good faith
in accordance with any such instructions. After the occurrence of a
Control Event, the Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties under
this Agreement from the Continuing Directors and to apply to such
Continuing Directors for advice or instructions in connection with its
duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with any such instructions.
(h) The Rights Agent and any shareholder, director, officer,
or employee of the Rights Agent may buy, sell, or deal in any of the
Rights or other securities of the Company, become pecuniarily
interested in any transaction in which the Company may be interested,
contract with or lend money to the Company, or otherwise act as fully
and freely as though it were not the Rights Agent under this Agreement.
Nothing in this Agreement shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other Person.
(i) The Rights Agent may execute and exercise any of the
rights or powers vested in it by this Agreement or perform any duty
under this Agreement either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or accountable for
any act, default, neglect, or misconduct of any such attorney or agent
or for any loss to the Company resulting from any such act, default,
neglect, or misconduct, provided reasonable care was exercised in the
selection and continued employment of such attorney or agent.
44
(j) No provision of this Agreement shall require the Rights
Agent to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties or in the exercise of
its rights under this Agreement if there are reasonable grounds for
believing that the repayment of such funds, or adequate indemnification
against such risk or liability, is not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to
the Rights Agent for exercise or transfer, the certificate attached to
the form of assignment or form of election to purchase, as the case may
be, has either not been completed or indicates an affirmative response
to clause 1 or 2 of such certificate, the Rights Agent shall not take
any further action with respect to such requested exercise or transfer
without first obtaining instructions from the Company, as provided in
Section 19(g).
Section 20. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Shares by registered or certified mail and to the
holders of the Right Certificates by first class mail. If the Rights Agent
resigns, is removed or otherwise becomes incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such registration or incapacity by the
resigning or
45
incapacitated Rights Agent or by the holder of any of the Rights (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right may apply to any court of competent
jurisdiction for the appointment of a successor Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
of any state of the United States so long as such corporation is authorized to
do business as a banking institution, is in good standing, is authorized to
exercise corporate trust powers, is subject to supervision or examination by
federal or state authorities, and has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $50 million. After appointment,
the successor Rights Agent shall be vested with the same powers, rights, duties,
and responsibilities as if it had been originally named as Rights Agent without
further act or deed, but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by it under this
Agreement and execute and deliver any further assurance, conveyance, act, or
deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice of the appointment in writing with
the predecessor Rights Agent and each transfer agent of the Common Shares.
Failure to give any notice provided for in this Section 20 or any defect in such
notice shall, however, not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor Rights Agent, as
the case may be.
46
Section 21. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the Right
Certificates to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such form as may be approved by its Board of
Directors of the Company to reflect any adjustment or change in the Purchase
Price and the Exercise Price, in the number, kind, or class of shares or other
securities or property purchasable upon exercise of the Rights, or in any other
provision of this Agreement made in accordance with Section 11, Section 25, or
any other provision of this Agreement.
Section 22. Redemption. (a) The Board of Directors of
the Company may, at its option, at any time prior to the earlier of (i) the
close of business on the 20th calendar day following the occurrence of a Shares
Acquisition Date or (ii) the close of business on the Final Expiration Date,
redeem all but not less than all of the Rights then outstanding at a redemption
price of $.01 for each of the Rights, adjusted to reflect any stock split, stock
dividend, or similar transaction occurring after the date of this Agreement
(such redemption price being hereinafter referred to as the "Redemption Price"),
except that, if the decision to redeem the Rights is made after the occurrence
of a Control Event, then the Rights may be redeemed only if one or more
Continuing Directors remain in office when the decision is made and a majority
of the Continuing Directors then in office concur with the decision.
Notwithstanding anything contained in this Agreement to the contrary, the Rights
shall not be exercisable upon the occurrence of a Flip-in Event pursuant to
47
Section 11(a)(ii) prior to the expiration of the Company's right of redemption
pursuant to this Section 22(a).
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights (and, if
required, concurrence by a majority of the Continuing Directors), and without
any further action and without any notice, the right to exercise the Rights
shall terminate and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price. Within 10 days after the action of the Board of
Directors ordering the redemption of the Rights, the Company shall give notice
of such redemption to the holders of the then outstanding Rights by mailing such
notice to each such holder at the last address of such holder as it appears upon
the registry books of the Rights Agent or, prior to the Distribution Date, on
the registry books of the Transfer Agent for the Common Shares. Any notice that
is mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of redemption shall state the
method by which the payment of the Redemption Price will be made. Neither the
Company nor any of its Affiliates or Associates may redeem, acquire, or purchase
for value any Rights at any time in any manner other than as specifically set
forth in this Section 22 or in connection with the repurchase of Common Shares
prior to the Distribution Date.
Section 23. Notice of Certain Events. In case the
Company proposes at any time following the Distribution Date (a) to pay any
dividend payable in shares of any class to the holders of Common Shares or to
make any other distribution to
48
the holders of Common Shares (other than a regular periodic cash dividend at a
rate per share not in excess of 150% of the last cash quarterly dividend per
share theretofore paid), (b) to offer to the holders of Common Shares rights or
warrants to subscribe for or to purchase any additional Common Shares, shares of
any other class, or any other securities, rights, or options, (c) to effect any
reclassification of the Common Shares (other than a reclassification involving
only the subdivision of outstanding Common Shares), (d) to effect any
transaction which would constitute a Flip-over Event, or (e) to effect the
liquidation, dissolution, or winding up of the Company, the Company shall, in
each such case, give to each holder of Rights, in accordance with Section 24, a
notice of such proposed action specifying the record date for the purposes of
such dividend or distribution, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding up
is to take place and the date of participation therein by the holders of the
Common Shares, if any such date is to be fixed. Such notice shall be so given,
in the case of any action described in clause (a) or (b) above, at least 20 days
prior to the record date for determining holders of the Common Shares for
purposes of such action and, in the case of any such other action, at least 20
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the Common Shares, whichever is the
earlier. In case any of the events set forth in Section 11(a)(ii) of this
Agreement occurs, the Company shall, in any such case, as soon as practicable
thereafter give to each holder of Rights, in accordance with Section 24, a
notice
49
of the occurrence of such event specifying the event and the consequences of the
event to holders of Rights under Section 11(a)(ii).
Section 24. Notices. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the holder of any
Right Certificate to or on the Company shall be sufficiently given or made if
personally delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights Agent) as follows:
Nordson Corporation
28601 Clemens Road
Westlake, Ohio 44145
Attention: General Counsel
Subject to the provisions of Section 20, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
personally delivered or sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Company) as follows:
National City Bank
Corporate Trust Administration
629 Euclid Avenue, Rm. 635
Cleveland, Ohio 44114
Attention: Ms. Marlayna Miller
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to or on the holder of any Right Certificate shall
be sufficiently given or made if personally delivered or 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.
50
Section 25. Supplements and Amendments. The Company
may from time to time, with the approval of its Board of Directors, supplement
or amend this Agreement without the approval of any holders of Rights in order
(i) to cure any ambiguity, (ii) to correct or supplement any provision contained
in this Agreement that may be defective or inconsistent with any other provision
in this Agreement, and (iii), prior to the close of business on the 20th
calendar day following the occurrence of a Shares Acquisition Date, to make any
other change in the provisions of this Agreement that the Board of Directors of
the Company deems to be consistent with the purposes of this Agreement and not
adverse to the interests of the Company and its shareholders. Notwithstanding
the foregoing, any amendment or supplement pursuant to clause (iii) above that
is made after the occurrence of a Control Event may be made only if one or more
Continuing Directors remain in office when the amendment or supplement is
approved by the Board of Directors and a majority of the Continuing Directors
then in office concur with that approval. Upon the delivery of a certificate
from an appropriate officer of the Company that states that the proposed
supplement or amendment is in compliance with the terms of this Section 25, the
Rights Agent shall execute such supplement or amendment unless the Rights Agent
determines in good faith that such supplement or amendment would adversely
affect its interests under this Agreement. Notwithstanding anything to the
contrary in this Agreement, prior to the close of business on the 20th calendar
day following the occurrence of a Shares Acquisition Date, the interests of the
holders of Rights shall be deemed to be coincident with the interests of the
holders of Common Shares.
51
Section 26. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the Company or the Rights
Agent shall bind and inure to the benefit of their respective successors and
assigns.
Section 27. Determinations and Actions by the Board
of Directors, etc. For all purposes of this Agreement, any calculation of the
number of Common Shares outstanding at any particular time, including the
purpose of determining the particular percentage of such outstanding Common
Shares of which any Person is the Beneficial Owner, shall be made in accordance
with the provisions of Rule 13d-3(d)(1)(i) of the General Rules and Regulations
under the Exchange Act, as in effect on the date of this Agreement. The Board of
Directors of the Company (with the concurrence of the Continuing Directors when
required) shall have the exclusive power and authority to administer this
Agreement and to exercise all rights and powers specifically granted to the
Board of Directors (with the concurrence of the Continuing Directors when
required) or the Company or as may be necessary or advisable in the
administration of this Agreement, including the right and power (i) to interpret
the provisions of this Agreement and (ii) to make all determinations deemed
necessary or advisable for the administration of this Agreement. All such
actions, calculations, interpretations, and determinations (including, for the
purpose of clause (ii) below, all omissions with respect to the foregoing) that
are done or made by the Board of Directors (with the concurrence of the
Continuing Directors when required) in good faith shall (i) be final,
conclusive, and binding on the Company, the Rights Agent, the holders of Right
Certificates, and all other parties and (ii) not subject the
52
Board of Directors or the Continuing Directors to any liability to the holders
of Right Certificates.
Section 28. Benefits of this Agreement. Nothing in
this Agreement shall be construed to give to any Person other than the Company,
the Rights Agent, and the registered holders of Rights (and, prior to the
Distribution Date, the registered holders of Common Shares) any legal or
equitable right, remedy, or claim under this Agreement, but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent, and the
registered holders of Rights (and, prior to the Distribution Date, the
registered holders of Common Shares).
Section 29. Severability. If any term, provision,
covenant, or restriction of or in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, or unenforceable, the
remainder of the terms, provisions, covenants, and restrictions of or in this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired, or invalidated, except that, notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant, or restriction
is held by such court or authority to be invalid, void, or unenforceable and the
Board of Directors of the Company determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set forth in
Section 22 hereof shall be reinstated and shall not expire until the close of
business on the 20th day following the date of such determination by the Board
of Directors.
53
Section 30. Governing Law. This Agreement and each
Right Certificate issued under it shall be deemed to be a contract made under
the laws of the State of Ohio and for all purposes shall be governed by and
construed in accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State.
Section 31. Counterparts. This Agreement may be
executed in any number of counterparts, and each such counterpart shall for all
purposes be deemed to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 32. Descriptive Headings. Descriptive
headings of the Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the day and year first above written.
NORDSON CORPORATION
By: /s/ Thomas L. Moorhead
---------------------------
Name: Thomas L. Moorhead
---------------------------
Title: Vice President, Law
---------------------------
NATIONAL CITY BANK
As Rights Agent
By: /s/ Marlayna J. Miller
---------------------------
Name: Marlayna J. Miller
---------------------------
Title: Assistant Vice President
---------------------------
54
Exhibit A
"EXPRESS" TERMS OF SERIES B CONVERTIBLE PREFERRED SHARES
A series of Serial Preferred Shares is created with
the following "express" terms:
A. Designation. The shares of such series are
designated as "Series B Convertible Preferred Shares" without
par value; (the "Series B Preferred Shares").
B. Authorized Number of Shares; Fractional Shares.
The authorized number of Series B Preferred Shares is
______________. Series B Preferred Shares may be issued in
fractions of a share that shall entitle the holder, in
proportion to such holder's fractional shares, to exercise
voting rights, receive dividends, participate in
distributions, and have the benefit of all other rights of
holders of Series B Preferred Shares.
C. Dividends and Distributions.
(1) Dividends and other distribution shall be
declared and paid on the Series B Preferred Shares at the same
time that dividends or other distributions are declared and
paid on the Common Shares. The amount per share and kind of
the dividends or other distributions on the Series B Preferred
Shares shall be the same as the amount per share and kind of
the dividends or other distributions on the Common Shares.
(2) Dividends on Series B Preferred Shares shall not
accrue or be cumulative.
D. Conversion. Each Series B Preferred Share is
convertible, at the option of the holder, into one Common
Share, provided that, at the time of conversion, there is a
sufficient number of authorized but unissued Common Shares, or
Common Shares held in the Company's treasury, to permit the
conversion of all Series B Preferred Shares then outstanding.
Liquidation, Dissolution, or Winding Up.
Upon liquidation, dissolution, or winding up of the
Company, holders of Series B Preferred Shares shall have the
same rights and shall be treated
A-1
the same as holders of Common Shares with respect to
distributions by the Company.
E. Conversion on Merger, Consolidation, etc. In case
the Company enters into any merger, consolidation,
combination, or other transaction in which Common Shares are
exchanged or changed into other shares or securities, cash, or
other property, each Series Preferred Share shall in any such
case at the same time be similarly exchanged or changed in an
amount per share equal to the aggregate amount of shares,
securities, cash, or other property (payable in kind), as the
case may be, into which or for which each Common Share is
changed or exchanged.
F. Redemption. The outstanding Series B Preferred
Shares shall not be redeemable.
G. Voting Rights. Each holder of Series B Preferred
Shares shall be entitled to one vote for each share held and,
except as otherwise provided by law, the holders of Series B
Preferred Shares and the holders of Common Shares shall vote
together as one class.
A-2
Exhibit B
FORM OF RIGHT CERTIFICATE
Certificate No. R - ___________________ Rights
NOT EXERCISABLE AFTER OCTOBER 31, 2007, OR EARLIER IF NOTICE OF
REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 FOR EACH OF THE RIGHTS ON THE TERMS
SET FORTH IN THE RESTATED RIGHTS AGREEMENT. [THE RIGHTS REPRESENTED
BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO
WAS OR BECAME AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN
ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RESTATED RIGHTS
AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF THE RESTATED RIGHTS AGREEMENT.] *
RIGHT CERTIFICATE
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
Restated Rights Agreement dated as of October ___, 1997 (the "Restated Rights
Agreement"), between Nordson Corporation, an Ohio corporation (the "Company"),
and ___________________________, (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Restated Rights Agreement) and prior to 5:00 P.M.
- ----------
* The portion of the legend in brackets shall be inserted only if
applicable.
B-1
Cleveland time, on October 31, 2007, at the principal office of the Rights
Agent, or of its successor as Rights Agent, or at such other office as the
Rights Agent or its successor may designate from time to time for that purpose,
one fully paid and non-assessable Common Share with a par value of $1.00 (the
"Common Shares") of the Company, at a purchase price of $175 per Common Share
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Right Certificate, the number of Common Shares that may
be purchased upon exercise of the Rights, and the Purchase Price per Common
Share set forth above, are the numbers and Purchase Price as of October 31,
1997, based on the Common Shares as constituted at such date, and are subject to
adjustment as provided in the Restated Rights Agreement.
If the Rights evidenced by this Right Certificate are beneficially
owned by (i) an Acquiring Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Restated Rights Agreement), (ii) a
transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person became an Acquiring Person, or
(iii), under certain circumstances specified in the Restated Rights Agreement, 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
an Acquiring Person, such Rights shall, when the Acquiring Person becomes an
Acquiring Person, become null and void and thereafter no holder hereof shall
have any right with respect to such Rights.
B-2
At the close of business on the 20th calendar day following the
occurrence of a Shares Acquisition Date, each Right becomes the right to
purchase two Common Shares at an Exercise Price of $1.00 per share, subject to
adjustment in accordance with the Restated Rights Agreement.
As provided in the Restated Rights Agreement, the Purchase Price,
the Exercise Price, and the number of Common Shares or kind of other securities
that may be purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms, provisions,
and conditions of the Restated Rights Agreement, which terms, provisions, and
conditions are hereby incorporated by reference and made a part of this Right
Certificate. Reference is hereby made to the Restated Rights Agreement for a
full description of the rights, limitations of rights, obligations, duties, and
immunities of the Rights Agent, the Company, and the holders of the Right
Certificates. Copies of the Restated Rights Agreement are on file at the office
of the Rights Agent mentioned above.
This Right Certificate, with or without other Right Certificates,
upon surrender at the principal office of the Rights Agent or such other office
as the Rights Agent may designate from time to time for that purpose, may be
exchanged for another Right Certificate or Right Certificates of like tenor and
date evidencing Rights entitling the holder to purchase a like aggregate number
of Common Shares as the Right evidenced by the Right Certificate or Right
Certificates surrendered entitled such holder to purchase. If
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this Right Certificate is exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Restated Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price of $.01 for each of the Rights.
The Company is not required to issue fractional Common Shares upon
the exercise of any Rights evidenced hereby, but in lieu thereof may make a cash
payment, as provided in the Restated Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose to be the holder of the Common
Shares or any other securities of the Company that may at any time be issuable
on the exercise hereof, nor shall anything contained in the Restated Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote in the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, to give or withhold consent to any corporate action, to receive
notice of meetings or other actions affecting shareholders (except as provided
in the Restated Rights Agreement), or to receive dividends or subscription
rights or otherwise, until the Rights evidenced by this Right Certificate have
been exercised as provided in the Restated Rights Agreement.
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This Right Certificate shall not be valid or obligatory for any
purpose until it has been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of ___________________.
ATTEST: NORDSON CORPORATION
________________________________ By: ______________________________
Secretary Title:
Countersigned:
________________________________
By______________________________
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[Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if the
holder desires to transfer the Right certificate)
FOR VALUE RECEIVED ______________________________
hereby sells, assigns, and transfers unto
________________________________________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title, and interest therein,
and does hereby irrevocably constitute and appoint ___________________ as
attorney, to transfer the Right Certificate on the books of Nordson Corporation,
with full power of substitution.
Dated: _________________
___________________________
Signature
Signature Guaranteed:
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CERTIFICATE
(Applicable to Form of Assignment)
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Right Certificate [ ] is [ ] is not being sold, assigned,
and transferred by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined in
the Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was, or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: ________________________ _________________________________
Signature
Notice
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate in
every particular, without any alteration or change whatsoever.
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FORM OF ELECTION TO PURCHASE
(To be executed if the holder desires to
exercise the Right Certificate)
To Nordson Corporation:
The undersigned hereby irrevocably elects to exercise
________________ Rights represented by this Right Certificate to purchase the
Common Shares or other securities issuable upon the exercise of such Rights and
requests that certificates therefor be issued in the name of:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Please insert social security
or other identifying number: ___________________________________________________
If such number of Rights are not all of the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
________________________________________________________________________________
(Please print name and address)
________________________________________________________________________________
Please insert social security
or other identifying number: ___________________________________________________
Dated:___________________ ______________________________
Signature
(Signature must conform in all
respects to name of the holder
as specified on the face of
this Right Certificate)
Signature Guaranteed:
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CERTIFICATE
(Applicable to Form of Election to Purchase)
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Right Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as such terms are
defined in the Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Right
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated:____________________, 19__ __________________________________
Signature
Notice
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the fact of this Right Certificate
in every particular, without any alteration or change whatsoever.
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Exhibit C
SUMMARY OF RIGHTS TO PURCHASE
COMMON SHARES
The Board of Directors of Nordson Corporation in August 1988
declared a dividend consisting of rights to purchase Common Shares of Nordson.
One of the rights was distributed to the holder of each Common Share outstanding
on September 9, 1988, the record date for the distribution. Rights have been and
will continue to be distributed with Common Shares issued by Nordson after the
record date but before the expiration of the rights or the occurrence of a
"flip-in" event, as described below.
When the rights become exercisable, the holder of each of the rights
will be entitled to purchase one Common Share of Nordson for $175. The rights
will become exercisable (1) at the close of business on the earlier of the 20th
calendar day after a public announcement that a person or group has become the
beneficial owner of 15% or more of the outstanding Common Shares (a "shares
acquisition date") or (2) any earlier date designated by Nordson's Board of
Directors.
Until the rights become exercisable, they will trade with the Common
Shares, and any transfer of Common Shares will also constitute a transfer of the
associated rights. When the rights become exercisable, they will begin to trade
separate and apart from the Common Shares. At that time, separate certificates
representing the rights will be mailed to holders.
Twenty days after a "shares acquisition date", each of the rights
will "flip-in" and become the right to purchase two Common Shares of Nordson for
$1.00 per share. Upon the occurrence of a "flip-in" event, rights held by a
person or group that beneficially owns 15% or more of the outstanding Common
Shares, and rights held by certain transferees from any such person or group,
will become void.
The exercise price, and the number of Common Shares of Nordson to be
purchased upon exercise of the rights, are subject to adjustment from time to
time to prevent dilution.
The Board of Directors may redeem the rights for $.01 each at any
time before the 20th calendar day after a "shares acquisition date" or the
earlier expiration of the rights. However, if the decision to redeem the rights
is made after the occurrence of a "control event," then the rights may be
redeemed only if one or more "continuing directors" remain in office when the
decision is made and a majority of the "continuing directors" concur with the
decision. A "control event" is defined as the earlier of (1) the first public
announcement that any person or group has become the beneficial owner of 15% or
more of the outstanding Common Shares and (2) a change in the majority of the
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Board of Directors following a solicitation of consents or proxies if any person
or group that participates in the solicitation has stated (or the Board of
Directors has determined) that it intends to take action that would result in
such person or group becoming the beneficial owner of 15% of more of the
outstanding Common Shares. "Continuing directors" are defined as directors who
were in office before the occurrence of a "control event" or whose election was
recommended by a majority of the other "continuing directors".
Eric T. Nord and Evan W. Nord are trustees of the Walter G. Nord
Trust and the Nord Family Foundation, and Eric T. Nord is trustee of the Eric
and Jane Nord Foundation. For purposes of determining the percentage of Common
Shares deemed to be beneficially owned by them, Common Shares held by the Walter
G. Nord Trust, by the Nord Family Foundation, or by the Eric and Jane Nord Trust
will not be attributed to either Eric T. Nord or Evan W. Nord, and Common Shares
held by Eric T. Nord or Evan W. Nord will not be attributed to the Walter G.
Nord Trust, the Nord Family Foundation, or the Eric and Jane Nord Foundation.
Similarly, Common Shares held by the Nord Family Foundation will not be
attributed to the Eric and Jane Nord Foundation, and Common Shares held by the
Eric and Jane Nord Foundation will not be attributed to the Nord Family
Foundation.
The terms of the rights are set forth in a Restated Rights Agreement
between Nordson and National City Bank, as rights agent. The provisions of the
Restated Rights Agreement may be amended by the Board of Directors to cure any
ambiguity or correct any defect or inconsistency. Prior to the close of business
on the 20th calendar day following the occurrence of a "shares acquisition
date", the Restatement Rights Agreement may also be amended to make any other
change that the Board of Directors deems to be consistent with the purposes of
the Restated Rights Agreement and not adverse to the interests of the Company
and its shareholders; however, no such amendment after the occurrence of a
"control event" may be made unless at least one "continuing director" remains in
office and a majority of the "continuing directors" concur.
A copy of the Restated Rights Agreement has been filed with the
Securities and Exchange Commission. A copy of the Restated Rights Agreement is
available from Nordson free of charge. This summary of the rights is not
complete and is qualified in its entirety by reference to the Restated Rights
Agreement.
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