_________________________________________________________________________
MINERALS TECHNOLOGIES INC.
and
CHEMICAL BANK
as Rights Agent
----------------
Rights Agreement
Dated as of October 26, 1992
__________________________________________________________________________
TABLE OF CONTENTS
1. Certain Definitions 2
2. Appointment of Rights Agent 15
3. Issuance of Right Certificates 15
4. Form of Right Certificates 19
5. Countersignature and Registration 20
6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates 22
7. Exercise of Rights; Exercise Price; Expiration Date of
Rights 24
8. Cancellation and Destruction of Right Certificates 29
9. Reservation and Availability of Shares of Preferred Stock 30
10. Preferred Stock Record Date 33
11. Adjustment of Exercise Price or Number of Shares 34
12. Certification of Adjusted Exercise Price or Number of
Shares 45
13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power 46
14. Fractional Rights and Fractional Shares 54
15. Rights of Action 56
16. Agreement of Right Holders 57
17. Right Certificate Holder Not Deemed a ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. Concerning the Rights Agent 59
19. Merger or Consolidation of, or Change in Name of, the
Rights Agent 60
Section
20. Duties of Rights Agent 62
21. Change of Rights Agent 65
22. Issuance of New Right Certificates 68
23. Redemption 68
24. Notice of Proposed Actions 71
25. Notices 73
26. Supplements and Amendments 74
27. Successors 76
28. Benefits of this Rights Agreement 76
29. Delaware Contract 77
30. Counterparts 77
31. Descriptive Headings 77
32. Severability 77
Exhibit A -- Summary of Rights
Exhibit B -- Form of Right Certificate
Exhibit C -- Form of Certificate of Designations of
Series A Junior Preferred Stock
ii
RIGHTS AGREEMENT
Agreement, dated as of October 26, 1992, by and between MINERALS
TECHNOLOGIES INC., a Delaware corporation (the "Company"), and CHEMICAL
BANK, a New York banking corporation (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, on October 26, 1992, the Board of Directors of the
Company authorized the issuance of, and declared a dividend payable in, one
right (a "Right") for each share of Common Stock, $0.10 par value per
share, of the Company outstanding as of the close of business on November
6, 1992 (the "Record Date"), each such Right representing the right to
purchase one one-hundredth of a share of Series A Junior Preferred Stock of
the Company ("Preferred Stock") having the rights and preferences set forth
in the form of Certificate of Designations attached hereto as Exhibit C
authorized by the Board of Directors on October 26, 1992, upon the terms
and subject to the conditions hereinafter set forth; and
WHEREAS, the Board of Directors of the Company further authorized
the issuance of one Right (subject to adjustment) with respect to each
share of Common Stock which may be issued between the Record Date and the
earlier to
1
occur of the Expiration Date or the Final Expiration Date (as such terms
are hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates (as such
term is hereinafter defined) and Associates (as such term is hereinafter
defined) of such Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 15% or more of the shares of Voting Stock (as such
term is hereinafter defined) of the Company then outstanding; provided
that, an Acquiring Person shall not include an (i) Exempt Person (as such
term is hereinafter defined), or (ii) any Person, together with all
Affiliates and Associates of such Person, who or which would be an
Acquiring Person solely by reason of (A) being the Beneficial Owner of
shares of Voting Stock of the Company, the Beneficial
2
Ownership of which was acquired by such Person pursuant to any action or
transaction or series of related actions or transactions approved by the
Board of Directors before such Person otherwise became an Acquiring Person
or (B) a reduction in the number of issued and outstanding shares of Voting
Stock of the Company pursuant to a transaction or a series of related
transactions approved by the Board of Directors of the Company; provided
further, that in the event such Person described in this clause (ii) does
not become an Acquiring Person by reason of subclause (A) or (B) of this
clause (ii), such Person nonetheless shall become an Acquiring Person in
the event such Person thereafter acquires Beneficial Ownership of an
additional 1% of the Voting Stock of the Company, unless the acquisition of
such additional Voting Stock would not result in such Person becoming an
Acquiring Person by reason of subclause (A) or (B) of this clause (ii).
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith (but only if at the time of such determination by
the Board of Directors there are then in office
3
not less than two Continuing Directors and such action is approved by a
majority of the Continuing Directors then in office) that a Person who
would otherwise be an "Acquiring Person" as defined pursuant to the
foregoing provisions of this paragraph (a) has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of
shares of Common Stock so that such Person would no longer by an "Acquiring
Person" as defined pursuant to the foregoing provisions of this paragraph
(a), then such Person shall not be deemed an "Acquiring Person" for any
purposes of this Rights Agreement.
(b) "Affiliate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Securities
Exchange Act of 1934, as amended ("Exchange Act"), as in effect on the date
of this Rights Agreement.
(c) "Associate" of a Person shall mean (i) with respect to a
corporation, any officer or director thereof or of any Subsidiary (as such
term is hereinafter defined) thereof, or any Beneficial Owner (as such term
is hereinafter defined) of 10% or more of any class of equity
4
security thereof, (ii) with respect to an association, any officer or
director thereof or of a Subsidiary thereof, (iii) with respect to a
partnership, any general partner thereof or any limited partner thereof who
is, directly or indirectly, the Beneficial Owner of a 10% ownership
interest therein, (iv) with respect to a business trust, any officer or
trustee thereof or of any Subsidiary thereof,(v) with respect to any other
trust or an estate, any trustee, executor or similar fiduciary or any
Person who has a 15% or greater interest as a beneficiary in the income
from or principal of such trust or estate, (vi) with respect to a natural
person, any relative or spouse of such person, or any relative of such
spouse, who has the same home as such person, and (vii) any Affiliate of
such Person.
(d) A person shall be deemed the "Beneficial Owner" of, or to "Beneficially
Own", any securities (and correlative terms shall have correlative meanings):
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns,
5
directly or indirectly, for purposes of Section 13(d) of the Exchange Act
and Regulations 13D or 13G thereunder (or any comparable or successor law
or regulation), in each case as in effect on the date hereof; or
(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 or the fulfillment of a
condition or both) pursuant to any agreement, arrangement or understanding,
or upon the exercise of conversion rights, exchange rights, other rights
(other than these Rights), 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 such Person or any of such Person's Affiliates or Associates
until such tendered securities are accepted for purchase or exchange or (B)
the right to vote, alone or in concert with others, pursuant to any
6
agreement, arrangement or understanding (whether or not in writing);
provided, however, that a Person shall not be deemed the "Beneficial Owner"
of, or to "Beneficially Own", any securities if the agreement, arrangement
or understanding to vote such security (1) arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations
under the Exchange Act and (2) is not at the time reportable by such Person
on a Schedule 13D report under the Exchange Act (or any comparable or
successor report), other than by reference to a proxy or consent
solicitation being conducted by such Person; 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 (whether or not
in writing) for the purpose
7
of acquiring, holding, voting (except as described in clause (B) of
subparagraph (ii) of this paragraph (d)) or disposing of any securities of
the Company; provided, however, that for purposes of determining Beneficial
ownership of securities under this Rights Agreement, officers and directors
of the Company solely by reason of their status as such shall not
constitute a group (notwithstanding that they may be Associates of one
another or may be deemed to constitute a group for purposes of Section
13(d) the Exchange Act) and shall not be deemed to own shares owned by
another officer or director of the Company.
Notwithstanding anything in this paragraph (d) to the contrary, a Person
shall not be deemed the "Beneficial Owner" of, or to "Beneficially Own,"
any security beneficially owned by another Person solely by reason of an
agreement, arrangement or understanding with such other Person for the
purposes of: (x) soliciting the Company's stockholders for the election of
director nominees or any other stockholder
8
resolution, the formation of and membership on any committee for the
purpose of promoting or opposing any stockholder resolution or for electing
a slate of nominees to the Company's Board of Directors, service on such a
slate of nominees, or agreement to a slate of director nominees, provided
that such other Person retains the right at any time to withdraw as a
nominee or member of any such committee, and to withhold or revoke any vote
or proxy for or against any such stockholder resolution or for such slate
of nominees; (y) entering into revocable voting agreements or the granting
or solicitation of revocable proxies with respect to any of the matters
described in the foregoing clause (x); or (z) the sharing of expenses and
the indemnification against expenses and liabilities by any such other
Person with respect to expenses incurred or conduct occurring during the
time such other Person is a nominee or a member of any such committee
described in the foregoing clause (x). Further, notwithstanding anything
in this paragraph (d) to the contrary, a Person engaged in the business of
underwriting securities shall not be deemed the "Beneficial
9
Owner" of, or to "Beneficially Own," any securities acquired in good faith
in a firm commitment underwriting until the expiration of forty days after
the date of such acquisition.
(e) "Business Day" shall mean any day other than a Saturday, Sunday,
or a day on which banking institutions in the State of New York are
authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M., New
York time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., New York time, on the next succeeding
Business Day.
(g) "Common Stock" when used with reference to the Company shall mean
the Common Stock (presently $0.10 par value) of the Company. "Common
Stock" when used with reference to any Person other than the Company which
shall be organized in corporate form shall mean the capital stock or other
equity security with the greatest per share voting power of such Person.
"Common Stock" when used with reference to any Person other than the
Company which shall not be
10
organized in corporate form shall mean units of beneficial interest which
shall represent the right to participate in profits, losses, deductions and
credits of such Person and which shall be entitled to exercise the greatest
voting power per unit of such Person.
(h) "Continuing Director" shall mean any member of the Board of
Directors, while such person is a member of the Board of Directors, who is
not an Acquiring Person, or an Affiliate or Associate of any Acquiring
Person, or a representative or nominee of an Acquiring Person or of any
such Affiliate or Associate, and who either (i) was a member of the Board
of Directors prior to the time that any Person became an Acquiring Person
(other than pursuant to a Qualifying Tender Offer) or (ii) subsequently
became a member of the Board of Directors, and whose nomination for
election or election to the Board of Directors was recommended or approved
by a majority of the Continuing Directors then on the Board of Directors.
(i) "Distribution Date" shall have the meaning set forth in Section
3(b) hereof.
11
(j) "Exchange Act" shall have the meaning set forth in Section 1(b)
hereof.
(k) "Exempt Person" shall mean (i) Pfizer Inc., for so long as such
corporation beneficially owns 15% or more of the shares of Voting Stock of
the Company, (ii) the Company, (iii) any Subsidiary of the Company or (iv)
any employee benefit plan or employee stock plan of the Company or any
Subsidiary of the Company, or any trust or other entity organized,
appointed, established or holding Common Stock for or pursuant to the terms
of any such plan.
(l) "Exercise Price" shall have the meaning set forth in Sections 4
and 7(b) hereof.
(m) "Expiration Date" shall have the meaning set forth in Section 7(a)
hereof.
(n) "Fair Market Value" of any property shall mean the fair market
value of such property as determined in accordance with Section 11(b)
hereof.
(o) "Final Expiration Date" shall have the meaning set forth in
Section 7(a) hereof.
(p) "Person" shall mean any individual, firm, corporation or other entity.
12
(q) "Principal Party" shall have the meaning set forth in Section
13(b) hereof.
(r) "Qualifying Tender Offer" shall mean a tender or exchange offer
for all outstanding shares of Common Stock of the Company approved by a
majority of the Board of Directors (provided that at the time of such
approval of the Board of Directors there are then in office not less than
two Continuing Directors and such offer is approved by a majority of the
Continuing Directors then in office), after taking into account the
potential long-term value of the Company and all other factors that they
consider relevant.
(s) "Redemption Price" shall have the meaning set forth in Section
23(a) hereof.
(t) "Right Certificate" shall have the meaning set forth in Section
3(d) hereof.
(u) "Stock Acquisition Date" shall mean the first date on which there
shall be a public announcement by the Company or an Acquiring Person that
an Acquiring Person has become such (which, for purposes of this
definition, shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) or such earlier
13
date as a majority of the Continuing Directors shall become aware of the
existence of an Acquiring Person.
(v) "Subsidiary" of a Person shall mean any corporation or other
entity of which securities or other ownership interests having voting power
sufficient to elect a majority of the board of directors or other persons
performing similar functions are beneficially owned, directly or
indirectly, by such Person or by any corporation or other entity that is
otherwise controlled by such Person.
(w) "Summary of Rights" shall have the meaning set forth in Section
3(a) hereof.
(x) "Trading Day" shall have the meaning set forth in Section 11(b)
hereof.
(y) "Transfer Tax" shall mean any tax or charge, including any
documentary stamp tax, imposed or collected by any governmental or
regulatory authority in respect of any transfer of any security, instrument
or right, including Rights, shares of Common Stock and shares of Preferred
Stock.
14
(z) "Voting Stock" shall mean (i) the Common Stock of the Company and
(ii) any other shares of capital stock of the Company entitled to vote
generally in the election of directors or entitled to vote together with
the Common Stock in respect of any merger, consolidation, sale of all or
substantially all of the Company's assets, liquidation, dissolution or
winding up.
Any determination required to be made by the Board of Directors of the
Company for purposes of applying the definitions contained in this Section
1 shall be made by the Board of Directors in its good faith judgment, which
determination shall be binding on the Rights Agent and the holders of the
Rights.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights
Agents as it may deem necessary or desirable.
Section 3. Issuance of Right Certificates.
(a) On the Record Date (or as soon as practicable thereafter), the
Company or the Rights Agent shall send a copy of a Summary of Rights, in
substantially the form
15
attached hereto as Exhibit A (the "Summary of Rights"), by first class mail,
postage prepaid, to each record holder of the Common Stock as of the
close of business on the Record Date, at the address of such holder shown
on the records of the Company.
(b) Until the close of business on the day which is the earlier
of (i) the tenth day after the Stock Acquisition Date or (ii) the tenth
business day (or such later date as may be determined by action of the
Board of Directors (but only if at the time of such determination there are
then in office not less than two Continuing Directors and such action is
approved by a majority of the Continuing Directors then in office) prior to
such time as any Person becomes an Acquiring Person) after the date of the
commencement by any Person (other than an Exempt Person) of, or the first
public announcement of the intent of any Person (other than an Exempt
Person) to commence, a tender or exchange offer upon the successful
consummation of which such Person, together with its Affiliates and
Associates, would be the Beneficial Owner of 30% or more of the then
outstanding shares of Voting Stock of the Company (irrespective of whether
any shares are actually purchased pursuant to any such offer) (the earlier
of such dates being herein referred to as the "Distribution Date"), (x) the
16
Rights shall be evidenced by the certificates for Common Stock registered
in the name of the holders of Common Stock (together with, in the case of
certificates for Common Stock outstanding as of the Record Date, the
Summary of Rights) and not by separate Right certificates and the record
holders of such certificates for Common Stock shall be the record holders
of the Rights represented thereby and (y) each Right shall be transferable
only simultaneously and together with the transfer of a share of Common
Stock (subject to adjustment as hereinafter provided). Until the
Distribution Date (or, if earlier, the Expiration Date or Final Expiration
Date), the surrender for transfer of any certificate for Common Stock shall
constitute the surrender for transfer of the Right or Rights associated
with the Common Stock evidenced thereby, whether or not accompanied by a
copy of the Summary of Rights.
(c) Rights shall be issued in respect of all shares of Common
Stock that become outstanding after the Record Date but prior to the
earlier of the Distribution Date, the Expiration Date or the Final
Expiration Date and, in certain circumstances provided in Section 22
hereof, may be issued in respect of shares of Common Stock that become
outstanding after the Distribution Date. Certificates for Common Stock
issued (including, without limitation,
17
certificates issued upon original issuance, disposition from the Company's
treasury or transfer or exchange of Common Stock) after the Record Date but
prior to the earliest of the Distribution Date, the Expiration Date, or the
Final Expiration Date (or, in certain circumstances as provided in Section
22 hereof, after the Distribution Date) shall have impressed, printed,
written or stamped thereon or otherwise affixed thereto the following
legend:
This certificate also evidences and entitles the holder hereof to
the same number of Rights (subject to adjustment) as the number
of shares of Common Stock represented by this certificate, such
Rights being on the terms provided under the Rights Agreement
between Minerals Technologies Inc. and Chemical Bank (the "Rights
Agent"), dated as of October 26, 1992, as it may be amended from
time to time (the Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file
at the principal executive offices of Minerals Technologies Inc.
Under certain circumstances, as set forth in the Rights
Agreement, such Rights shall be evidenced by separate
certificates and shall no longer be evidenced by this
certificate. Minerals Technologies Inc. shall mail to the
registered holder of this certificate a copy of the Rights
Agreement without charge within five days after receipt of a
written request therefor. Under certain circumstances as
provided in Section 7(e) of the Rights Agreement, Rights issued
to or Beneficially owned by Acquiring Persons or their Affiliates
or Associates (as such terms are defined in the Rights Agreement
or any subsequent holder of
18
such Rights shall be null and void and may not be transferred to
any Person.
(d) As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will countersign, and
the Company will send or cause to be sent (and the Rights Agent will, if
requested, send), by first class mail, postage prepaid, to each record
holder of the Common Stock as of the close of business on the Distribution
Date, as shown by the records of the Company, at the address of such holder
shown on such records, a certificate in the for provided by Section 4
hereof (a "Right Certificate"), evidencing one Right (subject to adjustment
as provided herein) for each share of Common Stock so held. As of and
after the Distribution Date, the Rights shall be evidenced solely by Right
Certificates and may be transferred by the transfer of the Right
Certificate as permitted hereby, separately and apart from any transfer of
one or more shares of Common Stock.
Section 4. Form of Right Certificates.
The Right Certificates (and the forms of election to purchase
shares, certificate and assignment to be printed on the reverse thereof),
when, as and if issued, shall be substantially in the form set forth in
Exhibit B hereto and may have such marks of identification or designation
and such legends, summaries or endorsements printed thereon as
19
may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on
which the Common Stock or the Rights may from time to time be listed or as
the Company may deem appropriate to conform to usage or otherwise and as
are not inconsistent with the provisions of this Rights Agreement. Subject
to the provisions of Section 22 hereof, Right Certificates evidencing
Rights whenever issued, (i) shall be dated as of the date of issuance of
the Rights they represent and (ii) subject to adjustment from time to time
as provided herein, on their face shall entitle the holders thereof to
purchase such number of shares (including fractional shares which are
integral multiples of one-hundredth of a share) of Preferred Stock as shall
be set forth therein at the price payable upon exercise of a Right provided
by Section 7(b) hereof as the same may from time to time be adjusted as
provided herein (the "Exercise Price").
Section 5. Countersignature and Registration.
(a) Each Right Certificate shall be executed on behalf of the
Company by its Chairman of the Board, President or any Vice President,
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
20
manually or by facsimile signature. Each Right Certificate shall be
countersigned by the Rights Agent either manually or by facsimile signature
and shall not be valid for any purpose unless so countersigned. In case
any officer of the Company who shall have signed any Right Certificate
shall cease to be such officer of the Company before countersignature by
the Rights Agent and issuance and delivery of the certificate by the
Company, such Right Certificate, nevertheless, may be countersigned by the
Rights Agent and issued and delivered with the same force and effect as
though the person who signed such Right Certificates had not ceased to be
such officer of the Company. Any Right Certificate may be signed on behalf
of the Company by any person who, on the date of the execution of such
Right Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its principal office or one or more offices
designated as the appropriate place for surrender of Right Certificates
upon exercise or transfer, and in such other locations as may be required
by law, books for registration and transfer of the Right
21
Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number
of Rights evidenced on its face by each of the Right Certificates and the
date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stole Right Certificates.
(a) Subject to the provisions of Section 7(e), 7(f) and 14 hereof,
at any time after the Close of Business on the Distribution Date, and at or
prior to the Close of Business on the earlier of the Expiration Date or the
Final Expiration Date, any Right Certificate, may be (i) transferred or
(ii) split up, combined or exchanged for one or more other right
Certificates, entitling the registered holder to purchase a like number of
shares of Preferred Stock as the Right Certificate or Rights Certificates
surrendered then entitled such holder to purchase. Any registered holder
desiring to transfer any Right Certificate shall surrender the Right
Certificate at the office of the Rights Agent designated for the surrender
of Right Certificates with the form of certificate and assignment on the
reverse side thereof duly endorsed (or enclosed with such Right Certificate
a written instrument of transfer in
22
form satisfactory to the Company and the Rights Agent), duly executed by
the registered holder thereof or his attorney duly authorized in writing,
and with such signature duly guaranteed. Any registered holder desiring to
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 to be split up, combined or exchanged at the office of the
Rights Agent designated therefor. Thereupon, the Rights Agent shall
countersign and deliver to the person entitled thereto a Right Certificate
or Right Certificates, as the case may be, as so requested. The Company
may require payment of a sum sufficient to cover any Transfer Tax that may
be imposed in connection with any transfer, split up, combination or
exchange of any Right Certificates.
(b) Subject to the provisions of Section 7(e), 7(f) and 14 hereof,
upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a
Right Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them and, if requested by the
Company, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, or upon surrender to the Rights
Agent
23
and cancellation of the Right Certificate if mutilated, the Company shall
issue and deliver a new Right Certificate of like tenor to the Rights Agent
for delivery to the registered owner in lieu of the Right Certificate so
lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; exercise Price; Expiration Date of
Rights.
(a) The Rights shall not be exercisable until, and shall become
exercisable on, the Distribution Date (unless otherwise provided herein,
including, without limitation, the restrictions on exercisability set forth
in Section 7(e) and 23(a) hereof). Except as otherwise provided herein,
the Rights may be exercised, in whole or in part, at any time commencing
with the Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase and certificate on the reverse side
thereof duly executed (with signatures duly guaranteed), to the Rights
Agent at the principal office of the Rights Agent in New York, New York,
together with payment of the Exercise Price for each Right exercised,
subject to adjustment as hereinafter provided, at or prior to the Close of
Business on the earlier of (i) October 26, 2002 (the "Final Expiration
Date") or (ii) the date on which the Rights are
24
redeemed as provided in Section 23 hereof (such earlier date being herein
referred to as the "Expiration Date").
(b) The Exercise Price shall initially be $65.00 for each one one-
hundredth (1/100) of a share of Preferred Stock issued pursuant to the
exercise of a Right. The Exercise Price and the number of shares of
Preferred Stock or other securities to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided in Sections 11
and 13 hereof. The Exercise Price shall be payable in lawful money of the
United States of America, in accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon receipt of a Right
Certificate representing exercisable Rights with the form of election to
purchase duly executed, accompanied by payment by certified check,
cashier's check, bank draft or money order payable to the Company or the
Rights Agent of the Exercise Price for the shares to be purchased and an
amount equal to any applicable Transfer Tax required to be paid by the
holder of the Right Certificate in accordance with Section 9(e) hereof, the
Rights Agent shall thereupon promptly (i) requisition from any transfer
agent of the Preferred Stock of the Company one or more certificates
representing the number of shares of Preferred Stock to be so purchased,
and the Company hereby authorizes
25
and directs such transfer agent to comply with all such requests, (ii) as
provided in Section 14(b), at the election of the Company, cause depositary
receipts to be issued in lieu of fractional shares of Preferred Stock,
(iii) if the election provided for in the immediately preceding clause (ii)
has not been made, requisition from the Company the amount of cash to be
paid in lieu of the issuance of fractional shares in accordance with
Section 14(b) hereof, (iv) after receipt of such Preferred Stock
certificates and, if applicable, depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (v) when appropriate, after receipt, promptly deliver such cash
to or upon the order of the registered holder of such Right Certificate;
provided, however, that in the case of a purchase of securities, other than
Preferred Stock, pursuant to Section 13 hereof, the Rights Agent shall
promptly take the appropriate actions corresponding in such case to that
referred to in the foregoing clauses (i) through (v) of this Section 7(c).
Notwithstanding the foregoing provisions of this Section 7(c), the Company
may suspend the issuance of shares of Preferred Stock upon exercise of a
Right for a reasonable period, not in excess of 90 days, during which
26
the Company seeks to register under the Securities Act of 1933, as amended
(the "Act"), and any applicable securities law of any other jurisdiction,
the shares of Preferred Stock to be issued pursuant to the Rights;
provided, however, that nothing contained in this Section 7(c) shall
relieve the Company of its obligations under Section 9(c) hereof.
(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 to the registered holder of
such Right Certificate or his assign, subject to the provisions of Section
14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement to the
contrary, from and after the time (the "invalidation time") when any Person
first becomes an Acquiring Person, other than pursuant to a Qualifying
Tender Offer, any Rights that are beneficially owned by (x) such Acquiring
Person (or any Associate or Affiliate of such Acquiring Person), (y) a
transferee of such Acquiring Person (or any such Associate or Affiliate)
who becomes a transferee after the invalidation time or (z) a transferee of
such Acquiring Person (or any such Associate or Affiliate) who becomes a
transferee prior to or concurrently
27
with the invalidation time pursuant to either (I) a transfer from the
Acquiring Person to holders of its equity securities or to any Person with
whom it has any continuing agreement, arrangement or understanding
regarding the transferred Rights or (II) a transfer which the Board of
Directors has determined is part of a plan, arrangement or understanding
which has the purpose or effect of avoiding the provisions of this Section
7(e), and subsequent transferees of such Persons referred to in clause (y)
and (z) above, shall be void without any further action and any holder of
such Rights shall thereafter have no rights whatsoever with respect to such
Rights under any provision of this Rights Agreement. 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
determination with respect to an Acquiring Person or its Affiliates,
Associates or transferees hereunder. No Right Certificate shall be issued
pursuant to Section 3 hereof that represents Rights beneficially owned by
an Acquiring Person whose Rights would be void pursuant to the provisions
of this Section 7(e) or any Associate or Affiliate thereof; no Right
Certificate shall be issued at any time upon the transfer of any Rights
28
to an Acquiring Person whose Rights would be void pursuant to the
provisions of this Section 7(e) or any Associate or Affiliate thereof or to
any nominee of such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the provisions of this
Section 7(e) shall be cancelled.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake
any action with respect to a registered holder upon the occurrence of any
purported exercise as set forth in this Section 7 unless such registered
holder shall have (i) completed and signed the certificate following the
form of election to purchase set forth on the reverse side of the 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. Cancellation and Destruction of Right Certificates.
All Right Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or
to any of its agents, be delivered to the Rights Agent
29
for cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be canceled by it, and no Right Certificates shall be issued
in lieu thereof except as expressly permitted by any of the provisions of
this Rights Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall cancel and retire,
any Right Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all cancelled
Right Certificates to the Company, or shall, at the written request of the
Company, destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued shares of
Preferred Stock or out of authorized and issued shares of Preferred Stock
held in its treasury, such number of shares of Preferred Stock as will from
time to time be sufficient to permit the exercise in full of all
outstanding Rights.
(b) The Company shall use its best efforts to cause, from and
after such time as the Rights become
30
exercisable, all shares of Preferred Stock issued or reserved for issuance
in accordance with this Rights Agreement to be listed, upon official notice
of issuance, upon the principal national securities exchange, if any, upon
which the Common Stock is listed or, if the principal market for the common
Stock is not on any national securities exchange, to be eligible for
quotation in the national Association of Securities Dealers' Automated
Quotation system or any successor thereto or other comparable quotation
system.
(c) The Company covenants and agrees that it will take all such
action as may be necessary to insure that all shares of Preferred Stock
delivered upon exercise of Rights shall, at the time of delivery of the
certificates for such shares (subject to payment of the Exercise Price in
respect thereof), be duly and validly authorized and issued and fully paid
and nonassessable shares.
(d) The Company shall use its best efforts to (i) file, as soon
as practicable following the occurrence of the event described in Section
11(a)(ii), or as soon as is required by law following the Distribution
Date, as the case may be, a registration statement under the Act, with
respect to the shares of Preferred Stock purchasable upon exercise of the
Rights on an appropriate form, (ii) cause such
31
registration statement to become effective as soon as practicable after
such filing, and (iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the requirements of the
Act) until the earlier of (A) the date as of which the Rights are no longer
exercisable for Preferred Stock, and (b) the date of the expiration of the
Rights. the company may temporarily suspend, for a period of time not to
exceed ninety days, the issuance of shares of Preferred Stock upon exercise
of a Right in order to prepare and file a registration statement under the
Act and permit it to become effective. The Company will also take such
action as may be appropriate under, or to ensure compliance with, the
securities or "blue sky" laws of the various states in connection with the
exercisability of the Rights. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such jurisdiction shall
have been obtained and until a registration statement under the Act (if
required) shall have been declared effective.
(e) The Company covenants and agrees that it will pay when due and
payable any and all federal and state Transfer Taxes which may be payable
in respect of
32
the issuance or delivery of the Right Certificates or of any shares of
Preferred Stock issued or delivered upon the exercise of Rights. The
Company shall not, however, be required to pay any Transfer Tax which may
be payable in respect of any transfer or delivery of a Right Certificate to
a Person other than, or the issuance or delivery of certificates for
Preferred Stock upon exercise of Rights in a name other than that of, the
registered holder of the Right Certificate, and the Company shall not be
required to issue or deliver a Right Certificate or certificate for
Preferred Stock to a Person other than such registered holder until any
such Transfer Tax shall have been paid (any such Transfer 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 Transfer
Tax is due.
Section 10. Preferred Stock Record Date. Each person in whose
name any certificate for shares of Preferred Stock is issued upon the
exercise of Rights shall for all purposes be deemed to have become the
holder of record of the Preferred Stock represented thereby on, and such
certificate shall be dated as of, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the Exercise
Price (and any
33
applicable Transfer Taxes) was made; provided, however, that, if the date
of such surrender and payment is a date upon which the Preferred Stock
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 as of, the next succeeding business Day on which the Preferred
Stock transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate, as such, shall
not be entitled to any rights of a stockholder of the Company with respect
to shares for which the Rights shall be exercisable, including, without
limitation, the right to vote, to receive dividends or other distributions
or to exercise any preemptive rights, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of exercise Price or Number of Shares.
The Exercise Price and the number of shares of Preferred Stock which may be
purchased upon exercise of a Right are subject to adjustment from time to
time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date
of this Rights Agreement (A) declare or pay any dividend on Common Stock
34
payable in shares of Common Stock, (B) subdivide or split the outstanding
shares of Common Stock into a greater number of shares or (C) combine or
consolidate the outstanding shares of Common Stock into a smaller number of
shares or effect a reverse split of the outstanding shares of Common Stock,
then and in each such event the number of shares of Preferred Stock
issuable upon the exercise of a Right after the record date for such event
(if one shall have been established or, if not, after the date of such
event) shall be the number of shares of Preferred Stock issuable
immediately prior to such event multiplied by a fraction the numerator of
which is the number of Rights outstanding immediately prior to such event
and the denominator of which is the number of Rights outstanding
immediately after such event and the Exercise Price after such event shall
be the Exercise Price in effect immediately prior to such event multiplied
by such fraction. If an event occurs which would require an adjustment
under both this Section 11(a)(i)and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in addition to,
and
35
shall be made prior to, any adjustment required pursuant to Section
11(a)(ii).
(ii) In the event that any Person (other than an Exempt Person),
alone or together with its Affiliates and Associates, shall become an
Acquiring Person, except pursuant to a Qualifying Tender Offer, then,
subject to the last sentence of Section 23(a) and except as otherwise
provided in this Section 11, each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to receive upon
exercise of such Right in accordance with the terms of this Rights
Agreement and payment of the Exercise Price, the greater of (1) the number
of one one-hundredths of a share of Preferred Stock for which such Right
was exercisable immediately prior to the first occurrence of the event
described in this Section 11(a)(ii) or (2) such number of one one-hundredths
of a share of Preferred Stock, based on the per share Fair
Market Value of the Preferred Stock (determined pursuant to Section 11(b)
hereof) on the date of such first occurrence, having a value equal to twice
the Exercise Price; provided, however, that if the
36
transaction that would otherwise give rise to the foregoing adjustment is
also subject to the provisions of Section 13 hereof, then only the
provisions of Section 13 hereof shall apply and no adjustment shall be made
pursuant to this Section 11(a)(ii).
(iii) In the event that the Company does not have available
sufficient authorized but unissued Preferred Stock to permit the
adjustments required pursuant to the foregoing subparagraph (i) or the
exercise in full of the Rights in accordance with the foregoing
subparagraph (ii), the Company shall take all such action as may be
necessary to authorize and reserve for issuance such number of additional
shares of Preferred Stock as may from time to time be required to be issued
upon the exercise in full of all Rights from time to time outstanding and,
if necessary, shall use its best efforts to obtain stockholder approval
thereof. In lieu of issuing shares of Preferred Stock in accordance with
the foregoing subparagraphs (i) and (ii), the Company may, if the Board of
Directors determines (but only if at the time of such determination by the
Board of Directors there
37
are then in office not less than two Continuing Directors and such action
is approved by a majority of the Continuing Directors then in office) that
such action is necessary or appropriate and not contrary to the interests
of holders of Rights, elect to issue or pay, upon the exercise of the
Rights, cash, property, shares of Preferred or Common Stock, or any
combination thereof, having an aggregate Fair Market Value equal to the
Fair Market Value of the shares of Preferred Stock which otherwise would
have been issuable pursuant to Section 11(a)(ii), which Fair Market Value
shall be determined by an investment banking firm selected by the Board of
Directors (but only if at the time of such selection there are then in
office not less than two Continuing Directors and such selection is
approved by a majority of the Continuing Directors then in office). For
purposes of the preceding sentence, the Fair Market Value of the Preferred
Stock shall be as determined pursuant to Section 11(b). Subject to Section
23 hereof, any such election by the Board of Directors of the Company must
be made and publicly announced within thirty (30) days
38
after the date on which the event described in Section 11(a)(ii) occurs.
(b) For the purpose of this Rights Agreement, the "Fair Market
Value" of any share of Preferred Stock, Common Stock or any other stock or
any Right or other security or any other property on any date shall be
determined as provided in this Section 11(b). In the case of a publicly-
traded stock or other security, the Fair Market Value on any date shall be
deemed to be the average of the daily closing prices per share of such
stock or per unit of such other security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such date;
provided, however, that in the event that the Fair Market Value per share
of any share of Common Stock is determined during a period which includes
any date that is within 30 Trading Days after (i) the ex-dividend date for
a dividend or distribution on such stock payable in shares of Common Stock
or securities convertible into shares of Common Stock, or (ii) the
effective date of any subdivision, split, combination, consolidation,
reverse stock split or reclassification of such stock, then, and in each
such case, the Fair Market Value shall be appropriately adjusted by the
Board of Directors of the Company to take into account ex-dividend or
post-effective date trading. The closing price for any day shall be the
last sale price, regular way, or, in case no such sale takes place on such
39
day, the average of the closing bid and asked prices, regular way (in
either case, as reported in the applicable transaction reporting system
with respect to securities listed or admitted to trading on the New York
Stock Exchange), or, if the securities are not listed or admitted to
trading on the New York Stock Exchange, as reported in the applicable
transaction reporting system with respect to securities listed on the
principal national securities exchange on which such security is listed or
admitted to trading; or, if not listed or admitted to trading on any
national securities exchange, the last quoted price (or, if not so quoted,
the average of the high bid and low asked prices) in the over-the-counter
market, as reported by the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or such other system then in use; or,
if no bids for such security are 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 such security selected by the Board of
Directors of the Company. The term "Trading Day" shall mean a day on which
the principal national securities exchange on which such security is listed
or admitted to trading is open for the transaction of
40
business or, if such security is not listed or admitted to trading on any
national securities exchange, a Business Day. If a security is not
publicly held or not so listed or traded, "Fair Market Value" shall mean
the fair value per share of stock or per other unit of such other security,
as determined by an independent investment banking firm experienced in the
valuation of securities selected in good faith by the Board of Directors of
the Company, or, if no such investment banking firm is, in the good faith
judgment of the Board of Directors, available to make such determination,
in good faith by the Board of Directors of the Company; provided, however,
that for purposes of making the adjustment provided for by Section
11(a)(ii) hereof, the Fair Market Value of a share of Preferred Stock shall
not be less than 100% of the product of the Fair Market Value of a share of
Common Stock multiplied by the higher of the then Dividend Multiple or Vote
Multiple applicable to the Preferred Stock (as defined in the Certificate
of Designations relating to the Preferred Stock) and shall not exceed 105%
of the product of the then Fair Market Value of a share of Common Stock
multiplied by the higher of the then Dividend Multiple or Vote Multiple
applicable to the Preferred Stock. In the case of property other than
securities, the "Fair Market Value" thereof shall be
41
determined in good faith by the Board of Directors of the Company based
upon such appraisals or valuation reports of such independent experts as
the Board of Directors of the Company shall in good faith determine to be
appropriate in accordance with good business practices and the interests of
the holders of Rights. Any such determination of Fair Market Value shall
be described in a statement filed with the Rights Agent and shall be
binding upon the Rights Agent.
(c) All calculations under this Section 11 shall be made to the
nearest cent or to the nearest one one-hundredth of a share, as the case
may be.
(d) Irrespective of any adjustment or change in the Exercise
Price or the number of shares of Preferred Stock issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may
continue to express the Exercise Price and the number of shares to be
issued upon exercise of the Rights as in the initial Right Certificates
issued hereunder but, nevertheless, shall represent the Rights as so adjusted.
(e) Before taking any action that would cause an adjustment
reducing the purchase price per whole share of Preferred Stock upon
exercise of the Rights below the then par value, if any, of the shares of
Preferred Stock, the Company shall use its best efforts to take any
corporate
42
action which may, in the opinion of its counsel, be necessary in order that
the Company may validly and legally issue fully paid and non-assessable
shares of such Preferred Stock at such adjusted purchase price per share.
(f) Anything in this Section 11 to the contrary notwithstanding,
in the event of any reclassification of stock of the Company or any
recapitalization, reorganization or partial liquidation of the Company or
similar transaction, the Company shall be entitled to make such further
adjustments in the number of shares of Preferred Stock which may be
acquired upon exercise of the Rights, and such adjustments in the Exercise
Price therefor, in addition to those adjustments expressly required by the
other paragraphs of this Section 11, as the Board of Directors of the
Company shall determine to be necessary or appropriate in order for the
holders of the Rights in such event to be treated equitably and in
accordance with the purpose and intent of this Rights Agreement or in order
that any such event shall not, but for such adjustment, in the opinion of
counsel to the Company, result in the stockholders of the Company being
subject to any United States federal income tax liability by reason thereof.
(g) In the event the Company shall at any time after the Record
Date make any distribution on the shares of
43
Common Stock of the Company whether by way of a dividend or a
reclassification of stock, a recapitalization, reorganization or partial
liquidation of the Company or otherwise, in cash or any debt security, debt
instrument, real or personal property or any other property (other than any
shares of Common Stock or other capital stock of the Company and other than
any right or warrant to acquire any such shares, including any debt
security convertible into or exchangeable for any such share, at less than
the Fair Market Value of such shares) and the amount of such cash dividend
or the Fair Market Value of such debt security, debt instrument or property
exceeds 150% of the aggregate amount of the cash dividends declared or paid
on the Common Stock of the Company in the 15-month period immediately
preceding such distribution, then and in each such event, unless such
distribution is part of or is made in connection with a transaction to
which Section 11(a)(ii) or Section 13 hereof applies, the Exercise Price
shall be reduced by an amount equal to the cash or the Fair Market Value of
such distribution, as the case may be, per share of Common Stock of the
Company. For purposes hereof, the Fair Market Value of any property
distributed to the holders of shares of Common Stock of the Company shall
be the Fair Market Value of such property as determined by an independent
investment
44
banking firm experienced in the valuation of securities or the other
property so distributed, as the case may be, selected in good faith by the
Board of Directors of the Company, or, if no such investment banking firm
is in the good faith judgment of the Board of Directors available to make
such determination, in good faith by the Board of Directors of the Company,
whose determination shall be final and binding on the Company, the Rights
Agent and the holders of Rights.
Section 12. Certification of Adjusted Exercise Price or Number
of Shares. Whenever an adjustment is made as provided in Section 11, 13 or
23(c), the Company shall (a) promptly prepare a certificate setting forth
such adjustment, and a brief statement of the facts giving rise to such
adjustment, (b) promptly file with the Rights Agent and with each transfer
agent for the Preferred Stock a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in accordance
with Section 25. Notwithstanding the foregoing sentence, the failure of
the Company to make such certification or give such notice shall not affect
the validity of or the force or effect of the requirement for such
adjustment. Any adjustment to be made pursuant to Section 11, 13 or 23(c)
of this Rights Agreement shall be effective as of the date of
45
the event giving rise to such adjustment. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of any adjustment
unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power.
(a) Except for any transaction approved by the Board of Directors
(but only if at the time of such approval by the Board of Directors there
are then in office not less than two Continuing Directors and such action
is approved by a majority of the Continuing Directors then in office), in
the event that, at any time on or after the Distribution Date, (x) the
Company shall, directly or indirectly, consolidate with, or merge with and
into, any other Person or Persons (other than an Exempt Person) and the
Company shall not be the surviving or continuing corporation of such
consolidation or merger, or (y) any Person or Persons (other than an Exempt
Person) shall, directly or indirectly, consolidate with, or merge with and
into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common
Stock shall be changed into or exchanged
46
for stock or other securities of any other Person (other than an Exempt
Person) or of the Company or cash or any other property, or (z) the Company
or one or more of its subsidiaries shall, directly or indirectly, sell or
otherwise transfer to any other Person or Affiliate or Associate of such
Person, in one or more transactions, or the Company or one or more of its
Subsidiaries shall sell or otherwise transfer to any Persons in one or a
series of related transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole), then, on the first occurrence of any such event, proper
provision shall be made so that (i) each holder of record of a Right,
except as provided in Section 7(e) hereof, shall thereafter have the right
to receive, upon the exercise thereof and payment of the Exercise Price in
accordance with the terms of this Rights Agreement, such number of shares
of validly issued, fully paid, non-assessable and freely tradeable Common
Stock of the Principal Party (as defined herein), not subject to any liens,
encumbrances, rights of first refusal or other adverse claims, as shall,
based on the Fair Market Value of the Common Stock of the Principal Party
on the date of the consummation of such consolidation, merger, sale or
transfer, equal twice the Exercise Price; (ii) such
47
Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and
duties of the Company pursuant to this Rights Agreement; (iii) the term
"Company" for all purposes of this Rights Agreement shall thereafter be
deemed to refer to such Principal Party; (iv) such Principal Party shall
take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock in accordance with the
provisions of Section 9 hereof applicable to the reservation of Preferred
Stock) 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 shares of Common Stock thereafter
deliverable upon the exercise of the Rights; provided, however, that, upon
the subsequent occurrence of any merger, consolidation, sale of all or
substantially all of the assets, recapitalization, reclassification of
shares, reorganization or other extraordinary transaction in respect of
such Principal party, each holder of a Right shall thereupon be entitled to
receive, upon exercise of a Right and payment of the Exercise Price, such
cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had it, at the time of such
48
transaction, owned the shares of Common Stock of the Principal Party
purchasable upon the exercise of a Right, and such Principal Party shall
take such steps (including, but not limited to, reservation of shares of
stock) as may be necessary to permit the subsequent exercise of the Rights
in accordance with the terms hereof for such cash, shares, rights, warrants and
other property and (v) the provisions of section 11(a)(ii) hereof shall
be of no effect following the occurrence of any event described in clause
(x), (y) or (z) above of this Section 13(a).
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (x) or (y) of
the first sentence of Section 13(a) hereof: (A) the Person that is the
issuer of the securities into which shares of Common Stock of the Company
are changed or otherwise exchanged or converted in such merger or
consolidation, or, if there is more than one such issuer, the issuer of the
Common Stock of which has the greatest market value or (B) if no securities
are so issued, (x) the Person that is the other party to the merger or
consolidation and that survives such merger or consolidation, or, if there
is more than one such Person, the Person the Common Stock of which has the
greatest market value or (y) if the Person that is the other party to the
49
merger or consolidation does not survive the merger or consolidation, the
Person that does survive the merger or consolidation (including the Company
if it survives); and
(ii) in the case of any transaction described in (z) of the
first sentence in Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets or
earning power so transferred or if the Person receiving the greatest
portion of the assets or earning power cannot be determined, whichever of
such Persons as is the issuer of Common Stock having the greatest market
value of shares outstanding; provided, however, that in any such case, if
the Common Stock of such Person is not at such time and has not been
continuously over the preceding 12-month period registered under Section 12
of the Exchange Act, and such Person is a direct or indirect Subsidiary of
another Person the Common Stock of which is and has been so registered, the
term "Principal Party" shall refer to such other Person, or if such Person
is a Subsidiary, directly or indirectly, of more than one Person, the Common
Stocks of all of which are and have been so registered, the term
"Principal Party" shall refer
50
to whichever of such Persons is the issuer of the Common Stock having the
greatest market value of shares outstanding.
(c) The Company shall not consummate any consolidation, merger or
sale or transfer of assets or earning power referred to in Section 13(a)
unless the Principal Party shall have a sufficient number of authorized
shares of its Common Stock that have not been issued or reserved for
issuance to permit exercise in full of all Rights in accordance with this
Section 13 and unless prior thereto the Company and the Principal Party
involved therein shall have executed and delivered to the Rights Agent an
agreement confirming that the Principal Party shall, upon consummation of
such consolidation, merger or sale or transfer of assets or earning power,
assume this Rights Agreement in accordance with Section 13(a) hereof and
that all rights of first refusal or preemptive rights in respect of the
issuance of shares of Common Stock of the Principal Party upon exercise of
outstanding Rights have been waived and that such transaction shall not
result in a default by the Principal Party under this Rights Agreement, and
further providing that, as soon as practicable after the date of any
consolidation, merger or sale or transfer of assets or
51
earning power referred to in Section 13(a) hereof, the Principal Party
will:
(i) prepare and file a registration statement under the Act
with respect to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, use its best efforts
to cause such registration statement to become effective as soon as
practicable after such filing and use its best efforts to cause such
registration statement to remain effective (with a prospectus at all
times meeting the requirements of the Act) until the date of
expiration of the Rights, and similarly comply with applicable state
securities laws;
(ii) use its best efforts to list (or continue the listing
of) the Rights and the securities purchasable upon exercise of the
Rights on a national securities exchange or to meet the eligibility
requirements for quotation on NASDAQ; and
(iii) deliver to holders of the Rights historical financial
statements for the Principal Party which comply in all respects with
the requirements for registration on Form 10 (or any
52
successor form) under the Exchange Act. In the event that any of the
transactions described in Section 13(a) hereof shall occur at any
time after the occurrence of a transaction described in Section
11(a)(ii) hereof, the Rights which have not theretofore been
exercised shall, subject to the provisions of Section 7(e) hereof,
thereafter be exercisable in the manner described in Section 13(a)
shall, subject to the provisions of Section 7(e) hereof, thereafter
be exercisable in the manner described in Section 13(a).
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any of its
authorized securities or in its Certificate of Incorporation or By-laws or
other instrument governing its corporate affairs, which provision would
have the effect of (i) causing such Principal Party to issue, in connection
with, or as a consequence of, the consummation of a transaction referred to
in this Section 13, shares of Common Stock of such Principal Party at less
than the then Fair Market Value per share (determined pursuant to Section
11(b) hereof) or securities exercisable for, or convertible into, Common
Stock of such Principal Party at less than such then Fair Market Value
(other than to holders of Rights
53
pursuant to this Section 13 or (ii) providing for any special tax or
similar payment in connection with the issuance to any holder of a Right of
Common Stock of such Principal Party pursuant to the provisions of this
Section 13, then, in such event, the Company shall not consummate any such
transaction unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing that the provision in question of such Principal Party shall have
been canceled, waived or amended, or that the authorized securities shall
be redeemed, so that the applicable provision will have no effect in connection
with, or as a consequence of, the consummation of the proposed
transaction.
Section 14. 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
(i.e., Rights to acquire less than one one-hundredth of a share of
Preferred Stock), unless such fractional Rights result from a transaction
referred to in Section 11(a)(i) hereof. If the Company shall determine not
to issue such fractional Rights, then, in lieu of such fractional Rights,
there shall be paid to
54
the holders of record 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 Fair Market Value of a whole Right.
(b) The Company shall not be required to issue fractions of shares
of Preferred Stock (other than fractions which are integral multiples of
one-hundredth of a share) upon exercise of the Rights or to distribute
certificates which evidence fractional shares (other than fractions which
are integral multiples of one-hundredth of a share). In lieu of issuing
fractions of shares of Preferred Stock, the Company may, at its election,
issue depositary receipts evidencing fractions of shares pursuant to an
appropriate agreement between the Company and a depositary selected by it,
provided that such agreement shall provide that the holders of such
depositary receipts shall have all of the rights, privileges and
preferences to which they would be entitled as owners of the Preferred
Stock. With respect to fractional shares that are not integral multiples
of one-hundredth of a share, if the Company does not issue such fractional
shares or depositary receipts in lieu thereof, there shall be paid to the
holders of record of Right Certificates at the time such Right Certificates
are exercised as herein provided an amount in cash equal to the
55
same fraction of the Fair Market Value of a share of Preferred Stock.
(c) The holder of a Right by the acceptance of a Right expressly
waives his right to receive any fractional Right or any fractional shares
of Preferred Stock (other than fractions which are integral multiples of
one one-hundredth of a share) upon exercise of a Right.
Section 15. Rights of Action. All rights of action in respect
of this Rights Agreement, except the rights of action given to the Rights
Agent in Section 18 hereof, are vested in the respective registered holders
of the Right Certificates (and, prior to the Distribution Date, the holders
of record of the Common Stock); and any holder of record of any Right
Certificate (or, prior to the Distribution Date, of the Common Stock),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Stock), may,
in 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 Certificate and
in this Rights Agreement. Without limiting the foregoing or any remedies
56
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 will be entitled to specific
performance of the obligations under, and injunctive relief against actual
or threatened violations of, the obligations of any Person subject to this
Rights Agreement.
Section 16. Agreement of Right Holders. Each holder of a Right,
by accepting the same, consents and agrees with the Company and the Rights
Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be evidenced
by the certificates for Common Stock registered in the name of the holders
of Common Stock (together, as applicable, with the Summary of Rights),
which certificates for Common Stock shall also constitute certificates for
Rights, and not by separate Right Certificates, and each Right shall be
transferable only simultaneously and together with the transfer of shares
of Common Stock;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office of the Rights Agent designated for such purpose, duly
57
endorsed or accompanied by a proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the Distribution
Date, the associated Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Right Certificates or the
associated Common Stock certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company
nor the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Right Certificate shall be entitled to vote,
receive dividends or be deemed for any purpose the holder of Preferred
Stock or any other securities 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 stockholder of
the Company or any right to vote for the election of directors or upon any
matter submitted to stockholders at any meeting thereof
58
(except as provided in Section 7(f) hereof), or to give or withhold consent
to any corporate action (except as provided in Section 7(f) hereof), or to
receive notice of meetings or other actions affecting stockholders (except
as provided in Section 24 hereof), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by such Right
Certificate shall have been exercised in accordance with the provisions
hereof.
Section 18. 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 willful misconduct on the part of
the Rights Agent, for anything done or omitted to be done by the Rights
Agent in connection with the acceptance and administration of this Rights
Agreement, including the cost and expenses of defending against any claim
of liability relating to the Rights or this Rights Agreement.
59
(b) The Rights Agent shall be protected against, 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 Preferred
Stock or for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
Section 19. Merger or Consolidation of, or Change in Name of,
the 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 corporate trust or stock transfer 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
60
that such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 21 hereof. In case at the
time such successor Rights Agent shall succeed to the agency created by
this Rights Agreement any of the Rights 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; 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; in all such
cases such
61
Right Certificates shall have the full force provided in the Right
Certificates and in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes
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 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 the Chairman
of the Board, the President or any Vice President and by the Treasurer or
the Secretary of the Company and delivered to the Rights Agent. Any such
certificate shall be full authorization to the
62
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.
(c) The Rights Agent shall be liable hereunder only for its own
gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Rights Agreement or
in the Right Certificates (except its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be 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
63
adjustment or the ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after receipt of a certificate describing
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 shares of Preferred Stock to be issued pursuant to this Rights
Agreement or any Right Certificate or as to whether any shares of Preferred
Stock will, when issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the President or any Vice President or the
Secretary or the Treasurer of the Company, and to apply to such officers
for advice or instructions in connection with its
64
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.
(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.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be
65
discharged from its duties under this Rights Agreement upon 30 days' notice
in writing mailed to the Company and to each transfer agent of the Common
Stock and the Preferred Stock by registered or certified mail. The Company
may remove the Rights Agent or any successor Rights Agent (with or without
cause) upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of
the Common Stock and the Preferred Stock by registered or certified 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. Notwithstanding the foregoing provisions of this Section 21, in no
event shall the resignation or removal of a Rights Agent be effective until
a successor Rights Agent shall have been appointed and have accepted such
appointment. If the Company shall fail to make such appointment within a
period of 30 days after 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 incumbent Rights Agent or the holder of record of any Right Certificate
may apply to any court of competent jurisdiction for the appointment of
66
a new Rights Agent. Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be (a) a corporation organized and doing
business under the laws of the United States or of any state thereof, in
good standing, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or examination
in the conduct of its corporate trust or stock transfer business by federal
or state authorities and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $5,000,000 or (b) an
Affiliate controlled by a corporation described in clause (a) of this
sentence. 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 Stock and Preferred Stock, and
mail a notice thereof in writing to the registered holders of the Right
67
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity
of the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be. Notwithstanding the foregoing
provisions, in the event of resignation, removal or incapacity of the
Rights Agent, the Company shall have the authority to act as the Rights
Agent until a successor Rights Agent shall have assumed the duties of the
Rights Agent hereunder.
Section 22. 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 in the Exercise Price per share and the
number or kind or class of shares of stock or other securities or property
purchasable under the Right Certificates made in accordance with the
provisions of this Rights Agreement.
Section 23. Redemption.
(a) The Company may, at its option, but only by the vote of a
majority of the Board of Directors, redeem all but not less than all of the
then outstanding Rights, at any time prior to the Close of Business on the
earlier of (i) the tenth day following the Stock Acquisition Date (subject
to extension by the Company as provided in Section 26 hereof) or (ii) the
68
Final Expiration Date, at a redemption price of $.01 per Right, subject to
adjustments as provided in subsection (c) below (the "Redemption Price");
provided, however, that from and after the time that any person shall
become an Acquiring Person (other than pursuant to a Qualifying Tender
Offer), the Company may redeem the Rights only if at the time of the action
of the Board of Directors there are then in office not less than two
Continuing Directors and such redemption is approved by a majority of the
Continuing Directors then in office. Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be exercisable
pursuant to Section 11(a)(ii) prior to the expiration of the Company's
right of redemption hereunder.
(b) Without any further action and without any notice, the right
to exercise the Rights will terminate at the effective time of the action
of the Board of Directors ordering the redemption of the Rights and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price. Within 10 days after the effective time of the action of
the Board of Directors ordering the
69
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 Stock. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each notice of redemption will state the
method by which the payment of the Redemption Price will be made. At the
option of the Board of Directors, the Redemption Price may be paid in cash
to each Rights holder or by the issuance of shares (and, at the Company's
election pursuant to Section 14(b) hereof, cash or depositary receipts in
lieu of fractions of shares other than fractions which are integral
multiples of one one-hundredth (1/100) of a share) of Preferred Stock
having a Fair Market Value equal to such cash payment.
(c) In the event the Company shall at any time after the date of
this Rights Agreement (A) pay any dividend on Common Stock in shares of Common
Stock, (B) subdivide or split the outstanding shares of Common Stock
into a greater number of shares or (C) combine or consolidate the
outstanding shares of Common Stock into a smaller number of
70
shares or effect a reverse split of the outstanding shares of Common Stock,
then, and in each such event, the Redemption Price shall be adjusted so
that the Redemption Price after such event shall equal the Redemption Price
immediately prior to such event multiplied by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common
Stock outstanding immediately prior to such event; provided, however, that
in each case such adjustment to the Redemption Price shall be made only if
the amount of the Redemption Price shall be reduced or increased by $.01
per Right.
Section 24. Notice of Proposed Actions.
(a) In case the company, after the Distribution Date, shall
propose (i) to effect any of the transactions referred to in Section 11(a)(i)
or 11(g) or (ii) to offer to the holders of record of its Common
Stock options, warrants, or other rights to subscribe for or to purchase
shares of Common Stock (including any security convertible into or
exchangeable for Common Stock) or shares of stock of any class or any other
securities, options, warrants, convertible or exchangeable securities or
other rights, or (iii) to effect any reclassification of its Preferred
Stock or Common Stock or any recapitalization or reorganization of
71
the Company, or (iv) to effect any consolidation or merger with or into, or
to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any other Person or
Persons, or (v) to effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give to each holder of
record of a Right Certificate, in accordance with Section 25, notice of
such proposed action, which shall specify the record date for the purposes
of such transaction referred to in Section 11(a)(i) or such dividend or
distribution, or the date on which such reclassification, recapitalization,
reorganization, consolidation, merger, sale or transfer of assets,
liquidation, dissolution, or winding up is to take place and the record
date for determining participation therein by the holders of record of Common
Stock or Preferred Stock, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by clause (i) or
(ii) above at least 10 days prior to the record date for determining
holders of record of the Preferred Stock for purposes of such action, and
in the case of any such other action, at least 10 days prior to the date of
the taking of
72
such proposed action or the date of participation therein by the holders of
record of Common Stock or Preferred Stock, whichever shall be the earlier.
The failure to give notice required by this Section 24 or any defect
therein shall not affect the legality or validity of the action taken by
the Company or the vote upon any such action.
(b) In case any of the transactions referred to in Section 11(a)(i),
11(g) or 13 of this Rights Agreement are proposed, then, in any
such case, the Company shall give to each holder of Rights, in accordance
with Section 25 hereof, notice of the proposal of such transaction at least
10 days prior to consummating such transaction, which notice shall specify
the proposed event and the consequences of the event to holders of Rights
under Section 11(a)(i), 11(g) or 13 hereof, as the case may be, and, upon
consummating such transaction, shall similarly give notice thereof to each
holder of rights.
Section 25. Notices. Notices or demand authorized by this
Rights Agreement to be given or made by the Rights Agent or by the holder
of record of any Right Certificate or Right 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;
73
Minerals Technologies Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand authorized by
this Rights Agreement to be given or made by the Company or by the holder
of record of any Right Certificate or Right to or on the Rights Agent shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Equity Administration
Notices or demands authorized by this Rights Agreement to be given or made
by the Company or the Rights Agent to the holder of record of any Right
Certificate or Right shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 26. Supplements and Amendments. For as long as the
Rights are then redeemable and except as provided in the last sentence of
this Section 26, the Company may in its sole and absolute discretion, and
the Rights Agent shall if the Company so directs, supplement or amend any
provision of this Agreement without the approval
74
of any holders of the Rights. At any time when the Rights are not then
redeemable and except as provided in the last sentence of this Section 26,
the Company may, and the Rights Agent shall if the Company so directs,
supplement or amend this Rights Agreement without the approval of any
holders of Rights Certificates (i) to cure any ambiguity, (ii) to correct
or supplement any provision contained herein which may be defective or
inconsistent with any other provisions herein or (iii) to change or
supplement the provisions hereunder in any manner which the company may
deem necessary or desirable, provided that no such supplement or amendment
pursuant to this clause (iii) shall materially adversely affect the
interest of the holders of Right Certificates. Upon the delivery of a
certificate from an appropriate officer of the Company which states that
the proposed supplement or amendment is in compliance with the terms of
this Section 26, the Rights Agent shall execute such supplement or
amendment. This Agreement may be amended or supplemented at any time with
the approval of a majority of the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Stock).
Notwithstanding anything contained in this Rights Agreement to the
contrary, no supplement or amendment shall be made which changes the
Redemption Price or the Final Expiration
75
Date and supplements or amendments may be made after the time that any
Person becomes an Acquiring Person (other than pursuant to a Qualifying
Tender Offer) only if at the time of the action of the Board of Directors
approving such supplement or amendment thee are then in office not less
than two Continuing Directors and such supplement or amendment is approved
by a majority of the Continuing Directors then in office.
Section 27. Successors. All of 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 28. Benefits of this Rights Agreement. Nothing in this
Rights Agreement shall be construed to give to any person or corporation
other than the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the holders of Common
Stock in their capacity as holders of the Rights) 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 holders of record of the Right
Certificates (and, prior to the Distribution Date, the holders of Common
Stock in their capacity as holders of the Rights).
76
Section 29. Delaware Contract. This Rights Agreement and each
Right Certificate issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes shall be
governed by and construed and enforced in accordance with the laws of such
state applicable to contracts to be made and performed entirely within such
state; provided, however, that Sections 18, 19, 20 and 21 of this Rights
Agreement shall be deemed to be a contract made under the laws of the State
of new York and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts made and to
be performed entirely within such State.
Section 30. 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 31. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 32. Severability. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other
77
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.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
Agreement to be duly executed, all as of the day and year first above
written.
MINERALS TECHNOLOGIES INC.
Attest:_________________________ By:______________________________
(SEAL) Name:
Title:
CHEMICAL BANK
By:______________________________
Name:
Title:
Attest:__________________________
(SEAL)
78
