EXHIBIT 4.3
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SECOND AMENDMENT TO RIGHTS AGREEMENT
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This SECOND AMENDMENT TO RIGHTS AGREEMENT effective as of August 22,
2006 (the "Second Amendment") is between Xxxxxx Rubbermaid Inc. (f/k/a
Xxxxxx Co.), a Delaware corporation (the "Corporation"), and
Computershare Investor Services, LLC, a Delaware limited liability
company ("Computershare").
WHEREAS, the Corporation and EquiServe Trust Company, N.A. (f/k/a
First Chicago Trust Company of New York, a New York corporation,
"EquiServe") entered into a certain Rights Agreement, dated as of
August 6, 1998 (as amended, the "Rights Agreement"), under which First
Chicago Trust Company of New York was named the "Rights Agent" (as
such term is defined in the Rights Agreement); and
WHEREAS, the Corporation and The Bank of New York, a New York banking
corporation ("The Bank of New York") entered into a First Amendment to
Rights Agreement, dated as of September 29, 2003 (the "First
Amendment"), under which The Bank of New York was named the "Rights
Agent"; and
WHEREAS, pursuant to the provisions of Sections 22 and 27 of the
Rights Agreement, the Corporation has given notice to The Bank of New
York that effective August 22, 2006 it is being removed as Rights
Agent and Computershare is being appointed as the successor Rights
Agent under the Rights Agreement; and
WHEREAS, Computershare has expressed its willingness and desire to
serve as such appointed successor Rights Agent effective as of August
22, 2006 subject to the parties entering into this Second Amendment
pursuant to the provisions of Section 28 of the Rights Agreement.
NOW, THEREFORE, it is mutually agreed between the Corporation and
Computershare that:
1. Upon execution of this Second Amendment, Computershare shall
become, and does hereby become, a party to the Rights
Agreement and shall be fully bound by, and subject to, all
of the covenants, terms and conditions of the Rights
Agreement as though an original party thereto and as "Rights
Agent" thereunder.
2. The Rights Agreement shall be amended to, among other
things, reflect the appointment of Computershare as Rights
Agent, as follows:
a. The title page of the Rights Agreement shall be amended
to replace the name of the party designated as "THE
BANK OF NEW YORK" with the name "COMPUTERSHARE INVESTOR
SERVICES, LLC".
b. The introductory paragraph of the Rights Agreement
shall be amended to have the name of the Rights Agent
changed from "The Bank of New York" to "Computershare
Investor Services, LLC" and to have Computershare
identified as a "Delaware limited liability company".
c. In Section 2 after the word "desirable" the Rights
Agreement shall be amended to add the following: "upon
ten (10) days' prior written notice to the Rights
Agent. The Rights Agent shall have no duty to
supervise, and in no event be liable for, the acts or
omissions of any such co-Rights Agent."
d. Section 3(c) of the Rights Agreement shall be and
hereby is amended to replace the legend set forth
therein in its entirety to read as follows:
"This certificate also evidences and entitles
the holder hereof to certain Rights as set
forth in a Rights Agreement between XXXXXX
RUBBERMAID INC. and First Chicago Trust
Company of New York dated as of August 6,
1998, as amended between XXXXXX RUBBERMAID
INC. and The Bank of New York dated as of
September 29, 2003, and as further amended
between XXXXXX RUBBERMAID INC. and
COMPUTERSHARE INVESTOR SERVICES, LLC dated as
of August 22, 2006, and as may be further
amended and modified from time to time (the
"Rights Agreement"), the terms of which are
hereby incorporated herein by reference and a
copy of which is on file at the principal
executive offices of XXXXXX RUBBERMAID INC.
Under certain circumstances, as set forth in
the Rights Agreement, such Rights may be
redeemed, may expire or may be evidenced by
separate certificates and will no longer be
evidenced by this certificate. XXXXXX
RUBBERMAID INC. will mail to the holder of
this certificate a copy of the Rights
Agreement without charge promptly upon
receipt of a written request therefor. Under
certain circumstances, Rights issued to, or
held by, an Acquiring Person or Associates or
Affiliates of an Acquiring Person (as defined
in the Rights Agreement) and any subsequent
holder of such Rights may become null and
void."
e. Section 19 of the Rights Agreement shall be amended to
add the words "breach of this Agreement" before the
word negligence in the 8th sentence.
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f. Section 21(c) of the Rights Agreement shall be deleted
and amended to read in its entirety as follows: "The
Rights Agent shall be liable hereunder only for its own
breach of this Agreement, negligence, bad faith or
willful misconduct. Except for liability arising out
of the Rights Agent's recklessness, bad faith or
willful misconduct, any liability of the Rights Agent
shall be limited to the amount of fees paid in the
preceding twelve (12) months by the Company to the
Rights Agent under the Stock Transfer Agency Agreement
dated August 22, 2006 in effect between the Rights
Agent and the Company."
g. Section 21 of the Rights Agreement shall be amended to
add the following after the first sentence: "In the
event the transfer agency relationship in effect
between the Company and the Rights Agent terminates,
the Rights Agent will be deemed to resign automatically
on the effective date of such termination; and any
required notice will be sent by the Company."
h. Section 22 of the Rights Agreement shall be and hereby
is amended in its entirety to read:
"Section 22. CHANGE OF RIGHTS AGENT. The
Rights Agent or any successor Rights Agent
may resign and be discharged from its duties
under this Agreement upon 30 days' notice in
writing mailed to the Company and to each
transfer agent of the Common Stock 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 by registered or
certified mail, and to the holders of the
Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed
or shall otherwise become incapable of acting
or shall repeatedly fail or refuse to act,
the Company shall appoint a successor to the
Rights Agent. If the Company shall fail to
make such appointment within a period of 30
days after giving notice of such removal or
after it has been notified in writing of such
resignation or incapacity or repeated failure
or refusal to act by the Rights Agent or by
the holder of a Right Certificate (who shall,
with such notice, submit his Right
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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 corporation or a
limited liability company organized and doing
business under the laws of the United States
or of the State of Illinois, the State of New
York or the State of Delaware (or of any
other state of the United States so long as
such corporation is authorized to do business
as a banking or a financial institution in
the State of New York, the State of Illinois
or the State of Delaware), in good standing,
having a principal office in the State of New
York, the State of Illinois or the State of
Delaware, which is authorized under such laws
to exercise corporate trust or stock transfer
powers and is subject to supervision or
examination by federal or state authority and
which has at the time of its appointment as
Rights Agent a combined capital and surplus
of at least $50,000,000, or (b) an affiliate
of a corporation or a limited liability
company described in clause "(a)." After
appointment, the successor Rights Agent shall
be vested with the same powers, rights,
duties and responsibilities as if it had been
originally named as Rights Agent without
further act or deed, and 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 mail a notice
thereof in writing to the registered holders
of the Right Certificates. Failure to give
any notice provided for in this Section 22,
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."
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i. Section 27 of the Rights Agreement shall be amended:
(a) to replace the address of the Corporation with the
following: "10 X Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000" and (b) to replace the name and address
of "The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Stock Transfer" with the
following: "Computershare Investor Services, LLC, Xxx
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000".
j. A new Section 36 of the Rights Agreement shall be added
to the Rights Agreement, which Section 36 shall read in
its entirety as follows: "Force Majeure.
Notwithstanding anything to the contrary contained
herein, Rights Agent shall not be liable for any delays
or failures in performance resulting from acts beyond
its reasonable control including, without limitation,
acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or
malfunction of computer facilities, or loss of data due
to power failures or mechanical difficulties with
information storage or retrieval systems, labor
difficulties, war, or civil unrest."
k. Exhibit A of the Rights Agreement shall be and hereby
is amended in its entirety and restated as EXHIBIT A
attached hereto.
l. Exhibit B of the Rights Agreement shall be and hereby
is amended in its entirety and restated as EXHIBIT B
attached hereto.
3. Computershare hereby represents and warrants to the
Corporation that Computershare (a) (i) is a limited
liability company organized and doing business under the
laws of the State of Delaware, (ii) is authorized to do
business as a financial institution in the State of
Delaware, (iii) is in good standing in the State of
Delaware, (iv) has a principal office in the State of
Illinois which is authorized under such laws to exercise
corporate trust or stock transfer powers and is subject to
supervision or examination by federal or state authority,
and (v) has a combined capital and surplus of at least
$50,000,000, or (b) is an affiliate of a limited liability
company described in the foregoing clause (a).
4. The execution and delivery of this Second Amendment has been
duly and validly authorized and approved by each of the
parties hereto, and no other proceedings (corporate or
otherwise) on the part of the parties hereto are necessary
to authorize this Second Amendment. This Second Amendment
has been duly and validly executed and delivered by each of
the parties hereto and constitutes a valid and binding
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agreement of such parties, enforceable against each of them
in accordance with its terms.
5. Except as expressly amended by this Second Amendment, all
terms, conditions and other provisions contained in the
Rights Agreement are hereby ratified and reaffirmed. The
Rights Agreement, after giving effect hereto, shall be and
remain in full force and effect.
6. Upon execution hereof, each reference in the Rights
Agreement to "this Agreement," "hereby," "hereunder,"
"herein," "hereof," or words of like import referring to the
Rights Agreement shall mean and refer to the Rights
Agreement, as amended by this Second Amendment. In addition,
any and all notices, requests, certificates and other
instruments executed and delivered after the date hereof may
refer to the Rights Agreement without making specific
reference to this Second Amendment; but nevertheless all
references to the Rights Agreement shall be a reference to
such document as amended hereby. If this Second Amendment
is inconsistent with (or affects the interpretations of)
unamended portions of the Rights Agreement, the provisions
of (or interpretations suggested by) this Second Amendment
shall control.
7. This Second Amendment shall be governed by and construed in
accordance with Delaware law.
8. This Second Amendment may be executed in any number of
counterparts, each executed counterpart constituting an
original, but all together only one agreement.
* * *
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IN WITNESS WHEREOF, the Corporation and Computershare Investor
Services, LLC have caused this Second Amendment to Rights Agreement to
be duly executed and their respective corporate seals to be hereunto
affixed and attested, all as of this 22nd day of August, 2006.
Attest: Xxxxxx Rubbermaid Inc.
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxxxxxx
Title: Assistant Secretary Title: Vice President-General
Counsel & Corporate
Secretary
Attest: Computershare Investor Services, LLC
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
Title: President Title: Managing Director
Acknowledged and agreed as of
this 22nd day of August, 2006:
Attest: The Bank of New York
By: /s/ Xxxxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxx Name: Xxxx X. Sivertsten
Title: Assistant V.P. Title: Vice President
EXHIBIT A
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[Form of Right Certificate]
Certificate No. R- _____ Rights
NOT EXERCISABLE AFTER OCTOBER 31, 2008 OR EARLIER IF NOTICE
OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.001 PER RIGHT
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. [THE RIGHTS
REPRESENTED BY THIS CERTIFICATE ARE OR WERE BENEFICIALLY
OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR
AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON. THIS RIGHT
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME
VOID IN THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF THE
RIGHTS AGREEMENT.]*
Right Certificate
XXXXXX RUBBERMAID INC.
This certifies that ________________________________, or
registered assigns, is the registered owner of the number of Rights
set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement dated as
of August 6, 1998 between XXXXXX RUBBERMAID INC., a Delaware
corporation (the "Company"), and First Trust Chicago Company of New
York, a New York Corporation, as amended between the Company and The
Bank of New York, a New York banking corporation, dated as of
September 29, 2003, as further amended between the Company and
COMPUTERSHARE INVESTOR SERVICES, LLC, a Delaware limited liability
company (the "Rights Agent"), dated as of August 22, 2006, and as may
be further amended and modified from time to time (the "Rights
Agreement"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement)
when the rights are exercisable pursuant to the Rights Agreement and
prior to 5:00 P.M. (Chicago time) on October 31, 2008 at the principal
office of the Rights Agent, or its successors as Rights Agent, in
Chicago, Illinois, one fully paid non-assessable share of the Common
Stock, $1.00 par value ("Common Stock"), of the Company, at a purchase
price of $200 per 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 thereof) set forth above, and the Purchase Price per share
set forth above, are the number and Purchase Price as of October 31,
1998. As provided in the Rights Agreement, the Purchase Price and the
* The portion of the legend in brackets shall be inserted
only if applicable.
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number of shares of Common Stock or other securities or property which
may be purchased upon the exercise of the Rights evidenced by this
Right Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference
and made a part hereof and to which Rights Agreement reference is
hereby made for a full description of the rights, limitations of
rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies
of the Rights Agreement are on file at the above-mentioned office of
the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the principal office of the Rights
Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Common Stock
or other securities or property as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be exercised
(other than pursuant to Section 11(a)(ii) of the Rights Agreement) in
part, the holder shall be entitled to receive upon surrender hereof
another Rights Certificate or Rights Certificates for the number of
whole Rights not exercised. If this Rights Certificate shall be
exercised in whole or in part pursuant to Section 11(a)(ii) of the
Rights Agreement, the holder shall be entitled to receive this Rights
Certificate duly marked to indicate such exercise has occurred as set
forth in the Rights Agreement.
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 $.01 per Right. Subject to the
provisions of the Rights Agreement, the Company, at its option, may
elect to mail payment of the redemption price to the registered holder
of the Right at the time of redemption, in which event this
Certificate may become void without any further action by the Company.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu thereof
a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
Common 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 stockholder of
the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to
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give or withhold consent to any corporate action, or, to receive
notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of August 22, 2006.
ATTEST: XXXXXX RUBBERMAID INC.
____________________________________ By: _________________________
Secretary Title:
Countersigned:
COMPUTERSHARE INVESTOR SERVICES, LLC
By: _______________________________
Authorized Signature
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[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
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(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED _________________________________________
hereby sells, assigns and transfers unto _____________________________
(Please print name and address of transferee)
_______________________________________ this Right Certificate,
together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint __________________________
Attorney, to transfer the within Right Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ________ __,
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank, savings
association, credit union or trust company having an office or
correspondent in the United States or other eligible guarantor
institution which is a participant in a signature guarantee medallion
program.
Certificate
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The undersigned hereby certifies by checking the appropriate
boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are
[ ] are not being sold, assigned or transferred by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as such terms are defined 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 Rights Certificate from any Person who is or was or
A-4
subsequently became an Acquiring Person or an Affiliate or Associate
of an Acquiring Person.
Dated: __________ __, ____
Signature
NOTICE
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The signature to the foregoing Assignment must correspond to
the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
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FORM OF ELECTION TO PURCHASE
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(To be executed if holder desires to
exercise the Right Certificate pursuant
to Section 11(a)(ii) of the Rights Agreement.)
To XXXXXX RUBBERMAID INC.
The undersigned hereby irrevocably elects to exercise
_____________________________________ Rights represented by this
Right Certificate to purchase the shares of Common Stock or other
securities or property issuable upon the exercise of such Rights and
requests that certificates for such shares be issued in the name of:
Please insert social security
or other identifying number _______________
(Please print name and address)
The Rights Certificate indicating the balance, if any, of
such Rights that may still be exercised pursuant to Section 11(a)(ii)
of the Rights Agreement shall be returned to the undersigned unless
such person requests that the Rights Certificate be registered in the
name of and delivered to:
(Please insert social security or other identifying number.)
(Complete only if the Rights Certificate is to be registered in
a name other than the undersigned's.)
(Please print name and address)
Dated: __________ __, ____
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank, savings
association, credit union or trust company having an office or
correspondent in the United States or other eligible guarantor
institution which is a participant in a signature guarantee medallion
program.
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[Form of Reverse Side of Rights Certificate -- continued]
Certificate
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The undersigned hereby certifies that by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ]
are [ ] are not being exercised by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined 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 or an Affiliate or Associate of any such
Acquiring Person;
(3) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: ____________ __, ____
Signature
NOTICE
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The signature on the foregoing Forms of Assignment and
Election to Purchase and Certificates must correspond to the name as
written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
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 Rights Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as such
terms are defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
A-7
EXHIBIT B
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XXXXXX RUBBERMAID INC.
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On August 6, 1998, the Board of Directors of XXXXXX RUBBERMAID
INC. (the "Company") declared a dividend distribution of one Right for
each outstanding share of Common Stock, $1.00 par value (the "Common
Stock"), of the Company to the stockholders of record on October 31,
1998 (the "Record Date"). Each Right entitles the registered holder
to purchase from the Company one share of Common Stock at a price of
$200 per share (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and First
Chicago Trust Company of New York, which was amended to remove First
Chicago Trust Company of New York as Rights Agent and to appoint The
Bank of New York as the new Rights Agent, which was further amended to
remove The Bank of New York as Rights Agent and to appoint
Computershare Investor Services, LLC as the new Rights Agent (the
"Rights Agent"). The Rights replaced the share purchase rights which
were initially distributed to the Company's stockholders by a dividend
in 1988 and which expired by their own terms on October 31, 1998.
Until the earlier to occur of (i) the tenth business day after a
public announcement that, without the prior consent of the Company, a
person or group of affiliated or associated persons acquired, or
obtained the right to acquire, beneficial ownership of 15% or more of
the outstanding shares of Common Stock of the Company (such person or
group being called an "Acquiring Person" and such date of first public
announcement being called the "Stock Acquisition Date"), or (ii) the
tenth business day after the commencement or announcement of an
intention to make a tender offer or exchange offer which would result
in any person or group of affiliated or associated persons becoming an
Acquiring Person (the earlier of such dates being called the
"Distribution Date"), the Rights will be evidenced, with respect to
any of the Company's Common Stock certificates outstanding as of the
Record Date, by such Common Stock certificate with a copy of this
Summary of Rights attached thereto. The Rights Agreement provides
that, until the Distribution Date, the Rights will be transferred with
and only with the Company's Common Stock. Until the Distribution Date
(or earlier redemption or expiration of the Rights), new Common Stock
certificates issued after the Record Date upon transfer or new
issuance of the Company's Common Stock will contain a notation
incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights),
the surrender for transfer of any of the Company's Common Stock
certificates outstanding as of the Record Date 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
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("Rights Certificates") will be mailed to holders of record of the
Company's Common Stock as of the close of business on the Distribution
Date and, thereafter, such separate Rights Certificates alone will
evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on October 31, 2008, unless earlier redeemed by the
Company as described below.
The Purchase Price payable, and the number of shares of Common
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 Common Stock, (ii) upon the grant to
holders of Common Stock of certain rights, options or warrants to
subscribe for shares of Common Stock or convertible securities at less
than the current market price of the Common Stock or (iii) upon the
distribution to holders of Common Stock of evidences of indebtedness
or assets (excluding (a) a regular periodic cash dividend or (b) a
dividend payable in Common Stock) or of subscription rights, options
or warrants (other than those referred to above).
In the event that a person becomes the beneficial owner of 15% or
more of the outstanding shares of Common Stock (i.e., becomes an
Acquiring Person), each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will be void), will
have the right to receive upon exercise thereof, that number of shares
of Common Stock having a market value of two times the exercise price
of the Right (such right being called the "Flip-In" right).
In the event that, on or after the Stock Acquisition Date, the
Company were acquired in a merger or other business combination, or
50% or more of its assets or earning power were sold, proper provision
shall be made so that each holder of a Right shall thereafter have the
right to receive, upon the exercise thereof at the then current
exercise price of the Right, that number of shares of common stock of
the acquiring company which at the time of such transaction would have
a market value of two times the exercise price of the Right. In the
event that the Company were the surviving corporation in a merger
involving the Acquiring Person and the Common Stock were not changed
or exchanged, proper provision shall be made so that each holder of a
Right, other than Rights beneficially owned by the Acquiring Person
(which will be void), will thereafter have the right to receive upon
exercise that number of shares of the Common Stock having a market
value of two times the exercise price of the Right (such right being
called the "Flip-Over" right). The holder of a right will no longer
have a Flip-Over right if, and to the extent that, he has exercised
his Flip-In right.
With certain exceptions, no adjustment in the Purchase Price will
be required until cumulative adjustments require an adjustment of at
least 1% in such Purchase Price. No fractional shares will be issued
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and, in lieu thereof, a cash payment will be made based on the market
price of the Common Stock on the last trading date prior to the date
of exercise.
At any time prior to the time that there is an Acquiring Person,
the Company may, at its option, redeem the Rights in whole but not in
part, at a price of $.001 per Right (the "Redemption Price").
Immediately upon the authorization of the redemption of the Rights by
the Board of Directors of the Company, the Rights will terminate and
the only right of the holders of Rights will be to receive the
Redemption Price.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a stockholder of the Company, including, without
limitation, the right to vote or to receive dividends.
The Board of Directors of the Company may amend the Rights
Agreement at any time prior to the time that there is an Acquiring
Person, provided that no amendment may adversely affect the interests
of the holders of the Rights.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on
Form 8-A dated August 28, 1998, a first amendment to the Rights
Agreement has been filed with the Securities and Exchange Commission
as an Exhibit to a Registration Statement on Form 8-A/A dated October
27, 2003 and a second amendment to the Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A/A dated August 22, 2006. A copy of
the Rights Agreement is available to all Right holders free of charge
from the Company. This summary description of the Rights does not
purport to be complete and is qualified in its entirety by reference
to the Rights Agreement, which is hereby incorporated herein by
reference.
B-3
