SECTION 382 RIGHTS AGREEMENT REINSURANCE GROUP OF AMERICA, INCORPORATED and MELLON INVESTOR SERVICES LLC Rights Agent Dated as of June 2, 2008
Exhibit 4.1
REINSURANCE GROUP OF AMERICA, INCORPORATED
and
MELLON INVESTOR SERVICES LLC
Rights Agent
Dated as of June 2, 2008
INDEX
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This Section 382 Rights Agreement, dated as of June 2,
2008 (the “Rights Agreement”) is entered into between
Reinsurance Group of America, Incorporated, a Missouri
corporation (the “Company”), and Mellon Investor
Services LLC, a New Jersey limited liability company, as rights
agent (the “Rights Agent”).
WITNESSETH
WHEREAS, the Company and MetLife (as defined below) have entered
into the Recapitalization and Distribution Agreement (as defined
below) on the date hereof, pursuant to which, among other
things, the Company intends to submit at a special meeting of
shareholders of the Company certain proposals to recapitalize
the Common Stock for approval of the shareholders of the Company;
WHEREAS, (a) the Company and certain of its Subsidiaries
have generated net operating losses for United States federal
income tax purposes (“NOLs”); (b) such NOLs may
potentially provide valuable tax benefits to the Company;
(c) the Company desires to avoid an “ownership
change” within the meaning of Section 382 (as defined
below), and thereby preserve the ability to utilize such NOLs,
and (d) in furtherance of such objective, the Company
desires to enter into this Rights Agreement;
WHEREAS, if the Company’s shareholders approve the
recapitalization proposal and other terms and conditions set
forth in the Recapitalization and Distribution Agreement are
satisfied or waived, MetLife will complete the Split-Off and the
Additional Divestiture Transactions (each as defined below),
which will constitute one or more testing dates for purposes of
Section 382 (as defined below);
WHEREAS, on June 1, 2008 the Board of Directors of the
Company authorized and declared a dividend distribution of one
right (hereinafter referred to as a “Right”) for each
share of Common Stock outstanding at the close of business on
June 12, 2008 (the “Record Date”) (other than
shares of such Common Stock held in the Company’s treasury
on such date), and has authorized the issuance of one Right in
respect of each share of Common Stock of the Company issued
between the Record Date (whether originally issued or issued
from the Company’s treasury) and the Distribution Date (as
such term is defined in Section 3 hereof), each Right
representing the right to purchase one one-hundredth of a share
of
Series A-1
Junior Participating Preferred Stock of the Company having the
rights, powers and preferences set forth in the form of
Certificate of Designation attached hereto as Exhibit A,
upon the terms and subject to the conditions hereinafter set
forth (the “Rights”); and
WHEREAS, the Company desires to appoint the Rights Agent to act
as provided herein, and the Rights Agent is willing so to act.
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 Rights
Agreement, the following terms have the meanings indicated:
(a) “5% Shareholder” shall mean a Person or group
of Persons that is a “5-percent shareholder” of the
Corporation pursuant to Treasury Regulation
§ 1.382-2T(g).
(b) “Acquiring Person” shall mean any Person (as
hereinafter defined) who or which, without the Prior Written
Approval of the Company (as hereinafter defined), shall have
become a 5% Shareholder (other than by reason of Treasury
Regulation Section 1.382-2T(j)(3)(i))
or shall be such a 5% Shareholder after the date hereof, whether
or not such Person continues to be a 5% Shareholder, but shall
not include (i) the Company, any Subsidiary of the Company,
any employee benefit plan or compensation arrangement of the
Company or any Subsidiary of the Company, or any entity holding
securities of the Company to the extent organized, appointed or
established by the Company or any Subsidiary of the Company for
or pursuant to the terms of any such employee benefit plan or
compensation arrangement, (ii) any Grandfathered Person,
(iii) any Exempted Person, or (iv) any Person who or
which inadvertently may become a 5% Shareholder or otherwise
becomes such a 5% Shareholder, so long as such Person
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promptly enters into, and delivers to the Company, an
irrevocable commitment promptly to divest, and thereafter
promptly divests (without exercising or retaining any power,
including voting, with respect to such securities), sufficient
securities of the Company so that such Person ceases to be a 5%
Shareholder of the Company.
(c) “Acceptance Time” shall have the meaning set
forth in the Recapitalization and Distribution Agreement.
(d) “Additional Divestiture Transaction” shall
have the meaning set forth in the Recapitalization and
Distribution Agreement.
(e) “Articles of Incorporation” shall mean the
Articles of Incorporation of the Company, as amended from time
to time, including, without limitation, in connection with the
Recapitalization.
(f) A Person shall be deemed the “Beneficial
Owner” of, and shall be deemed to “beneficially
own”, any securities which such Person directly owns, or
would be deemed to constructively own, pursuant to
Section 382 and the Treasury Regulations promulgated
thereunder.
(g) “Board of Directors” shall mean the entire
Board of Directors of the Company as constituted from time to
time, or a duly constituted committee thereof, to the extent
that the related rights, duties, responsibilities or obligations
have been delegated to such a committee, as applicable.
(h) “Business Day” shall mean any day other than
a Saturday, Sunday, or a day on which banking institutions in
the States of Missouri and New Jersey are authorized or
obligated by law or executive order to close.
(i) “Close of Business” on any given date shall
mean 5:00 P.M., St. Louis, Missouri time, on such
date; provided, however, that if such date is not
a Business Day it shall mean 5:00 P.M., St. Louis,
Missouri time, on the next succeeding Business Day.
(j) “Code” means the Internal Revenue Code of
1986, as amended from time to time, or any successor statute.
(k) “Common Stock” shall mean (i) the common
stock, par value $0.01 per share, of the Company, or
(ii) any shares into which such common stock may be
reclassified or exchanged, including without limitation, in
connection with the Recapitalization or (iii) any shares
into which common stock may be reclassified (other than in
connection with the Recapitalization), except that, in each of
cases (i), (ii) and (iii), “Common Stock” when
used with reference to any Person other than the Company shall
mean the capital stock with the greatest Voting Power of such
Person or the equity securities or other equity interest having
power to control or direct the management of such Person or, if
such Person is a Subsidiary (as hereinafter defined) of another
Person, of the Person which ultimately controls such
first-mentioned Person and which has issued and outstanding such
capital stock, equity securities or equity interests.
(l) “Company” shall have the meaning set forth in
the Preamble of this Rights Agreement.
(m) “Corporation Securities” shall mean
(i) shares of Common Stock, (ii) shares of preferred
stock (other than preferred stock described in
Section 1504(a)(4) of the Code) of the Company,
(iii) warrants, rights, or options (including options
within the meaning of Treasury Regulation
§ 1.382-2T(h)(4)(v)) to purchase stock (other than
preferred stock described in Section 1504(a)(4) of the
Code) of the Company, and (iv) any other interest that
would be treated as “stock” of the Company pursuant to
Treasury Regulation § 1.382-2T(f)(18).
(n) “Distribution Date” shall have the meaning
set forth in Section 3 hereof.
(o) “Exchange Act” shall mean the
U.S. Securities Exchange Act of 1934, as amended.
(p) “Exchange Ratio” shall have the meaning set
forth in Section 24(a) hereof.
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(q) “Exempted Person” shall mean:
(i) any Person who directly acquires Corporation Securities
from MetLife pursuant to the Split-Off or any Additional
Divestiture Transaction and would otherwise qualify as an
Acquiring Person upon consummation of the Split-Off or such
Additional Divestiture Transaction, respectively, unless and
until such time as the Percentage Stock Ownership in the Company
of such Person shall be increased other than pursuant to the
Split-Off or Additional Divestiture Transaction, as
applicable; or
(ii) any Person who the Company, in its sole discretion,
determines is not a 5% Shareholder at any time prior to the time
at which the Company’s right of redemption expires pursuant
to Section 23(a) of this Rights Agreement; provided,
however, that such a Person will cease to be an “Exempted
Person” if the Company makes a contrary determination;
provided further that, in the case of clause (i),
(A) if any such Person ceases to be a 5% Shareholder
following such acquisition of Corporation Securities from
MetLife pursuant to the Split-Off or any Additional Divestiture
Transaction, then such Person shall cease to be an Exempted
Person (it being understood that, after a Person ceases to be an
Exempted Person, such Person could become an Exempted Person at
a later date by virtue of events specified in the foregoing
clause (i) or (ii) occurring after the date such
Person has ceased to be an Exempted Person), and (B) no
immediate transferee of such an Exempted Person shall be an
Exempted Person unless such transferee shall otherwise be an
Exempted Person by virtue of the foregoing clause (i) or
(ii).
(r) “Expiration Date” shall have the meaning set
forth in Section 7(a) hereof.
(s) “Final Expiration Date” shall have the
meaning set forth in Section 7(a) hereof.
(t) “Grandfathered Person” shall mean any Person
who would otherwise qualify as an Acquiring Person as of the
date of this Rights Agreement (including, for clarification,
MetLife and its Subsidiaries), unless and until such time as the
Percentage Stock Ownership in the Company of such Person shall
be increased, other than any increase pursuant to or as a result
of (i) the exercise of any option or warrant to purchase
Corporation Securities from the Company, (ii) any issuance
of Corporation Securities by the Company, or a stock dividend,
stock split or similar transaction effected by the Company in
which all holders of Common Stock are treated equally, or
(iii) the distribution or transfer of Common Stock from any
Subsidiary of MetLife to MetLife or another Subsidiary of
MetLife prior to the consummation of the Split-Off.
(u) “MetLife” shall mean MetLife, Inc., a
Delaware corporation, and its Subsidiaries, individually and
collectively.
(v) “NOLs” shall have the meaning set forth in
the recitals to this Rights Agreement.
(w) “Number of Adjustment Shares” shall have the
meaning set forth in Section 11(b) hereof.
(x) “Percentage Stock Ownership” shall mean the
percentage stock ownership interest as determined in accordance
with Treasury Regulation § 1.382-2T(g), (h),
(j) and (k).
(y) “Person” shall mean any individual, firm,
corporation, partnership, trust association, limited liability
company, limited liability partnership, or other entity, or any
group of Persons making a “coordinated acquisition” of
shares or otherwise treated as an entity within the meaning of
Treasury Regulation § 1.382-3(a)(1), or otherwise and
shall include any successor (by merger or otherwise) of any such
entity.
(z) “Prior Written Approval of the Company” shall
mean prior express written consent of the Company to the actions
in question, executed on behalf of the Company by a duly
authorized officer of the Company following express approval by
action of at least a majority of the members of the Board of
Directors then in office.
(aa) “Purchase Price” shall have the meaning set
forth in Section 4 hereof.
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(bb) “Recapitalization” shall have the meaning
set forth in the Recapitalization and Distribution Agreement.
(cc) “Recapitalization and Distribution
Agreement” shall mean that Recapitalization and
Distribution Agreement between the Company and MetLife dated as
of the date hereof.
(dd) “Record Date” shall have the meaning set
forth in the Recitals of this Rights Agreement.
(ee) “Record Time” shall mean the Close of
Business on the Record Date.
(ff) “Redemption Price” shall have the
meaning set forth in Section 23(a) hereof.
(gg) “Registrar” shall have the meaning set forth
in Section 4(a) hereof.
(hh) “Restriction Release Date” shall mean the
earlier of (x) the date that is 36 months and one day
following the effectiveness of the Recapitalization or
(y) such other date as the Board of Directors may determine
pursuant to the Articles of Incorporation, as the same may be
amended from time to time, including without limitation in
connection with the Recapitalization.
(ii) “Right” shall have the meaning set forth in
the Recitals of this Rights Agreement.
(jj) “Rights Agent” shall have the meaning set
forth in the Preamble of this Rights Agreement.
(kk) “Section 11(b) Event” shall have the
meaning set forth in Section 11(b) hereof.
(ll) “Section 382” shall mean
Section 382 of the Code, or any comparable successor
provision.
(mm) “Securities Act” shall mean the
U.S. Securities Act of 1933, as amended.
(nn) “Security” shall have the meaning set forth
in Section 11(f) hereof.
(oo) “Series A Preferred Stock” shall mean
the
Series A-1
Junior Participating Preferred Stock, par value $0.01 per share,
of the Company.
(pp) “Split-Off” shall have the meaning set forth
in the Recapitalization and Distribution Agreement.
(qq) “Stock Acquisition Date” shall mean the
earlier of (i) the first date of public announcement by a
Person that an Acquiring Person has become an Acquiring Person,
or (ii) the date on which the Company first has notice,
direct or indirect, or otherwise determines that a Person has
become an Acquiring Person.
(rr) “Subsidiary” shall mean, with respect to any
Person, any other Person of which securities or other ownership
interests having ordinary Voting Power, in the absence of
contingencies, to elect a majority of the board of directors (or
other persons performing similar functions) of such other Person
are at the time directly or indirectly owned by such Person or
one or more of such Person’s Subsidiaries, except that
“Subsidiary” when used with reference to the Company
shall mean any Person of which either a majority of the Voting
Power of the voting equity securities or a majority of the
equity interests is owned, directly or indirectly, by the
Company.
(ss) “Tax Benefits” shall means the net operating
loss carryovers, capital loss carryovers, general business
credit carryovers, alternative minimum tax credit carryovers and
foreign tax credit carryovers, as well as any loss or deduction
attributable to a “net unrealized built-in loss”
within the meaning of Section 382, of the Company or any of
its Subsidiaries.
(tt) “Trading Day” shall have the meaning set
forth in Section 11(f)(i) hereof.
(uu) “Voting Power” of a Person shall mean the
voting power of all securities of a Person then outstanding
generally entitled to vote for the election of directors on
matters submitted to the shareholders of the Person (or where
appropriate) for the election of persons performing similar
functions), without taking into account special voting rights.
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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. The Company may from time to time
appoint such co-rights agents as it may deem necessary or
desirable upon ten (10) days’ prior written notice to
the Rights Agent. The Rights Agent shall have no duty to
supervise, and in no event shall be liable for, the acts or
omissions of any such co-rights agent.
(a) Until the earlier of (i) the Close of Business on
the tenth Business Day after the Stock Acquisition Date or
(ii) the Close of Business on the tenth Business Day (or
such later date as may be determined by action of the Board of
Directors but in no event later than the tenth Business Day
after such time as any Person becomes an Acquiring Person) after
the date that a tender or exchange offer to acquire Corporation
Securities by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan or compensation
arrangement of the Company or of any Subsidiary of the Company,
or any entity holding securities of the Company to the extent
organized, appointed or established by the Company or any
Subsidiary of the Company for or pursuant to the terms of any
such employee benefit plan or compensation arrangement) is first
published or sent or given within the meaning of
Rule 14d-2(a)
of the General Rules and Regulations under the Exchange Act,
without the Prior Written Approval of the Company, which tender
or exchange offer to acquire Corporation Securities would result
in any Person becoming an Acquiring Person (including any such
date which is after the date of this Rights Agreement and prior
to the issuance of the Rights) (the earlier of the dates
referred to in clauses (i) or (ii), the “Distribution
Date”) without giving effect to restrictions set forth in
the Articles of Incorporation, (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of
this Section 3) by the certificates for the Common
Stock registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be
Right Certificates) and not by separate Right Certificates, as
more fully set forth below, and (y) the Rights (and the
right to receive certificates therefor) will be transferable
only in connection with the transfer of the underlying shares of
Common Stock, as more fully set forth below. As soon as
practicable after the Company has (A) notified the Rights
Agent in writing of the occurrence of the Distribution Date,
(B) provided the Rights Agent with written instructions,
and (C) provided or caused the Rights Agent to be provided
with all other information (including mailing information) which
the Rights Agent may reasonably request, the Company shall
prepare and execute, and the Rights Agent shall countersign and
send, by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the Close of Business on
the Distribution Date, at the address of such holder shown on
the records of the Company, a right certificate, in
substantially the form of Exhibit B hereto (the “Right
Certificate”), evidencing one Right for each share of
Common Stock so held, subject to adjustment as provided herein.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates. Until the Rights
Agent receives written notice of the Distribution Date from the
Company, the Rights Agent may presume conclusively for all
purposes that the Distribution Date has not occurred.
(b) On the Record Date or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Stock, in substantially the form of
Exhibit C hereto (the “Summary of Rights”), by
first-class, postage prepaid mail, to each record holder of the
Common Stock as of the Record Time, at the address of such
holder shown on the records of the Company. With respect to
certificates for the Common Stock outstanding as of the Record
Date, until the Distribution Date (or the earlier redemption,
expiration or termination of the Rights), the Rights will be
evidenced by such certificates for the Common Stock registered
in the names of the holders of the Common Stock and the
registered holders of the Common Stock shall also be registered
holders of the associated Rights. Until the Distribution Date
(or the earlier redemption, expiration or termination of the
Rights), the surrender for transfer of any of the certificates
for the Common Stock outstanding in respect of which Rights have
been issued shall also constitute the transfer of the Rights
associated with the Common Stock represented by such certificate.
(c) Certificates for the Common Stock issued after the
Record Date but prior to the earlier of the Distribution Date or
the redemption, expiration or termination of the Rights shall be
deemed also to be
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certificates for Rights and shall have impressed, printed or
written on, or otherwise affixed to them a legend in
substantially the following form:
This certificate also evidences and entitles the holder hereof
to certain Rights as set forth in a Section 382 Rights
Agreement between Reinsurance Group of America, Incorporated
(the “Company”) and Mellon Investor Services LLC (or
any successor thereto), as Rights Agent, as it may from time to
time be supplemented or amended (the “Rights
Agreement”), the terms of which are incorporated herein by
reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances,
as set forth in the Rights Agreement, such Rights may expire or
may be redeemed, exchanged or be evidenced by separate
certificates and no longer be evidenced by this certificate. The
Company will mail to the holder of this certificate a copy of
the Rights Agreement without charge promptly after receipt of a
written request therefor. Under certain circumstances, Rights
issued to or held by Acquiring Persons (as defined in the Rights
Agreement) and any subsequent holder of such Rights may become
null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date (or the earlier redemption,
expiration or termination of the Rights), the Rights associated
with the Common Stock represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any of such certificates shall also constitute the
transfer of the Rights associated with the Common Stock
represented by such certificates.
In the event that the Company purchases or acquires any Common
Stock after the Record Date but prior to the Distribution Date,
any Rights associated with such Common Stock shall be deemed
canceled and retired so that the Company shall not be entitled
to exercise any Rights associated with shares of Common Stock
which are no longer outstanding.
(a) The Right Certificates (and the forms of election to
purchase shares and of assignment to be printed on the reverse
thereof) shall be in substantially the same form 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 (but which
do not affect the rights, duties, responsibilities or
obligations of the Rights Agent as set forth in this Rights
Agreement) and as are not inconsistent with the provisions of
this Rights Agreement, or as may be required to comply with any
applicable law, rule or regulation or with any rule or
regulation of any stock exchange on which the Rights may from
time to time be listed, or to conform to customary usage.
Subject to the provisions of Section 11 and Section 22
hereof, 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 one one-hundredths of
a share of Preferred Stock as shall be set forth therein at the
price per one one-hundredth of a share as set forth therein (the
“Purchase Price”), but the number and identity of such
shares and the Purchase Price shall be and remain subject to
adjustment as provided herein.
(b) Any Right Certificate issued pursuant hereto that
represents Rights beneficially owned by (i) an Acquiring
Person, (ii) a transferee of an Acquiring Person which
becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person which becomes a
transferee prior to or concurrently with the Acquiring Person
becoming such and which receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom such Acquiring
Person has any continuing plan, agreement, arrangement or
understanding regarding either the transferred Rights, shares of
Company Common Stock or the Company or (B) a transfer which
a majority of the Board of Directors has determined to be part
of a plan, agreement, arrangement or understanding which has as
a primary purpose or effect the avoidance of Section 7(e),
and any Right Certificate issued pursuant to Section 6
hereof, Section 11 hereof or Section 22 hereof upon
transfer, exchange, replacement or adjustment of any other Right
Certificate referred to in this
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sentence, shall contain (to the extent the Rights Agent has
notice thereof and to the extent feasible) the following legend,
or a legend substantially to the following effect:
The Rights represented by this Right Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person. Accordingly, this Right Certificate and the Rights
represented hereby are void in the circumstances specified in
Section 7(e) of the Rights Agreement.
The failure to print the foregoing legend on any such Right
Certificate or any defect therein shall not affect in any manner
whatsoever the application or interpretation of the provisions
of Section 7(e) hereof.
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, Chief Financial Officer or any Executive
Vice President, either manually or by facsimile signature, and
shall have affixed thereto the Company’s seal or a
facsimile thereof which shall be attested by the Secretary or
any Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall manually be
countersigned by the Rights Agent or the registrar or
co-registrar for the Common Stock (the “Registrar”)
and shall not be valid for any purpose unless so countersigned.
In case any officer of the Company whose manual or facsimile
signature is affixed to the Right Certificates shall cease to be
such officer of the Company before countersignature by the
Rights Agent or the Registrar and issuance and delivery by the
Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent or the Registrar, 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. Any Right Certificate may be signed on
behalf of the Company by any person who, at the actual date of
the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although
at the date of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date and receipt by the
Rights Agent of (i) written notice of the Distribution Date
pursuant to Section 3(a) hereof, and (ii) all
information reasonably requested by the Rights Agent pursuant to
Section 3(a) hereof, the Rights Agent will keep or cause to
be kept, at its shareholder services office or such other office
designated for such purposes, books for registration and
transfer of the Right Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of
the Right Certificates, the number of Rights evidenced on its
face by each of the Right Certificates, the certificate number
of each of the Right Certificates and the date of each of the
Right Certificates.
Section 6. Transfer,
Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Sections 4(b), 7(e),
11 and 14 hereof, at any time after the Close of Business on the
Distribution Date, and at or prior to the Close of Business on
the Expiration Date (as such term is defined in
Section 7(a) hereof), any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged
for another Right Certificate or Right Certificates, entitling
the registered holder to purchase a like number of shares of
Preferred Stock (or other securities, cash or other assets, as
the case may be) as the Right Certificate or Right Certificates
surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Right Certificate shall make such request in
writing delivered to the Rights Agent, and shall surrender the
Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged, with the forms of assignment and
certificate contained therein duly executed, at the shareholder
services office of the Rights Agent or such office designated
for such purpose. The Rights Certificates are transferable only
on the registry books of the Rights Agent. Neither the Rights
Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered
Rights Certificate until the registered holder shall have
properly completed and signed the certificate contained in the
form of assignment on the reverse side of such Rights
Certificate and shall have provided such additional evidence of
the identity of the Beneficial Owner (or former Beneficial
Owner) as the Company or the Rights Agent shall reasonably
request and (iii) paid a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates. Thereupon, the Rights Agent shall countersign and
deliver to the Person
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entitled thereto a Right Certificate or Right Certificates, as
the case may be, as so requested. The Company may require
payment from the Rights holder of a sum sufficient to cover any
such tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange
of Right Certificates. The Rights Agent shall have no duty or
obligation to take any action under any Section of this Rights
Agreement which requires the payment by a Rights holder of
applicable taxes
and/or
governmental charges unless and until the Rights Agent is
satisfied that all such taxes or charges have been paid.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security
satisfactory to them, and reimbursement to the Company and the
Rights Agent of all reasonable expenses incidental thereto, and
upon surrender to the Rights Agent and cancellation of the Right
Certificate if mutilated, the Company will make and deliver a
new Right Certificate of like tenor to the Rights Agent for
countersignature and 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) 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 and the certificate set forth
on the reverse side thereof properly completed and duly
executed, to the Rights Agent at the shareholder services office
of the Rights Agent or such office designated for such purpose,
together with payment of the Purchase Price for each one
one-hundredth of a share of Preferred Stock as to which the
Rights are exercised, at or prior to the Close of Business on
the Expiration Date. The “Expiration Date”, as used in
this Rights Agreement, shall be the earliest of (i) the
Final Expiration Date (as defined below), (ii) the time at
which the Rights are redeemed or this Rights Agreement
terminates as provided in Section 23 hereof, or
(iii) the time at which the Rights are exchanged as
provided in Section 24 hereof. The “Final Expiration
Date”, as used in this Rights Agreement, shall be the
Restriction Release Date.
(b) The Purchase Price for each one one-hundredth of a
share of Preferred Stock pursuant to the exercise of a Right
shall initially be
$200,
which shall be subject to adjustment from time to time as
provided in Section 11 hereof and shall be payable in
lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate, with the form of
election to purchase and the certificate properly completed and
duly executed, accompanied by payment of the Purchase Price for
each one one-hundredth of a share of Preferred Stock to be
purchased and an amount equal to any applicable tax or
governmental charge required to be paid by the holder of the
Rights pursuant hereto in accordance with Section 9 hereof
by certified check, bank draft or money order payable to the
order of the Company or the Rights Agent, the Rights Agent
shall, subject to Section 20(k) hereof, thereupon promptly
(i) either (A) requisition from any transfer agent of
the shares of Preferred Stock (or make available, if the Rights
Agent is the transfer agent) certificates for the number of
shares of Preferred Stock to be purchased and the Company hereby
irrevocably authorizes any such transfer agent to comply with
all such requests, or (B) if the Company, in its sole
discretion, shall have elected to deposit the shares of
Preferred Stock issuable upon exercise of the Rights hereunder
into a depositary, requisition from the depositary agent
depositary receipts representing such number of one
one-hundredths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be deposited
by the transfer agent with the depositary agent) and the Company
hereby authorizes and directs such depositary agent to comply
with all such requests, (ii) promptly after receipt of such
certificates or depositary receipts cause the same to be
delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be
designated by such holder, (iii) when appropriate,
requisition from the Company the amount of cash to be paid in
lieu of issuance of fractional shares in accordance with
Section 14 hereof, (iv) after receipt of any such
cash, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate, (v) when
appropriate, requisition from the Company the amount of cash or
securities issuable upon exercise of a Right pursuant to the
adjustment provisions of Section 11 or the exchange
8
provisions of Section 24, and (vi) after receipt of
any such cash or securities, promptly deliver such cash or
securities to or upon the order of the registered holder of such
Right Certificate, of any such cash or securities.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new
Right Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be prepared, executed and delivered
by the Rights Agent to the registered holder of such Right
Certificate or to such holder’s duly authorized assigns,
subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Rights Agreement to
the contrary, upon the first occurrence of a Section 11(b)
Event, any Rights beneficially owned by (i) an Acquiring
Person, (ii) a transferee of an Acquiring Person which
becomes a transferee after the Acquiring Person becomes such, or
(iii) a transferee of an Acquiring Person which becomes a
transferee prior to or concurrently with the Acquiring Person
becoming such and which receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom such Acquiring
Person has any continuing plan, agreement, arrangement or
understanding regarding the transferred Rights, shares of
Corporation Securities or the Company or (B) a transfer
which a majority of the Board of Directors has determined to be
part of a plan, agreement, arrangement or understanding which
has as a primary purpose or effect the avoidance of this
Section 7(e), and subsequent transferees of such Persons,
shall be null and void without any further action, and no holder
of such Rights shall have any rights whatsoever with respect to
such Rights or any Rights Certificate which formerly evidenced
such Rights, and neither the Company nor the Rights Agent shall
have any obligation whatsoever with respect to such Rights or
any Rights Certificate, whether under any provision of this
Rights Agreement or otherwise. The Company shall use all
reasonable efforts to notify the Rights Agent when this
Section 7(e) applies and to ensure that the provisions of
this Section 7(e) and Section 4(b) are complied with,
but neither the Company nor the Rights Agent shall have any
liability to any holder of Rights or any other Person as a
result of its failure to make any determination under this
Section 7(e) or Section 4(b) with respect to an
Acquiring Person or its transferees hereunder.
(f) Notwithstanding anything in this Rights Agreement to
the contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set
forth in this Section 7 unless the certificate contained in
the appropriate form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such
exercise shall have been properly completed and duly executed by
the registered holder thereof and the Company or the Rights
Agent shall have been provided with such additional evidence of
the identity of the Beneficial Owner (or former Beneficial
Owner) as the Company or the Rights Agent shall 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 canceled form, or, if surrendered to the
Rights Agent, shall be canceled by it, and no Right Certificates
shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Rights Agreement. The Company
shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and retire, any
other Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Right Certificates to the Company, or
shall, at the written request of the Company, destroy such
canceled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
(a) Subject to the Company’s rights under
Section 11(c), the Company covenants and agrees that it
will cause to be reserved and kept available out of its
authorized and unissued shares of Preferred Stock or its
authorized and issued shares of Preferred Stock held in its
treasury, the number of shares of Preferred Stock that will be
sufficient to permit the exercise in full of all outstanding
Rights and, after the occurrence of a Section 11(b) Event,
shall so reserve and keep available a sufficient number of
shares of Preferred Stock, Common Stock
and/or other
securities which may be required to permit the exercise in full
of the Rights pursuant to this Rights Agreement.
9
(b) The Company shall use its best efforts to
(i) file, as soon as practicable following the first
occurrence of an event which would establish the Distribution
Date, a registration statement under the Securities Act, with
respect to the securities purchasable upon exercise of the
Rights on an appropriate form, (ii) cause such registration
statement to become effective as soon as practicable after such
filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date.
The Company will also take such action as may be appropriate
under the “blue sky laws” of the various states. The
Company may temporarily suspend, for a period of time not to
exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c),
the exercisability of the Rights in order to prepare and file
such registration statement and permit it to become effective.
Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect, in each case
with simultaneous written notice to the Rights Agent. In
addition, if the Company determines that a registration
statement should be filed under the Securities Act or any
securities laws following the Distribution Date, the Company may
temporarily suspend the exercisability of the Rights in each
relevant jurisdiction until such time as a registration
statement has been declared effective and, upon any such
suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such
time as the suspension is no longer in effect, in each case with
simultaneous written notice to the Rights Agent. Notwithstanding
any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite
qualification in such jurisdiction shall not have been obtained
or be obtainable or the exercise thereof shall not be permitted
under applicable law or a registration statement shall not have
been declared effective.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of
Preferred Stock
and/or other
securities delivered upon exercise of Rights shall, at the time
of delivery of the certificates for such shares or other
securities (subject to payment of the Purchase Price), be duly
and validly authorized and issued and fully paid and
nonassessable shares or securities.
(d) If the Company determines that registration under the
Securities Act is required, then the Company shall use its
reasonable best efforts to (i) file, as soon as practicable
following the first occurrence of an event which would establish
the Distribution Date, a registration statement under the
Securities Act, with respect to the securities purchasable upon
exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at
all times meeting the requirements of the Securities Act) until
the Expiration Date. The Company will also take such action as
may be appropriate under the “blue sky laws” of the
various states.
(e) The Company further covenants and agrees that it will
pay when due and payable any and all federal and state transfer
taxes and governmental charges which may be payable in respect
of the issuance or delivery of the Right Certificates or of any
shares of Preferred Stock
and/or other
securities upon the exercise of Rights. The Company shall not,
however, be required to pay any such tax or charge which may be
payable in respect of any transfer involved in the transfer or
delivery of Right Certificates or the issuance or delivery of
certificates or depositary receipts for Preferred Stock
and/or other
securities in a name other than that of the registered holder of
the Right Certificate evidencing Rights surrendered for
exercise, nor shall the Company be required to issue or deliver
any certificates or depositary receipts for shares of Preferred
Stock and/or
other securities upon the exercise of any Rights until any such
tax or charge shall have been paid (any such tax or charge being
payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the
Company’s and the Rights Agent’s satisfaction that no
such tax or charge is due.
Section 10. Preferred
Stock Record Date. Each Person (other
than the Company) in whose name any certificate for shares of
Preferred Stock (or other securities) is issued upon the
exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Stock (or other
securities) represented thereby on, and such certificate shall
be dated, the date upon which the Right Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price (and any applicable taxes or charges) was made;
provided, however, that if the date of such
surrender and payment is a date upon which
10
the Preferred Stock (or other securities) transfer books of the
Company are closed, such Person shall be deemed to have become
the record holder of such shares on, and such certificate shall
be dated, the next succeeding Business Day on which the
Preferred Stock (or other securities) transfer books of the
Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Right Certificate shall not be entitled
to any rights of a shareholder of the Company with respect to
shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings
of the Company, except as provided herein.
Section 11. Adjustment
to Purchase Price, Number of Shares or Number of
Rights. The Purchase Price, the number
and identity of shares covered by each Right and the number of
Rights outstanding are subject to adjustment from time to time
as provided in this Section 11.
(a) In the event the Company shall at any time after the
date of this Rights Agreement (i) declare a dividend on the
Preferred Stock payable in shares of Preferred Stock,
(ii) subdivide the outstanding Preferred Stock,
(iii) combine the outstanding Preferred Stock into a
smaller number of shares or (iv) issue any shares of its
capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
or surviving corporation), except as otherwise provided in this
Section 11, the Purchase Price in effect at the time of the
record date for such dividend or the time of the effective date
of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock, including Preferred
Stock, issuable upon exercise of a Right, shall be
proportionately adjusted so that the holder of any Right
exercised after such time, upon payment of the aggregate
consideration such holder would have had to pay to exercise such
Right prior to such time, shall be entitled to receive the
aggregate number and kind of shares of capital stock, including
Preferred Stock, which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred
Stock transfer books of the Company were open, such holder would
have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination or
reclassification.
(b) In the event any Person becomes an Acquiring Person
(“Section 11(b) Event”), then proper provision
shall be made so that each holder of a Right, subject to
Section 7(e) and Section 24 hereof and except as
provided below, shall after the later of the occurrence of such
event and the effective date of an appropriate registration
statement pursuant to Section 9 hereof, have a right to
receive, upon exercise thereof at the then current Purchase
Price, multiplied by the then number of one one-hundredths of a
share of Preferred Stock for which a Right is then exercisable,
in accordance with the terms of this Rights Agreement, in lieu
of shares of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by
(y) multiplying the then current Purchase Price by the then
number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable and dividing that product by
(z) 50% of the current market price per one share of Common
Stock (determined pursuant to Section 11(f) hereof on the
date of the occurrence of the Section 11(b) Event) (such
number of shares being referred to as the “Number of
Adjustment Shares”). The Company shall give the Rights
Agent written notice of the identity of any Acquiring Person or
any Affiliates or Associates thereof, or any transferee of any
of the foregoing, and the Rights Agent may rely on such notice
in carrying out its duties under this Agreement, and shall be
deemed not to have any knowledge of the identity of any such
Acquiring Person or any Affiliates or Associates thereof, or any
transferee of any of the foregoing, unless and until it shall
have received such notice.
(c) In the event that there shall not be sufficient
treasury shares or authorized but unissued shares of Common
Stock to permit the exercise in full of the Rights in accordance
with the foregoing Section 11(b), and the Rights become so
exercisable, notwithstanding any other provision of this Rights
Agreement, to the extent necessary and permitted by applicable
law and any agreements in effect on the date hereof to which the
Company is a party, each Right shall thereafter represent the
right to receive, upon exercise thereof at the then current
Purchase Price, multiplied by the then number of one
one-hundredths of a share of Preferred Stock for which a Right
is then exercisable, in accordance with the terms of this Rights
Agreement, a number of shares, or units of shares, of
(y) Common Stock, and (z) preferred stock (or other
equity securities) of the Company, including, but not limited to
Preferred Stock, equal in the aggregate to the Number of
Adjustment Shares where the Board of Directors shall have in
good faith deemed such shares or units, other than the shares of
11
Common Stock, to have at least the same value and voting rights
as the Common Stock (a “common stock equivalent”);
provided, however, if there are unavailable
sufficient shares (or fractions of shares) of Common Stock
and/or
common stock equivalents, then the Company shall take all such
action as may be necessary to authorize additional shares of
Common Stock or common stock equivalents for issuance upon
exercise of the Rights, including the calling of a meeting of
shareholders; and provided, further, that if the
Company is unable to cause sufficient shares of Common Stock
and/or
common stock equivalents to be available for issuance upon
exercise in full of the Rights, then the Company, to the extent
necessary and permitted by applicable law and any agreements or
instruments in effect on the date thereof to which it is a
party, shall make provision to pay an amount in cash equal to
twice the Purchase Price (as adjusted pursuant to this
Section 11), in lieu of issuing shares of Common Stock
and/or
common stock equivalents. To the extent that the Company
determines that some action needs to be taken pursuant to this
Section 11(c), the Board of Directors by action of at least
a majority of its members then in office may suspend the
exercisability of the Rights for a period of up to sixty
(60) days following the date on which the
Section 11(b) Event shall have occurred, in order to decide
the appropriate form of distribution to be made pursuant to this
Section 11(c) and to determine the value thereof. In the
event of any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended (with prompt written notice thereof
to the Rights Agent), as well as a public announcement and
written notification to the Rights Agent at such time as the
suspension is no longer in effect. The Board of Directors may,
but shall not be required to, establish procedures to allocate
the right to receive Common Stock and common stock equivalents
upon exercise of the Rights among holders of Rights, which such
allocation may be, but is not required to be, pro-rata.
(d) If the Company shall fix a record date for the issuance
of rights or warrants to all holders of Preferred Stock
entitling them (for a period expiring within 90 calendar days
after such record date) to subscribe for or purchase Preferred
Stock (or securities having the same or more favorable rights,
privileges and preferences as the Preferred Stock
(“equivalent preferred stock”)) or securities
convertible into Preferred Stock or equivalent preferred stock,
at a price per share of Preferred Stock or per share of
equivalent preferred stock or having a conversion or exercise
price per share, as the case may be, less than the current
market price (as determined pursuant to Section 11(f)
hereof) per share of Preferred Stock on such record date, the
Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect
immediately prior to such date by a fraction, the numerator of
which shall be the number of shares of Preferred Stock
outstanding on such record date plus the number of shares of
Preferred Stock which the aggregate offering price of the total
number of shares of Preferred Stock or equivalent preferred
stock to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would
purchase at such current market price, and the denominator of
which shall be the number of shares of Preferred Stock
outstanding on such record date plus the number of additional
shares of Preferred Stock
and/or
equivalent preferred stock to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible). In case such subscription
price may be paid in a consideration, part or all of which shall
be in a form other than cash, the value of such consideration
shall be as determined in good faith by a majority of the Board
of Directors, whose determination shall be described in a
written statement filed with the Rights Agent and shall be
conclusive for all purposes. Shares of Preferred Stock owned by
or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record
date is fixed; and in the event that such rights or warrants are
not so issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record date
had not been fixed.
(e) If the Company shall fix a record date for the making
of a distribution to all holders of Preferred Stock (including
any such distribution made in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness, cash (other than a
regular periodic cash dividend out of earnings or retained
earnings of the Company), assets (other than a dividend payable
in Preferred Stock, but including any dividend payable in stock
other than Preferred Stock) or convertible securities,
subscription rights or warrants (excluding those referred to in
Section 11(d) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the current
market price for one share of Preferred Stock (as determined
pursuant to Section 11(f) hereof) on such record date
12
less the fair market value (as determined in good faith by a
majority of the Board of Directors, whose determination shall be
described in a written statement filed with the Rights Agent and
conclusive for all purposes) of the portion of the assets or
evidences of indebtedness so to be distributed or of such
convertible securities, subscription rights or warrants
applicable to one share of Preferred Stock, and the denominator
of which shall be such current market price for one share of
Preferred Stock (as determined pursuant to Section 11(f)
hereof). Such adjustments shall be made successively whenever
such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be
adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(f) (i) For the purpose of any computation hereunder,
the “current market price” of any security (a
“Security”) for purposes of this
Section 11(f)(i)) on any date shall be deemed to be the
average of the daily closing prices per share of such Security
for the 30 consecutive Trading Days (as hereinafter defined)
immediately prior to but not including such date;
provided, however, that in the event that the
current market price per share of such Security is determined
during a period following the announcement by the issuer of such
Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible
into shares of such Security or (B) any subdivision,
combination or reclassification of such Security, and prior to
the expiration of 30 Trading Days after but not including the
ex-dividend date for such dividend or distribution or the record
date for such subdivision, combination or reclassification,
then, and in each such case, the “current market
price” shall be appropriately adjusted to reflect the
current market price per share equivalent of such Security. The
closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the
Security is not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the principal national securities
exchange on which the Security is listed or admitted to trading
or, if the Security is not listed or admitted to trading on any
national securities exchange, the last sale price or, if such
last sale price is not reported, the average of the high bid and
low asked prices in the over-the-counter market, as reported by
the NASDAQ Stock Market or such other system then in use, or, if
on any such date the Security is not quoted by any such
organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the
Security selected by a majority of the Board of Directors. If on
any such date no market maker is making a market in the
Security, the fair value of such Security on such date as
determined in good faith by a majority of the Board of Directors
shall be used, which determination shall be described in a
written 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 Security is listed or admitted to trading
is open for the transaction of business, or if the Security is
not listed or admitted to trading on any national securities
exchange, a Business Day. If the Security is not publicly held
or not so listed or traded, “current market price”
shall mean the fair value as determined in good faith by a
majority of the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and shall
be conclusive for all purposes.
(ii) For the purpose of any computation hereunder, the
“current market price” per share (or one one-hundredth
of a share) of Preferred Stock shall be determined in the same
manner as set forth above for the Common Stock in
clause (i) of this Section 11(f) (other than the last
sentence thereof). If the current market price per share (or one
one-hundredth of a share) of Preferred Stock cannot be
determined in the manner provided above or if the Preferred
Stock is not publicly held or listed or traded in a manner
described in clause (i) of this Section 11(f), the
“current market price” per share of Preferred Stock
shall be conclusively deemed to be an amount equal to 100 (as
such number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with respect
to the Common Stock occurring after the date of this Rights
Agreement) multiplied by the current market price per share of
the Common Stock and the “current market price” per
one one-hundredth of a share of Preferred Stock shall be equal
to the current market price per share of the Common Stock (as
appropriately adjusted). If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded,
“current market price” per share shall mean the fair
value per
13
share as determined in good faith by the Board of Directors,
whose determination shall be described in a statement filed with
the Rights Agent and shall be conclusive for all purposes.
(g) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1%
in the Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(g) 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 one one-thousandth of a share, as the case may be.
Notwithstanding the first sentence of this Section 11(g),
any adjustment required by this Section 11 shall be made no
later than the earlier of (i) three years from the date of
the transaction which mandates such adjustment or (ii) the
Expiration Date.
(h) In the event that at any time, as a result of an
adjustment made pursuant to Section 11(a) or
(b) hereof, the holder of any Right shall be entitled to
receive upon exercise of such Right any shares of capital stock
of the Company other than shares of Preferred Stock, thereafter
the number of such other shares so receivable upon exercise of
any Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the shares of Preferred Stock
contained in Xxxxxxx 00(x), (x), (x), (x), (x), (x), (x),
(x), (x), (x), (x), (x) and (o), and the provisions of
Sections 7, 9, 10 and 14 hereof with respect to the shares
of Preferred Stock shall apply on like terms to any such other
shares.
(i) All Rights originally issued by the Company subsequent
to any adjustment made to the Purchase Price hereunder shall
evidence the right to purchase, at the adjusted Purchase Price,
the number of one one-hundredths of a share of Preferred Stock
or other capital stock of the Company purchasable from time to
time hereunder upon exercise of the Rights, all subject to
further adjustment of the Purchase Price.
(j) Unless the Company shall have exercised its election as
provided in Section 11(k) hereof, upon each adjustment of
the Purchase Price as a result of the calculations made in
Section 11(d) and (e) hereof, each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-hundredths of a share of
Preferred Stock (calculated to the nearest one one-thousandth of
a share of Preferred Stock) obtained by (i) multiplying
(A) the number of one one-hundredths of a share of
Preferred Stock covered by a Right immediately prior to the
adjustment by (B) the Purchase Price in effect immediately
prior to such adjustment of the Purchase Price and
(ii) dividing the product so obtained by the Purchase Price
in effect immediately after such adjustment of the Purchase
Price.
(k) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of Rights,
in substitution for any adjustment in the number of shares of
Preferred Stock purchasable upon the exercise of a Right. Each
of the Rights outstanding after such adjustment of the number of
Rights shall be exercisable for the number of one one-hundredths
of a share of Preferred Stock for which such Right was
exercisable immediately prior to such adjustment. Each Right
held of record prior to such adjustment of the number of Rights
shall become that number of Rights (calculated to the nearest
ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by
the Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights (with prompt written
notice thereof to the Rights Agent, along with a copy of such
announcement), indicating the record date for the adjustment,
and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the Right
Certificates have been issued, shall be at least 10 days
later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(k), the
Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to
Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at
the option of the Company, shall cause to be distributed to such
holders of record in substitution and replacement for the Right
Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the
Company, new Right Certificates evidencing all the Rights to
14
which such holders shall be entitled after such adjustment.
Right Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein
(and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the
holders of record of Right Certificates on the record date
specified in the public announcement.
(l) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Preferred Stock
issuable upon the exercise of the Rights, the Right Certificates
theretofore and thereafter issued may continue to express the
Purchase Price and the number of shares which were expressed in
the initial Right Certificates issued hereunder.
(m) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of
the shares of Common Stock or other securities and below one
one-hundredth of the then par value, if any, of the Preferred
Stock, issuable upon exercise of the Rights, the Company shall
take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and
legally issue fully paid and nonassessable shares of such
Preferred Stock, Common Stock or other securities at such
adjusted Purchase Price. If upon any exercise of the Rights, a
holder is to receive a combination of Common Stock and common
stock equivalents, a portion of the consideration paid upon such
exercise, equal to at least the then par value of a share of
Common Stock of the Company, shall be allocated as the payment
for each share of Common Stock of the Company so received.
(n) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective as of
a record date for a specified event, the Company may elect (with
prompt written notice of such election to the Rights Agent) to
defer until the occurrence of such event the issuing to the
holder of any Right exercised after such record date the shares
of Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
shares of Preferred Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise on the basis
of the Purchase Price in effect prior to such adjustment;
provided, however, that the Company shall deliver
to such holder a due xxxx or other appropriate instrument
evidencing such holder’s right to receive such additional
shares upon the occurrence of the event requiring such
adjustment.
(o) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and
to the extent that in their good faith judgment a majority of
the Board of Directors shall determine to be advisable in order
that any (i) consolidation or subdivision of the Preferred
Stock, (ii) issuance wholly for cash of any Preferred Stock
at less than the then current market price, (iii) issuance
wholly for cash of Preferred Stock or securities which by their
terms are convertible into or exchangeable for Preferred Stock,
(iv) stock dividends or (v) issuance of rights,
options or warrants referred to hereinabove in this
Section 11, hereafter made by the Company to the holders of
its Preferred Stock, shall not be taxable to such shareholders.
(p) Anything in this Rights Agreement to the contrary
notwithstanding, in the event that at any time after the date of
this Rights Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common
Stock payable in shares of Common Stock or (ii) effect a
subdivision, combination or consolidation of the Common Stock
(by reclassification or otherwise than by payment of dividends
in shares of Common Stock) into a greater or lesser number of
shares of Common Stock, then in any such case (other than the
Recapitalization), (A) the number of one one-hundredths of
a share of Preferred Stock purchasable after such event upon
proper exercise of each Right shall be determined by multiplying
the number of one one-hundredths of a share of Preferred Stock
so purchasable immediately prior to such event by a fraction,
the numerator of which is the number of shares of Common Stock
outstanding immediately before such event and the denominator of
which is the number of shares of Common Stock outstanding
immediately after such event, and (B) each share of Common
Stock outstanding immediately after such event shall have issued
with respect to it that number of Rights which each share of
Common Stock outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this
Section 11(p) shall be made successively whenever such a
dividend is declared or paid or such a subdivision, combination
or consolidation is effected; provided, however, that no such
adjustment shall be made in
15
connection with the Recapitalization or the amendment and
restatement of this Rights Agreement in connection therewith.
Section 12. Certificate
of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made or
any event affecting the Rights or their exercisability
(including without limitation an event which causes any Rights
to become null and void) occurs, as provided in Section 11
hereof, the Company shall (a) promptly prepare a
certificate setting forth such adjustment, and a brief statement
of the facts and computations accounting for such adjustment or
describing such event, (b) promptly file with the Rights
Agent and with each transfer agent for the Preferred Stock and
the Common Stock a copy of such certificate and (c) include
a brief summary thereof in a mailing to each holder of a Right
Certificate in accordance with Section 26 hereof, or prior
to the Distribution Date, disclose a brief summary in a filing
under the Exchange Act. The Rights Agent shall be fully
protected in relying on any such certificate and on any
adjustment or statement therein contained and shall have no duty
with respect to, and shall not be deemed to have knowledge of
such adjustment or event unless and until it shall have received
such certificate. The Rights Agent shall not be accountable with
respect to, and shall incur no liability as a result of, the
validity or value (or the kind or amount) of any Rights, Common
Stock, Preferred Stock or of any securities or property which
may at any time be issued or delivered upon the exercise of any
Right or upon any adjustment pursuant to Section 11 hereof,
and it makes no representation with respect thereto.
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence
fractional Rights. In lieu of such fractional Rights, the
Company shall pay or cause to be paid to the registered holders
of the Right Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to
the same fraction of the current market value of a whole Right.
For the purposes of this Section 14(a), the current market
value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable. The
closing price for any Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange or, if the
Rights are not listed or admitted to trading on the New York
Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed
or admitted to trading on the principal national securities
exchange on which the Rights are listed or admitted to trading
or, if the Rights are not listed or admitted to trading on any
national securities exchange, the last sale price or, if such
last sale price is not reported, the average of the high bid and
low asked prices in the
over-the-counter
market, as reported by the NASDAQ Stock Market or such other
system then in use or, if on any such date the Rights are not
quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker
making a market in the Rights selected by a majority of the
Board of Directors. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by a majority of the Board
of Directors shall be used, which determination shall be
described in a statement filed with the Rights Agent and
conclusive for all purposes.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred
Stock) upon exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-hundredth of a
share of Preferred Stock). Fractions of shares of Preferred
Stock in integral multiples of one one-hundredth of a share of
Preferred Stock may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate
agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of
such depositary receipts shall have all the rights, privileges
and preferences to which they are entitled as beneficial owners
of the shares of Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that
are not integral multiples of one one-hundredth of a share of
Preferred Stock, the
16
Company may pay to the registered holders of Right Certificates
at the time such Right Certificates are exercised as herein
provided an amount in cash equal to the same fraction of the
current market value of one one-hundredths of a share of
Preferred Stock. For purposes of this Section 14(b), the
current market value of one one-hundredth of a share of
Preferred Stock shall be one one-hundredth of the closing price
of a share of Preferred Stock (as determined pursuant to
Section 11(f)(ii) hereof) for the Trading Day immediately
prior to the date of such exercise; provided however, that if
the closing price of the shares of the Preferred Stock cannot be
so determined, the closing price of one share of the Preferred
Stock for such Trading Day shall be conclusively deemed to be an
amount equal to the closing price of one share of Common Stock
for such Trading Day multiplied by one hundred (as such number
may be appropriately adjusted by the Board of Directors, in its
judgment, to reflect events such as stock splits, stock
dividends, recapitalizations (other than the Recapitalization),
or similar transactions relating to the Common Stock shares
occurring after the date of this Agreement).
(c) Following the occurrence of one of the transactions or
events specified in Section 11 hereof giving rise to the
right to receive common stock equivalents (other than Preferred
Stock) or other securities upon the exercise of a Right, the
Company shall not be required to issue fractions of shares or
units of such common stock equivalents or other securities upon
exercise of the Rights or to distribute certificates which
evidence fractional shares of such common stock equivalents or
other securities. In lieu of fractional shares or units of such
common stock equivalents or other securities, the Company may
pay to the registered holders of Right Certificates at the time
such Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of a
share or unit of such common stock equivalent or other
securities. For purposes of this Section 14(c), the current
market value shall be determined in the manner set forth in
Section 11(f) hereof for the Trading Day immediately prior
to the date of such exercise or exchange.
(d) Except as otherwise expressly provided in this
Section 14, the holder of a Right by the acceptance of the
Right expressly waives such holder’s right to receive any
fractional Rights or any fractional share upon exercise of
Rights.
(e) Whenever a payment for fractional Rights or fractional
shares is to be made by the Rights Agent upon exercise of a
Right, the Company shall (i) promptly prepare and deliver
to the Rights Agent, a certificate setting forth in reasonable
detail the facts related to such payments and the prices
and/or
formulas utilized in calculating such payments, and
(ii) provide sufficient monies to the Rights Agent in the
form of fully collected funds to make such payments. The Rights
Agent shall be fully protected in relying upon such a
certificate and shall have no duty with respect to, and shall
not be deemed to have knowledge of any payment for fractional
Rights or fractional shares under any Section of this Agreement
relating to the payment of fractional Rights or fractional
shares unless and until the Rights Agent shall have received
such a certificate and sufficient monies.
Section 15. Rights
of Action. All rights of action in
respect of this Rights Agreement, except for rights of action
given to the Rights Agent under Section 18 or
Section 20 hereof, are vested in the respective registered
holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of Common Stock); and
any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of
the Rights Agent or of the holder of any other Right Certificate
(or, prior to the Distribution Date, of the Common Stock), may,
in such holder’s own behalf and for such holder’s own
benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder’s right to
exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Rights
Agreement.
Section 16. Agreement
of Right Holders. Every holder of a Right
by accepting the same consents and agrees with the Company and
the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if
surrendered at the shareholder services office of the Rights
Agent or such office
17
designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer and with the appropriate forms and
certificates properly completed and fully executed; and
(c) Subject to Section 6 and Section 7(f), the
Company and the Rights Agent may deem and treat the Person in
whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Stock Certificate) is registered as
the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the
Right Certificate or the associated Common Stock certificate
made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights
Agent shall be affected by any notice to the contrary.
(d) Notwithstanding anything in this Rights Agreement to
the contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person as a
result of its inability to perform any of its obligations under
this Rights Agreement by reason of any preliminary or permanent
injunction or other order, judgment, decree or ruling (whether
interlocutory or final) issued by a court of competent
jurisdiction or by a governmental, self-regulatory, regulatory
or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any
governmental authority, prohibiting or otherwise restraining
performance of such obligation.
Section 17. Right
Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any
Right Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of Preferred Stock,
Common Stock or any other securities of the Company which may at
any time be issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any Right
Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any corporate action,
or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25 hereof), or
to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent,
its reasonable expenses, counsel fees and other disbursements
incurred in the preparation, negotiation, delivery,
administration, execution and amendment of this Rights Agreement
and the exercise and performance of its duties hereunder. The
Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, damage, judgment,
fine, penalty, claim, demand, settlement, cost or expense
(including, without limitation, the reasonable fees and expenses
of one legal counsel), incurred without gross negligence, bad
faith or willful misconduct on the part of the Rights Agent (as
finally determined by a court of competent jurisdiction), for
any action taken, suffered or omitted by the Rights Agent in
connection with the acceptance, administration, exercise and
performance of its duties under this Rights Agreement, including
the costs and expenses of defending against and appealing any
claim of liability arising therefrom, directly or indirectly
(except upon such a final determination of gross negligence, bad
faith or willful misconduct). The costs and expenses incurred by
the Rights Agent in enforcing this right of indemnification
shall be paid by the Company (subject to reimbursement in
connection with a final determination of the Rights Agent’s
gross negligence, bad faith or willful misconduct). The
provisions of this Section 18 and Section 20 shall
survive the termination of this Rights Agreement, the exercise,
redemption or expiration of the Rights and the resignation,
removal or replacement of the Rights Agent.
(b) The Rights Agent shall be authorized and protected and
shall incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its acceptance and
administration of this Rights Agreement and the exercise and
performance of its duties hereunder, in reliance upon any Right
Certificate or certificate for Preferred Stock, Common Stock or
for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where
18
necessary, verified or acknowledged, by the proper Person or
Persons, or otherwise upon the advice of counsel as set forth in
Section 20 hereof. The Rights Agent shall not be deemed to
have knowledge of any event of which it was supposed to receive
notice thereof hereunder, and the Rights Agent shall be fully
protected and shall incur no liability for failing to take any
action in connection herewith, unless and until it has received
such notice in writing.
(a) Any Person into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated,
or any Person resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a
party, or any Person succeeding to the shareholder services
business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Rights
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided
that such Person would be eligible for appointment as a
successor Rights Agent under the provisions of Section 21
hereof. In case at the time such successor Rights Agent shall
succeed to the agency created by this Rights Agreement, any of
the Right Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver
such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such
Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all
such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall
have been countersigned but not delivered, the Rights Agent may
adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned,
the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name; and in all such cases
such Right Certificates shall have the full force provided in
the Right Certificates and in this Rights Agreement.
Section 20. Duties
of Rights Agent. The Rights Agent
undertakes to perform only the duties and obligations expressly
imposed by this Rights Agreement (and no implied duties or
obligations) upon the following terms and conditions, by all of
which the Company and the holders of Right Certificates, by
their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company or an employee of the
Rights Agent), and the advice or opinion of such counsel, in the
absence of bad faith, shall be full and complete authorization
and protection to the Rights Agent and the Rights Agent shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in the absence of gross negligence,
bad faith or willful misconduct and in accordance with such
advice or opinion.
(b) Whenever in the performance of its duties under this
Rights Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person and the
determination of current market price) be proved or established
by the Company prior to taking, suffering or omitting to take
any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer or any Executive
Vice President and by the Treasurer or any Assistant Treasurer
or the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be
full and complete authorization and protection to the Rights
Agent, and the Rights Agent shall incur no liability for or in
respect of, any action taken, omitted or suffered by it in the
absence of gross negligence, bad faith or willful misconduct
under the provisions of this Rights Agreement in reliance upon
such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or willful misconduct (as
finally determined by a court of competent jurisdiction).
Anything to the contrary
19
notwithstanding, in no event shall the Rights Agent be liable
for special, punitive, indirect, consequential or incidental
loss or damage of any kind whatsoever (including, but not
limited to, lost profits), even if the Rights Agent has been
advised of the likelihood of such loss or damage. Any and all
liability of the Rights Agent under this Rights Agreement will
be limited to the amount of fees paid by the Company to the
Rights Agent pursuant to this Rights Agreement.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this
Rights Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be liable for or be under
any responsibility in respect of the validity of this Rights
Agreement or the execution and delivery hereof (except the due
execution and delivery hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except
its countersignature and delivery thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Rights Agreement or in any Right
Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming null
and void hereunder) or for any adjustment required under the
provisions of Section 11 or Section 24 hereof or
responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts that
would require any such adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after receipt
by the Rights Agent of a certificate furnished pursuant to
Section 12 of this Rights Agreement describing any such
adjustment or change, upon which the Rights Agent may rely); nor
shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or
reservation of any shares of Preferred Stock or other securities
to be issued pursuant to this Rights Agreement or any Right
Certificate or as to whether any shares of Preferred Stock or
other securities 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 Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, Chief Executive
Officer, President, Chief Financial Officer, any Executive Vice
President, the Secretary, any Assistant Secretary, the Treasurer
or any Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its
duties and such instructions shall be full authorization and
protection to the Rights Agent, and the Rights Agent shall not
be liable for any action taken, suffered or omitted to be taken
by it in the absence of gross negligence, bad faith or willful
misconduct in accordance with instructions of any such officer
or for any delay in acting while waiting for those instructions.
The Rights Agent shall be fully authorized and protected in
relying upon the most recent instructions received from any such
officer.
(h) The Rights Agent and any stockholder, member, manager,
director, affiliate, officer, employee, agent or representative
of the Rights Agent may buy, sell or deal in any of the Rights
or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not the
Rights Agent under this Rights Agreement. Nothing herein shall
preclude the Rights Agent or any stockholder, member, manager,
director, affiliate, officer, employee, agent or representative
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 hereby vested in it or perform any duty
hereunder either itself (through its directors, officers or
employees) or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act,
omission, default, neglect or misconduct of any such attorneys
or agents or for any loss to the Company or any other Person
resulting from any such act, default, neglect or misconduct,
provided that reasonable care
20
was exercised in the selection and continued employment thereof
(as finally determined by a court of competent jurisdiction).
(j) No provision of this Rights Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder or in the exercise of its rights if it believes that
repayment of such funds or adequate indemnification against such
risk or liability is not assured to it.
(k) If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate
attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed or
indicates an affirmative response to clause 1,
clause 2 and/or, in the case of the certificate attached to
the form of election to purchase, clause 3 thereof, the
Rights Agent shall not take any further action with respect to
such requested exercise of transfer without first consulting
with the Company.
(l) At any time and from time to time after the
Distribution Date, upon the request of the Company, the Rights
Agent shall deliver to the Company a list, as of the most recent
practicable date (or as of such earlier date as may be specified
by the Company), of the holders of record of the Rights.
Section 21. Change
of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its
duties under this Rights Agreement upon 30 days’
notice in writing mailed to the Company and to each transfer
agent of the Common Stock and Preferred Stock known to the
Rights Agent by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. The Company may
remove the Rights Agent or any successor Rights Agent upon
30 days’ notice in writing, mailed to the Rights Agent
or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail or, prior to the Distribution
Date, through any filing made by the Company pursuant to the
Exchange Act. If the Rights Agent shall resign or be removed or
replaced, or shall otherwise become incapable of acting, the
Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of
30 days after such removal or replacement or after it has
been notified in writing of such resignation or incapacity by
the resigning or incapacitated Rights Agent or by the holder of
a Right Certificate (which holder shall, with such notice,
submit such holder’s Right Certificate for inspection by
the Company), then the registered holder of any Right
Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights
Agent, whether appointed by the Company or by such a court,
shall be (a) a Person organized and doing business under
the laws of the United States or of any state, in good standing
or (b) an affiliate of a Person described in
clause (a) of this sentence. After appointment, the
successor Rights Agent shall be vested with the same powers,
rights, duties, responsibilities and obligations as if it had
been originally named as Rights Agent without further act or
deed; but the predecessor Rights Agent shall deliver and
transfer to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common
Stock and Preferred Stock, and mail a notice thereof in writing
to the registered holders of the Right Certificates or, prior to
the Distribution Date, through any filing made by the Company
pursuant to the Exchange Act. Failure to give any notice
provided for this Section 21, however, or any defect
therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of
the successor Rights Agent, as the case may be.
(a) Notwithstanding any of the provisions of this Rights
Agreement or of the Rights to the contrary, the Company may, at
its option, issue new Right Certificates evidencing Rights in
such form as may be approved by a majority of the Board of
Directors then in office to reflect any adjustment or change in
the Purchase Price and the number or kind or class of shares of
stock or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of
this Rights Agreement.
21
(b) In addition, in connection with the issuance or sale of
Common Stock following the Distribution Date and prior to the
redemption, exchange or expiration of the Rights, the Company
(i) shall with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or under any
employee benefit plan or arrangement, or upon the exercise,
conversion or exchange of securities hereinafter issued by the
Company, and (ii) may, in any other case, if deemed
necessary or appropriate by the Board of Directors, issue Right
Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that
(A) no such Right Certificates shall be issued if, and to
the extent that, the Company shall be advised by counsel that
such issuance would create a significant risk of material
adverse tax consequences to the Company or the Person to whom
such Right Certificates would be issued, and (B) no Right
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made in lieu of
the issuance thereof.
(a) A majority of the Board of Directors then in office
may, at its option, at any time prior to the earlier of
(i) the Close of Business on the tenth Business Day
following the Stock Acquisition Date or (ii) the Close of
Business on the Final Expiration Date, elect to redeem all but
not less than all of the then outstanding Rights at a redemption
price of $0.001 per Right, as appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring
after the date hereof (such redemption price being hereinafter
referred to as the “Redemption Price”).
Notwithstanding anything contained in this Rights Agreement to
the contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(b) Event until such time
as the Company’s right of redemption hereunder has expired.
The redemption of the Rights by the Board of Directors may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish.
(b) Immediately upon the action of a majority of the Board
of Directors then in office electing to redeem the Rights,
evidence of which shall be promptly filed with the Rights Agent,
or, when appropriate, immediately upon the time or satisfaction
of such conditions as the Board of Directors may have
established, and without any further action and without any
notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly
give public disclosure of any such redemption (with prompt
written notice thereof to the Rights Agent); provided, however,
that the failure to give, or any defect in, any such disclosure
shall not affect the legality or validity of such redemption.
Within ten 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 Rights Agent and to the holders
of the then outstanding Rights by mailing such notice to all
such holders at their last addresses as they appear upon the
registry books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the Transfer Agent for the Common
Stock. Any notice which is mailed in the manner herein provided
shall be deemed given, whether or not the holder receives the
notice. Each such notice of redemption will state the method by
which the payment of the Redemption Price will be made.
Amounts payable shall be rounded down to the nearest one cent.
(c) Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23 or in Section 24 hereof and other
than in connection with the purchase of Common Stock prior to
the Distribution Date.
(d) Notwithstanding any of the provisions of this Rights
Agreement to the contrary, in the event that the
Recapitalization and Distribution Agreement is terminated
pursuant to its terms at any time prior to the Acceptance Time
with respect to the Split-Off, this Rights Agreement shall
automatically terminate and have no further force or effect, and
any outstanding Rights shall expire and the right to exercise
them or to have them redeemed shall immediately terminate.
(a) The Board of Directors may, at its option, at any time
after any Person becomes an Acquiring Person, exchange all or
part of the then outstanding and exercisable Rights (which shall
not include Rights that have
22
become null and void pursuant to the provisions of
Section 7(e) hereof) for Common Stock at an exchange ratio
of one share of Common Stock per Right, appropriately adjusted
to reflect adjustments in the number of Rights pursuant to
Section 11 of this Rights Agreement (such exchange ratio
being hereinafter referred to as the “Exchange
Ratio”). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any
time after any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan or compensation
arrangement of the Company or any such Subsidiary, or any entity
holding securities of the Company to the extent organized,
appointed or established by the Company or any such Subsidiary
for or pursuant to the terms of any such employee benefit plan
or compensation arrangement, or any Grandfathered Person),
together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the Voting Power
of the Company.
(b) Immediately upon the action of the Board of Directors
ordering the exchange of any Rights pursuant to paragraph
(a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company promptly shall
give public notice of any such exchange (with prompt written
notice thereof to the Rights Agent); provided, however, that the
failure to give, or any defect in, such notice shall not affect
the validity of such exchange. The Company promptly shall mail
or cause to be mailed a notice of any such exchange to all of
the holders of such Rights at their last addresses as they
appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such
notice of exchange will state the method by which the exchange
of Common Stock for Rights will be effected and, in the event of
any partial exchange, the number of Rights which will be
exchanged. Any partial exchange shall be effected pro rata based
on the number of Rights (other than Rights which have become
void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the
Company, at its option, may substitute Preferred Stock (or
equivalent preferred stock, as such term is defined in
Section 11(d) hereof) for Common Stock exchangeable for
Rights, at the initial rate of one one-hundredth of a share of
Preferred Stock (or equivalent preferred stock) for each share
of Common Stock, as appropriately adjusted to reflect
adjustments in the voting rights of the Preferred Stock pursuant
to the terms thereof, so that the fraction of a share of
Preferred Stock delivered in lieu of each share of Common Stock
shall have the same voting rights as one share of Common Stock.
(d) In the event that there shall not be sufficient shares
of Common Stock or Preferred Stock (or equivalent preferred
stock) issued but not outstanding or authorized but unissued to
permit any exchange of Rights as contemplated in accordance with
this Section 24, the Company shall take all such action as
may be necessary to authorize additional shares of Common Stock
or Preferred Stock (or equivalent preferred stock) for issuance
upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of
Common Stock or to distribute certificates which evidence
fractional shares of Common Stock. In lieu of such fractional
shares of Common Stock, the Company shall pay to the registered
holders of the Right Certificates with regard to which such
fractional shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the current market
value of a whole share of Common Stock. For the purposes of this
paragraph (e), the current market value of a whole share of
Common Stock shall be the current market price of a share of
Common Stock (as determined pursuant to the second sentence of
Section 11(f)(i) hereof) for the Trading Day immediately
prior to the date of exchange pursuant to this Section 24.
(a) In case the Company shall propose at any time after the
Distribution Date (i) to pay any dividend payable in stock
of any class to the holders of the Preferred Stock or to make
any other distribution to the holders of the Preferred Stock
(other than a regular periodic cash dividend out of earnings or
retained earnings of the Company), (ii) to offer to the
holders of the Preferred Stock rights or warrants to subscribe
for or to purchase any additional shares of Preferred Stock or
shares of stock of any other class or any other securities,
23
rights or options, (iii) to effect any reclassification of
the Preferred Stock (other than a reclassification involving
only the subdivision of outstanding shares of Preferred Stock),
(iv) to effect any consolidation or merger into or with, or
to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sales or other transfer), in
one or more transactions, of 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person, (v) to effect the liquidation,
dissolution or winding up of the Company, or (vi) to
declare or pay any dividend on the Common Stock payable in
Common Stock or to effect a subdivision, combination or
consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock), then,
in each such case, the Company shall give to each holder of a
Right Certificate a notice of such proposed action (with prompt
written notice thereof to the Rights Agent), which shall specify
the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the
date of participation therein by the holders of the Common Stock
and/or
Preferred Stock, if any such date is to be fixed. Such notice
shall be so given in the case of any action covered by
clauses (i) or (ii) above at least ten days prior to
the record date for determining holders of the Preferred Stock
for purposes of such action, and in the case of any such other
action, at least ten days prior to the date of the taking of
such proposed action or the date of participation therein by the
holders of Preferred Stock, whichever shall be the earlier. The
failure to give notice required by this Section 25 or any
defect therein shall not affect the legality or validity of the
action taken by the Company or the vote upon any such action.
(b) In case a Section 11(b) Event shall occur, then
the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with
Section 26 hereof, a notice of the occurrence of such event
(with prompt notice thereof to the Rights Agent), which shall
specify the event and the consequences of the event to holders
of Rights under Section 11(b) hereof.
(c) Failure to give notice required by this Section 25
or any defect therein shall not affect the legality or validity
of the action taken by the Company or the vote on any such
action.
Section 26. Notices. Notices
or demands authorized by this Rights Agreement to be given or
made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or
made if sent by first-class mail, postage prepaid, addressed
(until another address is filed in writing with the Rights
Agent) as follows:
Reinsurance Group of America, Incorporated
0000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Subject to the provisions of Section 21 hereof, any notice
or demand authorized by this Rights Agreement to be given or
made by the Company or by the holder of any Right Certificate to
or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Company) as follows:
Mellon Investor Services LLC
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Relationship Manager
with a copy to:
Mellon Investor Services LLC
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile:
(000) 000-0000
24
Notices or demands authorized by this Rights Agreement to be
given or made by the Company or the Rights Agent to the holder
of any Right Certificate shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed to such
holder at the address of such holder as shown on the registry
books of the Company.
Section 27. Supplements
and Amendments. Subject to the last
sentence of this Section 27, the Company may from time to
time supplement or amend this Rights Agreement without the
approval of any holders of Right Certificates in order
(a) to cure any ambiguity, (b) to correct or
supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (c) to
shorten or lengthen any time period hereunder (including without
limitation to extend the Final Expiration Date), (d) to
increase or decrease the Purchase Price, or (e) to change
or supplement the provisions hereunder in any manner which the
Company may deem necessary or desirable including but without
limitation in connection with the Recapitalization;
provided, however, that from and after such time
as any Person becomes an Acquiring Person, this Rights Agreement
shall not be amended in any manner which would adversely affect
the interests of the holders of Rights; provided further that
this Rights Agreement may not be supplemented or amended to
lengthen pursuant to clause (c) of this sentence,
(A) the time period relating to the when the Rights may be
redeemed at such time as the Rights are not then redeemable, or
(B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the rights
of, and/or
the benefits to, the holders of the Rights; provided further
that the Company shall have the right to make unilaterally any
changes necessary to facilitate the appointment of a successor
Rights Agent, which such changes shall be set forth in a writing
by the Company or by the Company and such successor Rights
Agent. Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed supplement
or amendment (including, without limitation, in connection with
the Recapitalization) is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement
or amendment. Notwithstanding anything herein to the contrary,
any supplement or amendment (other than, in connection with the
Recapitalization, such amendments or supplements related to the
issuance or dividending of additional series of Company stock
and related rights governed by similar terms and conditions as
the Rights) that adversely affects the Rights Agent’s own
duties, obligations or immunities under this Rights Agreement
shall require the prior written consent of the Rights Agent,
which shall not be unreasonably withheld.
Section 28. Successors. All
the covenants and provisions of this Rights Agreement by or for
the benefit of the Company or the Rights Agent shall bind and
inure to the benefit of their respective successors and assigns
hereunder.
Section 29. Benefits
of This Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any Person other
than the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the
Common Stock) any legal or equitable right, remedy or claim
under this Rights Agreement; but this Rights Agreement shall be
for the sole and exclusive benefit of the Company, the Rights
Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Stock).
Section 30. Determinations
and Actions by the Board, etc. The Board
of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise all
rights and powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the
administration of this Agreement, including, without limitation,
the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary
or advisable for the administration of this Agreement. All such
actions, interpretations, calculations and determinations
(including, for purposes of clause (y) below, all omissions
with respect to the foregoing) done or made by the Board shall
(x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other parties,
and (y) not subject the Board of Directors of the Company
to any liability to the holders of the Rights. The Rights Agent
shall be entitled to assume that the Board of Directors of the
Company acted in good faith and shall be fully protected and
incur no liability in reliance thereon.
25
Section 31. Severability. If
any term, provision, covenant or restriction of this Rights
Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Rights
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated. It is the intent of
the parties hereto to enforce the remainder of the terms,
provisions, covenants and restrictions of this Rights Agreement
to the maximum extent permitted by law; provided, however, that
if such excluded provision shall affect the rights, immunities,
duties or obligations of the Rights Agent, the Rights Agent
shall be entitled to resign upon not less than 5 Business
Days’ notice.
Section 32. Governing
Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of Missouri 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; provided, however, that
all provisions regarding the rights, duties and obligations of
the Rights Agent shall be governed by and construed in
accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such State.
Section 33. Counterparts. This
Rights Agreement may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 34. Descriptive
Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
26
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first
above written.
| Attest: |
REINSURANCE GROUP OF AMERICA, INCORPORATED |
|
|
By /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Vice President and Assistant General Counsel |
By /s/ Xxxx X. Xxx Name: Xxxx X. Xxx Title: Senior Executive Vice President and Chief Financial Officer |
|
|
MELLON INVESTOR SERVICES LLC, as Rights Agent |
||
|
By /s/ Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx Title: Asst. Vice President |
27
Exhibit A-1
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES A-1
JUNIOR PARTICIPATING PREFERRED STOCK
OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
Pursuant to Section 351.180 of
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS OF SERIES A-1
JUNIOR PARTICIPATING PREFERRED STOCK
OF
REINSURANCE GROUP OF AMERICA, INCORPORATED
Pursuant to Section 351.180 of
The General and Business Corporation Law of Missouri
We, ,
[NAME OF OFFICE],
and ,
[NAME OF OFFICE], of Reinsurance Group of America, Incorporated,
a corporation organized and existing under The General and
Business Corporation Law of the State of Missouri, in accordance
with the provisions of Section 351.180 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors by the Restated Articles of Incorporation, as amended,
of the Company, the said Board of Directors on June 1,
2008, adopted the following resolution creating a series of One
Million Four Hundred Thousand (1,400,000) shares of Preferred
Stock designated as
Series A-1
Junior Participating Preferred Stock, par value $0.01 per share:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of
its Restated Articles of Incorporation, as amended, a series of
Preferred Stock of the Company be and it hereby is created, and
that the designation and amount thereof and the powers,
preferences and relative, participating, optional and other
special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as
follows:
Section 1. Designation
and Amount.
There shall be a series of the Preferred Stock which shall be
designated as the
“Series A-1
Junior Participating Preferred Stock,” par value $0.01 per
share, and the number of shares constituting such series shall
be 1,400,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided,
that no decrease shall reduce the number of shares of
Series A-1
Junior Participating Preferred Stock to a number less than that
of the shares then outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or
warrants or upon conversion of outstanding securities issued by
the Company.
Section 2. Dividends
and Distributions.
(A) Subject to the rights of the holders of any shares of
any series of preferred stock of the Company ranking prior and
superior to the
Series A-1
Junior Participating Preferred Stock with respect to dividends,
the holders of shares of
Series A-1
Junior Participating Preferred Stock, in preference to the
holders of shares of Common Stock, par value $0.01 per share of
the Company (the “Common Stock”), and of any other
junior stock, shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash
on any regular quarterly dividend payment date as shall be
established by the Board of Directors (each such date being
referred to herein as a “Quarterly Dividend Payment
Date”), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share
of
Series A-1
Junior Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for
adjustment hereinafter set forth, 100 times the aggregate per
share amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash dividends or
other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of
Common Stock (by reclassification or otherwise), declared on the
Common Stock since the immediately preceding Quarterly Dividend
Payment Date or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or fraction
of a share of
Series A-1
Junior Participating Preferred Stock. In the event the
Company shall at any time after June 1, 2008 (the
“Rights Declaration Date”) declare or pay any dividend
on the Common Stock payable in shares of Common Stock, or effect
a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such
case the amount to which holders of shares of
Series A-1
Junior Participating Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event; provided,
however, that no such adjustment shall be effected as a result
of a Recapitalization in accordance with the terms of that
Recapitalization and Distribution Agreement, dated as of
June 2, 2008, between the Company and MetLife, Inc.
(“Recapitalization”).
(B) The Company shall declare a dividend or distribution on
the
Series A-1
Junior Participating Preferred Stock as provided in paragraph
(A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared
on the Common Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $1.00 per share on the
Series A-1
Junior Participating Preferred Stock shall nevertheless be
payable on such subsequent Quarterly Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on
outstanding shares of
Series A-1
Junior Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such shares,
unless the date of issue of such shares is prior to the record
date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the
date of issue of such shares, or unless the date of issue is a
Quarterly Dividend Payment Date or is a date after the record
date for the determination of holders of shares of
Series A-1
Junior Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend Payment
Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest.
Dividends paid on the shares of
Series A-1
Junior Participating Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable
on such shares shall be allocated pro rata on a
share-by-share
basis among all such shares at the time outstanding. The Board
of Directors may, in accordance with applicable law, fix a
record date for the determination of holders of shares of
Series A-1
Junior Participating Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record
date shall be not more than such number of days prior to the
date fixed for the payment thereof as may be allowed by
applicable law; provided, however, that no such adjustment shall
be effected as a result of the Recapitalization.
Section 3. Voting
Rights.
The holders of shares of
Series A-1
Junior Participating Preferred Stock shall have the following
voting rights:
(A) Each share of
Series A-1
Junior Participating Preferred Stock shall entitle the holder
thereof to 100 votes on all matters submitted to a vote of the
shareholders of the Company. In the event the Company shall at
any time after the Rights Declaration Date declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common
Stock, then in each such case the number of votes to which
holders of shares of
Series A-1
Junior Participating Preferred Stock were entitled immediately
prior to such event under the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
2
(B) Except as otherwise provided herein or in the
Company’s Restated Articles of Incorporation, as amended,
and except as otherwise provided by law, the holders of
Series A-1
Junior Participating Preferred Stock, the holders of shares of
Common Stock, and the holders of shares of any other capital
stock of the Company having general voting rights, shall vote
together as one class on all matters submitted to a vote of
shareholders of the Company.
(C) Except as otherwise set forth herein or in the
Company’s Restated Articles of Incorporation, as amended,
and except as otherwise provided by law, holders of
Series A-1
Junior Participating Preferred Stock shall have no special
voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common
Stock as set forth herein) for taking any corporate action.
Section 4. Certain
Restrictions.
(A) Whenever dividends or distributions payable on the
Series A-1
Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared,
on shares of
Series A-1
Junior Participating Preferred Stock outstanding shall have been
paid in full, the Company shall not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A-1
Junior Participating Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the
Series A-1
Junior Participating Preferred Stock, except dividends paid
ratably on the
Series A-1
Junior Participating Preferred Stock and all such parity stock
on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are
then entitled;
(iii) except as permitted in Section 4(A)(iv) below,
redeem or purchase or otherwise acquire for consideration shares
of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the
Series A-1
Junior Participating Preferred Stock, provided that the Company
may at any time redeem, purchase or otherwise acquire shares of
any such parity stock in exchange for shares of any stock of the
Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series
A-1 Junior
Participating Preferred Stock; and
(iv) purchase or otherwise acquire for consideration any
shares of
Series A-1
Junior Participating Preferred Stock, or any shares of stock
ranking on a parity with the
Series A-1
Junior Participating Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the
Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired
Shares.
Any shares of
Series A-1
Junior Participating Preferred Stock purchased or otherwise
acquired by the Company in any manner whatsoever shall be
retired and canceled promptly after the acquisition thereof. The
Company shall cause all such shares upon their cancellation to
be authorized but unissued shares of Preferred Stock which may
be reissued as part of a new series of Preferred Stock, subject
to the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation,
Dissolution or Winding Up.
(A) Subject to the rights of the holders of any shares of
any series of Preferred Stock of the Company ranking prior and
superior to the
Series A-1
Junior Participating Preferred Stock with respect to
liquidation,
3
upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Company, no distribution shall be made to the
holders of shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A-1
Junior Participating Preferred Stock unless, prior thereto, the
holders of shares of
Series A-1
Junior Participating Preferred Stock shall have received $100.00
per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date
of such payment (the
“Series A-1
Liquidation Preference”). Following the payment of the full
amount of the
Series A-1
Liquidation Preference, no additional distributions shall be
made to the holders of shares of
Series A-1
Junior Participating Preferred Stock, unless, prior thereto, the
holders of shares of Common Stock shall have received an amount
per share (the “Common Adjustment”) equal to the
quotient obtained by dividing (i) the
Series A-1
Liquidation Preference by (ii) 100 (as appropriately
adjusted as set forth in subparagraph C below to reflect such
events as stock dividends, and subdivisions, combinations and
consolidations with respect to the Common Stock) (such number in
clause (ii) being referred to as the “Adjustment
Number”). Following the payment of the full amount of the
Series A-1
Liquidation Preference and the Common Adjustment in respect of
all outstanding shares of
Series A-1
Junior Participating Preferred Stock and Common Stock,
respectively, holders of
Series A-1
Junior Participating Preferred Stock and holders of shares of
Common Stock shall receive their ratable and proportionate share
of the remaining assets to be distributed in the ratio of the
Adjustment Number to one with respect to such
Series A-1
Junior Participating Preferred Stock and Common Stock, on a per
share basis, respectively.
(B) In the event there are not sufficient assets available
to permit payment in full of the
Series A-1
Liquidation Preference and the liquidation preferences of all
other series of preferred stock, if any, which rank on a parity
with the
Series A-1
Junior Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such parity
shares in proportion to their respective liquidation
preferences. In the event there are not sufficient assets
available to permit payment in full of the Common Adjustment,
then such remaining assets shall be distributed ratably to the
holders of Common Stock.
(C) In the event the Company shall at any time after the
Rights Declaration Date declare or pay any dividend on Common
Stock payable in shares of Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of
Common Stock (by reclassification or otherwise than by payment
of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case
the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a
fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock
that were outstanding immediately prior to such event; provided,
however, that no such adjustment shall be effected as a result
of the Recapitalization.
Section 7. Consolidation,
Merger, etc.
In case the Company shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash
and/or any
other property, then in any such case the shares of
Series A-1
Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share (subject
to the provision for adjustment hereinafter set forth) equal to
100 times the aggregate amount of stock, securities, cash
and/or any
other property (payable in kind), as the case may be, into which
or for which each share of Common Stock is changed or exchanged.
In the event the Company shall at any time after the Rights
Declaration Date declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common
Stock (by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or lesser
number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the
exchange or change of shares of
Series A-1
Junior Participating Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that are outstanding immediately prior to
such event; provided, however, that no such adjustment shall be
effected as a result of the Recapitalization.
4
Section 8. Redemption.
The shares of
Series A-1
Junior Participating Preferred Stock shall not be redeemable.
Section 9. Ranking.
The
Series A-1
Junior Participating Preferred Stock shall rank junior to all
other series of the Company’s Preferred Stock as to the
payment of dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Fractional
Shares.
Series A-1
Junior Participating Preferred Stock may be issued in fractions
of a share which shall entitle the holder, in proportion to such
holder’s fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to have the
benefit of all other rights of holders of
Series A-1
Junior Participating Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the
penalties of perjury
this
day of May, 2008.
| By: |
Name: [NAME OF OFFICER]
| Title: | [OFFICE] |
Attest
| By: |
Name: [NAME OF OFFICER]
| Title: | [OFFICE] |
5
Exhibit B-1
[Form of
Right Certificate]
Certificate
No. R-
Rights
NOT
EXERCISABLE AFTER THE EXPIRATION DATE. AT THE
OPTION OF THE COMPANY, THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $0.001 PER RIGHT OR EXCHANGE FOR COMMON
STOCK, UNDER THE CIRCUMSTANCES AND ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON. THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY ARE VOID
IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
OPTION OF THE COMPANY, THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $0.001 PER RIGHT OR EXCHANGE FOR COMMON
STOCK, UNDER THE CIRCUMSTANCES AND ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHT CERTIFICATE WERE ISSUED TO A
PERSON WHO WAS AN ACQUIRING PERSON. THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY ARE VOID
IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
Right Certificate
REINSURANCE GROUP OF AMERICA, INCORPORATED
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
Section 382 Rights Agreement dated as of June 2, 2008
(the “Rights Agreement”) between Reinsurance Group of
America, Incorporated, a Missouri corporation (the
“Company”), and Mellon Investor Services LLC, a New
Jersey limited liability company (the “Rights Agent”),
to purchase from the Company at any time after the Distribution
Date (as such term is defined in the Rights Agreement) and prior
to 5:00 p.m. St. Louis, Missouri time on the
Expiration Date, as that term is defined in the Rights
Agreement, at the shareholder services office (or such office
designated for such purpose) of the Rights Agent, or its
successor as Rights Agent, one one-hundredth of a fully paid,
nonassessable share of the
Series A-1
Junior Participating Preferred Stock, par value $0.01 per share
(“Preferred Stock”), of the Company, at a purchase
price of $ per one one-hundredth
of a share (the “Purchase Price”) upon presentation
and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights
evidenced by this Right Certificate (and the number of shares
which may be purchased upon exercise of each Right) and the
Purchase Price set forth above, are the number and Purchase
Price as
of , ,
based on the shares of Preferred Stock of the Company as
constituted at such date.
The Purchase Price and the number of shares of Preferred Stock
which may be purchased upon the exercise of each of the Rights
evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events as provided
in the Rights Agreement.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of
the Right Certificates. Copies of the Rights Agreement are on
file at the Company and the above-mentioned office of the Rights
Agent and are also available upon written request to the Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the shareholder services office
(or such office designated for such purpose) of the Rights
Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling
the holder to purchase a like
* The portion of the legend in brackets shall be inserted
only if applicable.
6
aggregate number of shares of Preferred Stock as the Rights
evidenced by the Right Certificate or Right Certificates
surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall
be entitled to receive, upon surrender hereof, another Right
Certificate or Right Certificates for the number of whole Rights
not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at
its option at a redemption price of $0.001 per Right on or prior
to the Stock Acquisition Date (as defined in the Rights
Agreement). In addition, subject to the provisions of the Rights
Agreement, each Right evidenced by this Certificate may be
exchanged by the Company at its option for one share of Common
Stock following the Stock Acquisition Date.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Rights evidenced hereby (other than fractions
which are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts). In lieu of fractions of a
share, a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of
shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Company or any right
to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice
of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by
this Right Certificate shall have been exercised as provided in
the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal.
Dated as
of , .
| Attest: |
REINSURANCE GROUP OF AMERICA, INCORPORATED |
|
|
By
Name: Title: |
By
Name: Title: |
Countersigned:
MELLON INVESTOR
SERVICES LLC
| By: |
Authorized signature
7
[Form of
Reverse Side of Right Certificate]
FORM OF
ASSIGNMENT
(To be
executed by the registered holder if such
holder desires to transfer the Right Certificate.)
holder desires to transfer the Right Certificate.)
FOR VALUE
RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint
Attorney to transfer the within Right Certificate on the books
of the within-named Company, with full power of substitution.
Dated:
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
name of holder as specified on the face of
this Right Certificate)
Signature
Guaranteed:
Signatures must be guaranteed by a member or a participant in
the Securities Transfer Agent Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
8
CERTIFICATE
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 (as such terms are defined pursuant to
the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did
[ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or subsequently became an Acquiring Person.
Dated:
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
name of holder as specified on the face of
this Right Certificate)
9
FORM OF
ELECTION TO PURCHASE
(To be
executed if holder desires to
exercise the Right Certificate.)
exercise the Right Certificate.)
To Reinsurance Group of America, Incorporated:
The undersigned hereby irrevocably elects to exercise Rights
represented by this Right Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name
of:
Name:
Address:
Social security or taxpayer identification
number:
If such number of Rights shall not be all the Rights evidenced
by this Right Certificate, a new Right Certificate for the
balance remaining of such Rights shall be registered in the name
of and delivered to:
Name:
Address:
Social security or taxpayer identification
number:
Dated:
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
name of holder as specified on the face of
this Right Certificate)
Signature
Guaranteed:
Signatures must be guaranteed by a member or a participant in
the Securities Transfer Agent Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election
must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
10
CERTIFICATE
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 (as
such terms are defined pursuant to the Rights Agreement);
(2) this Rights Certificate
[ ] is
[ ] is not being sold,
assigned and transferred by or on behalf of a Person who is or
was an Acquiring Person (as such terms are defined pursuant to
the Rights Agreement);
(3) after due inquiry and to the best knowledge of the
undersigned, it [ ] did
[ ] did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or became an Acquiring Person.
Dated:
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
name of holder as specified on the face of
this Right Certificate)
Signature
Guaranteed:
Signatures must be guaranteed by a member or a participant in
the Securities Transfer Agent Medallion Program, the New York
Stock Exchange Medallion Signature Program or the Stock Exchange
Medallion Program.
NOTICE
The signature in the foregoing Forms of Assignment and Election
must conform to the name as written upon the face of this Right
Certificate in every particular, without alteration or
enlargement or any change whatsoever.
In the event the certification set forth above in the form of
Assignment or the form of Election to Purchase, as the case may
be, is not completed, the Company and the Rights Agent will deem
the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person (as defined in the Rights
Agreement) and such Assignment or Election to Purchase will not
be honored as described in Section 7(e) of the Rights
Agreement.
11
Exhibit
C
REINSURANCE
GROUP OF AMERICA, INCORPORATED
Summary
of Preferred Stock
Purchase
Rights
On June 1, 2008, the Board of Directors of Reinsurance
Group of America, Incorporated (the “Company”)
declared a dividend of one preferred share purchase right (a
“Right”) for each outstanding share of common stock,
par value $.01 per share, of the Company (the “Common
Stock”). The dividend distribution is payable on
June 12, 2008 (the “Record Date”) to the
shareholders of record as of the close of business on that date.
Each Right entitles the registered holder to purchase from the
Company one one-hundredth of a share of
Series A-1
Junior Participating Preferred Stock, par value $0.01 per share
(the “Preferred Stock”), of the Company at a price of
$200 per one one-hundredth of a share of Preferred Stock (the
“Purchase Price”), subject to adjustment. The
description and terms of the Rights are set forth in a
Section 382 Rights Agreement, dated as of June 2,
2008, as the same may be amended from time to time (the
“Rights Agreement”), between the Company and Mellon
Investor Services LLC, as Rights Agent (the “Rights
Agent”).
The Rights Plan is intended to act as a deterrent to any person
(other than the Company, any subsidiary of the Company or any
employee benefit plan of the Company) from becoming or obtaining
the right to become, a 5% Shareholder (as defined in
Section 382 of the Internal Revenue Code of 1986, as
amended (the “Code”)) without the approval of at least
a majority of the members of our Board of Directors then in
office (any such person who becomes a 5% Shareholder, other than
as described below, an “Acquiring Person”). The
holdings of independently managed mutual funds should not be
combined for purposes of calculating ownership percentages under
the Rights Plan. Notwithstanding the foregoing, shareholders who
own 5.0% or more (by value) of our outstanding (i) Common
Stock, (ii) preferred stock (other than preferred stock
described in Section 1504(a)(4) of the Code) of the
Company, (iii) warrants, rights, or options (including
options within the meaning of Treasury Regulation
§ 1.382-2T(h)(4)(v)) to purchase stock (other than
preferred stock described in Section 1504(a)(4) of the
Code) of the Company, and (iv) any other interest that
would be treated as “stock” of the Company pursuant to
Treasury Regulation § 1.382-2T(f)(18),
“Corporation Securities”) as of the close of business
on June 2, 2008 will not be an Acquiring Person and
therefore will not trigger the Rights Plan, so long as they do
not acquire any additional shares (other than acquisitions as a
result of the exercise of options or warrants granted by the
Company or certain internal distributions between MetLife and
its subsidiaries). In addition, persons who become a 5%
Shareholder in connection with certain transactions taken
pursuant to the Recapitalization and Distribution Agreement,
dated as of June 1, 2008 (the “Recapitalization and
Distribution Agreement”), by and between us and MetLife
Inc. (together with its subsidiaries, “MetLife”), will
not be an Acquiring Person and will not trigger the Rights Plan,
including persons who become 5% Shareholders as a result of the
distribution of Common Stock in the Split-Off, or in any debt
exchanges or additional split-offs (“Additional Divestiture
Transactions”), contemplated by the Recapitalization and
Distribution Agreement (although the Rights Plan does not exempt
any future acquisitions of Corporation Securities by such
persons (other than in subsequent Additional Divestiture
Transactions or in acquisitions exempted by the Company).
Any Rights held by an Acquiring Person are void and may not be
exercised. Our Board may, in its sole discretion, exempt any
person or group from being deemed an Acquiring Person for
purposes of the Rights Plan at any time prior to the time the
Rights are no longer redeemable.
Until the earlier to occur of (i) the close of business on
the tenth business day following the date of public announcement
or the date on which the Company first has notice or determines
that a person has become an Acquiring Person without the prior
express written consent of the Company executed on behalf of the
Company by a duly authorized officer of the Company following
express approval by action of at least a majority of the members
of the Board of Directors then in office (the “Stock
Acquisition Date”), or (ii) the close of business on
the tenth business day (or such later date as may be determined
by action of the Board of Directors but not later than the Stock
Acquisition Date) following the commencement of a tender offer
or exchange offer to acquire Corporation Securities, without the
prior written consent of the Company, by a
person (other than the Company, any subsidiary of the Company or
an employee benefit plan of the Company) which, upon
consummation, would result in such party’s becoming an
Acquiring Person (the earlier of the dates in clause (i) or
(ii) above being called the “Distribution Date”),
the Rights will be evidenced, with respect to any of the Common
Stock certificates outstanding as of the Record Date, by such
Common Stock certificates.
The Rights Agreement provides that, until the Distribution Date
(or earlier redemption or expiration of the Rights), the Rights
will be transferred with and only with the Company’s Common
Stock. Until the Distribution Date (or earlier redemption,
exchange or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new
issuances of Common Stock will contain a notation incorporating
the Rights Agreement by reference. Until the Distribution Date
(or earlier redemption, exchange or expiration of the Rights),
the surrender for transfer of any certificates for shares of
Common Stock outstanding as of the Record Date, even without
such notation or a copy of this Summary of Rights, will also
constitute the transfer of the Rights associated with the Common
Stock represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates
evidencing the Rights (“Right Certificates”) will be
mailed to holders of record of the Common Stock as of the close
of business on the Distribution Date and such separate
certificates alone will then evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire, if not previously exercised, on the earlier
of date which is 36 months and one day from the Acceptance
Time for the Split-Off and the date that our Board of Directors,
in its sole discretion, determines (the “Final Expiration
Date”), unless the Final Expiration Date is extended or
unless the Rights are earlier redeemed or exchanged by the
Company. The Rights will also expire in the event the
Recapitalization and Distribution Agreement terminates in
accordance with its terms prior to the consummation of the
Split-Off.
The Purchase Price payable, and the number of shares of
Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification
of the Preferred Stock, (ii) upon the grant to holders of
the Preferred Stock of certain rights or warrants to subscribe
for or purchase Preferred Stock at a price, or securities
convertible into Preferred Stock with a conversion price, less
than the then-current market price of the Preferred Stock or
(iii) upon the distribution to holders of the Preferred
Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred Stock)
or of subscription rights or warrants (other than those referred
to above).
The number of outstanding Rights and the number of one
one-hundredths of a share of Preferred Stock issuable upon
exercise of each Right are also subject to adjustment in the
event of a stock split of the Common Stock or a stock dividend
on the Common Stock payable in shares of Common Stock or
subdivisions, consolidations or combinations of the Common Stock
(other than the Recapitalization) occurring, in any such case,
prior to the Distribution Date.
Shares of Preferred Stock purchasable upon exercise of the
Rights will not be redeemable and will be junior to any other
series of preferred stock the Company may issue (unless
otherwise provided in the terms of such stock). Each share of
Preferred Stock will have a preferential dividend in an amount
equal to 100 times any dividend declared on each share of Common
Stock. In the event of liquidation, the holders of the Preferred
Stock will receive a preferred liquidation payment per share of
Preferred Stock of equal to the greater of $100 and 100 times
the payment made per share of Common Stock. Each share of
Preferred Stock will have 100 votes, voting together with the
Common Stock. In the event of any merger, consolidation or other
transaction in which shares of Common Stock are converted or
exchanged, each share of Preferred Stock will be entitled to
receive 100 times the amount and type of consideration received
per share of Common Stock. The rights of the Preferred Stock as
to dividends, liquidation and voting, and in the event of
mergers and consolidations, are protected by customary
antidilution provisions.
Because of the nature of the Preferred Stock’s dividend,
liquidation and voting rights, the value of the one
one-hundredth interest in a share of Preferred Stock purchasable
upon exercise of each Right should approximate the value of one
share of Common Stock.
2
If any person or group becomes an Acquiring Person without the
prior written consent of the Board of Directors (and such person
is not an Exempted Person or a Grandfathered Person), each
Right, except those held by such Acquiring Person, would entitle
each holder of a Right to acquire such number of shares of the
Company’s Common Stock as shall equal the result obtained
by multiplying the then current Purchase Price by the number of
one one-hundredths of a share of Preferred Stock for which a
Right is then exercisable and dividing that product by 50% of
the then current per-share market price of Company Common Stock.
With certain exceptions, no adjustment to the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
shares of Preferred Stock will be issued (other than fractions
that are integral multiples of one one-hundredth of a share of
Preferred Stock, which may, at the election of the Company, be
evidenced by depositary receipts), and in lieu thereof an
adjustment in cash will be made based on the market price of the
Preferred Stock on the last trading day prior to the date of
exercise.
At any time prior to the tenth business day after the time an
Acquiring Person becomes such, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a
price of $0.001 per Right (the
“Redemption Price”). The redemption of the Rights
may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may
establish. Immediately upon any redemption of the Rights, the
right to exercise the Rights will terminate and the only right
of the holders of Rights will be to receive the
Redemption Price. Amounts paid upon any redemption of the
Rights will be rounded down to the nearest xxxxx.
The terms of the Rights may be amended by the Board of Directors
of the Company without the consent of the holders of the Rights,
including, without limitation, in connection with the proposed
Recapitalization, except that from and after such time as any
person becomes an Acquiring Person no such amendment may
adversely affect the interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the
U.S. Securities and Exchange Commission as an Exhibit to a
Registration Statement on
Form 8-A.
A copy of the Rights Agreement is available free of charge from
the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, as the same may be amended
from time to time, which is hereby incorporated herein by
reference.
3
