EXHIBIT 2
CONFORMED COPY
======================================================================
AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of January 19, 1996
Between
THE PITTSTON COMPANY
And
CHEMICAL MELLON SHAREHOLDER SERVICES, L.L.C.,
As Rights Agent
======================================================================
Table of Contents
Page
Section 1. Certain Definitions................................ 2
Section 2. Appointment of Rights Agent........................ 10
Section 3. Issue of Right Certificates........................ 10
Section 4. Forms of Right Certificates........................ 12
Section 5. Execution, Countersignature and
Registration..................................... 12
Section 6. Transfer, Split-up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen
Right Certificates............................... 13
Section 7. Exercise of Rights; Expiration Date
of Rights; Restriction on Transfer of
Rights........................................... 13
Section 8. Cancelation and Destruction of Right
Certificates..................................... 15
Section 9. Reservation and Availability of Preferred
Shares........................................... 15
Section 10. Preferred Shares Record Date....................... 16
Section 11. Adjustment of Number and Kind of Shares
and the Purchase Price........................... 17
Section 12. Certificate of Adjustment.......................... 24
Section 13. Consolidation, Merger, Share Exchange or
Sale or Transfer of Major Part of
Assets.......................................... 24
Section 14. Additional Covenants.............................. 28
Section 15. Fractional Rights and Fractional Shares........... 29
Section 16. Rights of Action.................................. 30
Section 17. Transfer and Ownership of Rights and
Right Certificate............................... 30
Section 18. Right Certificate Holder Not Deemed a
Shareholder..................................... 31
Section 19. Concerning the Rights Agent....................... 31
Section 20. Merger or Consolidation or Change of
Rights Agent.................................... 31
Section 21. Duties of Rights Agent............................ 32
Section 22. Change of Rights Agent............................ 34
Section 23. Issuance of New Right Certificates................ 35
Section 24. Redemption and Termination........................ 36
Section 25. Notice of Certain Events.......................... 36
Section 26. Notices........................................... 37
Section 27. Supplements and Amendments........................ 38
Section 28. Successors........................................ 38
Section 29. Benefits of this Rights Agreement;
Determinations and Actions by the
Board of Directors, etc......................... 38
Section 30. Severability...................................... 39
Section 31. Governing Law..................................... 39
Section 32. Counterparts...................................... 39
Section 33. Descriptive Headings.............................. 39
Exhibits
Exhibit A Articles of Amendment
Exhibit B-1 Form of Right Certificate for Brink's Rights
Exhibit B-2 Form of Right Certificate for Minerals Rights
Exhibit B-3 Form of Right Certificate for Burlington Rights
CONFORMED COPY
AMENDED AND RESTATED RIGHTS AGREEMENT
dated as of January 19, 1996, between THE
PITTSTON COMPANY, a Virginia corporation (the
"Company"), and CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., a New York banking
corporation, as Rights Agent (the "Rights
Agent").
On September 11, 1987 (the "Rights Dividend Declaration
Date"), the Board of Directors of the Company adopted a shareholder
rights plan governed by the terms of a rights agreement (as amended as
of December 12, 1988, the "Original Agreement") and distributed one
right (a "Common Right") for each share of common stock, par value
$1.00 per share, of the Company (the "Common Stock") outstanding at
the close of business on September 25, 1987 (the "Record Date"), and
authorized the issuance of one Common Right for each share of Common
Stock issued between the Record Date and the date hereof.
On May 7, 1993, the Board of Directors of the Company
adopted amendments to the Original Agreement (as amended, the "Amended
Agreement") and, contingent upon and simultaneously with the
distribution of Minerals Stock (as defined herein) to holders of the
Common Stock on the close of business on July 26, 1993, pursuant to
such amendments (i) authorized and declared a dividend distribution of
one Pittston Minerals Group Right (a "Minerals Right") for each share
of Minerals Stock and (ii) redesignated each Common Right as a
Pittston Services Group Right (a "Services Right").
On September 15, 1995, the Board of Directors of the Company
adopted amendments to the Amended Agreement (as amended, the "Rights
Agreement") and contingent upon and simultaneously with (i) the
redesignation of Pittston Services Group Common Stock, par value $1.00
per share, of the Company ("Services Stock") as Brink's Stock (as
defined herein) and (ii) the distribution of Burlington Stock (as
defined herein) to holders of Services Stock on the close of business
on January 19, 1996 (the "Effective Date"), redesignated each Services
Right as a Pittston Brink's Group Right (a "Brink's Right") and
authorized and declared a distribution of one Pittston Burlington
Group Right (a "Burlington Right") for each share of Burlington Stock.
Each Brink's Right, Minerals Right and Burlington Right
initially represents the right to purchase one one-thousandth
(1/1000th) of a Series A Preferred Share (as defined herein), one
one-thousandth (1/1000th) of a Series B Preferred Share (as defined
herein), and one one-thousandth (1/1000th) of a Series D
2
Preferred Share (as defined herein), respectively, each such Preferred
Share having the powers, rights and preferences set forth in the form
of Articles of Amendment (as defined herein) attached hereto as
Exhibit A, upon the terms and subject to the conditions hereinafter
set forth.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of Common Shares representing 20% or more of the
total Voting Rights of all the Common Shares then outstanding, but
shall not include any Subsidiary of the Company, any employee benefit
plan of the Company or of any of its Subsidiaries or any Person
holding Common Shares for or pursuant to the terms of any such
employee benefit plan.
(b) "Affiliate" and "Associate", when used with reference to
any Person, shall have the respective meanings ascribed to such terms
in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as in effect on the date of this
Rights Agreement.
(c) "Affiliate Merger" shall have the meaning set forth in
clause (i) of Section 11(e) of this Rights Agreement.
(d) "Articles of Amendment" shall mean the Articles of
Amendment to the Restated Articles of Incorporation of the Company
setting forth the powers, preferences, rights, qualifications,
limitations and restrictions of the Series A Preferred Shares, the
Series B Preferred Shares and the Series D Preferred Shares of the
Company, a form of which is attached to this Rights Agreement as
Exhibit A.
(e) A Person shall be deemed the "Beneficial Owner" of, and
shall be deemed to "beneficially own", any securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
3
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (written
or oral), or upon the exercise of conversion rights, exchange
rights, rights (other than Rights issuable under this Rights
Agreement), warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange thereunder; or (B) the
right to vote pursuant to any agreement, arrangement or
understanding (written or oral); provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding
(written or oral) to vote such security (1) arises solely from a
revocable proxy given to such Person in response to a public
proxy or consent solicitation made pursuant to, and in accordance
with, the applicable rules and regulations under the Exchange Act
and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such
Person's Affiliates or Associates has any agreement, arrangement
or understanding (written or oral), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as
described in clause (B) of subparagraph (ii) of this paragraph
(d)) or disposing of any securities of the Company; provided,
however, that, notwithstanding any provision of this Section
1(e), any Person engaged in business as an underwriter of
securities who acquires any securities of the Company through
such Person's participation in good faith in a firm commitment
underwriting registered under the Securities Act shall not be
deemed the "Beneficial Owner" of, or to "beneficially own", such
securities until the expiration of 40 days after the date of
acquisition.
(f) "Book Value" when used with reference to Common Shares
issued by any Person shall mean the amount of equity of such Person
applicable to each Common Share, determined (i) in accordance with
generally accepted accounting principles in effect on the date as of
which such Book Value is to be
4
determined, (ii) using all the consolidated assets and all the
consolidated liabilities of such Person on the date as of which such
Book Value is to be determined, except that no value shall be included
in such assets for goodwill arising from consummation of a Business
Combination, and (iii) after giving effect to (A) the exercise of all
rights, options and warrants to purchase such Common Shares (other
than the Rights), and the conversion of all securities convertible
into such Common Shares, at an exercise or conversion price, per
Common Share, which is less than such Book Value before giving effect
to such exercise or conversion, (B) all dividends and other
distributions on the capital stock of such Person declared prior to
the date as of which such Book Value is to be determined and to be
paid or made after such date, and (C) any other agreement, arrangement
or understanding (written or oral), or transaction or other action
prior to the date as of which such Book Value is to be determined
which would have the effect of thereafter reducing such Book Value.
(g) "Brink's Right" shall have the meaning set forth in the
third introductory paragraph of this Rights Agreement.
(h) "Brink's Stock" shall mean the Pittston Brink's Group
Common Stock, par value $1.00 per share, of the Company.
(i) "Burlington Right" shall have the meaning set forth in
the third introductory paragraph of this Rights Agreement.
(j) "Burlington Stock" shall mean the Pittston Burlington
Group Common Stock, par value $1.00 per share, of the Company.
(k) "Business Combination" shall have the meaning set forth
in Section 13(a) of this Rights Agreement.
(l) "Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in the Borough of Manhattan, The City of New York, are
authorized or obligated by law or executive order to close.
(m) "Close of Business" on any given date shall mean 5 p.m.,
New York City time, on such date; provided, however, that if such date
is not a Business Day, "Close of Business" shall mean 5 p.m., New York
City time, on the next succeeding Business Day.
5
(n) "Common Shares" when used with reference to the Company
prior to a Business Combination shall mean shares of Brink's Stock,
Minerals Stock or Burlington Stock, as the case may be, of the Company
or any other shares of capital stock of the Company into which Brink's
Stock, Minerals Stock or Burlington Stock, as the case may be, shall
be reclassified or changed; provided, however, that "Common Shares"
shall mean shares of Brink's Stock, Minerals Stock or Burlington Stock
(or any other shares of capital stock into which Brink's Stock,
Minerals Stock or Burlington Stock, as the case may be, shall be
reclassified or changed) whenever a determination of whether a Person
shall have become the Beneficial Owner of, or shall have made a tender
or exchange offer for, Common Shares representing a specified
percentage of the total Voting Rights of all the Common Shares then
outstanding is required to be made herein. "Common Shares" when used
with reference to any Person (other than the Company prior to a
Business Combination) shall mean shares of capital stock of such
Person (if such Person is a corporation) of any class or series, or
units of equity interests in such Person (if such Person is not a
corporation) of any class or series, the terms of which do not limit
(as a fixed amount and not merely in proportional terms) the amount of
dividends or income payable or distributable on such class or series
or the amount of assets distributable on such class or series upon any
voluntary or involuntary liquidation, dissolution or winding up of
such Person and do not provide that such class or series is subject to
redemption at the option of such Person, or any shares of capital
stock or units of equity interests into which the foregoing shall be
reclassified or changed; provided, however, that if at any time there
shall be more than one such class or series of capital stock or equity
interests of such Person, "Common Shares" of such Person shall include
all such classes and series substantially in the proportion of the
total number of shares or other units of each such class or series
outstanding at such time.
(o) "Common Stock" shall have the meaning set forth in the
first introductory paragraph of this Rights Agreement.
(p) "Company" shall have the meaning set forth in the
heading of this Rights Agreement; provided, however, that if there is
a Business Combination, "Company" shall have the meaning set forth in
Section 13(b) of this Rights Agreement.
(q) The term "control", with respect to any Person, shall
mean the power to direct the management and policies of such Person,
directly or indirectly, by or through stock ownership, agency or
otherwise, or pursuant to or in connection with an agreement,
arrangement or understanding (written or oral)
6
with one or more other Persons by or through stock ownership, agency
or otherwise; and the terms "controlling" and "controlled" shall have
meanings correlative to the foregoing.
(r) "Disinterested Director" shall mean (i) any member of
the Board of Directors of the Company who was a member of the Board of
Directors of the Company prior to the Share Acquisition Date, and (ii)
any member of the Board of Directors of the Company who was
recommended for election by, or was elected to fill a vacancy and
received the affirmative vote of, a majority of the Disinterested
Directors at the time on the Board of Directors of the Company.
(s) "Distribution Date" shall have the meaning set forth in
Section 3(a) of this Rights Agreement.
(t) "Effective Date" shall have the meaning set forth in the
third introductory paragraph of this Rights Agreement.
(u) "Equivalent Shares" shall mean any Preferred Shares and
any other class or series of capital stock of the Company which is
entitled to participate in dividends and other distributions,
including distributions upon the liquidation, dissolution or winding
up of the Company, on a proportional basis with Brink's Stock,
Minerals Stock or Burlington Stock, as the case may be. In calculating
the number of any class or series of Equivalent Shares for purposes of
Section 11 of this Rights Agreement, the number of shares, or
fractions of a share, of such class or series of capital stock that is
entitled to the same dividend or distribution as a whole share of
Brink's Stock, Minerals Stock or Burlington Stock, as the case may be,
shall be deemed to be one share.
(v) "Exchange Act" shall mean the Securities Exchange Act of
1934, as in effect on the date in question, unless otherwise
specifically provided in this Rights Agreement.
(w) "Expiration Date" shall have the meaning set forth in
Section 7(a) of this Rights Agreement.
(x) "Major Part" when used with reference to the assets of
the Company and its Subsidiaries as of any date shall mean assets (i)
having a fair market value aggregating 50% or more of the total fair
market value of all the assets of the Company and its Subsidiaries
(taken as a whole) as of the date in question, (ii) accounting for 50%
or more of the total value (net of depreciation and amortization) of
all the assets of the Company and its Subsidiaries (taken as a whole),
as would be
7
shown on a consolidated or combined balance sheet of the Company and
its Subsidiaries as of the date in question, prepared in accordance
with generally accepted accounting principles then in effect, or (iii)
accounting for 50% or more of the total amount of net income of the
Company and its Subsidiaries (taken as a whole), as would be shown on
a consolidated or combined statement of income of the Company and its
Subsidiaries for the period of 12 months ending on the last day of the
Company's monthly accounting period next preceding the date in
question, prepared in accordance with generally accepted accounting
principles then in effect.
(y) "Market Value" when used with reference to Common Shares
or Equivalent Shares on any date shall be deemed to be the average of
the daily closing prices, per share, of such Common Shares or
Equivalent Shares for the period which is the shorter of (1) 30
consecutive Trading Days immediately prior to the date in question or
(2) the consecutive Trading Days beginning on the date of the first
public announcement of the event requiring a determination of the
Market Value and ending on the Trading Day immediately prior to the
record date of such event; provided, however, that in the event that
the Market Value of such Common Shares or Equivalent Shares is to be
determined in whole or in part during a period following the
announcement by the issuer of such Common Shares or Equivalent Shares
of any dividend, distribution or other action of the type described in
paragraph (a), (b), (c) or (d) of Section 11 of this Rights Agreement
that would require an adjustment thereunder, then, and in each such
case, the Market Value of such Common Shares or Equivalent Shares
shall be appropriately adjusted to reflect the effect of such action
on the market price of such Common Shares or Equivalent Shares. The
closing price for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such Trading 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 a security listed or admitted to
trading on a national securities exchange or, if such security is not
listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if
on any such Trading Day the applicable securities 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
shares of such securities selected by the Board of Directors of the
Company. If on any such Trading Day no
8
market maker is making a market in such securities, the fair value of
such securities on such Trading Day shall mean the fair value of such
securities as determined in good faith by the Board of Directors of
the Company (whose determination shall be described in a statement
filed with the Rights Agent and shall be binding on the Rights Agent,
the holders of Rights and all other Persons).
(z) "Minerals Right" shall have the meaning set forth in the
second introductory paragraph of this Rights Agreement.
(aa) "Minerals Stock" shall mean Pittston Minerals Group
Common Stock, par value $1.00 per share, of the Company.
(bb) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(cc) "Preferred Shares" shall mean the Series A Preferred
Shares, the Series B Preferred Shares or the Series D Preferred
Shares, as the case may be. Any reference in this Rights Agreement to
Preferred Shares shall be deemed to include any authorized fraction of
a Preferred Share, unless the context otherwise requires.
(dd) "Principal Party" shall mean the Surviving Person in a
Business Combination; provided, however, that if such Surviving Person
is a direct or indirect Subsidiary of any other Person, "Principal
Party" shall mean the Person which is the ultimate parent of such
Surviving Person and which is not itself a Subsidiary of another
Person. In the event ultimate control of such Surviving Person is
shared by two or more Persons, "Principal Party" shall mean that
Person that is immediately controlled by such two or more Persons.
(ee) "Purchase Price" with respect to each (i) Brink's Right
shall mean $26.27, (ii) Burlington Right shall mean $26.27 and (iii)
Minerals Right shall mean $40.00, as such amounts may from time to
time be adjusted as provided herein, and shall be payable in lawful
money of the United States of America. All references herein to the
Purchase Price shall mean the Purchase Price as in effect at the time
in question.
(ff) "Record Date" shall have the meaning set forth in the
first introductory paragraph of this Rights Agreement.
(gg) "Redemption Date" shall mean the time when the Rights
are ordered to be redeemed by the Board of Directors of
9
the Company as provided in Section 24(a) of this Rights Agreement.
(hh) "Redemption Price" shall mean the price required to be
paid upon the redemption of the Rights as provided in Section 24 of
this Rights Agreement.
(ii) "Registered Common Shares" shall mean Common Shares
which are, as of the date of consummation of a Business Combination,
and have been continuously registered under Section 12 of the Exchange
Act during the preceding 12 months.
(jj) "Right Certificates" shall have the meaning set forth
in Section 3(a) of this Rights Agreement.
(kk) "Rights" shall mean Brink's Rights, Minerals Rights or
Burlington Rights, as the case may be.
(ll) "Securities Act" shall mean the Securities Act of 1933,
as in effect on the date in question, unless otherwise specifically
provided in this Rights Agreement.
(mm) "Series A Preferred Shares" shall mean the Series A
Participating Cumulative Preferred Stock, par value $10 per share, of
the Company which the Board of Directors of the Company has heretofore
established, subject to filing the Articles of Amendment immediately
after the Effective Date.
(nn) "Series B Preferred Shares" shall mean the Series B
Participating Cumulative Preferred Stock, par value $10 per share, of
the Company which the Board of Directors of the Company has heretofore
established, subject to filing the Articles of Amendment immediately
after the Effective Date.
(oo) "Series D Preferred Shares" shall mean the Series D
Participating Cumulative Preferred Stock, par value $10 per share, of
the Company which the Board of Directors of the Company has heretofore
established, subject to filing the Articles of Amendment immediately
after the Effective Date.
(pp) "Share Acquisition Date" shall mean the first date of
public disclosure by the Company or an Acquiring Person that an
Acquiring Person has become an Acquiring Person.
(qq) "Subsidiary" shall mean a Person, a majority of the
total outstanding Voting Rights of which is owned, directly or
indirectly, by another Person or by such other Person and one or more
other Subsidiaries of such other Person.
10
(rr) "Surviving Person" shall mean (1) the Person which is
the continuing or surviving Person in a consolidation or merger
specified in clause (i) or (ii) of Section 13(a) of this Rights
Agreement or (2) the Person to which the Major Part of the assets of
the Company and its Subsidiaries are sold, leased, exchanged or
otherwise transferred or disposed of in a transaction specified in
clause (iii) of Section 13(a) of this Rights Agreement; provided,
however, that if the Major Part of the assets of the Company and its
Subsidiaries are sold, leased, exchanged or otherwise transferred or
disposed of in one or more related transactions specified in clause
(iii) of Section 13(a) of this Rights Agreement to more than one
Person, the "Surviving Person" in such case shall mean the Person that
acquired assets of the Company and/or its Subsidiaries with the
greatest fair market value in such transaction or transactions.
(ss) "Trading Day" shall mean a day on which the principal
national securities exchange (or principal recognized foreign stock
exchange, as the case may be) on which any shares or Rights, as the
case may be, are listed or admitted to trading is open for the
transaction of business or, if the shares or Rights in question are
not listed or admitted to trading on any national securities exchange
(or recognized foreign stock exchange, as the case may be), a Business
Day.
(tt) "Triggering Event" shall have the meaning set forth in
clause (ii) of Section 11(e) of this Rights Agreement.
(uu) "Voting Rights" when used with reference to the capital
stock of, or units of equity interests in, any Person shall mean the
right under ordinary circumstances (and not merely upon the happening
of a contingency) to vote in the election of directors of such Person
(if such Person is a corporation) or to participate in the management
and control of such Person (if such Person is not a corporation).
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 one or more co-Rights Agents as it may deem necessary or
desirable (the term "Rights Agent" being used herein to refer,
collectively, to the Rights Agent together with any such co-Rights
Agents). In the event the Company appoints one or more co-Rights
Agents, the respective duties of the Rights Agent and any co-Rights
Agents shall be as the Company shall determine.
11
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the Close of Business on the tenth calendar day after
the Share Acquisition Date or (ii) the Close of Business on the tenth
calendar day after the date of the commencement of a tender or
exchange offer by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any of
its Subsidiaries, or any Person holding Common Shares for or pursuant
to the terms of any such employee benefit plan) for Common Shares
representing 30% or more of the total Voting Rights of all the
outstanding Common Shares (including any such date which is after the
date of this Rights Agreement and prior to the issuance of the Rights)
(the Close of Business on the earlier of such dates being herein
referred to as the "Distribution Date"), (x) Brink's Rights, Minerals
Rights and Burlington Rights will be evidenced by the certificates for
Brink's Stock, Minerals Stock and Burlington Stock, respectively,
registered in the names of the holders thereof (which certificates for
Brink's Stock, Minerals Stock and Burlington Stock shall also be
deemed to be certificates for Brink's Rights, Minerals Rights and
Burlington Rights, respectively) and not by separate certificates, and
(y) the Rights, including the right to receive certificates as herein
provided, will be transferable only in connection with the transfer of
Common Shares. As soon as practicable after the Distribution Date, the
Rights Agent will send, by first-class, insured, postage prepaid mail,
to each record holder of (1) Brink's Stock as of the close of business
on the Distribution Date, at the address of such holder shown on the
records of the Company, one or more right certificates in
substantially the form of Exhibit B-1 hereto (the "Brink's Right
Certificates"), evidencing one Brink's Right for each share of Brink's
Stock so held, (2) Minerals Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records
of the Company, one or more right certificates in substantially the
form of Exhibit B-2 hereto (the "Minerals Right Certificates"),
evidencing one Minerals Right for each share of Minerals Stock so held
and (3) Burlington Stock as of the close of business on the
Distribution Date, at the address of such holder shown on the records
of the Company, one or more right certificates in substantially the
form of Exhibit B-3 hereto (the "Burlington Right Certificates" and,
together with the Brink's Right Certificates and the Minerals Right
Certificates, the "Right Certificates"), evidencing one Burlington
Right for each share of Burlington Stock so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
12
(b) Until the earliest of the Distribution Date, the
Redemption Date or the Expiration Date, the surrender for transfer of
any of the certificates for the Common Shares in respect of which
Rights have been issued shall also constitute the transfer of the
Rights associated with the Common Shares represented by such
certificate.
(c) Rights shall be issued in respect of all Common Shares
which are issued after the Effective Date but prior to the earliest of
the Distribution Date, the Redemption Date or the Expiration Date.
Certificates representing Common Shares shall also be deemed to be
certificates for the Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain Rights as set forth in an Amended and Restated
Rights Agreement dated as of January 19, 1996 (the "Rights
Agreement"), between The Pittston Company and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent, the terms of which
are hereby incorporated herein by reference and a copy of which
is on file at the principal executive offices of The Pittston
Company. The term "Rights Agreement" as used herein includes each
amendment thereto or supplement thereof made from time to time,
the terms of each of which are incorporated herein by reference
and a copy of each of which is on file as hereinabove stated.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Pittston
Company will mail to the holder of this certificate a copy of the
Rights Agreement without charge after receipt of a written
request therefor. Under no circumstances shall Rights evidenced
by this certificate be transferred to any Person who is or
becomes an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement) and any such
purported transfer shall be, and shall render such Rights, null
and void.
Until the Distribution Date the Rights associated with the
Common Shares represented by such certificates shall be evidenced by
such certificates alone, and the surrender for transfer of any such
certificate shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby.
Section 4. Forms of Right Certificates. The Brink's Right
Certificates, the Minerals Right Certificates and the Burlington Right
Certificates (and the forms of assignment and
13
the forms of election to purchase to be printed on the reverse
thereof) shall be in substantially the forms set forth as Exhibit B-1,
Exhibit B-2 and Exhibit B-3 hereto, respectively, and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this Rights Agreement,
or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of
Sections 11 and 23 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 Preferred Shares as
shall be set forth therein for the Purchase Price set forth therein.
Section 5. Execution, Countersignature and Registration. (a)
The Right Certificates shall be executed on behalf of the Company by
the Chairman of the Board, the President or any Vice President of the
Company, either manually or by facsimile signature, and have affixed
thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Right Certificate shall
be manually countersigned by the Rights Agent and shall not be valid
or obligatory for any purpose unless so countersigned. In case any
officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the
Company, such Right Certificates may nevertheless be countersigned by
the Rights Agent, and issued and delivered by the Company, with the
same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any
Right Certificate may be signed on behalf of the Company by any person
who, at the 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 of the Company.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office in New York, New
York, 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 by each of the Right
14
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 Section 7(e) and
Section 15 hereof, at any time after the Distribution Date, and at or
prior to the Close of Business on the earlier of the Redemption Date
or the Expiration Date, any Right Certificate or Certificates may be
transferred, split-up, combined or exchanged for another Right
Certificate or Certificates, entitling the registered holder to
purchase a like number of Preferred Shares as the Right Certificate or
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
Certificates to be transferred, split-up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights Agent
shall, subject to Section 7(e) and Section 15 hereof, countersign and
deliver to the Person entitled thereto a Right Certificate or
Certificates, as the case may be, as so requested. The Company may
require payment of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any transfer, split-up,
combination or exchange of Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a valid Right Certificate, and, in case
of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company's request, reimbursement to
the Company and the Rights Agent of all reasonable expenses incidental
thereto, and upon surrender to the Rights Agent and cancelation of the
Right Certificate if mutilated, the Company will make a new Right
Certificate of like tenor and deliver such new Right Certificate to
the Rights Agents for delivery to the registered owner in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Expiration Date of Rights;
Restriction on Transfer of Rights. (a) Each Right shall entitle the
registered holder thereof, upon the exercise thereof as provided
herein, to purchase, for the Purchase Price, at any time after the
earlier of the Distribution Date or the occurrence of a Triggering
Event and at or prior to the earlier of (i) the Close of Business on
September 25, 1997 (the Close of Business on such date being herein
referred to as the "Expiration Date") or
15
(ii) the Redemption Date, one one-thousandth (1/1000th) of a Preferred
Share, subject to adjustment from time to time as provided in Sections
11 and 13 of this Rights Agreement.
(b) The registered holder of any Right Certificate may
exercise the Rights evidenced thereby (except as otherwise provided
herein) in whole or in part at any time after the Distribution Date
upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights
Agent at the principal office of the Rights Agent in New York, New
York, together with payment of the Purchase Price for such one
one-thousandth (1/1000th) of a Preferred Share as to which the Rights
are exercised, at or prior to the earlier of (i) the Expiration Date
or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
Preferred Shares to be purchased together with an amount equal to any
applicable transfer tax, in lawful money of the United States of
America, in cash or by certified check or money order payable to the
order of the Company, the Rights Agent shall thereupon promptly (i)
requisition from any transfer agent of the Preferred Shares (or make
available, if the Rights Agent is the transfer agent) certificates for
the number of Preferred Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such
requests, (ii) when appropriate, requisition from the Company the
amount of cash to be paid in lieu of issuance of fractional shares in
accordance with Section 15 hereof, (iii) promptly after receipt of
such certificates, 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, and (iv) when
appropriate, after receipt promptly deliver such cash to or upon the
order of the registered holder of such Right Certificate.
(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 issued by the Rights Agent and delivered to the
registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 15 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, Rights, including Rights evidenced by certificates for
16
Common Shares, shall not at any time be transferable to an Acquiring
Person or any Affiliate or Associate of an Acquiring Person or to any
Person who subsequently becomes an Acquiring Person or Affiliate or
Associate of an Acquiring Person, although at the time of the
purported transfer such Person was not an Acquiring Person or an
Affiliate or Associate thereof. Any attempt to transfer Rights to any
such Person shall be null and void as of the date of the purported
transfer. Any Right which has been the subject of any such purported
transfer shall be null and void, and thereafter may not be exercised
by any Person (including any subsequent transferee) for Preferred
Shares or capital stock of the Company pursuant to any provision
hereof. The Company may require (or cause the Rights Agent or any
transfer agent of the Company to require) any Person who submits a
Right Certificate (or a certificate representing Common Shares which
evidences, or but for the provisions of this Section 7(e) would
evidence, Rights) for transfer on the registry books or to exercise
the Rights represented thereby to establish to the reasonable
satisfaction of the Company that such Rights have not been the subject
of any purported transfer in violation of the provision of this
Section 7(e). The Company shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) are complied with, but shall
have no liability to any holder of Right Certificates or any other
Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates or Associates
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 of any
Right Certificates upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall have
(i) completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Right
Certificate surrendered for such exercise, and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancelation and Destruction of Right
Certificates. All Right Certificates surrendered for the purposes 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 cancelation 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
17
Rights Agreement. The Company shall deliver to the Rights Agent for
cancelation and retirement, and the Rights Agent shall so cancel and
retire, any Right Certificate purchased or acquired by the Company.
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.
Section 9. Reservation and Availability of Preferred Shares.
(a) The Company covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued Preferred
Shares, free from preemptive rights or any right of first refusal, a
number of Preferred Shares sufficient to permit the exercise in full
of all outstanding Rights.
(b) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all Preferred Shares
delivered upon exercise of Rights shall, at the time of delivery of
the certificates for such Preferred Shares (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully
paid and non-assessable shares.
(c) So long as the Preferred Shares issuable upon the
exercise of Rights are to be listed on any national securities
exchange, the Company covenants and agrees to use its best efforts to
cause, from and after such time as the Rights become exercisable, all
Preferred Shares reserved for such issuance to be listed on such
exchange upon official notice of issuance upon such exercise.
(d) The Company further covenants and agrees that it will
pay when due and payable any and all Federal and state transfer taxes
and charges which may be payable in respect of the issuance or
delivery of Right Certificates or of any Preferred Shares upon the
exercise of the Rights. The Company shall not, however, be required to
pay any transfer tax which may be payable in respect of any transfer
or delivery of Right Certificates to a Person other than, or in
respect of the issuance or delivery of certificates for the Preferred
Shares in a name other than that of, the registered holder of the
Right Certificate evidencing Rights surrendered for exercise or to
issue or deliver any certificates for Preferred Shares upon the
exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at the
time of surrender) or until it has been established to the Company's
satisfaction that no such tax is due.
18
Section 10. Preferred Shares Record Date. Each Person in
whose name any certificate for Preferred Shares is issued upon the
exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Preferred Shares 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 transfer taxes) was made;
provided, however, that if the date of such surrender and payment is a
date upon which the Preferred Shares 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 Shares transfer books
of the Company are open.
Section 11. Adjustment of Number and Kind of Shares and the
Purchase Price. The number and kind of shares subject to purchase upon
the exercise of each Right and the Purchase Price are subject to
adjustment from time to time as provided in this Section 11.
(a) In the event at any time after the date of this Rights
Agreement the Company shall (i) declare a dividend, or make a
distribution, on any class of its Common Shares payable in Common
Shares, (ii) subdivide (by stock split or otherwise) or split any
class of its outstanding Common Shares into a larger number of Common
Shares or (iii) combine (by reverse stock split or otherwise) or
consolidate any class of its outstanding Common Shares into a smaller
number of Common Shares, then, in each such event, (1) the number of
Preferred Shares issuable upon exercise of each Right at the time of
the record date for such dividend or distribution or the effective
date of such subdivision or combination, shall be adjusted so that the
number of Preferred Shares thereafter issuable upon exercise of such
Right shall equal the result obtained by multiplying the number of
Preferred Shares issuable upon exercise of each Right at such time by
a fraction, the numerator of which shall be the total number of Rights
outstanding immediately prior to such time and the denominator of
which shall be the total number of Rights outstanding immediately
following such time, and (2) the Purchase Price in effect at such time
shall be adjusted so that the Purchase Price thereafter shall equal
the result obtained by multiplying the Purchase Price in effect
immediately prior to such time by the fraction referred to in the
preceding clause (1).
(b) In the event at any time after the date of this Rights
Agreement the Company shall (i) declare a dividend, or
19
make a distribution, on any series of its outstanding Preferred Shares
payable in Preferred Shares, (ii) subdivide (by stock split or
otherwise) or split any series of its outstanding Preferred Shares
into a larger number of Preferred Shares, (iii) combine (by a reverse
stock split or otherwise) or consolidate any series of its outstanding
Preferred Shares into a smaller number of Preferred Shares or (iv)
issue any shares of its capital stock in a reclassification or change
of any series of its outstanding Preferred Shares (including any such
reclassification or change in connection with a merger in which the
Company is the continuing or surviving corporation), then in each such
event, the number and kind of shares of capital stock issuable upon
the exercise of each Right at the time of the record date for such
dividend or distribution or the effective date of such subdivision,
combination or reclassification shall be adjusted so that the holder
of any Right exercised after such time shall be entitled to receive,
for the Purchase Price, the aggregate number and kind of shares of
capital stock which such holder would have owned and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification if such holder had exercised such Right immediately
prior to such time.
(c) If at any time after the date of this Rights Agreement
the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of any class of Common Shares or of
any class or series of Equivalent Shares entitling such holders (for a
period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Shares or Equivalent Shares (or
securities convertible into Common Shares or Equivalent Shares) at a
price per share (or having a conversion price per share, if a security
convertible into Common Shares or Equivalent Shares) less than the
Market Value of such Common Shares or Equivalent Shares on such record
date, then, in each such case, each Right outstanding immediately
prior to such record date shall thereafter evidence the right to
purchase, for the Purchase Price, that number of one one-thousandths
(1/1000ths) of a Preferred Share obtained by multiplying the number of
one one-thousandths (1/1000ths) of a Preferred Share issuable upon
exercise of a Right immediately prior to such record date by a
fraction, the numerator of which shall be the number of Common Shares
and Equivalent Shares (if any) outstanding on such record date plus
the number of additional Common Shares or Equivalent Shares, as the
case may be, to be offered for subscription or purchase (or into which
the convertible securities so to be offered are initially convertible)
and the denominator of which shall be the total number of Common
Shares and Equivalent Shares (if any)
20
outstanding on such record date plus the number of Common Shares or
Equivalent Shares, as the case may be, which the aggregate offering
price of the total number of Common Shares or Equivalent Shares, as
the case may be, so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
purchase at such Market Value. In case such subscription price may be
paid in a consideration, part or all of which shall be in a form other
than cash, the value of such consideration shall be as determined in
good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights
Agent. Common Shares and Equivalent Shares owned by or held for the
account of the Company or any Subsidiary 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, options or warrants are not
so issued, each Right shall be adjusted to evidence the right to
receive that number of one one-thousandths (1/1000ths) of a Preferred
Share which such Right would have entitled the holder to receive, for
the Purchase Price, if such record date had not been fixed.
(d) If at any time after the date of this Rights Agreement
the Company shall fix a record date for the making of a distribution
to all holders of any class of Common Shares or of any class or series
of Equivalent Shares (including any such distribution made in
connection with a merger in which the Company is the continuing or
surviving corporation or in connection with a statutory share exchange
with the Company after which the Company is not a Subsidiary of any
Acquiring Person or any Associate or Affiliate of any Acquiring
Person) of cash (other than a regular periodic cash dividend at a rate
not in excess of 125% of the rate of the last regular cash dividend
theretofore paid on the class of Common Shares, evidences of
indebtedness, assets, securities (other than Common Shares or
Preferred Shares) or subscription rights, options or warrants
(excluding those referred to in Section 11(c)), then, in each such
case, each Right outstanding immediately prior to such record date
shall thereafter evidence the right to purchase, for the Purchase
Price, that number of one one-thousandths (1/1000ths) of a Preferred
Share obtained by multiplying the number of one one-thousandths
(1/1000ths) of a Preferred Share issuable upon exercise of such Right
immediately prior to such record date by a fraction, the numerator of
which shall be the Market Value of such Common Shares or Equivalent
Shares on the record date and the denominator of which shall be the
Market Value of such Common Shares or Equivalent Shares on such record
date less the fair market value (as determined in good faith by
21
the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the portion
of the cash, evidences of indebtedness, assets or securities so to be
distributed or of such subscription rights, options or warrants
applicable to one Common Share or Equivalent Share, as the case may
be. Such adjustments shall be made successively whenever such a record
date is fixed; and in the event that such distribution is not so made,
each Right shall be adjusted to evidence the right to receive that
number of one one- thousandths (1/1000ths) of a Preferred Share which
such Right would have entitled the holder to receive, for the Purchase
Price, if such record date had not been fixed.
(e) (i) If any Acquiring Person or any Affiliate or
Associate of any Acquiring Person, at any time after the date of this
Rights Agreement, directly or indirectly, shall merge into the Company
or otherwise combine with the Company and the Company shall be the
continuing or surviving corporation of such merger or combination and
all the Common Shares shall remain outstanding and unchanged, or shall
effect a statutory share exchange with the Company after which the
Company is not a Subsidiary of any Acquiring Person or any Affiliate
or Associate of any Acquiring Person (such merger, share exchange or
combination being herein referred to as an "Affiliate Merger") then,
in each such case, proper provision shall be made so that each holder
of a Right, except as provided in Section 7(e) hereof and below, shall
thereafter have a right to receive, upon exercise thereof for the
Purchase Price in accordance with the terms of this Rights Agreement,
such number of Common Shares as shall equal the result obtained by
multiplying the Purchase Price by a fraction, the numerator of which
is the number of one one-thousandths (1/1000ths) of a Preferred Share
for which such Right is then exercisable and the denominator of which
is 50% of the Market Value of the Common Shares on the date of the
occurrence of such merger or combination. The Company shall not
consummate any Affiliate Merger unless upon such consummation it shall
have sufficient authorized Common Shares that have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 11(e)(i) and unless prior thereto a
registration statement under the Securities Act on an appropriate
form, with respect to the Common Shares purchasable upon exercise of
the Rights, shall be effective under the Securities Act. The Company
covenants and agrees to use its best efforts to:
(A) cause a registration statement under the Securities Act
on an appropriate form with respect to the Common Shares
purchasable upon exercise of the Rights, to remain effective
22
(with a prospectus at all times meeting the requirements of
the Securities Act) until the Expiration Date;
(B) qualify or register the Common Shares purchasable upon
exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate; and
(C) list the Common Shares purchasable upon the exercise of
the Rights on each national securities exchange on which the
Common Shares were listed prior to the consummation of such
Affiliate Merger.
(ii) If any of the events described in the following clauses
(A), (B), (C) or (D) of this subparagraph (e)(ii) (each such event
being herein referred to as a "Triggering Event") shall occur:
(A) any Acquiring Person or any Affiliate or Associate of
any Acquiring Person, at any time after the date of this Rights
Agreement, directly or indirectly (1) shall, in one or more
transactions, transfer any assets to the Company or any
Subsidiary of the Company in exchange (in whole or in part) for
shares of any class of capital stock of the Company or any
Subsidiary of the Company or for securities exercisable for or
convertible into shares of any class of capital stock of the
Company or any Subsidiary of the Company or otherwise obtain from
the Company or any of its Subsidiaries, with or without
consideration, any additional shares of any class of capital
stock of the Company or any Subsidiary of the Company or
securities exercisable for or convertible into shares of any
class of capital stock of the Company or any Subsidiary of the
Company (other than as a part of a pro rata distribution or offer
to all holders of any class of Common Shares or an issuance upon
conversion of convertible securities of the Company or any of its
Subsidiaries that were not acquired from the Company or any of
its Subsidiaries), (2) shall, in one or more transactions, sell,
purchase, lease, exchange, mortgage, pledge or transfer to or
with, or acquire from, the Company or any of its Subsidiaries,
assets on terms and conditions less favorable to the Company than
the Company would be able to obtain in an arm's-length
negotiation with an unaffiliated third party, (3) shall engage in
any transaction with the Company involving the sale, purchase,
lease, exchange, mortgage, pledge or transfer (in one transaction
or a series of transactions), other than incidental to the lines
of business currently engaged in as of the date hereof by the
Company and such Acquiring Person
23
or Associate or Affiliate, of assets having an aggregate fair
market value of more than $10,000,000, (4) shall receive any
compensation from the Company or any Subsidiaries of the Company
other than compensation for full-time employment as a regular
employee at rates in accordance with past practices of the
Company or Subsidiaries of the Company or (5) shall receive the
benefits, directly or (except proportionately as a shareholder),
of any loans, advances, guarantees, pledges or other financial
assistance provided by the Company or any Subsidiaries of the
Company;
(B) during such time as there is an Acquiring Person and
Disinterested Directors do not constitute a majority of the
entire Board of Directors of the Company, there shall be (1) any
reclassification of any class of securities of the Company,
including any reverse stock split, (2) any recapitalization of
the Company, (3) any merger, statutory share exchange or
consolidation of the Company with any of its Subsidiaries or (4)
any other transaction or series of transactions (whether or not
with or into or otherwise involving an Acquiring Person), which
has the effect, directly or indirectly, of increasing by more
than 1% the proportionate share of the then outstanding shares of
any class of equity securities or of securities exercisable for
or convertible into securities of the Company or any of its
Subsidiaries which is directly or indirectly owned by an
Acquiring Person or any Associate or Affiliate of any Acquiring
Person;
(C) any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or of any
of its Subsidiaries or any Person holding Common Shares for or
pursuant to the terms of any such employee benefit plan), alone
or together with all Affiliates and Associates of such Person,
shall become the Beneficial Owner of Common Shares representing
30% or more of the total Voting Rights of all the Common Shares
then outstanding;
(D) during such time as there is an Acquiring Person and
Disinterested Directors do not constitute a majority of the
entire Board of Directors of the Company, (1) there shall be any
reduction in the annual rate of dividends paid on any class of
Common Shares (except as necessary for valid business reasons or
to reflect any subdivision of the Common Shares or as required
under the laws of the jurisdiction of incorporation of the
Company), or (2) there shall be a failure to increase the annual
rate of dividends as
24
necessary to reflect any reclassification (including any reverse
stock split), recapitalization, reorganization or any similar
transaction which has the effect of reducing the number of
outstanding Common Shares (except as necessary for valid business
reasons or except to the extent such increase in the rate of
dividends would be prohibited under the laws of the jurisdiction
of incorporation of the Company);
then, in each such case, proper provision shall be made so that each
holder of a valid Right, except as provided in Section 7(e) hereof and
below, shall thereafter have a right to receive, upon exercise thereof
for the Purchase Price in accordance with the terms of this Rights
Agreement, such number of one-thousandths (1/1000ths) of a Preferred
Share as shall equal the result obtained by multiplying the Purchase
Price by a fraction, the numerator of which is the number of one
one-thousandths (1/1000ths) of a Preferred Share for which such Right
is then exercisable and the denominator of which is 50% of the Market
Value of the Common Shares on the date of the occurrence of such
Triggering Event. If a Triggering Event has occurred, as soon as
practicable after the date which is the later of the date of such a
Triggering Event or the Distribution Date, the Company covenants and
agrees to use its best efforts to:
(1) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the
Preferred Shares purchasable upon exercise of the Rights;
(2) cause such registration statement to become effective as
soon as practicable after such filing;
(3) cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the
Securities Act) until the Expiration Date; and
(4) qualify or register the Preferred Shares purchasable
upon exercise of the Rights under the blue sky laws of such
jurisdictions as may be necessary or appropriate.
The Company may temporarily suspend, for a period of time
not to exceed 90 calendar days after the date set forth in the
immediately preceding sentence, 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
25
well as a public announcement at such time as the suspension is no
longer in effect.
(iii) If an event occurs which would require an adjustment
under both subparagraph (e)(i) or (e)(ii) of this Section 11 and
paragraph (a), (b), (c) or (d) of this Section 11, the adjustment
provided for in paragraph (a), (b), (c) or (d) of this Section 11
shall be in addition to, and shall be made prior to, any adjustment
required pursuant to subparagraph (e)(i) or (e)(ii) of this Section
11; provided, however, that if a single event occurs that represents
both an Affiliate Merger or Triggering Event and a Business
Combination, the Rights exercisable upon such event shall be
exercisable only in a manner set forth in Section 13(a) of this Rights
Agreement and no adjustment shall be made pursuant to any paragraph of
this Section 11.
(f) All calculations under this Section 11 shall be made to
the nearest hundred-thousandth of a share.
(g) If as a result of an adjustment made pursuant to Section
11(b) hereof, the holder of any Right thereafter exercised shall
become entitled to receive any shares of any class of capital stock of
the Company other than Preferred Shares, 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
Preferred Shares contained in paragraphs (a) through (e), inclusive,
of this Section 11 and the provisions of Sections 7, 9, 10 and 13
hereof with respect to the Preferred Shares shall apply on like terms
to any such other shares.
(h) All Rights originally issued by the Company subsequent
to any adjustment made to the amount of Preferred Shares or other
capital stock relating to a Right shall evidence the right to
purchase, for the Purchase Price, the adjusted number and kind of
shares of capital stock purchasable from time to time hereunder upon
exercise of the Rights, all subject to further adjustment as provided
herein.
(i) Irrespective of any adjustment or change in the Purchase
Price or the number of Preferred Shares or number or kind of other
shares of capital stock issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to
express the terms which were expressed in the initial Right
Certificates issued hereunder.
26
(j) In any case in which this Section 11 shall require that
an adjustment be made effective as of a record date for a specified
event, the Company may elect to defer until the occurrence of such
event the issuing to the holder of any Right exercised after such
record date the Preferred Shares and/or other shares of capital stock
or securities of the Company, if any, issuable upon such exercise over
and above the Preferred Shares and/or other shares of capital stock or
securities of the Company, if any, issuable before giving effect to
such adjustment; provided, however, that the Company shall deliver to
such holder a due ▇▇▇▇ or other appropriate instrument evidencing such
holder's right to receive such additional shares upon the occurrence
of the event requiring such adjustment.
(k) After the occurrence of an Affiliate Merger, the number
of Common Shares thereafter 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 Preferred Shares contained in Sections 7, 9, 10, 11 and
13 hereof.
(l) In any case in which this Section 11 requires a change
or adjustment to the "Common Shares", the "Preferred Shares", the
"Rights" and/or the "Purchase Price", it is understood that, to the
extent circumstances dictate, as determined by the Board in its sole
discretion, that any such change or adjustment should only be made to
(i) Brink's Stock, Series A Preferred Shares, Brink's Rights and/or
the Purchase Price relating to Brink's Rights, (ii) Minerals Stock,
Series B Preferred Shares, Minerals Rights and/or the Purchase Price
relating to Minerals Rights or (iii) Burlington Stock, Series D
Preferred Shares, Burlington Rights and/or the Purchase Price relating
to Burlington Rights, any such change or adjustment will be deemed to
affect only such Stock, such Shares, such Rights and/or the Purchase
Price relating to such Rights.
Section 12. Certificate of Adjustment. Whenever an
adjustment is made as provided in Section 11 or Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such
adjustment, (b) promptly file with the Rights Agent and with each
transfer agent for the Preferred Shares a copy of such certificate and
(c) mail a brief summary thereof to each holder of a Right Certificate
in accordance with Section 26 hereof. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment
therein contained.
27
Section 13. Consolidation, Merger, Share Exchange or Sale or
Transfer of Major Part of Assets. (a) In the event that, following the
Distribution Date, directly or indirectly, any transactions specified
in the following clauses (i), (ii) or (iii) hereof (each such
transaction being herein referred to as a "Business Combination")
shall be consummated:
(i) the Company shall consolidate with, or merge with and
into, any other Person;
(ii) any Person shall merge with and into the Company and in
connection with such merger, all or part of the Common Shares
shall be changed into or exchanged for capital stock or other
securities of any other Person or cash or any other property or
the Company shall enter into a statutory share exchange with any
Person after which the Company is a Subsidiary of such Person or
any Affiliate or Associate of such Person; or
(iii) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its Subsidiaries shall
sell, lease, exchange or otherwise transfer or dispose of), in
one or more transactions, the Major Part of the assets of the
Company and its Subsidiaries (taken as a whole) to any other
Person or Persons,
then, in each such case, proper provision shall be made so that each
holder of a valid Right shall thereafter have the right to receive,
upon the exercise thereof for the Purchase Price in accordance with
the terms of this Rights Agreement, the securities specified below:
(A) If the Principal Party in such Business Combination has
Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof at the
Purchase Price in accordance with the terms of this Rights
Agreement, such number of Registered Common Shares of such
Principal Party, free and clear of all liens, encumbrances or
other adverse claims, as shall be equal to the result obtained by
multiplying the Purchase Price by a fraction, the numerator of
which shall be the number of one one-thousandths (1/1000ths) of a
Preferred Share for which a Right was exercisable immediately
prior to consummation of such Business Combination and the
denominator of which shall be 50% of the Market Value of each
Registered Common Share of such Principal Party on the date of
such Business Combination.
28
(B) If the Principal Party in such Business Combination does
not have Registered Common Shares outstanding, each Right shall
thereafter represent the right to receive, upon the exercise
thereof at the Purchase Price in accordance with the terms of
this Rights Agreement, at the election of the holder of such
Right at the time of the exercise thereof:
(1) such number of Common Shares of the Surviving
Person in such Business Combination as shall be equal to the
result obtained by multiplying the Purchase Price by a
fraction, the numerator of which shall be the number of one
one-thousandths (1/1000ths) of a Preferred Share for which a
Right was exercisable immediately prior to the consummation
of such Business Combination and the denominator of which
shall be 50% of the Book Value of each Common Share of such
Surviving Person immediately after giving effect to such
Business Combination; or
(2) such number of Common Shares of the Principal Party
in such Business Combination (if the Principal Party is not
also the Surviving Person in such Business Combination) as
shall be equal to the result obtained by multiplying the
Purchase Price by a fraction, the numerator of which shall
be the number of one one- thousandths (1/1000ths) of a
Preferred Share for which a Right was exercisable
immediately prior to the consummation of such Business
Combination and the denominator of which shall be 50% of the
Book Value of each Common Share of the Principal Party
immediately after giving effect to such Business
Combination; or
(3) if the Principal Party in such Business Combination
is an Affiliate of one or more Persons which has Registered
Common Shares outstanding, such number of Registered Common
Shares of whichever of such Affiliates of the Principal
Party has Registered Common Shares with the greatest
aggregate Market Value on the date of consummation of such
Business Combination as shall be equal to the result
obtained by multiplying the Purchase Price by a fraction,
the numerator of which shall be the number of one
one-thousandths (1/1000ths) of a Preferred Share for which a
Right was exercisable immediately prior to the consummation
of such Business Combination and the denominator of which
shall be 50% of the Market Value of each Registered
29
Common Share of such Affiliate on the date of such Business
Combination.
All Common Shares of any Person for which any Right may be exercised
after consummation of a Business Combination as provided in this
Section 13(a) shall, when issued upon exercise thereof in accordance
with this Rights Agreement, be validly issued, fully paid and
nonassessable and free of preemptive rights, rights of first refusal
or any other restrictions or limitations on the transfer or ownership
thereof.
(b) After consummation of any Business Combination (i) each
issuer of Common Shares for which Rights may be exercised as set forth
in paragraph (a) of this Section 13 shall be liable for, and shall
assume, by virtue of such Business Combination, all the obligations
and duties of the Company pursuant to this Rights Agreement, (ii) the
term "Company" shall thereafter be deemed to refer to such issuer,
(iii) each such issuer shall take such steps in connection with such
consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in
relation to its Common Shares thereafter deliverable upon the exercise
of the Rights, and (iv) the number of Common Shares of each such
issuer thereafter 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
Preferred Shares contained in Sections 7, 9, 10, 11 and 13 hereof.
(c) The Company shall not consummate any Business
Combination unless each issuer of Common Shares for which Rights may
be exercised, as set forth in paragraph (a) of this Section 13, shall
have sufficient authorized Common Shares that have not been issued or
reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto:
(i) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common
Shares of such issuer purchasable upon exercise of the Rights,
shall be effective under the Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights Agent a
supplemental agreement providing for the obligation of such
issuer to issue Common Shares upon the exercise of Rights in
accordance with the terms set forth in
30
paragraphs (a) and (b) of this Section 13 and further
providing that such issuer, at its own expense, will:
(I) use its best efforts to cause a registration
statement under the Securities Act on an appropriate
form, with respect to the Rights and the Common Shares
of such issuer purchasable upon exercise of the Rights,
to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until
the Expiration Date;
(II) use its best efforts to qualify or register
the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights under the blue
sky laws of such jurisdictions as may be necessary or
appropriate; and
(III) use its best efforts to list the Rights and
the Common Shares purchasable upon exercise of the
Rights on each national securities exchange on which
the Common Shares were listed prior to the consummation
of the Business Combination or, if the Common Shares
were not listed on a national securities exchange prior
to the consummation of the Business Combination, on a
national securities exchange;
(B) furnished to the Rights Agent an opinion of
independent counsel stating that such supplemental agreement
is a valid, binding and enforceable agreement of such
issuer; and
(C) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants
setting forth the number of Common Shares of such issuer
which may be purchased upon the exercise of each Right after
the consummation of such Business Combination.
(d) In the event a Business Combination shall be consummated
at any time after the occurrence of an Affiliate Merger or a
Triggering Event, the Rights that have not been exercised prior to
such time shall thereafter become exercisable in the manner set forth
in paragraph (a) of this Section 13.
Section 14. Additional Covenants. (a) Notwithstanding any
other provision of this Rights
31
Agreement, no adjustment to the number of Preferred Shares (or
fractions of a share) or other shares of capital stock for which a
Right is exercisable or the number of Rights outstanding or associated
with each Common Share or any similar or other adjustment shall be
made or be effective if such adjustment would have the effect of
reducing or limiting the benefits the holders of the Rights would have
had absent such adjustment, including, without limitation, the
benefits under Section 11 and Section 13 hereof, unless the terms of
this Rights Agreement are amended so as to preserve such benefits.
(b) The Company covenants and agrees that it shall not
effect any Business Combination or Affiliate Merger if at the time of,
or immediately after such Business Combination or Affiliate Merger,
there are any rights, options, warrants or other instruments of any
Person which is a party to such Business Combination or Affiliate
Merger outstanding which would eliminate or diminish the benefits
intended to be afforded by the Rights.
(c) In the event the nature of the organization of any
Person shall preclude or limit the acquisition of Common Shares of
such Person upon exercise of the Rights as required by Section 13(a)
hereof as a result of a Business Combination, it shall be a condition
to such Business Combination that such Person shall take such steps
(including, but not limited to, a reorganization) as may be necessary
to assure that the benefits intended to be derived under Section 13
hereof upon the exercise of the Rights are assured to the holders
thereof.
Section 15. Fractional Rights and Fractional Shares. (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, there shall 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 15(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be
the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular
way, in either case as reported in the principal consolidated
transaction reporting system with respect to Rights listed or admitted
to trading on a national securities exchange or, if the Rights are not
listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so
32
quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by NASDAQ or such other system
then in use or, if on any such date the Rights are not quoted by 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 the Board of Directors of the Company. If on any such date
no such market maker is making a market in the Rights, the fair value
of the Rights on such date as determined in good faith by the Board of
Directors of the Company shall be used.
(b) The Company may, but shall not be required to, issue
fractions of shares upon exercise of the Rights or to distribute
certificates which evidence fractional shares. In lieu of fractional
shares, the Company may elect to (i) utilize a depositary arrangement
as provided by the terms of the Preferred Shares or (ii) in the case
of a fraction of a share other than one one-thousandth (1/1000th) of a
share or any integral multiple thereof, 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 one Preferred Share, if any are outstanding and
publicly traded (or the current market value of one Common Share in
the event that the Preferred Shares are not outstanding and publicly
traded). For purposes of this Section 15(b), the current market value
of a Preferred Share (or Common Share) shall be the closing price of a
Preferred Share (or Common Share) (as determined pursuant to the
second sentence of Section 1(u) of this Rights Agreement) for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right.
Section 16. Rights of Action. (a) All rights of action in
respect of this Rights Agreement are vested in the respective
registered holders of the Right Certificates (and, prior to the
Distribution Date, the registered holders of the Common Shares); and
any registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Shares), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the Common Shares), may, in his own
behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such Right Certificate in the manner provided in
such Right
33
Certificate and in this Rights Agreement. Without limiting the
foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an
adequate remedy at law for any breach of this Rights Agreement and
shall be entitled to specific performance of the obligations of any
Person under, and injunctive relief against actual or threatened
violations of the obligations of any Person subject to, this Rights
Agreement.
(b) Any holder of Rights who prevails in an action to
enforce the provisions of this Rights Agreement shall be entitled to
recover the reasonable costs and expenses, including attorneys' fees,
incurred in such action.
Section 17. Transfer and Ownership of Rights and Right
Certificates. (a) Prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares.
(b) After the Distribution Date, the Right Certificates will
be transferable, subject to Section 7(e) hereof, only on the registry
books of the Rights Agent if surrendered at the principal office of
the Rights Agent, duly endorsed or accompanied by a proper instrument
of transfer.
(c) The Company and the Rights Agent may deem and treat the
Person in whose name a Right Certificate (or, prior to the
Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or writing on the
Right Certificates or the associated certificate for Common Shares
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.
Section 18. Right Certificate Holder Not Deemed a
Shareholder. No holder, as such, of any Right Certificate shall be
entitled to vote or receive dividends or be deemed, for any purpose,
the holder of the Preferred Shares or of 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, including, without limitation, 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
34
action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25 hereof), or to receive
dividends or other distributions 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.
Section 19. Concerning the Rights Agent. (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 and counsel fees and other
disbursements incurred in the administration and execution 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, or expense,
incurred without gross negligence, bad faith or wilful misconduct on
the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of
this Rights Agreement, including the costs and expenses of defending
against any claim of liability arising therefrom, directly or
indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted
by it in connection with its administration of this Rights Agreement
in reliance upon any Right Certificate or certificate for Common
Shares or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the proper
Person or Persons.
Section 20. Merger or Consolidation or Change of Rights
Agent. (a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the stock transfer
or corporate trust 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 corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 22 hereof. In case, at
the time such successor Rights Agent shall succeed to the agency
created by this Rights
35
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 21. Duties of Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Rights Agreement
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), and the opinion of such counsel
shall be full and complete authorization and protection to the Rights
Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its duties under this
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) be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by any one of the Chairman of the Board, the
President, the Chief Financial Officer, a Vice President, the
Treasurer or the Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization to the Rights
Agent for any action taken or suffered in good faith by it under the
provisions of this Rights Agreement in reliance upon such certificate.
36
(c) The Rights Agent shall be liable hereunder only for its
own gross negligence, bad faith or wilful misconduct.
(d) The Rights Agent shall not be liable for or by reason of
any of the statements of fact or recitals contained in this Rights
Agreement or in the Right Certificates (except as to its
countersignature thereof) or be required to verify the same, but all
such statements and recitals are and shall be deemed to have been made
by the Company only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Rights Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature 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 adjustment required under the
provisions of Section 11 or 13 hereof or responsible for the manner,
method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates
after actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares or Common Shares
to be issued pursuant to this Rights Agreement or any Right
Certificate or as to whether any Preferred Shares or Common Shares
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the
provisions of this Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from any one of the Chairman of the Board, the President,
any Vice President, the Secretary or the Treasurer of the Company, and
to apply to such officers for advice or instructions in connection
with its duties and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer.
37
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not the Rights Agent under this
Rights Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the Rights
Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss
to the Company resulting from any such act, default, neglect or
misconduct provided reasonable care was exercised in the selection and
continued employment thereof.
(j) ANYTHING IN THIS AGREEMENT TO THE CONTRARY
NOTWITHSTANDING, IN NO EVENT SHALL THE RIGHTS AGENT BE LIABLE FOR
SPECIAL, INDIRECT OR CONSEQUENTIAL 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
AND REGARDLESS OF THE FORM OF ACTION.
Section 22. 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 Shares and the
Preferred Shares 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 Shares and the
Preferred Shares 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, 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 by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his 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
38
Agent. Any successor Rights Agent, whether appointed by the Company or
by such a court, shall be a corporation organized and doing business
under the laws of the United States or of the State of New York (or of
any other state of the United States so long as such corporation is
authorized to conduct a stock transfer or corporate trust business in
the State of New York), in good standing, having a principal office in
the State of New York, which is authorized under such laws to exercise
stock transfer or corporate trust powers and is subject to supervision
or examination by Federal or state authority and which has at the time
of its appointment as Rights Agent a combined capital and surplus of
at least $50,000,000. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Shares and the Preferred Shares,
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.
Section 23. Issuance of New Right Certificates.
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 its Board of Directors to reflect any adjustment or change made in
accordance with the provisions of this Rights Agreement. In addition,
in connection with the issuance or sale of Common Shares following the
Distribution Date and prior to the earlier of the Redemption Date or
the Expiration Date, the Company (a) shall, with respect to Common
Shares so issued or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, or upon the exercise,
conversion or exchange of securities, notes or debentures issued by
the Company, and (b) may, in any other case, if deemed necessary or
appropriate by the Board of Directors of the Company, issue Right
Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that (i) no
such Right Certificate shall be issued if, and to the extent that, the
Company shall be advised
39
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 Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 24. Redemption and Termination. (a) The Board of
Directors of the Company may, at its option, at any time prior to the
earliest of (i) the Close of Business on the tenth calendar day
following the Share Acquisition Date, (ii) the occurrence of a
Triggering Event or (iii) the Expiration Date, order the redemption of
all, but not less than all, the then outstanding Rights at a
Redemption Price of $.01 per Right (which may, in the discretion of
the Board of Directors of the Company, in lieu of cash be paid with
securities deemed by the Board of Directors, in the exercise of its
sole discretion, to be equivalent in value thereto); provided,
however, that immediately upon and after the date that an Acquiring
Person becomes an Acquiring Person, the Rights may be redeemed only if
the Board of Directors of the Company, with the concurrence of a
majority of the Disinterested Directors then in office, determines
that such redemption is, in their judgment, in the best interests of
the Company and its shareholders.
(b) Immediately upon the action of the Board of Directors of
the Company ordering the redemption of the Rights, and without any
further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within ten calendar
days after the action of the Board of Directors of the Company
ordering the redemption of the Rights, the Company shall give notice
of such redemption to the holders of the then outstanding Rights by
mailing such notice to all such holders at their last addresses as
they appear upon the registry books of the Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for
the Common Shares. Each such notice of redemption will state the
method by which the payment of the Redemption Price will be made. The
notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the holder of Rights
receives such notice. In any case, failure to give such notice by
mail, or any defect in the notice, to any particular holder of Rights
shall not affect the sufficiency of the notice to other holders of
Rights.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to take any action of the type
40
described in paragraph (a), (b), (c) or (d) of Section 11 hereof that
would require an adjustment thereunder, (ii) to effect any Business
Combination or (iii) to effect the liquidation, dissolution or winding
up of the Company, then, in such case, the Company shall give to each
holder of a Rights Certificate, in accordance with Section 26 hereof,
a notice of such proposed action, which shall specify any record date
for the purposes of determining any participation therein by the
holders of the Preferred Shares, or the date on which such action is
to take place and the date of any participation therein by the holders
of the Preferred Shares, if any such date is to be fixed, and such
notice shall be so given at least 20 days prior to any such record
date, the taking of such action or the date of participation therein
by the holders of the Preferred Shares, whichever shall be the
earliest.
(b) In case an Affiliate Merger or Triggering Event shall
occur, then, in any such case, 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
Affiliate Merger or Triggering Event, which shall specify the
Affiliate Merger and the Triggering Event and the consequences of such
Affiliate Merger or Triggering Event to holders of Rights under
Section 11(e) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of
any Right Certificate to or on the Company shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed (until
another address is filed in writing with the Rights Agent) as follows:
The Pittston Company
P.O. Box 120070
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Secretary
Subject to the provisions of Section 22 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
41
first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Chemical Mellon Shareholder Services, L.L.C.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Notices or demands authorized by this Rights Agreement to be given or
made by the Company or the Rights Agent to any holder of a 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 Rights Agent or, prior to
the Distribution Date, on the registry books of the transfer agent for
the Common Shares.
Section 27. Supplements and Amendments. At any time prior to
the Distribution Date and subject to the last sentence of this Section
27, the Company and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Rights Agreement (including,
without limitation, the date on which the Distribution Date shall
occur) without the approval of any holder of the Rights. From and
after the Distribution Date and subject to applicable law, the Company
and the Rights Agent shall, if the Company so directs, amend this
Rights Agreement without the approval of any holders of Right
Certificates (i) to cure any ambiguity or to correct or supplement any
provision contained herein which may be defective or inconsistent with
any other provision of this Rights Agreement, or (ii) to make any
other provisions in regard to matters or questions arising hereunder
which the Company may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person). Upon the delivery of a certificate from an
appropriate officer of the Company which states that a proposed
supplement or amendment to this Rights Agreement is in compliance with
the provisions of this Section 27, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything contained in this
Rights Agreement to the contrary, (1) at any time when there shall be
an Acquiring Person, this Rights Agreement may be supplemented or
amended only if the Board of Directors of the Company, with the
concurrence of a majority of the Disinterested Directors then in
office, determines that such supplement or amendment is in their
judgment in the best interests of the Company and its shareholders and
(2) no supplement or amendment to this Rights
42
Agreement shall be made which reduces the Redemption Price or provides
for an earlier Expiration Date.
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;
Determinations and Actions by the Board of Directors, etc. (a) Nothing
in this Rights Agreement shall be construed to give to any persons or
corporation other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Shares) 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 Shares).
(b) The Board of Directors of the Company (with, where
specifically provided for herein, the concurrence of a majority of the
Disinterested Directors then in office) shall have the exclusive power
and authority to administer this Rights Agreement and to exercise all
rights and power specifically granted to the Board of Directors of the
Company (with, where specifically provided for herein, the concurrence
of a majority of the Disinterested Directors then in office) or to the
Company, or as may be necessary or advisable in the administration of
this Rights Agreement, including, without limitation, the right and
power to (i) interpret the provisions of this Rights Agreement, and
(ii) make all determinations deemed necessary or advisable for the
administration of this Rights Agreement (including, without
limitation, a determination to redeem or not redeem the Rights or to
amend this Rights Agreement and a determination of whether a
Triggering Event has occurred). All such actions, calculations,
interpretations, and determinations (including, for purposes of clause
(y) below, all omissions with respect to the foregoing) which are done
or made by the Board of Directors of the Company (with, where
specifically provided for herein, the concurrence of a majority of the
Disinterested Directors then in office) in good faith, 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 or the Disinterested Directors to
any liability to the holders of the Rights.
43
Section 30. 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.
Section 31. Governing Law. This Rights Agreement and each
Right Certificate issued hereunder shall be deemed to be a contract
made under the laws of the Commonwealth of Virginia and for all
purposes shall be governed by and construed in accordance with the
laws of such Commonwealth applicable to contracts to be made and
performed entirely within such Commonwealth; provided, however, that
the provisions of Sections 19, 20, 21 and 22 of this Rights Agreement
shall be governed by and construed in accordance with the laws of the
State of New York.
Section 32. 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 33. 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 of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Rights Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and year
first above written.
THE PITTSTON COMPANY,
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President--
Corporate Finance
and Treasurer
44
Attest:
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights
Agent,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice
President
Attest:
by
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice
President
EXHIBIT A
TO RIGHTS AGREEMENT
ARTICLES OF AMENDMENT
TO THE RESTATED ARTICLES OF INCORPORATION
OF THE PITTSTON COMPANY
SETTING FORTH THE POWERS, PREFERENCES,
RIGHTS, QUALIFICATIONS, LIMITATIONS AND
RESTRICTIONS OF THE COMPANY'S SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK,
SERIES B PARTICIPATING CUMULATIVE PREFERRED STOCK AND
SERIES D PARTICIPATING CUMULATIVE PREFERRED STOCK
Pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, The Pittston Company (the "Corporation"), a
corporation organized and existing under the Virginia Stock
Corporation Act, in accordance with Section 13.1-604 thereof, DOES
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of
Directors of the Corporation by the first paragraph under Division II
of Article III of the Restated Articles of Incorporation, as amended,
of the Corporation (the "Articles of Incorporation"), the Board of
Directors of the Corporation on September 15, 1995, duly adopted the
following resolution creating, effective as of January 19, 1996, three
series of Preferred Stock designated as Series A Participating
Cumulative Preferred Stock, Series B Participating Cumulative
Preferred Stock and Series D Participating Cumulative Preferred Stock:
RESOLVED that pursuant to the authority vested in the Board
of Directors of the Corporation, Article III of the Restated Articles
of Incorporation of the Corporation be, and it hereby is, amended to
provide the preferences, limitations and relative rights of three
series of Preferred Stock of the Corporation, which amendment shall be
accomplished by deleting the text after the first paragraph under
Division II of Article III of the Restated Articles of Incorporation
and adding the following text after the first paragraph under Division
II of Article III of the Restated Articles of Incorporation:
"Terms of the Preferred Stock are as follows:
A. Series A Participating Cumulative Preferred Stock
1. Designation and Number of Shares. The shares of such
series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A
2
Preferred Stock"). The number of shares initially constituting the
Series A Preferred Stock shall be 50,000; provided, however, that if
more than a total of 50,000 shares of Series A Preferred Stock shall
be issuable upon the exercise of Pittston Brink's Group Rights issued
pursuant to the Amended and Restated Rights Agreement dated as of
January 19, 1996, between the Corporation and Chemical Mellon
Shareholder Services, L.L.C., as Rights Agent (the "Rights
Agreement"), the Board of Directors of the Corporation, pursuant to
Section 13.1-639 of the Virginia Stock Corporation Act, shall direct
by resolution or resolutions that articles of amendment to these
Articles of Incorporation be properly executed, acknowledged, filed
and recorded, in accordance with the provisions of Section 13.1-604
thereof, providing for the total number of shares of Series A
Preferred Stock authorized to be issued to be increased (to the extent
that the Articles of Incorporation then permit) to the largest number
of whole shares (rounded up to the nearest whole number) issuable upon
exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of
Preferred Stock or other class of capital stock not by its terms
ranking on a parity with, or junior to, the shares of Series A
Preferred Stock with respect to dividends, the holders of shares of
the Series A Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, (1) quarterly dividends
payable in cash on the first day of March, June, September and
December in each year (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 a
fraction of a share of Series A Preferred Stock, of $10.00 per whole
share (rounded to the nearest cent) less the amount of all cash
dividends declared on the Series A Preferred Stock pursuant to the
following clause (2) 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 Preferred Stock, and (2) dividends payable in cash
on the payment date for each cash dividend declared on Brink's Stock
in an amount per whole share (rounded to the nearest cent) equal to
the Brink's Formula Number (as defined below) then in effect times the
cash dividends then to be paid on each share of Brink's Stock. In
addition, if the
3
Corporation shall pay any dividend or make any distribution on Brink's
Stock payable in assets, securities or other forms of noncash
consideration (other than dividends or distributions solely in shares
of Brink's Stock), then, in each such case, the Corporation shall
simultaneously pay or make on each outstanding share of Series A
Preferred Stock a dividend or distribution in like kind of the Brink's
Formula Number then in effect times such dividend or distribution on
each share of Brink's Stock. As used herein, the "Brink's Formula
Number" shall be 1,000; provided, however, that if at any time after
January 19, 1996, the Corporation shall (x) declare or pay any
dividend on Brink's Stock payable in shares of Brink's Stock or make
any distribution on Brink's Stock in shares of Brink's Stock, (y)
subdivide (by a stock split or otherwise) the outstanding shares of
Brink's Stock into a larger number of shares of Brink's Stock or (z)
combine (by a reverse stock split or otherwise) the outstanding shares
of Brink's Stock into a smaller number of shares of Brink's Stock,
then in each such event the Brink's Formula Number shall be adjusted
to a number determined by multiplying the Brink's Formula Number in
effect immediately prior to such event by a fraction, the numerator of
which is the number of shares of Brink's Stock that are outstanding
immediately after such event and the denominator of which is the
number of shares of Brink's Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest whole
number); and provided further that if at any time after January 19,
1996, the Corporation shall issue any shares of its capital stock in a
reclassification or change of the outstanding shares of Brink's Stock
(including any such reclassification or change in connection with a
merger in which the Corporation is the surviving corporation), then in
each such event the Brink's Formula Number shall be appropriately
adjusted to reflect such reclassification or change.
(b) The Corporation shall declare a dividend or distribution
on the Series A Preferred Stock as provided in Section 2(a) above
immediately prior to or at the same time it declares a dividend or
distribution on Brink's Stock (other than a dividend or distribution
solely in shares of Brink's Stock); provided, however, that, in the
event no dividend or distribution (other than a dividend or
distribution in shares of Brink's Stock) shall have been declared on
Brink's Stock during the period between any Quarterly Dividend Payment
Date and the next subsequent Quarterly Dividend Payment Date, a
dividend of $2.00 per share on the Series A Preferred Stock shall
nevertheless be
4
payable on such subsequent Quarterly Dividend Payment Date. The Board
of Directors may fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive a dividend or
distribution declared thereon, which record date shall be the same as
the record date for any corresponding dividend or distribution on
Brink's Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series A Preferred Stock; provided, however,
that dividends on such shares which are originally issued after the
record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall
begin to accrue and be cumulative from and after such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A 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.
(d) So long as any shares of the Series A Preferred Stock
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on Brink's Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series A Preferred
Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock
shall not be entitled to receive any dividends or other distributions
except as provided herein.
3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be
entitled to a number of votes equal to the product of (1) the
Brink's Formula Number then in effect for each share of Series A
Preferred Stock held of record on each matter on which holders of
Brink's Stock are entitled to vote times (2) the maximum number
of votes
5
per share which the holders of Brink's Stock then have with
respect to such matter.
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series A Preferred Stock, the
holders of shares of Brink's Stock and the holders of any other
class of capital stock entitled to vote in the election of
directors shall vote together as one class for the election of
directors of the Corporation. In addition, the holders of Series
A Preferred Stock and the holders of Brink's Stock shall vote
together as one class on all other matters submitted to a vote of
holders of Brink's Stock.
(c) If at the time of any annual meeting of shareholders for
the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or
shares of Series A Preferred Stock are in default, the number of
directors constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting together with
other holders of capital stock as set forth in Section 3(a) for
the election of other directors of the Corporation, the holders
of record of the Series A Preferred Stock, voting separately as a
class to the exclusion of such other holders, shall be entitled
at said meeting of shareholders (and at each subsequent annual
meeting of shareholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, to
vote for the election of two directors of the Corporation, the
holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to
the Brink's Formula Number. Until the default in payments of all
dividends which permitted the election of said directors shall
cease to exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote
of the holders of the shares at the time entitled to cast a
majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by
the vote of such holders. If and when such default shall cease to
exist, the holders of the Series A Preferred Stock shall be
divested of the foregoing
6
special voting rights, subject to revesting in the event of each
and every subsequent like default in payments of dividends. Upon
the termination of the foregoing special voting rights, the terms
of office of all persons who may have been elected directors
pursuant to said special voting rights shall forthwith terminate,
and the number of directors constituting the Board of Directors
shall be reduced by two. The voting rights granted by this
Section 3(c) shall be in addition to any other voting rights
granted to the holders of the Series A Preferred Stock in this
Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series A 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
Brink's Stock as set forth herein) for authorizing or taking any
corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions payable on the Series A 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 Preferred Stock outstanding shall have
been paid in full, the Corporation 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 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 Preferred Stock, except dividends paid ratably
on the Series A 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) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking on a parity
7
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock; provided that the
Corporation may at any time redeem, purchase or otherwise acquire
shares of any such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either as to dividends
or upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series A Preferred Stock, or any shares of stock
ranking on a parity with the Series A 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 Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
subparagraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the Series A Preferred Stock unless,
prior thereto, the holders of shares of Series A Preferred Stock shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, plus an amount equal to the greater of (i) $26.67 per share
or (ii) an aggregate amount per share equal to the Brink's Formula
Number then in effect times the aggregate amount to be distributed per
share to holders of Brink's Stock, or (b) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all
other such parity stock in proportion to the total amounts to which
the holders of all
8
such shares are entitled upon such liquidation, dissolution or winding
up.
6. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination, statutory share
exchange or other transaction in which the shares of Brink's Stock are
exchanged for or changed into other stock or securities, cash or any
other property, then in any such case the then outstanding shares of
Series A Preferred Stock shall at the same time be similarly exchanged
or changed in an amount per share equal to the Brink's Formula Number
then in effect times the aggregate amount of stock, securities, cash
or any other property (payable in kind), as the case may be, into
which or for which each share of Brink's Stock is exchanged or
changed.
7. Redemption; No Sinking Fund. (a) The outstanding shares
of Series A Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time at which, in the
good faith determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate voting power
represented by all the outstanding shares of capital stock of the
Corporation generally entitled to vote in the election of Directors of
the Corporation, at a cash price per share equal to (i) 125% of the
product of the Brink's Formula Number times the Brink's Stock Market
Value (as such term is hereinafter defined), plus (ii) all dividends
which on the redemption date have accrued on the shares to be redeemed
and have not been paid or declared and a sum sufficient for the
payment thereof set apart, without interest. The "Brink's Stock Market
Value" on any date shall be deemed to be the average of the daily
closing prices, per share, of Brink's Stock for the 30 consecutive
Trading Days immediately prior to the date in question. The closing
price for each Trading Day shall be the last sale price, regular way,
or, in case no such sale takes place on such Trading Day, the average
of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system if
Brink's Stock is listed or admitted to trading on a national
securities exchange or, if Brink's Stock is not listed or admitted to
trading on any national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by the National Association
of Securities Dealers, Inc. Automated Quotations System or such
9
other system then in use, or, if on any such Trading Day Brink's Stock
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 Brink's Stock selected by the Board of Directors of the
Corporation. If on any such Trading Day no market maker is making a
market in Brink's Stock, the fair value of Brink's Stock on such
Trading Day shall mean the fair value of Brink's Stock as determined
in good faith by the Board of Directors of the Corporation. "Trading
Day" shall mean a day on which the principal national securities
exchange on which Brink's Stock is listed or admitted to trading is
open for the transaction of business or, if Brink's Stock is not
listed or admitted to trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on
which banking institutions in the Borough of Manhattan, the City of
New York, are authorized or obligated by law or executive order to
close.
(b) The shares of Series A Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking
fund.
8. Ranking. The Series A Preferred Stock shall rank senior
to Brink's Stock, Minerals Stock and Burlington Stock, on a parity
with the Corporation's Series B Participating Cumulative Preferred
Stock, par value $10 per share, and the Corporation's Series D
Participating Cumulative Preferred Stock, par value $10 per share, and
junior to all other series of Preferred Stock of the Corporation,
unless the Board of Directors shall specifically determine otherwise
in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series A Preferred Stock shall be
issuable upon exercise of Pittston Brink's Group Rights issued
pursuant to the Rights Agreement in whole shares or in any fraction of
a share that is not smaller than one one-thousandth (1/1000th) of a
share or any integral multiple of such fraction. At the election of
the Corporation, prior to the first issuance of a share or a fraction
of a share of Series A Preferred Stock, either (1) certificates may be
issued to evidence such authorized fraction of a share of Series A
Preferred Stock, or (2) any such authorized fraction of a share of
Series A Preferred Stock may be evidenced by depositary receipts
pursuant to an
10
appropriate agreement between the Corporation and a depositary
selected by the Corporation; 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 Series A Preferred Stock.
10. Reacquired Shares. Any shares of Series A Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation
become authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the
provisions of the first paragraph of Division II of Article III.
11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series A
Preferred Stock as provided herein shall be amended in any manner
which would alter or change the powers, preferences, rights or
privileges of the holders of Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of more
than 66-2/3% of the outstanding shares of Series A Preferred Stock,
voting as a separate class.
B. Series B Participating Cumulative Preferred Stock
1. Designation and Number of Shares. The shares of such
series shall be designated as "Series B Participating Cumulative
Preferred Stock" (the "Series B Preferred Stock"). The number of
shares initially constituting the Series B Preferred Stock shall be
20,000; provided, however, that if more than a total of 20,000 shares
of Series B Preferred Stock shall be issuable upon the exercise of
Pittston Minerals Group Rights issued pursuant to the Amended and
Restated Rights Agreement dated as of January 19, 1996, between the
Corporation and Chemical Mellon Shareholder Services, L.L.C., as
Rights Agent (the "Rights Agreement"), the Board of Directors of the
Corporation, pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, shall direct by resolution or resolutions that
articles of amendment to these Articles of Incorporation be properly
executed, acknowledged, filed and recorded, in accordance with the
provisions of
11
Section 13.1-604 thereof, providing for the total number of shares of
Series B Preferred Stock authorized to be issued to be increased (to
the extent that the Articles of Incorporation then permit) to the
largest number of whole shares (rounded up to the nearest whole
number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of
Preferred Stock or other class of capital stock not by its terms
ranking on a parity with, or junior to, the shares of Series B
Preferred Stock with respect to dividends, the holders of shares of
the Series B Preferred Stock shall be entitled to receive, when and as
declared by the Board of Directors, out of the assets of the
Corporation legally available therefor, (1) quarterly dividends
payable in cash on the first day of March, June, September and
December in each year (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 a
fraction of a share of Series B Preferred Stock, of $10.00 per whole
share (rounded to the nearest cent) less the amount of all cash
dividends declared on the Series B Preferred Stock pursuant to the
following clause (2) 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 B Preferred Stock, and (2) dividends payable in cash
on the payment date for each cash dividend declared on Minerals Stock
in an amount per whole share (rounded to the nearest cent) equal to
the Minerals Formula Number (as defined below) then in effect times
the cash dividends then to be paid on each share of Minerals Stock. In
addition, if the Corporation shall pay any dividend or make any
distribution on Minerals Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distributions
solely in shares of Minerals Stock), then, in each such case, the
Corporation shall simultaneously pay or make on each outstanding share
of Series B Preferred Stock a dividend or distribution in like kind of
the Minerals Formula Number then in effect times such dividend or
distribution on each share of Minerals Stock. As used herein, the
"Minerals Formula Number" shall be 1,000; provided, however, that if
at any time after July 26, 1993, the Corporation shall (x) declare or
pay any dividend on Minerals Stock payable in shares of Minerals Stock
or make any distribution on Minerals Stock in shares of Minerals
12
Stock, (y) subdivide (by a stock split or otherwise) the outstanding
shares of Minerals Stock into a larger number of shares of Minerals
Stock or (z) combine (by a reverse stock split or otherwise) the
outstanding shares of Minerals Stock into a smaller number of shares
of Minerals Stock, then in each such event the Minerals Formula Number
shall be adjusted to a number determined by multiplying the Minerals
Formula Number in effect immediately prior to such event by a
fraction, the numerator of which is the number of shares of Minerals
Stock that are outstanding immediately after such event and the
denominator of which is the number of shares of Minerals Stock that
are outstanding immediately prior to such event (and rounding the
result to the nearest whole number); and provided further that if at
any time after July 26, 1993, the Corporation shall issue any shares
of its capital stock in a reclassification or change of the
outstanding shares of Minerals Stock (including any such
reclassification or change in connection with a merger in which the
Corporation is the surviving corporation), then in each such event the
Minerals Formula Number shall be appropriately adjusted to reflect
such reclassification or change.
(b) The Corporation shall declare a dividend or distribution
on the Series B Preferred Stock as provided in Section 2(a) above
immediately prior to or at the same time it declares a dividend or
distribution on Minerals Stock (other than a dividend or distribution
solely in shares of Minerals Stock); provided, however, that, in the
event no dividend or distribution (other than a dividend or
distribution in shares of Minerals Stock) shall have been declared on
Minerals Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment Date,
a dividend of $2.00 per share on the Series B Preferred Stock shall
nevertheless be payable on such subsequent Quarterly Dividend Payment
Date. The Board of Directors may fix a record date for the
determination of holders of shares of Series B Preferred Stock
entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding
dividend or distribution on Minerals Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series B Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series B Preferred Stock; provided, however,
that dividends
13
on such shares which are originally issued after the record date for
the determination of holders of shares of Series B Preferred Stock
entitled to receive a quarterly dividend and on or prior to the next
succeeding Quarterly Dividend Payment Date shall begin to accrue and
be cumulative from and after such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid
on the shares of Series B 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.
(d) So long as any shares of the Series B Preferred Stock
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on Minerals Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series B Preferred
Stock shall have been declared.
(e) The holders of the shares of Series B Preferred Stock
shall not be entitled to receive any dividends or other distributions
except as provided herein.
3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(a) Each holder of Series B Preferred Stock shall be
entitled to a number of votes equal to the product of (1) the
Minerals Formula Number then in effect for each share of Series B
Preferred Stock held of record on each matter on which holders of
Minerals Stock are entitled to vote times (2) the maximum number
of votes per share which the holders of Minerals Stock then have
with respect to such matter.
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series B Preferred Stock, the
holders of shares of Minerals Stock and the holders of any other
class of capital stock entitled to vote in the election of
directors shall vote together as one class for the election of
directors of the Corporation. In addition, the holders of Series
B Preferred Stock and the holders of Minerals Stock shall vote
together as one class on all other matters submitted to a vote of
holders of Minerals Stock.
14
(c) If at the time of any annual meeting of shareholders for
the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or
shares of Series B Preferred Stock are in default, the number of
directors constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting together with
other holders of capital stock as set forth in Section 3(a) for
the election of other directors of the Corporation, the holders
of record of the Series B Preferred Stock, voting separately as a
class to the exclusion of such other holders, shall be entitled
at said meeting of shareholders (and at each subsequent annual
meeting of shareholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, to
vote for the election of two directors of the Corporation, the
holders of any Series B Preferred Stock being entitled to cast a
number of votes per share of Series B Preferred Stock equal to
the Minerals Formula Number. Until the default in payments of all
dividends which permitted the election of said directors shall
cease to exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote
of the holders of the shares at the time entitled to cast a
majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by
the vote of such holders. If and when such default shall cease to
exist, the holders of the Series B Preferred Stock shall be
divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default
in payments of dividends. Upon the termination of the foregoing
special voting rights, the terms of office of all persons who may
have been elected directors pursuant to said special voting
rights shall forthwith terminate, and the number of directors
constituting the Board of Directors shall be reduced by two. The
voting rights granted by this Section 3(c) shall be in addition
to any other voting rights granted to the holders of the Series B
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series B Preferred Stock
15
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 Minerals Stock as set forth herein) for authorizing or
taking any corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions payable on the Series B 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 B Preferred Stock outstanding shall have
been paid in full, the Corporation 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 B 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 B Preferred Stock, except dividends paid ratably
on the Series B 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) 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 B Preferred Stock; provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series B Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series B Preferred Stock, or any shares of stock
ranking on a parity with the Series B 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
16
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 Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
subparagraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the Series B Preferred Stock unless,
prior thereto, the holders of shares of Series B Preferred Stock shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, plus an amount equal to the greater of (i) $40 per share or
(ii) an aggregate amount per share equal to the Minerals Formula
Number then in effect times the aggregate amount to be distributed per
share to holders of Minerals Stock, or (b) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred Stock and all
other such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
6. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination, statutory share
exchange or other transaction in which the shares of Minerals Stock
are exchanged for or changed into other stock or securities, cash or
any other property, then in any such case the then outstanding shares
of Series B Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share equal to the Minerals
Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case
may be, into which
17
or for which each share of Minerals Stock is exchanged or changed.
7. Redemption; No Sinking Fund. (a) The outstanding shares
of Series B Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time at which, in the
good faith determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate voting power
represented by all the outstanding shares of capital stock of the
Corporation generally entitled to vote in the election of Directors of
the Corporation, at a cash price per share equal to (i) 125% of the
product of the Minerals Formula Number times the Minerals Stock Market
Value (as such term is hereinafter defined), plus (ii) all dividends
which on the redemption date have accrued on the shares to be redeemed
and have not been paid or declared and a sum sufficient for the
payment thereof set apart, without interest. The "Minerals Stock
Market Value" on any date shall be deemed to be the average of the
daily closing prices, per share, of Minerals Stock for the 30
consecutive Trading Days immediately prior to the date in question.
The closing price for each Trading Day shall be the last sale price,
regular way, or, in case no such sale takes place on such Trading Day,
the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction
reporting system if Minerals Stock is listed or admitted to trading on
a national securities exchange or, if Minerals Stock is not listed or
admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated Quotations
System or such other system then in use, or, if on any such Trading
Day Minerals Stock 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 Minerals Stock selected by the Board
of Directors of the Corporation. If on any such Trading Day no market
maker is making a market in Minerals Stock, the fair value of Minerals
Stock on such Trading Day shall mean the fair value of Minerals Stock
as determined in good faith by the Board of Directors of the
Corporation. "Trading Day" shall mean a day on which the principal
national securities exchange on which Minerals Stock is listed or
admitted to trading is open for the transaction of business or, if
Minerals Stock is not listed or admitted to trading on any
18
national securities exchange, a Monday, Tuesday, Wednesday, Thursday
or Friday which is not a day on which banking institutions in the
Borough of Manhattan, the City of New York, are authorized or
obligated by law or executive order to close.
(b) The shares of Series B Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking
fund.
8. Ranking. The Series B Preferred Stock shall rank senior
to Brink's Stock, Minerals Stock and Burlington Stock, on a parity
with the Corporation's Series A Participating Cumulative Preferred
Stock, par value $10 per share, and the Corporation's Series D
Participating Cumulative Preferred Stock, par value $10 per share, and
junior to all other series of Preferred Stock of the Corporation,
unless the Board of Directors shall specifically determine otherwise
in fixing the powers, preferences and relative, participating,
optional and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series B Preferred Stock shall be
issuable upon exercise of Pittston Minerals Group Rights issued
pursuant to the Rights Agreement in whole shares or in any fraction of
a share that is not smaller than one one-thousandth (1/1000th) of a
share or any integral multiple of such fraction. At the election of
the Corporation, prior to the first issuance of a share or a fraction
of a share of Series B Preferred Stock, either (1) certificates may be
issued to evidence such authorized fraction of a share of Series B
Preferred Stock, or (2) any such authorized fraction of a share of
Series B Preferred Stock may be evidenced by depositary receipts
pursuant to an appropriate agreement between the Corporation and a
depositary selected by the Corporation; 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 Series B Preferred Stock.
10. Reacquired Shares. Any shares of Series B Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation
become authorized but unissued shares of Preferred Stock, without
designation as
19
to series until such shares are once more designated as part of a
particular series by the Board of Directors pursuant to the provisions
of the first paragraph of Division II of Article III.
11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series B
Preferred Stock as provided herein shall be amended in any manner
which would alter or change the powers, preferences, rights or
privileges of the holders of Series B Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of more
than 66-2/3% of the outstanding shares of Series B Preferred Stock,
voting as a separate class.
C. Series D Participating Cumulative Preferred Stock
1. Designation and Number of Shares. The shares of such
series shall be designated as "Series D Participating Cumulative
Preferred Stock" (the "Series D Preferred Stock"). The number of
shares initially constituting the Series D Preferred Stock shall be
50,000; provided, however, that if more than a total of 50,000 shares
of Series D Preferred Stock shall be issuable upon the exercise of
Pittston Burlington Group Rights issued pursuant to the Amended and
Restated Rights Agreement dated as of January 19, 1996, between the
Corporation and Chemical Mellon Shareholder Services, L.L.C., as
Rights Agent (the "Rights Agreement"), the Board of Directors of the
Corporation, pursuant to Section 13.1-639 of the Virginia Stock
Corporation Act, shall direct by resolution or resolutions that
articles of amendment to these Articles of Incorporation be properly
executed, acknowledged, filed and recorded, in accordance with the
provisions of Section 13.1-604 thereof, providing for the total number
of shares of Series D Preferred Stock authorized to be issued to be
increased (to the extent that the Articles of Incorporation then
permit) to the largest number of whole shares (rounded up to the
nearest whole number) issuable upon exercise of such Rights.
2. Dividends or Distributions. (a) Subject to the prior and
superior rights of the holders of shares of any other series of
Preferred Stock or other class of capital stock not by its terms
ranking on a parity with, or junior to, the shares of Series D
Preferred Stock with respect to dividends, the holders of shares of
the Series D
20
Preferred Stock shall be entitled to receive, when and as declared by
the Board of Directors, out of the assets of the Corporation legally
available therefor, (1) quarterly dividends payable in cash on the
first day of March, June, September and December in each year (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 a fraction of a share of Series D
Preferred Stock, of $10.00 per whole share (rounded to the nearest
cent) less the amount of all cash dividends declared on the Series D
Preferred Stock pursuant to the following clause (2) 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 D Preferred Stock, and
(2) dividends payable in cash on the payment date for each cash
dividend declared on Burlington Stock in an amount per whole share
(rounded to the nearest cent) equal to the Burlington Formula Number
(as defined below) then in effect times the cash dividends then to be
paid on each share of Burlington Stock. In addition, if the
Corporation shall pay any dividend or make any distribution on
Burlington Stock payable in assets, securities or other forms of
noncash consideration (other than dividends or distributions solely in
shares of Burlington Stock), then, in each such case, the Corporation
shall simultaneously pay or make on each outstanding share of Series D
Preferred Stock a dividend or distribution in like kind of the
Burlington Formula Number then in effect times such dividend or
distribution on each share of Burlington Stock. As used herein, the
"Burlington Formula Number" shall be 1,000; provided, however, that if
at any time after January 19, 1996, the Corporation shall (x) declare
or pay any dividend on Burlington Stock payable in shares of
Burlington Stock or make any distribution on Burlington Stock in
shares of Burlington Stock, (y) subdivide (by a stock split or
otherwise) the outstanding shares of Burlington Stock into a larger
number of shares of Burlington Stock or (z) combine (by a reverse
stock split or otherwise) the outstanding shares of Burlington Stock
into a smaller number of shares of Burlington Stock, then in each such
event the Burlington Formula Number shall be adjusted to a number
determined by multiplying the Burlington Formula Number in effect
immediately prior to such event by a fraction, the numerator of which
is the number of shares of Burlington Stock that are outstanding
immediately after such event and the denominator of which is the
number of shares of Burlington Stock that are outstanding immediately
prior to such event
21
(and rounding the result to the nearest whole number); and provided
further that if at any time after January 19, 1996, the Corporation
shall issue any shares of its capital stock in a reclassification or
change of the outstanding shares of Burlington Stock (including any
such reclassification or change in connection with a merger in which
the Corporation is the surviving corporation), then in each such event
the Burlington Formula Number shall be appropriately adjusted to
reflect such reclassification or change.
(b) The Corporation shall declare a dividend or distribution
on the Series D Preferred Stock as provided in Section 2(a) above
immediately prior to or at the same time it declares a dividend or
distribution on Burlington Stock (other than a dividend or
distribution solely in shares of Burlington Stock); provided, however,
that, in the event no dividend or distribution (other than a dividend
or distribution in shares of Burlington Stock) shall have been
declared on Burlington Stock during the period between any Quarterly
Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $2.00 per share on the Series D Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date. The Board of Directors may fix a record date
for the determination of holders of shares of Series D Preferred Stock
entitled to receive a dividend or distribution declared thereon, which
record date shall be the same as the record date for any corresponding
dividend or distribution on Burlington Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series D Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original
issue of such shares of Series D Preferred Stock; provided, however,
that dividends on such shares which are originally issued after the
record date for the determination of holders of shares of Series D
Preferred Stock entitled to receive a quarterly dividend and on or
prior to the next succeeding Quarterly Dividend Payment Date shall
begin to accrue and be cumulative from and after such Quarterly
Dividend Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series D 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.
22
(d) So long as any shares of the Series D Preferred Stock
are outstanding, no dividends or other distributions shall be
declared, paid or distributed, or set aside for payment or
distribution, on Burlington Stock unless, in each case, the dividend
required by this Section 2 to be declared on the Series D Preferred
Stock shall have been declared.
(e) The holders of the shares of Series D Preferred Stock
shall not be entitled to receive any dividends or other distributions
except as provided herein.
3. Voting Rights. The holders of shares of Series D
Preferred Stock shall have the following voting rights:
(a) Each holder of Series D Preferred Stock shall be
entitled to a number of votes equal to the product of (1) the
Burlington Formula Number then in effect for each share of Series
D Preferred Stock held of record on each matter on which holders
of Burlington Stock are entitled to vote times (2) the maximum
number of votes per share which the holders of Burlington Stock
then have with respect to such matter.
(b) Except as otherwise provided herein or by applicable
law, the holders of shares of Series D Preferred Stock, the
holders of shares of Burlington Stock and the holders of any
other class of capital stock entitled to vote in the election of
directors shall vote together as one class for the election of
directors of the Corporation. In addition, the holders of Series
D Preferred Stock and the holders of Burlington Stock shall vote
together as one class on all other matters submitted to a vote of
holders of Burlington Stock.
(c) If at the time of any annual meeting of shareholders for
the election of directors, the equivalent of six quarterly
dividends (whether or not consecutive) payable on any share or
shares of Series D Preferred Stock are in default, the number of
directors constituting the Board of Directors of the Corporation
shall be increased by two. In addition to voting together with
other holders of capital stock as set forth in Section 3(a) for
the election of other directors of the Corporation, the holders
of record of the Series D Preferred Stock, voting separately as a
23
class to the exclusion of such other holders, shall be entitled
at said meeting of shareholders (and at each subsequent annual
meeting of shareholders), unless all dividends in arrears have
been paid or declared and set apart for payment prior thereto, to
vote for the election of two directors of the Corporation, the
holders of any Series D Preferred Stock being entitled to cast a
number of votes per share of Series D Preferred Stock equal to
the Burlington Formula Number. Until the default in payments of
all dividends which permitted the election of said directors
shall cease to exist any director who shall have been so elected
pursuant to the next preceding sentence may be removed at any
time, either with or without cause, only by the affirmative vote
of the holders of the shares at the time entitled to cast a
majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by
the vote of such holders. If and when such default shall cease to
exist, the holders of the Series D Preferred Stock shall be
divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default
in payments of dividends. Upon the termination of the foregoing
special voting rights, the terms of office of all persons who may
have been elected directors pursuant to said special voting
rights shall forthwith terminate, and the number of directors
constituting the Board of Directors shall be reduced by two. The
voting rights granted by this Section 3(c) shall be in addition
to any other voting rights granted to the holders of the Series D
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by
applicable law, holders of Series D 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
Burlington Stock as set forth herein) for authorizing or taking
any corporate action.
4. Certain Restrictions. (a) Whenever quarterly dividends or
other dividends or distributions payable on the Series D 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
24
shares of Series D Preferred Stock outstanding shall have been paid in
full, the Corporation 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 D 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 D Preferred Stock, except dividends paid ratably
on the Series D 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) 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 D Preferred Stock; provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series D Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series D Preferred Stock, or any shares of stock
ranking on a parity with the Series D 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 Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
25
subparagraph (a) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
5. Liquidation Rights. Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no
distribution shall be made (a) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution, or winding up) to the Series D Preferred Stock unless,
prior thereto, the holders of shares of Series D Preferred Stock shall
have received an amount equal to the accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such
payment, plus an amount equal to the greater of (i) $26.67 per share
or (ii) an aggregate amount per share equal to the Burlington Formula
Number then in effect times the aggregate amount to be distributed per
share to holders of Burlington Stock, or (b) to the holders of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series D Preferred Stock, except
distributions made ratably on the Series D Preferred Stock and all
other such parity stock in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation,
dissolution or winding up.
6. Consolidation, Merger, etc. In case the Corporation shall
enter into any consolidation, merger, combination, statutory share
exchange or other transaction in which the shares of Burlington Stock
are exchanged for or changed into other stock or securities, cash or
any other property, then in any such case the then outstanding shares
of Series D Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share equal to the Burlington
Formula Number then in effect times the aggregate amount of stock,
securities, cash or any other property (payable in kind), as the case
may be, into which or for which each share of Burlington Stock is
exchanged or changed.
7. Redemption; No Sinking Fund. (a) The outstanding shares
of Series D Preferred Stock may be redeemed at the option of the Board
of Directors as a whole, but not in part, at any time at which, in the
good faith determination of the Board of Directors, no person
beneficially owns more than 10% of the aggregate voting power
represented by all the outstanding shares of capital stock of the
Corporation generally entitled to vote in the election of Directors of
the Corporation, at a cash price
26
per share equal to (i) 125% of the product of the Burlington Formula
Number times the Burlington Stock Market Value (as such term is
hereinafter defined), plus (ii) all dividends which on the redemption
date have accrued on the shares to be redeemed and have not been paid
or declared and a sum sufficient for the payment thereof set apart,
without interest. The "Burlington Stock Market Value" on any date
shall be deemed to be the average of the daily closing prices, per
share, of Burlington Stock for the 30 consecutive Trading Days
immediately prior to the date in question. The closing price for each
Trading Day shall be the last sale price, regular way, or, in case no
such sale takes place on such Trading Day, the average of the closing
bid and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system if Burlington
Stock is listed or admitted to trading on a national securities
exchange or, if Burlington Stock is not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Association of
Securities Dealers, Inc. Automated Quotations System or such other
system then in use, or, if on any such Trading Day Burlington Stock 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 Burlington Stock selected by the Board of Directors of the
Corporation. If on any such Trading Day no market maker is making a
market in Burlington Stock, the fair value of Burlington Stock on such
Trading Day shall mean the fair value of Burlington Stock as
determined in good faith by the Board of Directors of the Corporation.
"Trading Day" shall mean a day on which the principal national
securities exchange on which Burlington Stock is listed or admitted to
trading is open for the transaction of business or, if Burlington
Stock is not listed or admitted to trading on any national securities
exchange, a Monday, Tuesday, Wednesday, Thursday or Friday which is
not a day on which banking institutions in the Borough of Manhattan,
the City of New York, are authorized or obligated by law or executive
order to close.
(b) The shares of Series D Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking
fund.
8. Ranking. The Series D Preferred Stock shall rank senior
to Brink's Stock, Minerals Stock and Burlington
27
Stock, on a parity with the Corporation's Series A Participating
Cumulative Preferred Stock, par value $10 per share, and the
Corporation's Series B Participating Cumulative Preferred Stock, par
value $10 per share, and junior to all other series of Preferred Stock
of the Corporation, unless the Board of Directors shall specifically
determine otherwise in fixing the powers, preferences and relative,
participating, optional and other special rights of the shares of such
series and the qualifications, limitations and restrictions thereof.
9. Fractional Shares. The Series D Preferred Stock shall be
issuable upon exercise of Pittston Burlington Group Rights issued
pursuant to the Rights Agreement in whole shares or in any fraction of
a share that is not smaller than one one-thousandth (1/1000th) of a
share or any integral multiple of such fraction. At the election of
the Corporation, prior to the first issuance of a share or a fraction
of a share of Series D Preferred Stock, either (1) certificates may be
issued to evidence such authorized fraction of a share of Series D
Preferred Stock, or (2) any such authorized fraction of a share of
Series D Preferred Stock may be evidenced by depositary receipts
pursuant to an appropriate agreement between the Corporation and a
depositary selected by the Corporation; 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 Series D Preferred Stock.
10. Reacquired Shares. Any shares of Series D Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation
become authorized but unissued shares of Preferred Stock, without
designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the
provisions of the first paragraph of Division II of Article III.
11. Amendment. None of the powers, preferences and relative,
participating, optional and other special rights of the Series D
Preferred Stock as provided herein shall be amended in any manner
which would alter or change the powers, preferences, rights or
privileges of the holders of Series D Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of more
than
28
66-2/3% of the outstanding shares of Series D Preferred Stock, voting
as a separate class."
IN WITNESS WHEREOF, The Pittston Company has caused these
Articles of Amendment to be duly executed in its corporate name on
this 9th day of February, 1996.
THE PITTSTON COMPANY,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President,
General Counsel
and Secretary
Attest:
by
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Secretary
EXHIBIT B-1
TO THE RIGHTS AGREEMENT
[Form of Right Certificate for Brink's Rights]
Certificate No. BRR- ___________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF
REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT, ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER NO CIRCUMSTANCES MAY
THIS RIGHT CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT
CERTIFICATE BE TRANSFERRED TO AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH SUCH
TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON
WHO SUBSEQUENTLY BECOMES SUCH A PERSON AND ANY PURPORTED
TRANSFER OF RIGHTS TO ANY SUCH PERSON SHALL BE, AND SHALL
RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
Pittston Brink's Group Right Certificate
THE PITTSTON COMPANY
This certifies that
, or registered
assigns, is the registered owner of the number of Pittston Brink's
Group Rights (the "Rights") set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement dated as of January 19, 1996
(the "Rights Agreement"), between The Pittston Company, a Virginia
corporation (the "Company"), and Chemical Mellon Shareholder Services,
L.L.C., a New York banking corporation, as Rights Agent (the "Rights
Agent"), unless the Rights evidenced hereby shall have been previously
redeemed, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to
5:00 p.m., New York City time, on September 25, 1997 (the "Expiration
Date"), at the principal office of the Rights Agent, or its successors
as Rights Agent, in New York, New York, one one-thousandth (1/1000th)
of a fully paid, nonassessable share of Series A Participating
Cumulative Preferred Stock, par value $10 per share, of the Company
(the "Preferred Shares"), at a purchase price of $26.67 per one
2
one-thousandth (1/1000th) of a share (the "Purchase Price"), upon
presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which
may be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number
and kind of shares which may be so purchased as of January 19, 1996.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares which may be purchased upon the exercise of each
Right evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the
Rights evidenced by this Right Certificate be transferred to an
Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as each such term is defined in the Rights Agreement) or to any
Person who subsequently becomes such a Person and any purported
transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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 reference to the Rights Agreement
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 and are also available from the Company upon written
request.
This Rights Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or
corporate trust 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 and kind of shares 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
3
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the
Company at its option at a redemption price (in cash or securities
deemed by the Board of Directors to be equivalent in value) of $.01
per Right at any time prior to the earliest of (i) 5:00 p.m. New York
City time on the tenth calendar day following the Share Acquisition
Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an
Acquiring Person the Rights may be redeemed only if a majority of the
Disinterested Directors determines that such redemption is in the best
interests of the Company (all terms as defined in the Rights
Agreement).
The Company may, but shall not be required to, issue
fractions of Preferred Shares or distribute certificates which
evidence fractions of Preferred Shares upon the exercise of any Right
or Rights evidenced hereby. In lieu of issuing fractional shares, the
Company may elect to make a cash payment as provided in the Rights
Agreement or to issue certificates or utilize a depository arrangement
as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
the Preferred Shares or of any other securities of the Company which
may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a shareholder of
the Company, including, without limitation, 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 other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in accordance with
the provisions of the Rights Agreement.
4
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:
THE PITTSTON COMPANY,
by
----------------------------
Name:
Title:
Attest:
by
-----------------------
Name:
Title:
Countersigned:
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights
Agent,
by
-----------------------
Authorized Signature
5
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this 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:___________________ , 199_
-------------------------------
Signature
Signature Guaranteed:
6
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 or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: , 199
---------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and
Certificate 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.
EXHIBIT B-2
TO THE RIGHTS AGREEMENT
[Form of Right Certificate for Minerals Rights]
Certificate No. MR- ___________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF
REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT, ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER NO CIRCUMSTANCES MAY
THIS RIGHT CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT
CERTIFICATE BE TRANSFERRED TO AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH SUCH
TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON
WHO SUBSEQUENTLY BECOMES SUCH A PERSON AND ANY PURPORTED
TRANSFER OF RIGHTS TO ANY SUCH PERSON SHALL BE, AND SHALL
RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
Pittston Minerals Group Right Certificate
THE PITTSTON COMPANY
This certifies that
, or registered assigns, is the registered owner of
the number of Pittston Minerals Group Rights (the "Rights") set forth
above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Amended and Restated Rights Agreement
dated as of January 19, 1996 (the "Rights Agreement"), between The
Pittston Company, a Virginia corporation (the "Company"), and Chemical
Mellon Shareholder Services, L.L.C., a New York banking corporation,
as Rights Agent (the "Rights Agent"), unless the Rights evidenced
hereby shall have been previously redeemed, to purchase from the
Company at any time after the Distribution Date (as defined in the
Rights Agreement) and prior to 5:00 p.m., New York City time, on
September 25, 1997 (the "Expiration Date"), at the principal office of
the Rights Agent, or its successors as Rights Agent, in New York, New
York, one one-thousandth (1/1000th) of a fully paid, nonassessable
share of Series B Participating Cumulative Preferred Stock, par value
$10 per share, of the Company (the "Preferred Shares"), at a purchase
price of $40 per one one-thousandth (1/1000th) of a
2
share (the "Purchase Price"), upon presentation and surrender of this
Right Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which
may be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number
and kind of shares which may be so purchased as of July 26, 1993. As
provided in the Rights Agreement, the Purchase Price and the number
and kind of shares which may be purchased upon the exercise of each
Right evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the
Rights evidenced by this Right Certificate be transferred to an
Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as each such term is defined in the Rights Agreement) or to any
Person who subsequently becomes such a Person and any purported
transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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 reference to the Rights Agreement
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 and are also available from the Company upon written
request.
This Rights Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or
corporate trust 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 and kind of shares 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
3
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the
Company at its option at a redemption price (in cash or securities
deemed by the Board of Directors to be equivalent in value) of $.01
per Right at any time prior to the earliest of (i) 5:00 p.m. New York
City time on the tenth calendar day following the Share Acquisition
Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an
Acquiring Person the Rights may be redeemed only if a majority of the
Disinterested Directors determines that such redemption is in the best
interests of the Company (all terms as defined in the Rights
Agreement).
The Company may, but shall not be required to, issue
fractions of Preferred Shares or distribute certificates which
evidence fractions of Preferred Shares upon the exercise of any Right
or Rights evidenced hereby. In lieu of issuing fractional shares, the
Company may elect to make a cash payment as provided in the Rights
Agreement or to issue certificates or utilize a depository arrangement
as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
the Preferred Shares or of any other securities of the Company which
may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a shareholder of
the Company, including, without limitation, 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 other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in accordance with
the provisions of the Rights Agreement.
4
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:
THE PITTSTON COMPANY,
by
---------------------------
Name:
Title:
Attest:
by
-------------------------
Name:
Title:
Countersigned:
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights
Agent,
by
-----------------------
Authorized Signature
5
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this 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: , 199
--------------------------------
Signature
Signature Guaranteed:
6
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 or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: , 199
-------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and
Certificate 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.
EXHIBIT B-3
[Form of Right Certificate for Burlington Rights]
Certificate No. BXR- ___________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 25, 1997, OR EARLIER IF
REDEEMED. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $.01 PER RIGHT, ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER NO CIRCUMSTANCES MAY
THIS RIGHT CERTIFICATE OR THE RIGHTS EVIDENCED BY THIS RIGHT
CERTIFICATE BE TRANSFERRED TO AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH SUCH
TERM IS DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON
WHO SUBSEQUENTLY BECOMES SUCH A PERSON AND ANY PURPORTED
TRANSFER OF RIGHTS TO ANY SUCH PERSON SHALL BE, AND SHALL
RENDER THE RIGHTS PURPORTED TO BE TRANSFERRED, NULL AND
VOID.
Pittston Burlington Group Right Certificate
THE PITTSTON COMPANY
This certifies that
, or registered assigns, is the
registered owner of the number of Pittston Burlington Group Rights
(the "Rights") set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of the
Amended and Restated Rights Agreement dated as of January 19, 1996
(the "Rights Agreement"), between The Pittston Company, a Virginia
corporation (the "Company"), and Chemical Mellon Shareholder Services,
L.L.C., a New York banking corporation, as Rights Agent (the "Rights
Agent"), unless the Rights evidenced hereby shall have been previously
redeemed, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to
5:00 p.m., New York City time, on September 25, 1997 (the "Expiration
Date"), at the principal office of the Rights Agent, or its successors
as Rights Agent, in New York, New York, one one-thousandth (1/1000th)
of a fully paid, nonassessable share of Series D Participating
Cumulative Preferred Stock, par value $10 per share, of the Company
(the "Preferred Shares"), at a purchase price of $26.67 per one
one-thousandth (1/1000th)
2
of a share (the "Purchase Price"), upon presentation and surrender of
this Right Certificate with the Form of Election to Purchase duly
executed.
The Purchase Price and the number and kind of shares which
may be purchased upon exercise of each Right evidenced by this Right
Certificate, as set forth above, are the Purchase Price and the number
and kind of shares which may be so purchased as of January 19, 1996.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares which may be purchased upon the exercise of each
Right evidenced by this Right Certificate are subject to modification
and adjustment upon the happening of certain events.
Under no circumstances may this Right Certificate or the
Rights evidenced by this Right Certificate be transferred to an
Acquiring Person or an Affiliate or Associate of an Acquiring Person
(as each such term is defined in the Rights Agreement) or to any
Person who subsequently becomes such a Person and any purported
transfer of Rights to any such Person shall be, and shall render the
Rights purported to be transferred, null and void.
This Right Certificate is subject to all 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 reference to the Rights Agreement
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 and are also available from the Company upon written
request.
This Rights Certificate, with or without other Right
Certificates, upon surrender at the principal stock transfer or
corporate trust 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 and kind of shares 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
3
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Right Certificate may be redeemed by the
Company at its option at a redemption price (in cash or securities
deemed by the Board of Directors to be equivalent in value) of $.01
per Right at any time prior to the earliest of (i) 5:00 p.m. New York
City time on the tenth calendar day following the Share Acquisition
Date, (ii) the occurrence of a Triggering Event or (iii) the
Expiration Date; provided, however, that after there shall be an
Acquiring Person the Rights may be redeemed only if a majority of the
Disinterested Directors determines that such redemption is in the best
interests of the Company (all terms as defined in the Rights
Agreement).
The Company may, but shall not be required to, issue
fractions of Preferred Shares or distribute certificates which
evidence fractions of Preferred Shares upon the exercise of any Right
or Rights evidenced hereby. In lieu of issuing fractional shares, the
Company may elect to make a cash payment as provided in the Rights
Agreement or to issue certificates or utilize a depository arrangement
as provided in the terms of the Preferred Shares.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of
the Preferred Shares or of any other securities of the Company which
may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a shareholder of
the Company, including, without limitation, 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 other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in accordance with
the provisions of the Rights Agreement.
4
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:
THE PITTSTON COMPANY,
by
--------------------------
[Name:]
[Title:]
Attest:
by
---------------------------
[Name:]
[Title:]
Countersigned:
CHEMICAL MELLON SHAREHOLDER
SERVICES, L.L.C., as Rights
Agent,
by
-------------------------
Authorized Signature
5
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this 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: , 199
--------------------------------
Signature
Signature Guaranteed:
6
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 or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Right Certificate from any Person who is or was an
Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: , 199
------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and
Certificate 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.
