EXHIBIT 4.4
--------------------------------------------------------------------------------
TRITON ENERGY LIMITED
and
CHEMICAL BANK,
as Rights Agent
Rights Agreement
Dated as of ________ __, 1996
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
Section 1. Certain Definitions........................................ 2
Section 2. Appointment of Rights Agent................................ 9
Section 3. Issue of Right Certificates................................ 9
Section 4. Form of Right Certificates................................. 12
Section 5. Countersignature and Registration.......................... 13
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates............................................... 14
Section 7. Exercise of Rights, Purchase Price; Expiration Date of Rights 16
Section 8. Cancellation and Destruction of Right Certificates......... 19
Section 9. Availability of Shares of Preference Shares................ 19
Section 10. Preference Share Record Date............................... 22
Section 11. Adjustment of Purchase Price, Number of Shares and Number of
Rights..................................................... 23
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. 42
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earnings
Power...................................................... 42
Section 14. Fractional Rights and Fractional Shares.................... 50
Section 15. Rights of Action........................................... 52
Section 16. Agreement of Right Holders................................. 53
Section 17. Right Certificate Holder Not Deemed a Shareholder.......... 54
Section 18. Concerning the Rights Agent................................ 55
Section 19. Merger or Consolidation or Change of Name of Rights Agent.. 56
Section 20. Duties of Rights Agent..................................... 57
Section 21. Change of Rights Agent..................................... 61
- i -
Section 22. Issuance of New Right Certificates......................... 63
Section 23. Redemption................................................. 64
Section 24. Exchange................................................... 65
Section 25. Notice of Certain Events................................... 68
Section 26. Notices.................................................... 69
Section 27. Supplements and Amendments................................. 70
Section 28. Successors................................................. 71
Section 29. Benefits of this Agreement................................. 72
Section 30. Severability............................................... 72
Section 31. Governing Law.............................................. 72
Section 32. Counterparts............................................... 72
Section 33. Descriptive Headings....................................... 73
Section 33. Descriptive Headings....................................... 73
- ii -
RIGHTS AGREEMENT
Agreement, dated as of ________ __, 1996, between Triton Energy
Limited, a company organized under the laws of the Cayman Islands (the
"Company"), and Chemical Bank, a national banking association (the "Rights
Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each share of
Class A Common Stock, Class B Common Stock and Class C Common Stock (as such
terms are hereinafter defined) of the Company outstanding as of the close of
business (as defined below) on March __, 1996 (the "Record Date"), each Right
representing the right to purchase one one-thousandth (subject to adjustment) of
a Preference Share (as hereinafter defined), upon the terms and subject to the
conditions herein set forth, and has further authorized and directed the
issuance of one Right (subject to adjustment as provided herein) with respect to
each Ordinary Share (as defined below) that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the Redemption Date and
the Final Expiration Date (as such terms are hereinafter defined); PROVIDED,
HOWEVER, that Rights may be issued with respect to Ordinary Shares that
shall become outstanding after the Distribution Date and prior to the Redemption
Date and the Final Expiration Date in accordance with Section 22.
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
2
Section 1. CERTAIN DEFINITIONS. For purposes of this Agreement,
the following terms have the meaning indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which shall be the Beneficial Owner (as such
term is hereinafter defined) of a number of Ordinary Shares (as such term
is hereinafter defined) equal to 15% or more of the number of Ordinary
Shares (as such term is hereinafter defined) then outstanding, but shall
not include an Exempt Person (as such term is hereinafter defined);
PROVIDED, HOWEVER, that if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an
"Acquiring Person" has become such inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially owned
a number of Ordinary Shares that would otherwise cause such Person to be a
"Acquiring Person" or (ii) such Person was aware of the extent of its
Beneficial Ownership of Ordinary Shares but had no actual knowledge of the
consequences of such Beneficial Ownership under this Rights Agreement) and
without any intention of changing or influencing control of the Company,
and such Person, as promptly as practicable after being advised of such
determination, divests himself or itself of Beneficial Ownership of a
sufficient number of Ordinary Shares so that such Person would no longer
be an Acquiring Person, then such Person shall not be deemed to be or to
have become an "Acquiring Person" for any purposes of this Agreement.
3
Notwithstanding the foregoing, (i) if a Person would be deemed an
Acquiring Person upon the adoption of this Agreement, such Person will not
be deemed an Acquiring Person for any purposes of this Agreement unless
and until such Person acquires Beneficial Ownership of any additional
Ordinary Shares after the adoption of this Agreement unless upon the
consummation of the acquisition of such additional Ordinary Shares such
Person does not beneficially own a number of Ordinary Shares equal to 15%
or more of the number of Ordinary Shares then outstanding and (ii) no
Person shall become an "Acquiring Person" as the result of an acquisition
of Ordinary Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of Ordinary Shares
beneficially owned by such Person to 15% or more of the number of Ordinary
Shares then outstanding, PROVIDED, HOWEVER, that if a Person shall
become the Beneficial Owner of a number of Ordinary Shares equal to 15% or
more of the number of Ordinary Shares then outstanding by reason of such
share acquisitions by the Company and thereafter become the Beneficial
Owner of any additional Ordinary Shares, then such Person shall be deemed
to be an "Acquiring Person" unless upon the consummation of the
acquisition of such additional Ordinary Shares such Person does not
beneficially own a number of Ordinary Shares equal to 15% or more of the
number of Ordinary Shares then outstanding. The phrase "then
outstanding", when used with reference to a Person's Beneficial Ownership
of securities
4
of the Company, shall mean the number of such securities then issued and
outstanding together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to beneficially
own hereunder.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations
under the U.S. Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as in effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of, shall be
deemed to have "Beneficial Ownership" of and shall be deemed to
"beneficially own" any securities:
(i) which such Person or any of such Person's Affiliates or
Associates is deemed to beneficially own, directly or indirectly
within the meaning of Rule 13d-3 of the General Rules and
Regulations under the Exchange Act as in effect on the date of this
Agreement;
(ii) which such Person or any of such Person's Affiliates or
Associates has (a) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights, warrants
or options, or otherwise; PROVIDED, HOWEVER, that a Person
5
shall not be deemed the Beneficial Owner of, or to beneficially own,
(x) securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase,
(y) securities which such Person has a right to acquire on the
exercise of Rights at any time prior to the time a Person becomes an
Acquiring Person or (z) securities issuable upon exercise of Rights
from and after the time a Person becomes an Acquiring Person if such
Rights were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or pursuant
to Section 3(a) or Section 22 hereof ("original Rights") or pursuant
to Section 11(i) or Section 11(n) with respect to an adjustment to
original Rights; or (b) the right to vote pursuant to any agreement,
arrangement or understanding; PROVIDED, HOWEVER, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially own,
any security by reason of such agreement, arrangement or
understanding if the agreement, arrangement or understanding to vote
such security (1) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the
applicable rules and regulations promulgated under the Exchange Act
and (2) is not also
6
then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(b)) or disposing of any securities of the Company.
(d) "Business Day" shall mean any day other than a Saturday, a
Sunday, or a day on which banking institutions in the State of New York,
U.S.A. or the State in the U.S.A. in which the principal office of the
Rights Agent is located, are authorized or obligated by law or executive
order to close.
(e) "Class A Ordinary Shares" shall mean the Class A Ordinary
Shares, par value $.01 per share, of the Company.
(f) "Class B Ordinary Shares" shall mean the Class B Ordinary
Shares, par value $.01 per share, of the Company.
(g) "Class C Ordinary Shares" shall mean the Class C Ordinary
Shares, par value $.01 per share, of the Company.
(h) "close of business" on any given date shall mean 5:00 P.M.,
New York City time, on such date; PROVIDED, HOWEVER, that if such date
is not a Business Day it shall
7
mean 5:00 P.M., New York City time, on the next succeeding Business Day.
(i) "Distribution Date" shall have the meaning set forth in
Section 3 hereof.
(i) "Equity Unit" shall mean the unit consisting, at the date of
the adoption of the Articles of Association of the Company, of one-tenth
of one share of Participating Preferred Stock, par value $.01 per share,
of Triton Energy Corporation and one Class B Ordinary Share, as the same
may be adjusted from time to time.
(j) "Exempt Person" shall mean the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or any entity or
trustee holding Ordinary Shares for or pursuant to the terms of any such
plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the
(k) "Final Expiration Date" shall have the meaning set forth in
Section 7 hereof.
(l) "New York Stock Exchange" shall mean the stock market operated
by the New York Stock Exchange, Inc.
(m) "Ordinary Shares" when used with reference to the Company
shall mean the Class A Ordinary Shares, the Class B Ordinary Shares and
the Class C Ordinary Shares. "Ordinary Shares" when used with reference
to any Person other than the Company shall mean the share capital (or, in
the case of
8
an unincorporated entity, the equivalent equity interest) with the
greatest voting power of such other Person or, if such other Person is a
subsidiary of another Person, the Person or Persons which ultimately
control such first-mentioned Person.
(n) "Person" shall mean any individual, firm, corporation or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
(o) "Preference Shares" shall mean the Series A Junior
Participating Preference Shares, par value $.01 per share, of the Company
having the rights and preferences set forth in the resolutions
establishing such class of Preference Shares attached hereto as Exhibit A.
(p) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(q) "Securities Act" shall mean the U.S. Securities Act of 1933,
as amended.
(r) "Share Acquisition Date" shall mean the first date of public
announcement (which for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the
Exchange Act) by the Company or an Acquiring Person that an Acquiring
Person has become such or such earlier date as a majority of the Board of
Directors shall become aware of the existence of an Acquiring Person.
(s) "Subsidiary" of any Person shall mean any corporation or other
entity of which securities or other
9
ownership interests having ordinary 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,
and any corporation or other entity that is otherwise controlled by such
Person.
Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Ordinary Shares) 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. ISSUE OF RIGHT CERTIFICATES. (a) Until the earlier of
(i) the tenth day after the Share Acquisition Date or (ii) the tenth business
day (or such later date as may be determined by action of the Board of Directors
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 of the first
public announcement of the intention of such Person (other than an Exempt
Person) to commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of a number of Ordinary
Shares equal to 15% or more of the number of Ordinary Shares then outstanding
(including any such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earlier of such dates being herein referred to
as the
10
"Distribution Date"), (x) the Rights will be evidenced (subject to the
provisions of Section 3(b) hereof) by the certificates for Ordinary Shares
registered in the names of the holders thereof and not by separate Right
Certificates, and (y) the Rights will be transferable only in connection with
the transfer of the Ordinary Shares. 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, insured, postage-prepaid mail, to each
record holder of Ordinary Shares as of the close of business on the Distribution
Date (other than any Acquiring Person or any Associate or Affiliate of an
Acquiring Person), at the address of such holder shown on the records of the
Company, a Right Certificate, in substantially the form of Exhibit B hereto (a
"Right Certificate"), evidencing one Right (subject to adjustment as provided
herein) for each Ordinary Share so held. As of the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the
Company will send a copy of a Summary of Rights to Purchase Shares of Preferred
Stock, in substantially the form of Exhibit C hereto (the "Summary of Rights"),
by first-class, postage-prepaid mail, to each record holder of Ordinary Shares
as of the close of business on the Record Date (other than any Acquiring Person
or any Associate or Affiliate of any Acquiring Person), at the address of such
holder shown on the records of the Company. With respect to certificates for
Ordinary Shares
11
outstanding as of the Record Date, until the Distribution Date, the Rights will
be evidenced by such certificates registered in the names of the holders thereof
together with the Summary of Rights. Until the Distribution Date (or the
earlier of the Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Ordinary Shares outstanding on the Record Date,
with or without a copy of the Summary of Rights, shall also constitute the
transfer of the Rights associated with the Ordinary Shares represented thereby;
PROVIDED, that prior to the Distribution Date, upon the conversion of Class B
Ordinary Shares or Class C Ordinary Shares into shares of Class A Ordinary
Shares all Rights attached to the Class B Ordinary Shares or Class C Ordinary
Shares shall be deemed cancelled and retired by the Company.
(c) Certificates issued for Ordinary Shares (including, without
limitation, upon conversion, disposition of Ordinary Shares out of treasury
stock or issuance or reissuance of Ordinary Shares out of authorized but
unissued shares) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof to
certain rights as set forth in a Rights Agreement between Triton
Energy Limited and Chemical Bank, dated as of ________ __, 1996 as
the same may be amended from time to time (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of
Triton Energy Limited. Under certain
12
circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be
evidenced by this certificate. Triton Energy Limited will mail to
the holder of this certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor. UNDER
certain circumstances, as set forth in the Rights Agreement, Rights
owned by or transferred to any Person who becomes an Acquiring
Person (as defined in the Rights Agreement) and certain transferees
thereof will become null and void and will no longer be
transferable.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Ordinary Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate, except as otherwise provided
herein, shall also constitute the transfer of the Rights associated with the
Ordinary Shares represented thereby. In the event that the Company purchases or
otherwise acquires any Ordinary Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Ordinary Shares shall be
deemed cancelled and retired so that the Company shall not be entitled to
exercise any Rights associated with the Ordinary Shares which are no longer
outstanding. After Distribution Date, Ordinary Shares issued upon the
conversion of another class of Common Stock shall not have Right Certificates
attached thereto.
Notwithstanding this paragraph (c), the omission of a legend shall
not affect the enforceability of any part of this Agreement or the rights of any
holder of the Rights.
13
Section 4. FORM OF RIGHT CERTIFICATES. The Right Certificates
(and the forms of election to purchase shares and of assignment to be printed on
the reverse thereof) shall be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of the New York
Stock Exchange or of any other stock exchange or automated quotation system on
which the Rights may from time to time be listed, or to conform to usage.
Subject to the provisions of Sections 11, 13 and 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock as shall be set forth therein at
the price per one one-thousandth of a share of Preferred Stock set forth therein
(the "Purchase Price"), but the number of such one one-thousandths of a share of
Preferred Stock and the Purchase Price shall be subject to adjustment as
provided herein.
Section 5. COUNTERSIGNATURE AND REGISTRATION. (a) The Right
Certificates shall be executed on behalf of the
Company by the President, any of the Vice Presidents, the Treasurer or the
Controller of the Company, either manually or by facsimile signature, shall have
affixed thereto the Company's seal or a facsimile thereof, and shall be attested
by the
14
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually countersigned by
the Rights Agent and shall not be valid for any purpose unless countersigned.
In case any officer of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the Person who signed such Right Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf of the Company
by any Person who, at the actual date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such Right
Certificate, although at the date of the execution of this 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 an office or agency designated for such purpose, books for
registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATES; MUTILATED, DESTROYED, LOST OR
15
STOLEN RIGHT CERTIFICATES. (a) Subject to the provisions of Sections 7(e),
11(a)(ii) and 14 hereof, at any time after the close of business on the
Distribution Date, and prior to the close of business on the earlier of the
Redemption Date or the Final Expiration Date, any Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, entitling the registered holder to
purchase a like number of one one-thousandths of a Preference Share as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent, and shall surrender the Right Certificate
or Right Certificates to be transferred, split up, combined or exchanged at the
office or agency of the Rights Agent designated for such purpose. 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 tax or
governmental charge that may be imposed in connection with any transfer, split
up, combination or exchange of Right Certificates.
(b) Subject to the provisions of Section 11(a)(ii) hereof, at any
time after the Distribution Date and prior to the close of business on the
earlier of the Redemption Date or the Final Expiration Date, upon receipt by the
Company and the Rights
16
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, at
the Company's request, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will make
and deliver a new Right Certificate of like tenor to the Rights Agent for
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7. EXERCISE OF RIGHTS, PURCHASE PRICE; EXPIRATION DATE OF
Rights. (a) Except as otherwise provided herein, the Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder of
any Right Certificate may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced thereby in whole or in
part upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent at the
office or agency of the Rights Agent designated for such purpose, together with
payment of the Purchase Price for each one one-thousandth of a Preference Share
as to which the Rights are exercised, at any time which is both after the
Distribution Date and prior to the earliest of (i) the close of business on May
22, 2005 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption Date") or (iii)
17
the time at which such Rights are exchanged as provided in Section 24 hereof.
(b) The Purchase Price shall be initially $120 for each one
one-thousandth of a Preference Share purchasable upon the exercise of a Right.
The Purchase Price and the number of one one-thousandths of a Preference Share
or other securities or property 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
and shall be payable in lawful money of the United States of America in
accordance with paragraph (c) of this Section 7.
(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 of the aggregate Purchase Price
for the shares of Preferred Stock to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof, in cash or by certified check,
cashier's check or money order payable to the order of the Company, the Rights
Agent shall thereupon promptly (i) (a) requisition from any transfer agent of
the Preference Shares certificates for the number of Preference Shares to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or (b) requisition from the depositary agent
depositary receipts representing interests in such number of one one-thousandths
of a Preference Share as are to be purchased (in which case certificates for the
Preference Shares represented by such
18
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with such request,
(ii) when appropriate, requisition from the Company the amount of cash to be
paid in lieu of issuance of fractional shares in accordance with Section 14
hereof, (iii) promptly after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order of the registered
holder of such Right Certificate, registered in such name or names as may be
designated by such holder and (iv) when appropriate, after receipt, promptly
deliver such cash to or upon the order of the registered holder of such Right
Certificate.
(d) Except as otherwise provided herein, 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
exercisable Rights remaining unexercised shall be issued by the Rights Agent to
the registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder of Rights upon the occurrence of any
purported transfer or exercise of Rights pursuant to Section 6 hereof or this
Section 7 unless such registered holder shall have (i) completed and signed the
certificate contained in the form of assignment or election to purchase set
forth on the reverse side of the Rights
19
Certificate surrendered for such transfer or exercise and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) 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 for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all 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. AVAILABILITY OF SHARES OF PREFERENCE SHARES.
(a) The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued Preference Shares
or any Preference Shares held in its treasury, the number of Preference Shares
that will be sufficient to permit the exercise in full of all outstanding
Rights.
20
(b) So long as the Preference Shares (and, following the time that
a Person becomes an Acquiring Person, Class A Ordinary Shares and other
securities) issuable upon the exercise of Rights may be listed or admitted to
trading on the New York Stock Exchange or listed on any other national
securities exchange or quotation system, the Company shall use its best efforts
to cause, from and after such time as the Rights become exercisable, all shares
reserved for such issuance to be listed or admitted to trading on the New York
Stock Exchange or listed on any other exchange or quotation system upon official
notice of issuance upon such exercise.
(c) From and after such time as the Rights become exercisable, the
Company shall use its best efforts, if then necessary to permit the issuance of
Preference Shares (and following the time that a Person first becomes an
Acquiring Person, Class A Ordinary Shares and other securities) upon the
exercise of Rights, to register and qualify such Preference Shares (and
following the time that a Person first becomes an Acquiring Person, Class A
Ordinary Shares and other securities) under the Securities Act and any
applicable state securities or "Blue Sky" laws (to the extent exemptions
therefrom are not available), cause such registration statement and
qualifications to become effective as soon as possible after such filing and
keep such registration and qualifications effective until the earlier of the
date as of which the Rights are no longer exercisable for such securities and
the Final Expiration Date. The Company may temporarily suspend, for a period of
time not to
21
exceed 90 days, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. 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 Securities Act (if required) shall have been
declared effective.
(d) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preference Shares (and, following
the time that a Person becomes an Acquiring Person, Class A Ordinary Shares and
other securities) delivered upon exercise of Rights shall, at the time of
delivery of the certificates therefor (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable shares.
(e) The Company further covenants and agrees that it will pay when
due and payable any and all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery of the Right Certificates
or of any Preference Shares (or Class A Ordinary Shares or other securities)
upon the exercise of Rights. The Company shall not, however, be required to pay
any transfer tax which may be payable
22
in respect of any transfer or delivery of Right Certificates to a Person other
than, or the issuance or delivery of certificates or depositary receipts for the
Preference Shares (or Class A Ordinary Shares or other securities) in a name
other than that of, the registered holder of the Right Certificate evidencing
Rights surrendered for exercise or to issue or deliver any certificates or
depositary receipts for Preference Shares (or Class A Ordinary Shares or other
securities) upon the exercise of any Rights until any such tax shall have been
paid (any such tax being payable by that holder of such Right Certificate at the
time of surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. PREFERENCE SHARE RECORD DATE. Each Person in whose
name any certificate for Preference Shares is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
Preference Shares represented thereby on, and such certificate shall be dated,
the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable transfer
taxes) was made; PROVIDED, HOWEVER, that if the date of such surrender and
payment is a date upon which the Preference Share transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which the Preference Share transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall
23
not be entitled to any rights of a holder of Preference Shares for which the
Rights shall be exercisable, including, without limitation, the right to vote or
to receive dividends or other distributions, and shall not be entitled to
receive any notice of any proceedings of the Company, except as provided herein.
Section 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER OF SHARES AND
NUMBER OF RIGHTS. The Purchase Price, the number of Preference Shares or other
securities or property purchasable upon exercise of each Right and the number of
Rights outstanding 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 Agreement (a) declare a dividend on the Preference Shares
payable in Preference Shares, (b) subdivide the outstanding
Preference Shares, (c) combine the outstanding Preference Shares
into a smaller number of Preference Shares or (d) issue any of its
share capital in a reclassification of the Preference Shares
(including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or
surviving corporation), except as otherwise provided in this Section
11(a), the Purchase Price in effect at the time of the record date
for such dividend or of the effective date of such subdivision,
combination or reclassification, and the number and kind of share
capital issuable on such date, shall be proportionately
24
adjusted so that the holder of any Right exercised after such time
shall be entitled to receive the aggregate number and kind of share
capital which, if such Right had been exercised immediately prior to
such date and at a time when the Preference Share transfer books of
the Company were open, the holder would have owned upon such
exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification; PROVIDED, HOWEVER,
that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
share capital of the Company issuable upon exercise of one Right.
(ii) Subject to Section 24 of this Agreement and except as
otherwise provided in this Section 11(a)(ii), in the event any
Person becomes an Acquiring Person, each holder of a Right shall
thereafter have the right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the
number of one one-thousandths of a Preference Share for which a
Right is then exercisable, in accordance with the terms of this
Agreement and in lieu of Preference Shares, such number of Class A
Ordinary Shares (or at the option of the Company, such number of one
one-thousandths of Preference Shares) as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the
number of one one-thousandths of
25
a Preference Share for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share
market price of the Company's Class A Ordinary Shares (determined
pursuant to Section 11(d) hereof) on the date of the occurrence of
such event; PROVIDED, HOWEVER, that the Purchase Price and the
number of Class A Ordinary Shares so receivable upon exercise of a
Right shall thereafter be subject to further adjustment as
appropriate in accordance with Section 11(f) hereof.
Notwithstanding anything in this Agreement to the contrary, however,
from and after the time (the "invalidation time") when any Person
first becomes an Acquiring Person, any Rights that are beneficially
owned by (x) any Acquiring Person (or any Affiliate or Associate of
any Acquiring Person), (y) a transferee of any Acquiring Person (or
any such Affiliate or Associate) who becomes a transferee after the
invalidation time or (z) a transferee of any Acquiring Person (or
any such Affiliate or Associate) who became a transferee prior to or
concurrently 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
26
purpose or effect of avoiding the provisions of this paragraph, and
subsequent transferees of such Persons, 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 Agreement. The Company shall use all reasonable efforts to
ensure that the provisions of this Section 11(a)(ii) are complied
with, but shall have no liability to any holder of Right
Certificates or other Person as a result of its failure to make any
determinations with respect to an Acquiring Person or its
Affiliates, Associates or transferees hereunder. From and after the
invalidation time, no Right Certificate shall be issued pursuant to
Section 3 or Section 6 hereof that represents Rights that are or
have become void pursuant to the provisions of this paragraph, and
any Right Certificate delivered to the Rights Agent that represents
Rights that are or have become void pursuant to the provisions of
this paragraph shall be cancelled. From and after the occurrence of
an event specified in Section 13(a) hereof, any Rights that
theretofore have not been exercised pursuant to this Section
11(a)(ii) shall thereafter be exercisable only in accordance with
Section 13 and not pursuant to this Section 11(a)(ii).
(iii) The Company may at its option substitute for a Class A
Ordinary Share issuable upon the exercise
27
of Rights in accordance with the foregoing subparagraph (ii) such
number or fractions of Preference Shares having an aggregate current
market value equal to the current per share market price of a Class
A Ordinary Share. In the event that there shall not be sufficient
Class A Ordinary Shares issued but not outstanding or authorized but
unissued to permit the exercise in full of the Rights in accordance
with the foregoing subparagraph (ii), the Board of Directors shall,
to the extent permitted by applicable law and any material
agreements then in effect to which the Company is a party (a)
determine the excess of (1) the value of the Class A Ordinary Shares
issuable upon the exercise of a Right in accordance with the
foregoing subparagraph (ii) (the "Current Value") over (2) the then
current Purchase Price multiplied by the number of one
one-thousandths of Preference Shares for which a Right was
exercisable immediately prior to the time that the Acquiring Person
became such (such excess, the "Spread"), and (b) with respect to
each Right (other than Rights which have become void pursuant to
Section 11(a)(ii)), make adequate provision to substitute for the
Class A Ordinary Shares issuable in accordance with subparagraph
(ii) upon exercise of the Right and payment of the applicable
Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3)
Preference Shares or other equity securities of the Company
28
(including, without limitation, shares or fractions of preference
shares which, by virtue of having dividend, voting and liquidation
rights substantially comparable to those of the Class A Ordinary
Shares, are deemed in good faith by the Board of Directors to have
substantially the same value as the Class A Ordinary Shares (such
preference shares and shares or fractions of preference shares are
hereinafter referred to as "Class A Ordinary Share equivalents"),
(4) debt securities of the Company, (5) other assets, or (6) any
combination of the foregoing, having a value which, when added to
the value of the Class A Ordinary Shares actually issued upon
exercise of such Right, shall have an aggregate value equal to the
Current Value (less the amount of any reduction in the Purchase
Price), where such aggregate value has been determined by the Board
of Directors upon the advice of a nationally recognized investment
banking firm selected in good faith by the Board of Directors;
PROVIDED, HOWEVER, if the Company shall not make adequate
provision to deliver value pursuant to clause (b) above within
thirty (30) days following the date that the Acquiring Person became
such (the "Section 11(a)(ii) Trigger Date"), then the Company shall
be obligated to deliver, to the extent permitted by applicable law
and any material agreements then in effect to which the Company is a
party, upon the surrender for exercise of a Right and without
29
requiring payment of the Purchase Price, Class A Ordinary Shares (to
the extent available), and then, if necessary, such number or
fractions of Preference Shares (to the extent available) and then,
if necessary, cash, which shares and/or cash have an aggregate value
equal to the Spread. If, upon the date any Person becomes an
Acquiring Person, the Board of Directors shall determine in good
faith that it is likely that sufficient additional Class A Ordinary
Shares could be authorized for issuance upon exercise in full of the
Rights, then, if the Board of Directors so elects, the thirty (30)
day period set forth above may be extended to the extent necessary,
but not more than ninety (90) days after the Section 11(a)(ii)
Trigger Date, in order that the Company may seek shareholder
approval for the authorization of such additional shares (such
thirty (30) day period, as it may be extended, is herein called the
"Substitution Period"). To the extent that the Company determines
that some action need be taken pursuant to the second and/or third
sentence of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof and the last sentence of this
Section 11(a)(iii) hereof, that such action shall apply uniformly to
all outstanding Rights and (y) may suspend the exercisability of the
Rights until the expiration of the Substitution Period in order to
seek any
30
authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to such second sentence and
to determine the value thereof. In the event of any such
suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the
suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of the Class A Ordinary Shares shall be the
current per share market price (as determined pursuant to Section
11(d)(i)) on the Section 11(a)(ii) Trigger Date and the per share or
fractional value of any "Class A Ordinary Share equivalent" shall be
deemed to equal the current per share market price of the Class A
Ordinary Shares. The Board of Directors of the Company may, but
shall not be required to, establish procedures to allocate the right
to receive Class A Ordinary Shares upon the exercise of the Rights
among holders of Rights pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Preference Shares
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase Preference Shares (or shares
having the same rights, privileges and preferences as the Preference
Shares ("equivalent preference shares")) or securities convertible
31
into Preference Shares or equivalent preference shares at a price per
Preference Share or equivalent preference shares (or having a conversion
price per share, if a security convertible into Preference Shares or
equivalent preference shares) less than the then current per share market
price of the Preference Shares (determined pursuant to Section 11(d)
hereof) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in
effect immediately prior to such record date by a fraction, the numerator
of which shall be the number of Preference Shares and equivalent
preference shares outstanding on such record date plus the number of
Preference Shares and equivalent preference shares which the aggregate
offering price of the total number of Preference Shares and/or equivalent
preference shares so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would
purchase at such current market price, and the denominator of which shall
be the number of Preference Shares and equivalent preference shares
outstanding on such record date plus the number of additional Preference
Shares and/or equivalent preference shares to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible); PROVIDED, HOWEVER, that in no event shall the
consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the share capital of the Company issuable upon
exercise of one
32
Right. In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined in good faith by the Board of
Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent. Preference Shares and equivalent
preference shares owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. Such
adjustment shall be made successively whenever such a record date is
fixed; and in the event that such rights, options or warrants are not so
issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of
a distribution to all holders of the Preference Shares (including any such
distribution made in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation) of evidences of
indebtedness or assets (other than a regular quarterly cash dividend or a
dividend payable in Preference Shares) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the Purchase Price
to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share
market price of the
33
Preference Shares (determined pursuant to Section 11(d) hereof) on such
record date, less the fair market value (as determined in good faith by
the Board of Directors of the Company whose determination shall be
described in a statement filed with the Rights Agent) of the portion of
the assets or evidences of indebtedness so to be distributed or of such
subscription rights or warrants applicable to one Preference Share, and
the denominator of which shall be such current per share market price
(determined pursuant to Section 11(d) hereof) of the Preference Shares;
PROVIDED, HOWEVER, that in no event shall the consideration to be paid
upon the exercise of one Right be less than the aggregate par value of the
share capital of the Company to be issued upon exercise of one Right.
Such adjustments shall be made successively whenever such a record date is
fixed; and in the event that such distribution is not so made, the
Purchase Price shall again be adjusted to be the Purchase Price which
would then be in effect if such record date had not been fixed.
(d) (i) Except as otherwise provided herein, for the purpose of any
computation hereunder, the "current per share market price" of any
security (a "Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as such term
is hereinafter defined) immediately prior to such date; PROVIDED,
HOWEVER, that in the event that the current per
34
share market price of the Security is determined during a period following
the announcement by the issuer of such Security of (a) a dividend or
distribution on such Security payable in shares of such Security or
securities convertible into such shares, or (b) any subdivision,
combination or reclassification of such Security, and prior to the
expiration of 30 Trading Days after the ex-dividend date for such dividend
or distribution, or the record date for such subdivision, combination or
reclassification, then, and in each such case, the current per share
market price shall be appropriately adjusted to reflect the current market
price per share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported by the principal consolidated
transaction reporting system with respect to securities listed or admitted
to trading on the New York Stock Exchange or, if the Security is not
listed or admitted to trading on the New York Stock Exchange, as reported
in the principal consolidated transaction reporting system with respect to
securities listed on the principal U.S. national securities exchange on
which the Security is listed or admitted to trading or, if the Security is
not listed or admitted to trading on any U.S. 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 or
35
such other system then in use, or, if on any such date the Security is not
quoted by any organization in the over-the-counter market, the average of
the closing bid and asked prices as furnished by a professional market
maker making a market in the 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 the Security is listed or
admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of any computation hereunder, if the
Preference Shares are publicly traded, the "current per share market
price" of the Preference Shares shall be determined in accordance with the
method set forth in Section 11(d)(i). If the Preference Shares are not
publicly traded but the Class A Ordinary Shares are publicly traded, the
"current per share market price" of the Preference Shares shall be
conclusively deemed to be the current per share market price of the Class
A Ordinary Shares as determined pursuant to Section 11(d)(i) multiplied by
one hundred (appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof). If
neither the Class A Ordinary Shares nor the Preference Shares are publicly
traded, "current per share market price" shall mean the fair value per
share as determined in good faith by the Board of Directors of the
36
Company, whose determination shall be described in a statement filed with
the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
the Purchase Price; PROVIDED, HOWEVER, that any adjustments which by
reason of this Section 11(e) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the nearest cent or to
the nearest one ten-thousandth of a Preference Share or Class A Ordinary
Share or other share or security as the case may be. Notwithstanding the
first sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three years from
the date of the transaction which requires such adjustment or (ii) the
date of the expiration of the right to exercise any Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to receive any share capital of the Company other than the Preference
Shares, thereafter the Purchase Price and the number of such other shares
so receivable upon exercise of a Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preference Shares contained in
Sections 11(a), 11(b), 11(c), 11(e), 11(h), 11(i) and 11(m) and the
37
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the
Preference Shares shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right
to purchase, at the adjusted Purchase Price, the number of one
one-thousandths of a Preference Share purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment
as provided herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i), upon each adjustment of the Purchase Price as a
result of the calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price,
that number of one one-thousandths of a Preference Share (calculated to
the nearest one ten- thousandth of a Preference Share) obtained by (i)
multiplying (x) the number of one one-thousandths of a share covered by a
Right immediately prior to such adjustment by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase Price and (ii)
dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of
38
Rights, in substitution for any adjustment in the number of one
one-thousandths of a Preference Share purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the number
of Rights shall be exercisable for the number of one one-thousandths of a
Preference Share for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment of
the number of Rights shall become that number of Rights (calculated to the
nearest one ten-thousandth) obtained by dividing the Purchase Price in
effect immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the Purchase
Price. The Company shall make a public announcement of its election to
adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be
made. This record date may be the date on which the Purchase Price is
adjusted or any day thereafter, but, if the Right Certificates have been
issued, shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section 11(i), the
Company may, as promptly as practicable, cause to be distributed to
holders of record of Right Certificates on such record date Right
Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result
39
of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for
the Right Certificates held by such holders prior to the date of
adjustment, and upon surrender thereof, if required by the Company, new
Right Certificates evidencing all the Rights to which such holders shall
be entitled after such adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner
provided for herein and shall be registered in the names of the holders of
record of Right Certificates on the record date specified in the public
announcement.
(j) Irrespective of any adjustment or change in the Purchase Price
or the number of one one-thousandths of a Preference Share issuable upon
the exercise of the Rights, the Right Certificates theretofore and
thereafter issued may continue to express the Purchase Price and the
number of one one-thousandths of a Preference Share which were expressed
in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment
reducing the Purchase Price below the then par value, if any, of the
Preference Shares or other share capital issuable upon exercise of the
Rights, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable
40
Preference Shares or other such shares at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for
a specified event, the Company may elect to defer until the occurrence of
such event the issuing to the holder of any Right exercised after such
record date of the Preference Shares and other share capital or securities
of the Company, if any, issuable upon such exercise over and above the
Preference Shares and other share capital or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in
effect prior to such adjustment; PROVIDED, HOWEVER, that the Company
shall deliver to such holder a due xxxx or other appropriate instrument
evidencing such holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it in its sole discretion shall determine to
be advisable in order that any consolidation or subdivision of the
Preference Shares, issuance wholly for cash of any Preference Shares at
less than the current market price, issuance wholly for cash or Preference
Shares or securities which by their terms are convertible into or
exchangeable
41
for Preference Shares, dividends on Preference Shares payable in
Preference Shares or issuance of rights, options or warrants referred to
hereinabove in Section 11(b), hereafter made by the Company to holders of
its Preference Shares shall not be taxable to such shareholders.
(n) Anything in this Agreement to the contrary notwithstanding, in
the event that at any time after the date of this Agreement and prior to
the Distribution Date, the Company shall (i) declare or pay any dividend
on the Ordinary Shares payable in Ordinary Shares or (ii) effect a
subdivision, combination or consolidation of Ordinary Shares (by
reclassification or otherwise than by payment of a dividend payable in
Ordinary Shares) into a greater or lesser number of Ordinary Shares, then
in any such case, the number of Rights associated with each Ordinary Share
then outstanding, or issued or delivered thereafter, shall be
proportionately adjusted so that the number of Rights thereafter
associated with each Ordinary Share following any such event shall equal
the result obtained by multiplying the number of Rights associated with
each Ordinary Share immediately prior to such event by a fraction the
numerator of which shall be the total number of Ordinary Shares
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of Ordinary Shares
outstanding immediately following the occurrence of such event.
42
(o) The Company agrees that, after the earlier of the Distribution
Date or the Stock Acquisition Date, it will not, except as permitted by
Sections 23, 24 or 27 hereof, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or eliminate the benefits
intended to be afforded by the Rights.
Section 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF
SHARES. Whenever an adjustment is made as provided in Section 11 or 13 hereof,
the Company shall promptly (a) prepare a certificate setting forth such
adjustment, and a brief statement of the facts accounting for such adjustment,
(b) file with the Rights Agent and with each transfer agent for the Ordinary
Shares or the Preference Shares a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Right Certificate in accordance with Section
25 hereof (if so required under Section 25 hereof). 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 such adjustment
unless and until it shall have received such certificate.
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNINGS POWER. (a) In the event, directly or indirectly, at any time after
any Person has become an Acquiring Person, (i) the Company shall merge with and
into any other Person, (ii) any Person shall consolidate with the Company, or
any Person shall merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger
43
and, in connection with such merger, all or part of the Ordinary Shares shall be
changed into or exchanged for shares or other securities of any other Person (or
of the Company) or cash or any other property, or (iii) the Company shall sell
or otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning power
aggregating 50% or more of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more of its wholly-owned Subsidiaries), then upon the first occurrence of
such event, proper provision shall be made so that: (a) each holder of record of
a Right (other than Rights which have become void pursuant to Section 11(a)(ii))
shall thereafter have the right to receive, upon the exercise thereof at a price
equal to the then current Purchase Price multiplied by the number of one
one-thousandths of a Preference Share for which a Right was exercisable (whether
or not such Right was then exercisable) immediately prior to the time that any
Person first became an Acquiring Person (each as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and 11(m)),
in accordance with the terms of this Agreement and in lieu of Preference Shares,
such number of validly issued, fully paid and non-assessable and freely
tradeable Ordinary Shares of the Principal Party (as defined herein) not subject
to any liens, encumbrances, rights of first refusal or other adverse claims, as
shall be equal to the result obtained by (1) multiplying the then current
Purchase Price by the number of one one-thousandths of a
44
Preference Share for which a Right was exercisable immediately prior to the time
that any Person first became an Acquiring Person (as subsequently adjusted
thereafter pursuant to Sections 11(a)(i), 11(b), 11(c), 11(h), 11(i) and 11(m))
and (2) dividing that product by 50% of the then current per share market price
of the Ordinary Shares of such Principal Party (determined pursuant to Section
11(d)(i) hereof) on the date of consummation of such consolidation, merger, sale
or transfer; PROVIDED that the Purchase Price and the number of Ordinary
Shares of such Principal Party issuable upon exercise of each Right shall be
further adjusted as provided in Section 11(f) of this Agreement to reflect any
events occurring in respect of such Principal Party after the date of the such
consolidation, merger, sale or transfer; (b) such 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 Agreement; (c) the term "Company" shall thereafter be deemed to refer to
such Principal Party; and (d) such Principal Party shall take such steps
(including, but not limited to, the reservation of a sufficient number of its
Ordinary Shares in accordance with Section 9 hereof) in connection with such
consummation of any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly as reasonably may
be, in relation to its Common Stock thereafter deliverable upon the exercise of
the Rights; provided that, upon the subsequent occurrence of any consolidation,
merger, sale or transfer of
45
assets 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 Purchase Price as provided in this Section 13(a),
such cash, shares, rights, warrants and other property which such holder would
have been entitled to receive had such holder, at the time of such transaction,
owned the Ordinary Shares of the Principal Party receivable upon the exercise of
a Right pursuant to this Section 13(a), 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.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (i) or (ii)
of the first sentence of Section 13(a) hereof: (a) the Person that is the
issuer of the securities into which the Ordinary Shares are converted in
such merger or consolidation, or, if there is more than one such issuer,
the issuer the Ordinary Shares of which have the greatest aggregate market
value of shares outstanding, or (b) if no securities are so issued, (x)
the Person that is the other party to the merger, if such Person survives
said merger, or, if there is more than one such Person, the Person the
Ordinary Shares of which have the greatest aggregate market value of
shares outstanding or (y) if the Person that is the other party to the
merger does not survive the merger, the
46
Person that does survive the merger (including the Company if it survives)
or (z) the Person resulting from the consolidation; and
(ii) in the case of any transaction described in (iii) of the
first sentence in Section 13(a) hereof, 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 Ordinary Shares having the
greatest aggregate market value of shares outstanding;
provided, however, that in any such case described in the foregoing clause
(b)(i) or (b)(ii), if the Ordinary Shares of such Person is not at such time or
has not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Ordinary Shares of which is and has been so
registered, the term "Principal Party" shall refer to such other Person, or (2)
if such Person is a Subsidiary, directly or indirectly, of more than one Person
and the Ordinary Shares of all of such Persons have been so registered, the term
"Principal Party" shall refer to whichever of such Persons is the issuer of
Ordinary Shares having the greatest aggregate market value of shares
outstanding, or (3) if such Person is owned,
47
directly or indirectly, by a joint venture formed by two or more Persons that
are not owned, directly or indirectly, by the same Person, the rules set forth
in clauses (1) and (2) above shall apply to each of the owners having an
interest in the venture as if the Person owned by the joint venture was a
Subsidiary of both or all of such joint venturers, and the Principal Party in
each such case shall bear the obligations set forth in this Section 13 in the
same ratio as its interest in such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) hereof 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 requirements of
Sections 13(a) and (b) hereof shall promptly be performed in accordance with
their terms and that such consolidation, merger, sale or transfer of assets
shall not result in a default by the Principal Party under this Agreement as the
same shall have been assumed by the Principal Party pursuant to Sections 13(a)
and (b) hereof and providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the
Securities Act, if necessary, 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
48
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 Securities Act) until the Final Expiration
Date, and similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Ordinary Shares of the
Principal Party shall be listed or admitted to trading on the New York
Stock Exchange or on another national securities exchange, to list or
admit to trading (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on the New York Stock
Exchange or such securities exchange, or, if the Ordinary Shares of the
Principal Party shall not be listed or admitted to trading on the New York
Stock Exchange or a national securities exchange, to cause the Rights and
the securities receivable upon exercise of the Rights to be reported by
such other system then in use;
(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 successor form) under the
Exchange Act; and
(iv) obtain waivers of any rights of first refusal or
preemptive rights in respect of the Ordinary Shares of the Principal Party
subject to purchase upon exercise of outstanding Rights.
(d) In case the Principal Party has provision in any of its
authorized securities or in its certificate of
49
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 (other than to holders of Rights pursuant to this Section 13), in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, Ordinary Shares of such Principal Party at less
than the then current market price per share thereof (determined pursuant to
Section 11(d) hereof) or securities exercisable for, or convertible into,
Ordinary Shares of such Principal Party at less than such then current market
price, or (ii) providing for any special payment, tax or similar provision in
connection with the issuance of the Ordinary Shares of such Principal Party
pursuant to the provisions of Section 13, then, in such event, the Company
hereby agrees with each holder of Rights that it 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
cancelled, 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.
(e) The Company covenants and agrees that it shall not, at any
time after a Person first becomes an Acquiring Person, enter into any
transaction of the type contemplated by (i) - (iii) of Section 13(a) hereof if
(x) at the time of or immediately after such consolidation, merger, sale,
transfer or
50
other transaction there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be afforded by the
Rights, (y) prior to, simultaneously with or immediately after such
consolidation, merger, sale, transfer of other transaction, the stockholders of
the Person who constitutes, or would constitute, the Principal Party for
purposes of Section 13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates or Associates or (z)
the form or nature of organization of the Principal Party would preclude or
limit the exercisability of the Rights.
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. In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For the purposes of this Section 14(a), the current market value of a
whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price for any day shall be the last sale price,
regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the
principal
51
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal U.S. national securities exchange on which the Rights
are listed or admitted to trading or, if the Rights are not listed or admitted
to trading on any U.S. 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 any system then in use or, if on any
such date the Rights are not quoted by any organization in the over-the-counter
market, the average of the closing bid and asked prices as furnished by a
professional market maker making a market in the Rights selected by the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of
Preference Shares (other than fractions which are integral multiples of one
one-thousandth of a Preference Share) upon exercise of the Rights or to
distribute certificates which evidence fractional Preference Shares (other than
fractions which are integral multiples of one one-thousandth of a Preference
Share). Interests in fractions of Preference Shares in integral multiples of
one one-thousandth of a Preference Share may, at the
52
election of the Company, be evidenced by depositary receipts, pursuant to an
appropriate agreement between the Company and a depositary selected by it;
PROVIDED, that such agreement shall provide that the holders of such
depositary receipts shall have all the rights, privileges and preferences to
which they are entitled as beneficial owners of the Preference Shares
represented by such depositary receipts. In lieu of fractional Preference
Shares that are not integral multiples of one one-thousandth of a Preference
Share, the Company shall pay to the registered holders of Right Certificates at
the time such Rights are exercised as herein provided an amount in cash equal to
the same fraction of the current market value of one Preference Share. For the
purposes of this Section 14(b), the current market value of a Preference Share
shall be the closing price of a Preference Share (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
Section 15. RIGHTS OF ACTION. All rights of action in respect of
this Agreement, excepting the rights of action given to the Rights Agent under
Section 18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Ordinary Shares); and any registered holder of any Right
53
Certificate (or, prior to the Distribution Date, of the Ordinary Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Ordinary Shares), on his
own behalf and for his own benefit, may 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 (or, prior to the Distribution Date, such Ordinary Shares) in the
manner provided in such Right Certificate and in this Agreement. Without
limiting the foregoing or any remedies available to the holders of Rights, it is
specifically acknowledged that the holders of Rights would not have an adequate
remedy at law for any breach of this 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
Agreement.
Section 16. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right,
by accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Ordinary Shares;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office or agency of
54
the Rights Agent designated for such purpose, duly 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 Ordinary Share 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 Ordinary Share
certificate made by anyone other than the Company or the Rights Agent) for
all purposes whatsoever, and neither the Company nor the Rights Agent
shall be affected by any notice to the contrary.
Section 17. RIGHT CERTIFICATE HOLDER NOT DEEMED A SHAREHOLDER.
No holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Preference Shares or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by
55
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 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 negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for, or in respect of any action taken, suffered or omitted by it in
connection with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for the Preference Shares or Ordinary Shares or for
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement, or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the
56
proper Person or Persons, or otherwise upon the advice of counsel as set forth
in Section 20 hereof.
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS
AGENT. (a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the stock transfer or corporate trust powers of the Rights Agent or any
successor Rights Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto; PROVIDED, 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 Agreement, any of the Right Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Right Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
57
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered the Rights Agent may adopt the countersignature
under its prior name and deliver Right Certificates so countersigned; and in
case at that time any of the Right Certificates shall not have been
countersigned, the Rights Agent may countersign such Right Certificates either
in its prior name or in its changed name and in all such cases such Right
Certificates shall have the full force provided in the Right Certificates and in
this Agreement.
Section 20. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes
the duties and obligations imposed by this Agreement upon the following terms
and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance 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 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
58
deemed to be conclusively proved and established by a certificate signed
by any one of the President, the Chief Financial Officer or the Secretary
of the Company and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Agreement in
reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own negligence, bad faith or wilful
misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this 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 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 Agreement or in
any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant
to Section 11(a)(ii) hereof) or any adjustment in the terms
59
of the Rights (including the manner, method or amount thereof) provided
for in Sections 3, 11, 13, 23 and 24, or the ascertaining of the existence
of facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
receipt of a certificate furnished pursuant to Section 12, describing such
change or adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of
any Preference Shares or other securities to be issued pursuant to this
Agreement or any Right Certificate or as to whether any Preference Shares
or other securities will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person reasonably believed by the Rights Agent to be one of the
President, the Chief Financial Officer or the Secretary of the Company,
and to apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for
60
any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting
for those instructions. Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set
forth in writing any action proposed to be taken or omitted by the Rights
Agent under this Agreement and the date on and/or after which such action
shall be taken or such omission shall be effective. The Rights Agent
shall not be liable for any action taken by, or omission of, the Rights
Agent in accordance with a proposal included in any such application on or
after the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or
the effective date in the case of an omission), the Rights Agent shall
have received written instructions in response to such application
specifying the action to be taken or omitted.
(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 Rights Agent under this Agreement.
61
Nothing herein shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
(j) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certificate contained in the
form of assignment or the form of election to purchase set forth on the
reverse thereof, as the case may be, has not been completed to certify the
holder is not an Acquiring Person (or an Affiliate or Associate thereof),
the Rights Agent shall not take any further action with respect to such
requested exercise or transfer without first consulting with the Company.
Section 21. CHANGE OF RIGHTS AGENT. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Ordinary Shares or Preference Shares by registered or
certified mail, and,
62
following the Distribution Date, to the holders of the Right Certificates by
first-class mail. The Company may remove the Rights Agent or any successor
Rights Agent upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Ordinary Shares or Preference Shares by registered or certified mail, and,
following the Distribution Date, to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor to
the Rights Agent. If the Company shall fail to make such appointment within a
period of 30 days after giving notice of such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be a
corporation organized and doing business under the laws of the United States or
any State thereof, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or examination by
federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least U.S. $50 million. After
appointment, the successor Rights Agent shall be vested with the
63
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 Ordinary Shares
or Preference Shares, and, following the Distribution Date, mail a notice
thereof in writing to the registered holders of the Right 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.
Section 22. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding
any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Right Certificates evidencing Rights in
such forms as may be approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the Right Certificates
made in accordance with the provisions of this Agreement. In addition, in
connection with the issuance or sale of Ordinary Shares following the
Distribution Date and prior to the earlier of the Redemption Date and the Final
Expiration Date,
64
the Company may with respect to Ordinary Shares so issued or sold pursuant to
(i) the exercise of stock options, (ii) under any employee plan or arrangement,
(iii) upon the exercise, conversion or exchange of securities, notes or
debentures issued by the Company or (iv) a contractual obligation of the
Company in each case existing prior to the Distribution Date, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale.
Section 23. REDEMPTION. (a) Subject to the provisions of this
Section 23, the Board of Directors of the Company may, at any time prior to such
time as any Person first becomes an Acquiring Person, redeem all but not less
than all the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any subdivision, stock dividend or similar
transaction occurring after the date hereof (the redemption price being
hereinafter referred to as the "Redemption Price"). The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion may establish. The
Company may, at its option, pay the Redemption Price in cash, Class A Ordinary
Shares (based on the current market price of the Class A Ordinary Shares at the
time of redemption) or any other form of consideration deemed appropriate by the
Board of Directors.
(b) Immediately upon the action of the Board of Directors ordering
the redemption of the Rights pursuant to paragraph (a) of this Section 23 (or at
such later time as the Board of Directors may establish for the effectiveness of
such
65
redemption), and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price. The Company shall promptly
give public notice of any such redemption; PROVIDED, HOWEVER, that the
failure to give, or any defect in, any such notice shall not affect the validity
of such redemption. Within 10 days after such action of the Board of Directors
ordering the redemption of the Rights (or such later time as the Board of
Directors may establish for the effectiveness of such redemption), the Company
shall mail a notice of redemption to all the holders of the then outstanding
Rights 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 Ordinary Shares. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice. Each such notice of redemption shall state the method by which the
payment of the Redemption Price will be made.
(c) Notwithstanding anything set forth in this Section 23 to the
contrary, the Board of Directors may not redeem the Rights at any time after any
Person shall have made an offer to acquire all or part of the Class A Ordinary
Shares, during the pendency of such offer, unless at the same time such Person
shall have made an offer to acquire the Equity Units or the Class B Ordinary
Shares (or the Class C Ordinary Shares) for the same consideration (as
determined in good faith by the Board of Directors) and upon the same
66
conditions per unit or per share as that offered in respect of a Class A
Ordinary Share (less certain amounts due to the holders of a Class A Ordinary
Share in respect of the Cumulative Dividend Amount (as defined in the Articles
of Association of the Company) or the Liquidation Available Amount (as defined
in the Articles of Association of the Company, as the case may be).
Section 24. EXCHANGE. (a) The Board of Directors of the
Company, may, at its option, at any time after any Person first becomes an
Acquiring Person, exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void pursuant to the
provisions of Section 11(a)(ii) hereof) for Class A Ordinary Shares at an
exchange ratio of one Class A Ordinary Share per Right, (such exchange ratio
being hereinafter referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to effect such exchange
at any time (1) after any Person (other than an Exempt Person), together with
all Affiliates and Associates of such Person, becomes the Beneficial Owner of a
number of Ordinary Shares equal to 50% or more of the number of Ordinary Shares
then outstanding or (2) after the occurrence of an event specified in Section
13(a) hereof.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of this
Section 24 and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Class A
67
Ordinary Shares equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio. The Company shall promptly give public notice
of any such exchange; PROVIDED, HOWEVER, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange. The
Company shall promptly mail a notice of any such exchange to all of the holders
of the Rights so exchanged at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange will state the method by which the
exchange of the Class A Ordinary Shares for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient Class A
Ordinary Shares issued but not outstanding or authorized but unissued to permit
any exchange of Rights as contemplated in accordance with this Section 24, the
Company may, in its discretion, take such action as may be necessary to
authorize additional Class A Ordinary Shares for issuance upon exchange of the
Rights. In the event that the Company shall determine not to take such action
or shall, after good faith effort, be unable to take such action as may be
necessary to authorize such additional Class A Ordinary Shares, the Company
shall substitute, to the
68
extent of such insufficiency, for each Class A Ordinary Share that would
otherwise be issuable upon exchange of a Right, a number of Preference Shares or
fractions thereof (or equivalent preference shares as such term is defined in
Section 11(b)) having an aggregate current per share market price (determined
pursuant to Section 11(d) hereof) equal to the current per share market price of
one Class A Ordinary Share (determined pursuant to Section 11(d) hereof) as of
the date of issuance of such Preference Shares or fractions thereof (or
equivalent preference shares).
(d) The Company shall not, in connection with any exchange
pursuant to this Section 24, be required to issue fractions of Class A Ordinary
Shares or to distribute certificates which evidence fractional Class A Ordinary
Shares. In lieu of such fractional Class A Ordinary Shares, the Company shall
pay to the registered holders of the Right Certificates with regard to which
such fractional Class A Ordinary Shares would otherwise be issuable an amount in
cash equal to the same fraction of the current market value of a whole Class A
Ordinary Share. For the purposes of this paragraph (d), the current market
value of a whole Class A Ordinary Share shall be the closing price of a Class A
Ordinary Share (as determined pursuant to the second sentence of Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. NOTICE OF CERTAIN EVENTS. (a) In case the Company
shall at any time after the earlier of the Distribution
69
Date or the Stock Acquisition Date propose (i) to pay any dividend payable in
shares of any class to the holders of its Preference Shares or to make any other
distribution to the holders of its Preference Shares (other than a regular
quarterly cash dividend), (ii) to offer to the holders of its Preference Shares
rights or warrants to subscribe for or to purchase any additional Preference
Shares or shares of stock of any class or any other securities, rights or
options, (iii) to effect any reclassification of its Preference Shares (other
than a reclassification involving only the subdivision of outstanding Preference
Shares), (iv) to effect the liquidation, dissolution or winding up of the
Company, or (v) to declare or pay any dividend on Ordinary Shares payable in
Ordinary Shares or to effect a subdivision, combination or consolidation of the
Ordinary Shares (by reclassification or otherwise than by payment of dividends
in Ordinary Shares), then, in each such case, the Company shall give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a notice of
such proposed action, which shall specify the record date for the purposes of
such dividend of shares, or distribution of rights or warrants, or the date on
which such liquidation, dissolution or winding up is to take place and the date
of participation therein by the holders of the Ordinary Shares and/or Preference
Shares, 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 the Preference Shares for
purposes of such action, and in the
70
case of any such other action, at least 10 days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
the Ordinary Shares and/or Preference Shares, whichever shall be the earlier.
(b) In case any event described in Section 11(a)(ii) or Section 13
shall occur then the Company shall as soon as practicable thereafter give to
each holder of a Right Certificate (or if occurring prior to the Distribution
Date, the holders of the Ordinary Shares) in accordance with Section 26 hereof,
a notice of the occurrence of such event, which notice shall describe such event
and the consequences of such event to holders of Rights under Section 11(a)(ii)
and Section 13 hereof.
Section 26. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
Triton Energy Limited
Attention: Secretary
Subject to the provisions of Section 21 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
71
Chemical Bank
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Shareholder Services Group
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section 27. SUPPLEMENTS AND AMENDMENTS. Except as otherwise
provided in this Section 27, for so long as the Rights are then redeemable, 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 in
any respect without the approval of any holders of the Rights. At any time when
the Rights are no longer redeemable, except as otherwise provided in this
Section 27, the Company may, and the Rights Agent shall, if the Company so
directs, supplement or amend this Agreement without the approval of any holders
of Rights Certificates in order to (i) cure any ambiguity, (ii) correct or
supplement any provision contained herein which may be defective or inconsistent
with any other provisions herein, (iii) shorten or lengthen any time period
hereunder, or (iv) change or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable; PROVIDED that no such
supplement or amendment shall adversely affect the interests of the holders of
Rights as such (other than an Acquiring Person or an Affiliate or Associate of
an Acquiring Person), and no such
72
amendment may cause the rights again to become redeemable or cause the Agreement
again to become amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the contrary, no
supplement or amendment shall be made that decreases the Redemption Price. 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
Company. of this Section 27, the Rights Agent shall execute such supplement or
Section 28. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Ordinary Shares) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Ordinary
Shares).
Section 30. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement or applicable to this Agreement is held by a court
of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this
73
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
Section 31. GOVERNING LAW. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the Cayman Islands and for all purposes shall be governed by and
construed in accordance with the laws of such Country applicable to contracts to
be made and performed entirely within such Country except that the rights,
duties and obligations of the Rights Agent shall be governed by and construed in
accordance with the Laws of the State of New York, U.S.A..
Section 32. COUNTERPARTS. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 33. DESCRIPTIVE HEADINGS. Descriptive headings of the
several Sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and attested, all as of the day and year first above written.
Attest: TRITON ENERGY LIMITED
By By
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
CHEMICAL BANK
Attest:
By By
---------------------------------- ---------------------------------
Name: Name:
Title: Title:
EXHIBIT A
FORM OF
UNANIMOUS WRITTEN CONSENT
OF
BOARD OF DIRECTORS
OF
TRITON ENERGY LIMITED
AUTHORIZING A SERIES OF PREFERENCE SHARES
___________________
The undersigned, constituting all of the directors of Triton Energy
Limited, a Cayman Islands company (the "Company"), hereby consent in writing to
the taking of the following actions and the adoption of the following
resolutions without the holding of, and waive and notices required for, a
meeting of directors for the purposes of considering the same:
WHEREAS, Triton Energy Corporation, a Delaware corporation ("TEC"),
desires to effect a reorganization pursuant to which the Company would become
the parent holding company of TEC through the merger (the "Merger") of TEL
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of the
Company ("Sub"), with and into TEC; and
WHEREAS, in connection with the Merger, the board of Directors and
the sole shareholder of the Company have resolved to amend and restate the
Memorandum of Association and Articles of Association (the "Restated Charter")
to be effective immediately prior to the effective time of the Merger; now
therefore, be it
RESOLVED, that pursuant to the authority vested in the Board of
Directors of the Company in accordance with the provisions of its Restated
Charter, the Board of Directors, effective as of the effective time of the
Merger, does hereby create, authorize and provide for the issuance, upon the
exercise of the rights issued by the Company to its shareholders of record at
the close of business on the effective date of the Merger (the "Rights"), of a
series of preference shares of the Company, to be designated Series A Junior
Participating Preference Shares (hereinafter referred to as the "Series A
Preference Shares"), initially consisting of 200,000 shares and to the extent
that the designations, powers, preferences and relative and other special rights
and the qualifications, limitations and restrictions of the Series A Preference
Shares are not stated and expressed in the Restated Charter, does hereby fix and
state such designations, powers and preferences and relative and other
A-1
special rights and the qualifications, limitations or restrictions thereof, as
follows:
Section 1. DESIGNATION AND AMOUNT. The shares of such series
shall be designated as "Series A Junior Participating Preference Shares" (the
"Series A Preference Shares"), and the number of shares constituting such series
shall be 200,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; PROVIDED, that no decrease shall reduce
the number of Series A Preference Shares to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the conversion of
any outstanding securities issued by the Company convertible into Series A
Preference Shares.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the rights of the holders of any shares of any
series of Preference Shares of the Company (the "Preference Shares") (or any
similar shares) ranking prior and superior to the Series A Preference Shares
with respect to dividends, the holders of Series A Preference Shares, in
preference to the holders of Class A Ordinary Shares ("Class A Shares"), Class B
Ordinary Shares and Class C Ordinary Shares, each having a par value of $.01 per
share, of the Company (the "Ordinary Shares") and of any other shares of the
Company ranking junior to the Series A Preference Shares, shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last day
of January, April, July, and October in each year (each such date being referred
to herein as a "Dividend Payment Date"), commencing on the first Dividend
Payment Date after the first issuance of a share or fraction of a share of
Series A Preference Shares, in an amount per share (rounded to the nearest cent)
equal to the greater of (a) $1 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per share amount of all cash
dividends, and 1,000 times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in
Class A Shares, declared on the Class A Shares since the immediately preceding
Dividend Payment Date or, with respect to the first Dividend Payment Date, since
the first issuance of any share or fraction of a share of Series A Preference
Shares. In the event the Company shall at any time declare or pay any dividend
on the Class A Shares payable in shares of Class A Shares, or effect a
subdivision or combination or consolidation of the outstanding Class A Shares
(by reclassification or otherwise than by payment of a dividend in shares of
Class A Ordinary Shares) into a greater or lesser number of Class A Shares, then
in each such case the amount to which holders of Series A Preference Shares were
entitled immediately prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such
A-2
amount by a fraction, the numerator of which is the number of Class A Shares
outstanding immediately after such event and the denominator of which is the
number of Class A Shares that were outstanding immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the
Series A Preference Shares as provided in paragraph (a) of this Section
immediately after it declares a dividend or distribution on the Ordinary Shares
(other than a dividend payable in shares of Ordinary Shares); provided that, in
the event no dividend or distribution shall have been declared on the Ordinary
Shares during the period between any Dividend Payment Date and the next
subsequent Dividend Payment Date, a dividend of $1 per share on the Series A
Preference Shares shall nevertheless be payable, when, as and if declared, on
such subsequent Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative, whether or
not earned or declared, on outstanding Series A Preference Shares from the
Dividend Payment Date next preceding the date of issue of such shares, unless
the date of issue of such shares is prior to the record date for the first
Dividend Payment Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date of issue is a
Dividend Payment Date or is a date after the record date for the determination
of holders of Series A Preference Shares entitled to receive a quarterly
dividend and before such Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Dividend Payment
Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on
the Series A Preference Shares in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro
rata on a share-by-share basis among all such shares at the time outstanding.
The Board of Directors may fix a record date for the determination of holders of
Series A Preference Shares entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
Section 3. VOTING RIGHTS. The holders of Series A Preference
Shares shall have the following voting rights;
(A) Subject to the provision for adjustment hereinafter set forth,
each Series A Preference Share shall entitle the holder thereof to 1,000
votes on all matters submitted to a vote of the shareholders of the
Company. In the event the Company shall at any time declare any dividend
on the Ordinary Shares payable in shares of Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary
Shares (by reclassification or otherwise than by payment of a dividend in
Ordinary Shares) into a greater or lesser number of Ordinary Shares, then
in each such case the number of votes per share to which
A-3
holders of Series A Preference Shares were entitled immediately prior to
such event shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of Ordinary Shares outstanding
immediately after such event and the denominator of which is the number of
Ordinary Shares that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in any other resolution
of the Board of Directors creating a series of Preference Shares or any
similar shares, and except as otherwise required by law, the holders of
Series A Preference Shares and the holders of Ordinary Shares and any
other shares of the Company having general voting rights shall vote
together as one class on all matters submitted to a vote of shareholders
of the Company.
(C) Except as set forth herein, or as otherwise provided by law,
holders of Series A Preference Shares shall have no special voting rights
and their consent shall not be required (except to the extent they are
entitled to vote with holders of Ordinary Shares as set forth herein) for
taking any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(A) Whenever quarterly dividends or other dividends or
distributions payable on the Series A Preference Shares as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid
dividends and distributions, whether or not earned or declared, on Series
A Preference Shares outstanding shall have been paid in full, the Company
shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares ranking junior (as to dividends) to the
Series A Preference Shares;
(ii) declare or pay dividends, or make any other distributions,
on any shares ranking on a parity (as to dividends) with the Series
A Preference Shares, except dividends paid ratably on the Series A
Preference Shares and all such parity shares on which dividends are
payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preference Shares,
provided that the Company may at any time redeem, purchase or
otherwise acquire shares of any such junior shares in exchange for
shares of the Company ranking junior (as
A-4
to dividends and upon dissolution, liquidation or winding up) to the
Series A Preference Shares or rights, warrants or options to acquire
such junior shares; or
(iv) redeem or purchase or otherwise acquire for consideration
any Series A Preference Shares, or any shares of shares ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preference Shares, except in
accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such
shares upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other
relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to
purchase or otherwise acquire for consideration any shares of the Company
unless the Company could, under paragraph (a) of this Section 4, purchase
or otherwise acquire such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any Series A Preference Shares
purchased or otherwise acquired by the Company in any manner whatsoever shall be
retired and cancelled promptly after the acquisition thereof.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP. Upon any
liquidation, dissolution or winding up of the Company, no distribution shall be
made (a) to the holders of shares ranking junior (upon liquidation, dissolution
or winding up) to the Series A Preference Shares unless, prior thereto, the
holders of Series A Preference Shares shall have received $1,000 per share, plus
an amount equal to accrued and unpaid dividends and distributions thereon,
whether or not earned or declared, to the date of such payment, provided that
the holders of Series A Preference Shares shall be entitled to receive an
aggregate amount per share, subject to the provision for adjustment hereinafter
set forth, equal to 1,000 times the aggregate amount to be distributed per share
to holders of Class A Shares, or (b) to the holders of shares ranking on a
parity (upon liquidation, dissolution or winding up) with the Series A
Preference Shares, except distributions made ratably on the Series A Preference
Shares and all such parity shares in proportion to the total amounts to which
the holders of all such shares are entitled upon such liquidation, dissolution
or winding up. In the event the Company shall at any time declare or pay any
dividend on the Ordinary Shares payable in Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary Shares
(by reclassification or otherwise than by payment
A-5
of a dividend in Ordinary Shares) into a greater or lesser number of Ordinary
Shares, then in each such case the aggregate amount to which holders of Series A
Preference Shares were entitled immediately prior to such event under the
proviso in clause (a) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of Ordinary
Shares outstanding immediately after such event and the denominator of which is
the number of Ordinary Shares that were outstanding immediately prior to such
event.
Section 7. CONSOLIDATION, MERGER, ETC. In case the Company shall
enter into any consolidation, merger, combination or other transaction in which
the Ordinary Shares are converted into, exchanged for or changed into other
shares or securities, cash and/or any other property, then in any such case each
Series A Preference Share shall at the same time be similarly converted into,
exchanged for or changed into an amount per share (subject to the provision for
adjustment hereinafter set forth) equal to 1,000 times the aggregate amount of
shares, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each Class A Share is converted or
exchanged. In the event the Company shall at any time declare or pay any
dividend on the Ordinary Shares payable in Ordinary Shares, or effect a
subdivision or combination or consolidation of the outstanding Ordinary Shares
(by reclassification or otherwise than by payment of a dividend in Ordinary
Shares) into a greater or lesser number of Ordinary Shares, then in each such
case the amount set forth in the preceding sentence with respect to the
conversion, exchange or change of Series A Preference Shares shall be adjusted
by multiplying such amount by a fraction, the numerator of which is the number
of Ordinary Shares outstanding immediately after such event and the denominator
of which is the number of Ordinary Shares that were outstanding immediately
prior to such event.
Section 8. NO REDEMPTION. The Series A Preference Shares shall
not be redeemable from any holder thereof.
Section 9. RANK. The Series A Preference Shares shall rank, with
respect to the payment of dividends and the distribution of assets upon
liquidation, dissolution or winding up of the Company, junior to all other
series of Preference Shares and senior to the Ordinary Shares.
Section 10. AMENDMENT. The Restated Charter of the Company shall
not be further amended in any manner which would materially alter or change the
powers, preferences or special rights of the Series A Preference Shares so as to
affect them adversely without the affirmative vote of the holders of two-thirds
or more of the outstanding Series A Preference Shares, voting separately as a
class.
Section 11. FRACTIONAL SHARES. Series A Preference Shares may be
issued in fractions of a share which shall entitle
A-6
the holder thereof, in proportion to such holder's fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all of the rights of holders of Series A Preference Shares.
AND BE IT FURTHER RESOLVED, that any documents heretofore executed
or lawful actions heretofore taken by any of the officers of the Company in
connection with the transactions herein described are hereby ratified, confirmed
and approved in all respects, and further
RESOLVED, that these resolutions may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
EXECUTED to be effective as of the _____ day of _____________, 1996.
----------------------------
Xxxxxx X. Xxxxx
----------------------------
Xxxxxx X. Xxxxxxx, III
----------------------------
Xxxxx Xxxx
A-7
EXHIBIT B
Form of Right Certificate
Certificate No. R- ____ ___ Rights
NOT EXERCISABLE AFTER MAY 22, 2005 OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS OWNED BY OR
TRANSFERRED TO ANY PERSON WHO BECOMES AN ACQUIRING PERSON (AS DEFINED IN
THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND
VOID AND WILL NO LONGER BE TRANSFERABLE.
Right Certificate
Triton Energy Limited
This certifies that ___________ or registered assigns, is the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of ________ __, 1996, as the same may be amended from time
to time (the "Rights Agreement"), between Triton Energy Limited, a company
organized under the laws of the Cayman Islands (the "Company"), and Chemical
Bank (the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to
5:00 P.M., New York City time, on May 22, 2005 at the office or agency of the
Rights Agent designated for such purpose, or of its successor as Rights Agent,
one one-thousandth of a fully paid non-assessable Series A Junior Participating
Preference Share, par value $.01 per share (the "Preference Shares"), of the
Company, at a purchase price of $120 per one one-thousandth of a Preference
Share (the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. The number of
Rights evidenced by this Rights Certificate (and the number of one
one-thousandths of a Preference Share which may be purchased upon exercise
hereof) set forth above, and the Purchase Price set forth above, are the number
and Purchase Price as of ________ __, 1996, based on the Preference Shares as
constituted at such date. As provided in the Rights Agreement, the Purchase
Price, the number of one one-thousandths of a Preference Share (or other
securities or property) which may be purchased upon the exercise of the Rights
and the number of Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions
and conditions of the Rights Agreement, which terms, provisions and conditions
are hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
B-1
hereunder of the Rights Agent, the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned office or agency of the
Rights Agent. The Company will mail to the holder of this Right Certificate a
copy of the Rights Agreement without charge after receipt of a written request
therefor.
This Right Certificate, with or without other Right Certificates,
upon surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of Preference Shares as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Certificate (i) may be redeemed by the Company at a redemption
price of $.01 per Right or (ii) may be exchanged in whole or in part for
Preference Shares or the Company's Class A Ordinary Shares, par value $.01 per
share.
No fractional Preference Shares will be issued upon the exercise of
any Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-thousandth of a Preference Share, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of the
Preference Shares or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in the
Rights Agreement or herein be construed to confer upon the holder hereof, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
B-2
WITNESS the facsimile signature of the proper officers of the
Company and its corporate seal. Dated as of _____________.
ATTEST: TRITON ENERGY LIMITED
By __________________ By __________________
Countersigned:
_______________________,
as Rights Agent
By _________________________
Authorized Signature
B-3
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED _________________________ hereby
sells, assigns and transfer unto ___________________________
____________________________________________________________
(Please print name and address of transferee)
____________________________________________________________
Rights represented by this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
___________________ Attorney, to transfer said Rights on the books of the
within-named Company, with full power of substitution.
Dated: _________________
______________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered
national securities exchange, a member of the National Association of Securities
Dealers, Inc., or a commercial bank or trust company having an office or
correspondent in the United States.
------------------------------------------------------------
(To be completed)
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by, were not acquired by the
undersigned from, and are not being assigned to, an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement).
________________________
Signature
B-4
Form of Reverse Side of Right Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To Triton Energy Limited:
The undersigned hereby irrevocably elects to exercise
__________________ Rights represented by this Right Certificate to purchase the
Preference Shares (or other securities or property) issuable upon the exercise
of such Rights and requests that certificates for such Preference Shares (or
such other securities) be issued in the name of:
______________________________________________________________
(Please print name and address)
______________________________________________________________
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivery to:
Please insert social security
or other identifying number
______________________________________________________________
(Please print name and address)
______________________________________________________________
Dated: ____________________
________________________
Signature
(Signature must conform to holder specified on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a member of firm of a registered
U.S. national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in the United States.
B-5
Form of Reverse Side of Right Certificate -- continued
_________________________________________________________________
(To be completed)
The undersigned certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by, and were not acquired by the
undersigned from, an Acquiring Person or an Affiliate or Associate thereof (as
defined in the Rights Agreement)
______________________
Signature
_________________________________________________________________
NOTICE
The signature in the Form of Assignment or Form of Election to
Purchase, as the case may be, must conform to the name as written upon the face
of this Right Certificate in every particular, without alteration or enlargement
or any change whatsoever.
In the event the certification set forth above in the Form of
Assignment or the Form of Election to Purchase, as the case may be, is not
completed, such Assignment or Election to Purchase will not be honored.
B-6
EXHIBIT C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
OWNED BY OR TRANSFERRED TO ANY PERSON WHO BECOMES AN ACQUIRING PERSON (AS
DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL
BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
Preference Shares
On ________ __, 1996, the Board of Directors of Triton Energy
Limited (the "Company") declared a dividend of one preference share purchase
right (a "Right") for each outstanding Class A Ordinary Share, par value $.01
per share, of the Company (the "Class A Ordinary Shares"), Class B Ordinary
Share, par value $.01 per share, of the Company (the "Class B Ordinary Shares")
and Class C Ordinary Share, par value $.01 per share, of the Company ("Class C
Ordinary Shares" and together with the Class B Ordinary Shares and the Class A
Ordinary Shares, the "Ordinary Shares") . The dividend is payable on _______
__, 1996 (the "Record Date") to the shareholders of record on that date. Each
Right entitles the registered holder to purchase from the Company one
one-thousandth of a Series A Junior Participating Preference Share, par value
$.01 per share (the "Preference Shares") of the Company at a price of $120 per
one one-thousandth of a Preference Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement dated as of ________ __, 1996, as the same may be amended from time to
time (the "Rights Agreement"), between the Company and Chemical Bank, as Rights
Agent (the "Rights Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or associated persons (an
"Acquiring Person") have acquired beneficial ownership of a number of Ordinary
Shares equal to 15% or more of the number of outstanding Ordinary Shares;
PROVIDED, HOWEVER, that if a Person would be deemed an Acquiring Person upon
the adoption of the Rights Agreement, such Person will not be deemed an
"Acquiring Person" for any purposes of the Rights Agreement unless and until
such Person acquires Beneficial Ownership of any additional Class A Ordinary
Shares after the date of the adoption of the Rights Agreement or (ii) 10
business days (or such later date as may be determined by action of the Board of
Directors prior to such time as any person or group of affiliated persons
becomes an Acquiring Person) following the commencement of, or announcement of
an intention to make, a tender offer or exchange offer the consummation of which
would result in the beneficial ownership by a person or group of a number of
Ordinary Shares equal to 15% or more of the number of outstanding Ordinary
Shares (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Ordinary Share certificates
outstanding as of the Record Date, by such Ordinary Share certificate together
with a copy of this Summary of Rights.
C-1
The Rights Agreement provides that, until the Distribution Date (or
earlier redemption or expiration of the Rights), the Rights will be transferred
with and only with the Ordinary Shares; PROVIDED, HOWEVER, that prior to the
Distribution Date, upon the conversion of any class of Ordinary Shares into
Ordinary Shares of a different class all Rights attached to the Ordinary Shares
being converted shall be deemed cancelled and retired by the Company. Until the
Distribution Date (or earlier redemption or expiration of the Rights), new
Ordinary Shares certificates issued after the Record Date upon transfer or new
issuances of Ordinary Shares (including pursuant to the conversion) will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Ordinary Shares outstanding as of
the Record Date, even without such notation or a copy of this Summary of Rights,
will also constitute the transfer of the Rights associated with the Ordinary
Shares represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Ordinary Shares as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on May __, 2005 (the "Final Expiration Date"), unless the
Final Expiration Date is extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of Preference Shares or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a
dividend of shares on, or a subdivision, combination or reclassification of, the
Preference Shares, (ii) upon the grant to holders of the Preference Shares of
certain rights or warrants to subscribe for or purchase Preference Shares at a
price, or securities convertible into Preference Shares with a conversion price,
less than the then-current market price of the Preference Shares or (iii) upon
the distribution to holders of the Preference Shares of evidences of
indebtedness or assets (excluding regular periodic cash dividends or dividends
payable in Preference Shares) or of subscription rights or warrants (other than
those referred to above).
The number of outstanding Rights are also subject to adjustment in
the event of a stock split of the Ordinary Shares or a dividend on the Ordinary
Shares payable in Ordinary Shares or subdivisions, consolidations or
combinations of the Ordinary Shares occurring, in any such case, prior to the
Distribution Date.
C-2
Preference Shares purchasable upon exercise of the Rights will not
be redeemable. Each Preference Share will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 1,000 times the
dividend declared per Class A Ordinary Share. In the event of liquidation, the
holders of the Preference Shares will be entitled to a minimum preferential
liquidation payment of $1,000 per share (plus any accrued but unpaid dividends)
but will be entitled to an aggregate payment of 1,000 times the payment made
per Class A Ordinary Share. Each Preference Share shall be entitled to 1,000
votes, voting together with the Ordinary Shares. Finally, in the event of any
merger, consolidation or other transaction in which Ordinary Shares are
converted or exchanged, each Preference Share will be entitled to receive 1,000
times the amount received per Class A Ordinary Share. These rights are
protected by customary antidilution provisions.
In the event that any person or group of affiliated or associated
persons becomes an Acquiring Person, each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which will thereupon become void),
will thereafter have the right to receive upon exercise of a Right at the then
current exercise price of the Right, that number of Class A Ordinary Shares
having a market value of two times the exercise price of the Right.
In the event that, after a person or group has become an Acquiring
Person, the Company is acquired in a merger or other business combination
transaction or 50% or more of its consolidated assets or earning power are sold,
proper provision will be made so that each holder of a Right (other than Rights
beneficially owned by an Acquiring Person which will have become void) will
thereafter have the right to receive, upon the exercise thereof at the then
current exercise price of the Right, that number of ordinary shares of the
person with whom the Company has engaged in the foregoing transaction (or its
parent), which number of shares at the time of such transaction will have a
market value of two times the exercise price of the Right.
At any time after any person or group becomes an Acquiring Person
and prior to the acquisition by such person or group of beneficial ownership of
a number of Ordinary Shares equal to 50% or more of the number of outstanding
Ordinary Shares, the Board of Directors of the Company may exchange the Rights
(other than Rights owned by such person or group which will have become void),
in whole or in part, at an exchange ratio of one Class A Ordinary Share, or one
one-thousandth of a Preference Share (or of a share of a class or series of the
Company's preference shares having equivalent rights, preferences and
privileges), per Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Preference Shares will be issued (other than
fractions which are integral multiples of one one-thousandth of a Preference
Share, which may, at the election of the Company, be evidenced by
C-3
depositary receipts) and in lieu thereof, an adjustment in cash will be made
based on the market price of the Preference Shares on the last trading day prior
to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the
Board of Directors of the Company may redeem the Rights in whole, but not in
part, at a price of $.01 per Right (the "Redemption Price"); provided that under
certain cirumstances set forth in the Rights Agreement, after the after a tender
offer has been commenced, the Board of Directors may not be permitted to redeem
the Rights. Immediately upon any redemption of the Rights, the right to
exercise the Rights will terminate and the only right of the holders of Rights
will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may,
except with respect to the redemption price, amend the Rights in any manner.
After the Rights are no longer redeemable the Company may, except with respect
to the redemption price, amend the Rights in any manner that does not adversely
affect the interests of holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will have
no rights as a shareholder of the Company, including, without limitation, the
right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities
and Exchange Commission as an Exhibit to a Registration Statement on Form 8-A.
A copy of the Rights Agreement is available free of charge from the Company.
This summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, as the same may
be amended from time to time, which is hereby incorporated herein by reference.
C-4
