FIRST AMENDED AND RESTATED RIGHTS AGREEMENT between ROYAL GOLD, INC. and COMPUTERSHARE TRUST COMPANY, N.A. as Rights Agent Dated as of September 10, 2007
EXHIBIT 4.1
FIRST AMENDED AND RESTATED RIGHTS AGREEMENT
between
ROYAL GOLD, INC.
and
COMPUTERSHARE TRUST COMPANY, N.A.
as Rights Agent
as Rights Agent
Dated as of September 10, 2007
TABLE OF CONTENTS
Page | ||||
Section 1. |
Certain Definitions | 2 | ||
Section 2. |
Appointment of Rights Agent | 5 | ||
Section 3. |
Issue of Rights Certificates | 6 | ||
Section 4. |
Form of Rights Certificates | 7 | ||
Section 5. |
Countersignature and Registration | 8 | ||
Section 6. |
Transfer, Split Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates | 9 | ||
Section 7. |
Exercise of Rights; Purchase Price; Expiration Date of Rights | 9 | ||
Section 8. |
Cancellation of Rights Certificates | 11 | ||
Section 9. |
Reservation and Availability of Capital Stock | 11 | ||
Section 10. |
Preferred Stock Record Date | 13 | ||
Section 11. |
Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights | 13 | ||
Section 12. |
Certificate of Adjusted Purchase Price or Number of Shares | 21 | ||
Section 13. |
Consolidation, Merger or Sale or Transfer of Assets or Earning Power | 21 | ||
Section 14. |
Fractional Rights and Fractional Shares | 25 | ||
Section 15. |
Rights of Action | 26 | ||
Section 16. |
Agreement of Rights Holders | 26 | ||
Section 17. |
Rights Certificate Holder Not Deemed a Stockholder | 27 | ||
Section 18. |
Compensation and Indemnification of the Rights Agent | 27 | ||
Section 19. |
Merger or Consolidation or Change of Name of Rights Agent | 28 | ||
Section 20. |
Duties of Rights Agent | 29 | ||
Section 21. |
Change of Rights Agent | 31 | ||
Section 22. |
Issuance of New Rights Certificates | 31 | ||
Section 23. |
Redemption | 32 | ||
Section 24. |
Exchange | 33 | ||
Section 25. |
Notice of Certain Events | 34 | ||
Section 26. |
Notices | 35 | ||
Section 27. |
Supplements and Amendments | 35 | ||
Section 28. |
Successors | 36 | ||
Section 29. |
Benefits of this Agreement | 36 | ||
Section 30. |
Severability | 36 | ||
Section 31. |
Governing Law | 36 | ||
Section 32. |
Counterparts | 36 | ||
Section 33. |
Descriptive Headings | 37 | ||
Section 34. |
Determinations and Actions by the Board, Etc. | 37 |
i
FIRST AMENDED AND RESTATED RIGHTS AGREEMENT
This FIRST AMENDED AND RESTATED RIGHTS AGREEMENT (this “Agreement”), dated as of
September 10, 2007, between ROYAL GOLD, INC., a Delaware corporation (the “Company”), and
COMPUTERSHARE TRUST COMPANY, N.A. (the “Rights Agent”).
WHEREAS, the Company and American Securities Transfer, Incorporated (as predecessor to the
Rights Agent) entered into a Rights Agreement dated as of September 10, 1997 (the “1997 Rights
Agreement”);
WHEREAS, in connection with the 1997 Rights Agreement, the Board of Directors of the Company
(the “Board”) authorized and declared a dividend of one preferred stock purchase right (a
“Right”) for each share of Common Stock (as hereinafter defined) of the Company outstanding
as of the Close of Business (as hereinafter defined) on September 11, 1997 (the “Record
Date”), each Right representing the right to purchase one one-hundredth (subject to adjustment)
of a share of Preferred Stock (as hereinafter defined), upon the terms and subject to the
conditions set forth in the 1997 Rights Agreement, and further authorized and directed the issuance
of one Right (subject to adjustment as provided in the 1997 Rights Agreement) with respect to each
share of Common Stock 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 defined in
the 1997 Rights Agreement);
WHEREAS, the “Final Expiration Date” under the 1997 Rights Agreement is September 10, 2007 and
the Board, pursuant to its authority under Section 27 of the 1997 Rights Agreement, desires
to amend the 1997 Rights Agreement to, among other things, extend the Final Expiration Date;
WHEREAS, pursuant to a resolution, duly adopted on August 23, 2007, the Board has adopted and
authorized an amendment and restatement of the 1997 Rights Agreement, in the form of this
Agreement, so that, among other things, (i) the Final Expiration Date shall be extended until
September 10, 2017, (ii) each Right shall represent the right to purchase one one-thousandth
(subject to adjustment) of a share of Preferred Stock, upon the terms and subject to the conditions
herein set forth, and (iii) the Purchase Price (as hereinafter defined) shall be increased to
$175.00 for each one one-thousandth of a share of Preferred Stock; and
WHEREAS, the Board has resolved and determined that the amendments set forth in this Agreement
are in the best interests of the Company and its stockholders and are desirable and consistent
with, and for the purposes of fulfilling, the objectives of the Board in connection with the
adoption of the 1997 Rights Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the undersigned parties hereby agree as follows:
1
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms have the meanings indicated:
(a) “Acquiring Person” shall mean any Person which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of the shares of Common
Stock of the Company then outstanding, but shall not include (i) the Company, (ii) any Subsidiary
of the Company, or (iii) any employee benefit plan of the Company or any Subsidiary of the
Company, or any Person holding shares of Common Stock for or pursuant to the terms of any such
plan to the extent, and only to the extent, of such shares of Common Stock so held.
Notwithstanding anything in this definition of “Acquiring Person” to the contrary:
(i) no Person shall become an “Acquiring Person” as the result of an acquisition of shares of
Common Stock by the Company which, by reducing the number of shares of Common Stock outstanding,
increases the proportionate number of shares of Common Stock beneficially owned by such Person to
15% or more of the shares of Common Stock of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of 15% or more of the shares of
Common Stock of the Company then outstanding by reason of share acquisitions by the Company and
shall, after such share acquisitions by the Company, become the Beneficial Owner of any additional
shares of Common Stock of the Company (other than pursuant to a dividend or distribution paid or
made by the Company on the outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), then such Person shall be deemed to be an “Acquiring Person” if such
Person is then the Beneficial Owner of 15% or more of the Common Stock then outstanding; and
(ii) if the Board determines in good faith that a Person who would otherwise be an “Acquiring
Person,” as defined pursuant to the foregoing provisions of this paragraph (a), has become such
inadvertently (including, without limitation, because (A) such Person was unaware that it
beneficially owned a percentage of Common Stock that would otherwise cause such Person to be an
“Acquiring Person” or (B) such Person was aware of the extent of its Beneficial Ownership of Common
Stock but had no actual knowledge of the consequences of such Beneficial Ownership under this
Agreement), and such Person divests as promptly as practicable (as determined in good faith by the
Board) a sufficient number of shares of Common Stock so that such Person would no longer be an
“Acquiring Person,” as defined pursuant to the foregoing provisions of this paragraph (a), then
such Person shall not be deemed an “Acquiring Person” for any purposes of this Agreement unless and
until such Person shall again become an “Acquiring Person.”
(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 Exchange Act as in
effect on the date of this Agreement.
(c) A Person shall be deemed the “Beneficial Owner” of, and shall be deemed to
“beneficially own,” any securities:
2
(i) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or understanding (whether or not in
writing), or upon the exercise of conversion rights, exchange rights, other rights (other than
these Rights), warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the “Beneficial Owner” of, or to “beneficially own,” (A) securities tendered
pursuant to a tender or exchange offer made by or on behalf of such Person or any of such Person’s
Affiliates or Associates until such tendered securities are accepted for purchase or exchange, (B)
securities issuable upon exercise of Rights at any time prior to the occurrence of a Triggering
Event, or (C) securities issuable upon exercise of Rights from and after the occurrence of a
Triggering Event which 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 (the “Original Rights”) or pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has “beneficial ownership” of (as determined
pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in writing;
provided, however, that a Person shall not be deemed the “Beneficial Owner” of, or
to “beneficially own,” any security under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if such agreement, arrangement or understanding
(A) arises solely from a revocable proxy given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable provisions of the General
Rules and Regulations under the Exchange Act and (B) is not also then reportable by such Person 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 (or any
Affiliate or Associate thereof) with which such Person or any of such Person’s Affiliates or
Associates has any agreement, arrangement or understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described in the
proviso to subparagraph (ii) of this paragraph (c)) or disposing of any securities of the Company;
provided, however, that nothing in this paragraph (c) shall cause a Person engaged
in business as an underwriter of securities to be the “Beneficial Owner” of, or to “beneficially
own,” any securities acquired through such Person’s participation in good faith in a firm
commitment underwriting until the expiration of forty days after the date of such acquisition;
provided further, however, that no Person who is an officer, director or employee
of the Company or any Subsidiary of the Company shall be deemed, solely by reason of such Person’s
status or authority as such, to be the “Beneficial Owner” of, or to “beneficially own,” any
securities that are “beneficially owned” (as defined in this paragraph (c)), including, without
limitation, in a fiduciary capacity, by the Company or any Subsidiary of the Company, or by any
other such officer, director or employee of the Company or any Subsidiary of the Company.
(d) “Board” shall have the meaning set forth in the Recitals.
3
(e) “Business Day” shall mean any day other than a Saturday, a Sunday, or a day on
which banking or trust institutions in the State of Colorado are authorized or obligated by law or
executive order to close.
(f) “Close of Business” on any given date shall mean 5:00 P.M., Denver time, on such
date; provided, however, that if such date is not a Business Day it shall mean
5:00 P.M., Denver time, on the next succeeding Business Day.
(g) “Common Stock” when used with reference to the Company shall mean the shares of
Common Stock, par value $0.01 per share, of the Company. “Common Stock” when used with reference
to any Person other than the Company shall mean the class of capital stock with the greatest
aggregate voting power, or the class of equity securities or other equity interests having power
to control or direct the management of such Person.
(h) “Company” shall have the meaning set forth in the Recitals.
(i) “Distribution Date” shall mean the earlier of (i) the Close of Business on the
tenth day after the Stock Acquisition Date (or, if the tenth day after the Stock Acquisition Date
occurs before the Record Date, the Close of Business on the Record Date) or (ii) the Close of
Business on the tenth Business Day (or, if such tenth Business Day occurs before the Record Date,
the Close of Business on the Record Date), or such specified or unspecified later date on or after
the Record Date as may be determined by action of the Board prior to such time as any Person
becomes an Acquiring Person, after the date of the commencement by any Person (other than the
Company, any Subsidiary of the Company or any employee benefit plan of the Company or of any
Subsidiary of the Company or any Person holding shares of Common Stock for or pursuant to the
terms of any such plan) of, or of the first public announcement of the intention of any Person
(other than any of the Persons referred to in the preceding parenthetical) to commence, a tender
or exchange offer the consummation of which would result in such Person becoming the beneficial
owner of 15% or more of the outstanding shares of Common Stock.
(j) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, as in
effect on the date of this Agreement.
(k) “Exchange Date” shall have the meaning set forth in Section 7(a) hereof.
(l) “Expiration Date” shall have the meaning set forth in Section 7(a)
hereof.
(m) “Final Expiration Date” shall have the meaning set forth in Section 7(a)
hereof.
(n) “Person” shall mean any individual, firm, corporation, partnership or other
entity, and shall include any successor (by merger or otherwise) of such entity.
(o) “Preferred Stock” shall mean shares of Series A Junior Participating Preferred
Stock, par value $0.01 per share, of the Company, having the rights, powers and preferences set
forth in the form of the Amended and Restated Certificate of Designations attached to this
Agreement as Exhibit A.
4
(p) “Principal Party” shall have the meaning set forth in Section 13(b)
hereof.
(q) “Purchase Price” shall have the meaning set forth in Section 4(a) and
Section 11(a)(ii) hereof.
(r) “Record Date” shall have the meaning set forth in the Recitals.
(s) “Redemption Date” shall have the meaning set forth in Section 7(a)
hereof.
(t) “Redemption Period” shall have the meaning set forth in Section 23(a)
hereof.
(u) “Right” shall have the meaning set forth in the Recitals.
(v) “Rights Agent” shall have the meaning set forth in the Recitals and shall include
any successor thereto pursuant to this Agreement.
(w) “Rights Certificate” shall have the meaning set forth in Section 3(d)
hereof.
(x) “Section 11(a)(ii) Event” shall mean any event described in Section
11(a)(ii) hereof.
(y) “Section 13 Event” shall mean any event described in clause (x), (y) or (z) of
Section 13(a) hereof.
(z) “Securities Act” shall mean the Securities Act of 1933, as amended, as in effect
on the date of this Agreement.
(aa) “Stock 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.
(bb) “Subsidiary” of any Person shall mean any corporation or other entity of which a
majority of the voting power of the voting equity securities or equity interests is owned,
directly or indirectly, by such Person, or is otherwise controlled by such Person.
(cc) “Triggering Event” shall mean any Section 11(a)(ii) Event or any Section 13
Event.
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 Common Stock) 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.
5
Section 3. Issue of Rights Certificates.
(a) As promptly as practicable following the Record Date, the Company shall send or deliver a
copy of a Summary of Rights to Purchase Preferred Stock to each record holder of Common Stock 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 shares of Common Stock outstanding as of the Record
Date, until the Distribution Date, the Rights shall be evidenced by such certificates for the
Common Stock and the registered holders of the Common Stock shall also be the registered holders
of the associated Rights. Until the Distribution Date (or the earlier Expiration Date or Final
Expiration Date), the transfer of any certificate representing shares of Common Stock in respect
of which Rights have been issued shall also constitute the transfer of the Rights associated with
the shares of Common Stock represented thereby.
(b) Rights shall be issued in respect of all shares of Common Stock issued (whether
originally issued or from the Company’s treasury) after the Record Date but prior to the earlier
of the Distribution Date and the Expiration Date; provided, however, Rights shall
also be issued to the extent provided in Section 22 hereof in respect of all shares of
Common Stock which are issued (whether originally issued or from the Company’s treasury) after the
Distribution Date and prior to the Expiration Date. Certificates representing such shares of
Common Stock shall also be deemed to be certificates for Rights, and shall bear the following
legend (in addition to any other legends that may be required):
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in the Rights Agreement between Royal Gold, Inc.
(the “Company”) and Computershare Trust Company (the
“Rights Agent”) dated as of September 11, 1997, as
amended and restated by that certain First Amended and Restated
Rights Agreement dated as of September 10, 2007 (the
“Rights Agreement”), the terms of which are incorporated
herein by this reference and a copy of which is on file at the
principal offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such rights will be evidenced by
separate certificates and will no longer be evidenced by this
certificate. The Company will mail to the holder of this certificate
a copy of the Rights Agreement, as in effect on the date of mailing,
without charge promptly after receipt of a written request therefore.
Under certain circumstances set forth in the Rights Agreement, rights
issued to or held by any person who is, was or becomes an Acquiring
Person or any affiliate or associate thereof (as such terms are
defined in the Rights Agreement), whether currently held by or on
behalf of such person or by any subsequent holder, may become null
and void.
With respect to such certificates containing the foregoing legend, until the earlier of the
Distribution Date and the Expiration Date, the Rights associated with the Common Stock represented
by such certificates shall be evidenced by such certificates alone and registered holders of Common
Stock shall also be the registered holders of the associated Rights, and the transfer of any such
certificate shall also constitute the transfer of the Rights associated with the
6
Common Stock represented thereby. Notwithstanding this paragraph (b), the omission of the
foregoing legend shall not affect the enforceability of any part of this Agreement or the rights of
any holder of the Rights.
(c) Until the Distribution Date, (i) the Rights shall be evidenced (subject to the provisions
of paragraph (a) of this Section 3) by the certificates for Common Stock registered in the
names of the holders thereof (which certificates for Common Stock shall also be deemed to be
Rights Certificates) and not by separate Rights Certificates, and (ii) the Rights shall be
transferable only in connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company).
(d) As soon as practicable after the Distribution Date, the Company shall prepare and
execute, the Rights Agent shall countersign and the Company shall send or cause to be sent (and
the Rights Agent shall, if requested, send) by first-class, insured, postage-prepaid mail, to each
record holder of Common Stock as of the Close of Business on the Distribution Date, at the address
of such holder shown on the records of the Company, a rights certificate, in substantially the
form of Exhibit B hereto (the “Rights Certificate”), evidencing one Right for each
share of Common Stock so held, subject to adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common Stock has been made pursuant to Section
11 hereof, at the time of distribution of the Rights Certificates, the Company shall make
necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof)
so that Rights Certificates representing only whole numbers of Rights are distributed and cash is
paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights shall be
evidenced solely by such Rights Certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase and of assignment to be
printed on the reverse thereof) shall be substantially the same as Exhibit B hereto and
may have such marks of identification or designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate, 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 any stock exchange on
which the Rights may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the Rights Certificates, whenever
issued, shall be dated as of the Record Date, shall show the date of countersignature, and on
their face 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 set forth therein (such
exercise price per one one-thousandth of a share, the “Purchase Price”), but the amount
and type of securities purchasable upon exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(d) or Section 22
hereof that represents Rights beneficially owned by (i) an Acquiring Person or any Associate or
Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes such or (iii)
a transferee of an Acquiring Person (or of any such Associate or Affiliate) who becomes a
7
transferee prior to or concurrently with the Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring
Person to holders of equity interests in such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement or understanding regarding the
transferred Rights or (B) a transfer which a majority of the authorized number of members of the
Board has determined is part of an agreement, arrangement or understanding which has as a primary
purpose or effect avoidance of Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer, exchange, replacement or
adjustment of any other Rights Certificate referred to in this sentence, shall contain (to the
extent feasible) the following legend:
The Rights represented by this Rights Certificate are or were beneficially
owned by a Person who was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights Certificate and the Rights represented
hereby may become null and void in the circumstances specified in Section
7(e) of such Rights Agreement.
The Company shall instruct the Rights Agent in writing of the Rights which should be so legended
and shall supply the Rights Agent with such legended Rights Certificates.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of the Company by its President,
Chief Executive Officer, Chief Financial Officer, Vice President or General Counsel and shall be
attested by its Secretary or Assistant Secretary either manually or by facsimile signature. The
Rights Certificates shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who shall have signed any
of the Rights Certificates shall cease to be such officer of the Company before countersignature
by the Rights Agent and issuance and delivery by the Company, such Rights 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 Rights Certificates had not
ceased to be such officer of the Company; and any Rights Certificate may be signed on behalf of
the Company by any Person who, at the actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such Rights Certificate, although at the date of
the execution of this Rights Agreement any such Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent shall keep or cause to be kept, at its
principal office or at offices designated as the appropriate place for surrender of Rights
Certificates upon exercise or transfer, books for registration and transfer of the Rights
Certificates issued hereunder. Such books shall show the names and addresses of the respective
holders of the Rights Certificates, the number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights Certificates.
8
Section 6. Transfer, Split Up, Combination and Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e) and Section
14 hereof, at any time after the Close of Business on the Distribution Date and at or prior to
the Close of Business on the Expiration Date, any Rights Certificate or Certificates may be
transferred, split up, combined or exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number of one one-thousandths of a share of
Preferred Stock (or following a Triggering Event, Common Stock, other securities, cash, or other
assets, as the case may be) as the Rights Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Rights Certificate shall make such request
in writing delivered to the Rights Agent, and shall surrender the Rights Certificate or
Certificates to be transferred, split up, combined or exchanged at the office of the Rights Agent
designated for such purpose. Neither the Rights Agent nor the Company shall be obligated to take
any action whatsoever with respect to the transfer of any such surrendered Rights Certificate
until the registered holder shall have properly completed and signed the certificate contained in
the form of assignment on the reverse side of such Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a Rights Certificate or Certificates, as
the case may be, as so requested. The Company may require payment by the holder of Rights 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 Rights Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a Rights 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 Rights
Certificate, if mutilated, the Company shall execute and deliver a new Rights Certificate of like
tenor to the Rights Agent for counter-signature and delivery to the registered owner in lieu of
the Rights Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to Section 7(e) hereof, the registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as otherwise provided herein including, without
limitation, in the restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase
and the certificate on the reverse side thereof duly and properly executed, to the Rights Agent at
the office of the Rights Agent designated for such purpose, together with payment of the Purchase
Price for each one one-thousandth of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which the Rights are exercised, at or prior to the
earliest
9
of (i) the Close of Business on September 10, 2017 (the “Final Expiration Date”),
(ii) the time at which the Rights are redeemed (the “Redemption Date”) as provided in
Section 23 hereof or (iii) the time at which the Rights are exchanged (the “Exchange
Date”) as provided in Section 24 hereof (the earliest of (i), (ii) and (iii) being
herein referred to as the “Expiration Date”).
(b) Each Right shall entitle the registered holder thereof to purchase one one-thousandth of
a share of Preferred Stock. The Purchase Price for each one one-thousandth of a share of
Preferred Stock pursuant to the exercise of a Right shall initially be $175.00, and shall be
subject to adjustment from time to time as provided in Section 11 and Section 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) Upon receipt of a Rights Certificate representing exercisable Rights, with the form of
election to purchase and the certificate duly and properly executed, accompanied by payment, with
respect to each Right so exercised, of the Purchase Price per one one-thousandth of a share of
Preferred Stock (or Common Stock, other securities, cash or other assets, as the case may be) to
be purchased and an amount equal to any applicable transfer tax or governmental charge in cash, or
by certified check or cashier’s check payable to the order of the Company, the Rights Agent shall,
subject to Section 18(k) hereof, thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Preferred Stock (or make available, if the Rights Agent is the transfer
agent) certificates for the total number of one one-thousandths of a share of Preferred Stock to
be purchased, and the Company hereby irrevocably authorizes its transfer agent to comply with all
such requests, or (B) if the Company shall have elected to deposit the total number of shares of
Preferred Stock issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such number of one
one-thousandths of a share of Preferred Stock as are to be purchased (in which case certificates
for the shares of Preferred Stock represented by such receipts shall be deposited by the transfer
agent with the depositary agent), and the Company shall direct the depositary to comply with such
request, (ii) requisition from the Company the amount of cash, if any, 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 Rights Certificate, registered in such name or names as may
be designated by such holder, and (iv) after receipt thereof, promptly deliver such cash, if any,
to or upon the order of the registered holder of such Rights Certificate. In the event that the
Company is obligated to issue other securities (including Common Stock) of the Company, pay cash
and/or distribute other property pursuant to Section 11(a) hereof, the Company shall make
all arrangements necessary so that such securities, cash and/or other property are available for
distribution by the Rights Agent, if and when appropriate.
(d) In case the registered holder of any Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the Rights
remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of,
the registered holder of such Rights Certificate, registered in such name or names as may be
designated by such holder, subject to the provisions of Section 14 hereof.
10
(e) Notwithstanding anything in this Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring Person
or any Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or
of any such Associate or Affiliate) who becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of any such Associate or Affiliate) who
becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives
such Rights pursuant to either (A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with
whom such Acquiring Person has any continuing agreement, arrangement or understanding regarding
the transferred Rights or (B) a transfer which a majority of the authorized number of members of
the Board has determined is part of an agreement, arrangement or understanding which has as a
primary purpose or effect the avoidance of this Section 7(e), shall become null and void
without any further action, and no holder of such Rights shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or otherwise. The Company
shall use all reasonable efforts to ensure that the provisions of this Section 7(e) and of
Section 4(b) hereof are complied with, but shall have no liability to any holder of Rights
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. The Rights Agent
shall endeavor to comply with the provisions hereof to the extent it has received instructions
from the Company concerning such matters.
(f) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder upon
the occurrence of any purported exercise as set forth in this Section 7 unless such
registered holder shall have (i) properly completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights Certificate surrendered
for such exercise, and (ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation of Rights Certificates.
All Rights 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 Rights Certificates shall be issued in lieu thereof except as
expressly permitted by any provisions of this Rights Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any
other Rights Certificate purchased or acquired by the Company otherwise than upon the exercise
thereof. The Rights Agent shall deliver all cancelled Rights Certificates to the Company.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company shall cause to be reserved and kept available out of its authorized and
unissued shares of Preferred Stock (and following the occurrence of a
11
Triggering Event, out of its authorized and unissued shares of Common Stock and/or other
securities or out of its authorized and issued shares held in its treasury), the number of shares
of Preferred Stock (and, following the occurrence of a Triggering Event, shares of Common Stock
and/or other securities) that, as provided in this Agreement, including Section 11(a)(iii)
hereof, shall be sufficient to permit the exercise in full of all outstanding Rights.
(b) In the event the shares of Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable upon the exercise of Rights become listed on
any national securities exchange or (for so long as it is not a national securities exchange) the
NASDAQ Global Select Market, 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 on such
exchange or (for so long as it is not a national securities exchange) the NASDAQ Global Select
Market upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section 11(a)(ii) Event on which the consideration
to be delivered by the Company upon exercise of the Rights has been determined in accordance with
this Agreement, or as soon as is required by law following the Distribution Date, as the case may
be, a registration statement under the Securities Act with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such registration statement to
become effective as soon as practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of (A) the date as of which the Rights are no longer exercisable
for such securities, and (B) the Expiration Date. The Company shall also take such action as may
be appropriate under, or to ensure compliance with, the securities or “blue sky” laws of the
various states in connection with the exercisability of the Rights. The Company may temporarily
suspend, for a period of time not to exceed 90 days after the date set forth in clause (i) of the
first sentence of this Section 9(c), the exercisability of the Rights in order to prepare
and file such registration statement and permit it to become effective. In addition, if the
Company shall determine that a registration statement is required following the Distribution Date,
the Company may temporarily suspend the exercisability of the Rights until such time as a
registration statement has been declared effective. Upon any suspension of exercisability of
Rights referred to in this Section 9(c), the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect, in each case with simultaneous
written notice to the Rights Agent. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable and shall be null and void so long as held by a
holder in any jurisdiction where the requisite qualification to the issuance to such holder, or
the exercise by such holder, of the Rights in such jurisdiction shall not have been obtained or be
obtainable, or the exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective. The Rights Agent may assume that any Right
exercised is permitted to be exercised under applicable law and shall have no liability for acting
in reliance upon such assumption.
(d) The Company shall take all such action as may be necessary to ensure that all one
one-thousandths of a share of Preferred Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) delivered upon exercise of Rights
12
shall, at the time of delivery of the certificates for such shares (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and non-assessable.
(e) The Company shall 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 Rights Certificates
or of any certificates for a number of one one-thousandths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) upon the exercise of Rights. The
Company shall not, however, be required to pay any transfer tax or charge which may be payable in
respect of any transfer or delivery of Rights Certificates to a Person other than, or the issuance
or delivery of certificates for a number of one one-thousandths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) in a name other than that of the
registered holder of the Rights Certificate evidencing Rights surrendered for exercise or to issue
or deliver any certificates for a number of one one-thousandths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may be) in a name other than that of the
registered holder upon the exercise of any Rights until any such tax or charge shall have been
paid (any such tax or charge being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company’s satisfaction that no such tax or
charge is due.
Section 10. Preferred Stock Record Date.
Each Person in whose name any certificate for a number of one one-thousandths of a share of
Preferred Stock (or Common Stock and/or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or Common Stock and/or other securities, as the case may be)
represented thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the Purchase Price (and any
applicable transfer taxes and charges) was made; provided, however, that if the
date of such surrender and payment is a date upon which the Preferred Stock (or Common Stock and/or
other securities as the case may be) transfer books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares (fractional or otherwise) on, and such
certificate shall be dated, the next succeeding Business Day on which the Preferred Stock (or
Common Stock and/or other securities as the case may be) transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby, the holder of a Rights Certificate shall not
be entitled to any rights of a stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the right to vote, to receive dividends
or other distributions or to exercise any preemptive rights, and shall not be entitled to receive
any notice of any proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of
Rights.
The Purchase Price, the number and kind of shares covered by each Right and the number of
Rights outstanding are subject to adjustment from time to time as provided in this Section
11.
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(a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare a dividend on the Preferred Stock payable in shares of Preferred Stock, (B) subdivide the
outstanding Preferred Stock, (C) combine the outstanding
Preferred Stock into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), except as otherwise provided in this
Section 11(a) and in Section 7(e) hereof, 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 shares of Preferred Stock or the number and kind of
shares of capital stock issuable on such date, as the case may be, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be entitled to receive,
upon payment of the aggregate adjusted Purchase Price then in effect necessary to exercise a Right
in full, the aggregate number and kind of shares of Preferred Stock or the number and kind of
shares of capital stock, as the case may be, which, if such Right had been exercised immediately
prior to such date and at a time when the transfer books of the Company for the Preferred Stock
(or other capital stock, as the case may be) were open, such 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 shares of
capital stock of the Company issuable upon exercise of one Right. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and Section 11(a)(ii)
hereof, the adjustment provided for in this Section 11(a)(i) shall be in addition to, and
shall be made prior to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 23 and Section 24 hereof, in the event that any Person
(other than the Company, any Subsidiary of the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person organized, appointed or established by the Company
for or pursuant to the terms of any such plan), alone or together with its Affiliates and
Associates, shall become an Acquiring Person, unless the event causing such Person to become an
Acquiring Person is a transaction set forth in Section 13(a) hereof, proper provision shall
be made so that promptly following the Redemption Period (as defined in Section 23(a)
hereof), each holder of a Right (except as provided below and in Section 7(e) hereof) shall
thereafter have the right to receive, upon exercise thereof and payment of an amount equal to the
then current Purchase Price in accordance with the terms of this Agreement, in lieu of a number of
one one-thousandths of a share of Preferred Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the then current Purchase Price by
the then number of one one-thousandths of a share of Preferred Stock for which a Right was or would
have been exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event,
whether or not such Right was then exercisable, and (y) dividing that product (which, following
such first occurrence, shall thereafter be referred to as the “Purchase Price” for each
Right and for all purposes of this Agreement except to the extent set forth in Section 13
hereof) by 50% of the current per share market price of Common Stock (determined pursuant to
Section 11(d) hereof) on the date of such first occurrence (such number of shares, the
“Adjustment Shares”).
(iii) The Company at its option may substitute for a share of Common Stock issuable upon the
exercise of Rights in accordance with the foregoing subparagraph (ii)
14
such number or fractions of shares of Preferred Stock having an aggregate market value equal
to the current per share market price of one share of Common Stock. In the event that the number
of shares of Common Stock which is authorized by the Company’s Amended and Restated Certificate of
Incorporation but not outstanding, or reserved for issuance for purposes other than upon exercise
of the Rights, is not sufficient to permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii), the Board shall, to the extent permitted by applicable law and by
any agreements or instruments then in effect to which the Company is a party, (A) determine the
excess of (x) the value of the Adjustment Shares issuable upon the exercise of a Right (the
“Current Value”) over (y) the Purchase Price (such excess, the “Spread”), and (B)
with respect to each Right (subject to Section 7(e) hereof), make adequate provision to
substitute for some or all of the Adjustment Shares, upon exercise of a Right and payment of the
applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or
other equity securities of the Company (including, without limitation, shares, or units of shares,
of Preferred Stock which the Board has deemed to have the same value as shares of Common Stock)
(such shares of equity securities being herein called “common stock equivalents”), (4) debt
securities of the Company, (5) other assets or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such aggregate value has been determined by the
Board based upon the advice of an investment banking firm selected by the Board; provided,
however, if the Company shall not have made adequate provision to deliver value pursuant to
clause (B) above within 30 days following the later of (x) the first occurrence of a Section
11(a)(ii) Event and (y) the date on which the Company’s right of redemption pursuant to Section
23(a) hereof expires (the later of (x) and (y) being referred to herein as the “Section
11(a)(ii) Trigger Date”), then the Company shall be obligated to deliver, upon the surrender
for exercise of a Right and without requiring payment of the Purchase Price, shares of Common Stock
(to the extent available), and then, if necessary such number of fractions of shares of Preferred
Stock (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 occurrence of a Section 11(a)(ii) Event, the Board shall determine in good faith that
it is likely that sufficient additional shares of Common Stock could be authorized for issuance
upon exercise in full of the Rights, then if the Board so elects, the 30 day period set forth above
may be extended to the extent necessary, but not more than 90 days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval for the
authorization of such additional shares (such period, as it may be extended, the “Substitution
Period”). To the extent that action is to be taken pursuant to the preceding provisions of
this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e)
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
authorization of additional shares and/or to decide the appropriate form of distribution to be made
pursuant to the first sentence of this Section 11(a)(iii) 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 Common Stock shall be the current market price (as
determined pursuant to Section 11(d) hereof) per share of the Common Stock on the
Section 11(a)(ii) Trigger Date and the value of any “common stock equivalent” shall be
deemed to have the same value as the Common Stock on such date. The Board may, but shall not be
required to, establish procedures to allocate the right to receive
15
shares of Common Stock 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 Preferred Stock entitling them (for a period expiring within 45
calendar days after such record date) to subscribe for or purchase Preferred Stock (or shares
having the same rights, privileges and preferences as the shares of Preferred Stock
(“equivalent preferred stock”)) or securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of Preferred Stock or per share of equivalent
preferred stock (or having a conversion price per share, if a security convertible into Preferred
Stock or equivalent preferred stock) less than the current per share market price of the Preferred
Stock (as 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 shares of Preferred Stock or equivalent preferred stock outstanding on such record date,
plus the number of shares of Preferred Stock or equivalent preferred stock which the aggregate
offering price of the total number of shares of Preferred Stock and/or equivalent preferred stock
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 shares of Preferred Stock or equivalent preferred stock outstanding on such record
date, plus the number of additional shares of Preferred Stock and/or equivalent preferred stock to
be offered for subscription or purchase (or into which the convertible securities so to be offered
are initially convertible); 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 shares of capital stock of the Company issuable upon exercise of one 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,
whose determination shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes. Shares of Preferred Stock or equivalent preferred stock owned by or
held for the account of the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a record date is fixed; and
in the event that such rights, 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 a distribution to all holders of
Preferred Stock (including any such distribution made in connection with a consolidation or merger
in which the Company is the continuing or surviving corporation) of evidences of indebtedness,
cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred Stock, but including any dividend
payable in stock other than Preferred Stock), or 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 current per share market price of
the Preferred Stock (as determined pursuant to Section 11(d) hereof) on such record date,
less the fair market value (as determined in good faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of
the portion of the cash, assets or evidences of indebtedness so to
16
be distributed or of such subscription rights or warrants applicable to a share of Preferred
Stock, and the denominator of which shall be such current per share market price of the Preferred
Stock; 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 shares of capital stock of
the Company issuable upon exercise of one Right. Such adjustment 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) For the purpose of any computation under this Agreement, the “current per share
market price” of the Common Stock on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to, but not including, such date; provided,
however, that in the event that the current per share market price of the Common Stock is
determined during a period following the announcement by the issuer of such Common Stock of (i) a
dividend or distribution on such Common Stock payable in shares of such Common Stock or securities
convertible into such Common Stock (other than the Rights), or (ii) any subdivision, combination
or reclassification of such Common Stock, and prior to the expiration of the requisite 30 Trading
Day period, as set forth above, 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 take into account
ex-dividend trading. The closing price for each day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the NASDAQ Global Select Market or, if
the shares of Common Stock are not listed or admitted to trading on the NASDAQ Global Select
Market, as reported in the principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading or, if the shares of Common Stock are not listed or
admitted to trading on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated Quotations System
(“NASDAQ”) or such other system then in use, or, if on any such date the shares of Common
Stock are not quoted by any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the shares of Common Stock selected by
the Board.
If on any such date no market maker is making a market in the Common Stock, the fair value of such
shares on such date as determined in good faith by the Board shall be used. The term “Trading Day”
shall mean a day on which the principal national securities exchange on which the shares of Common
Stock are listed or admitted to trading is open for the transaction of business, or, if the shares
of Common Stock are not listed or admitted to trading on any national securities exchange, the term
“Trading Day” shall mean a Monday, a Tuesday, a Wednesday, a Thursday or a Friday on which
banking or trust institutions in the State of New York are not authorized or obligated by law or
executive order to close. If the Common Stock is not publicly held or not listed or traded,
“current market price” shall mean the fair value per share as
17
determined in good faith by the Board, whose determination shall be described in a statement filed
with the Rights Agent and shall be conclusive for all purposes.
(ii) For the purpose of any computation under this Agreement, the “current per share
market price” of the Preferred Stock shall be determined in the same manner as set forth above
for the Common Stock in clause (i) of this Section 11(d) (other than the last sentence
thereof). If the current per share market price of the Preferred Stock cannot be determined in the
manner provided above or if the Preferred Stock is not publicly held or listed or traded in a
manner described in clause (i) of this Section 11(d), the “current per share market price”
of the Preferred Stock shall be conclusively deemed to be an amount equal to 1,000 (as such number
may be appropriately adjusted for such events as stock splits, stock dividends and
recapitalizations with respect to the Common Stock occurring after the date of this Agreement)
multiplied by the current per share market price of the Common Stock. If neither the Common Stock
nor the Preferred Stock is publicly held or so listed or traded, the “current per share market
price” of the Preferred Stock shall mean the fair value per share as determined in good faith by
the Board, whose determination shall be described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. For all purposes of this Agreement, the “current market
price” of one one-thousandth of a share of Preferred Stock shall be equal to the “current per share
market price” of one share of Preferred Stock divided by 1,000.
(e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease of at least one
percent (1%) in such 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 ten-thousandth of a share of Common Stock or
other security or one-millionth of a share of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section 11(e), an 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 Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a)(ii) or Section
13(a) hereof, the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than Preferred Stock, thereafter the number of
such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be
subject to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to the Preferred Stock contained in Sections
11(a), (b), (c), (e), (g), (h), (i),
(j), (k), (l) and (m) hereof, and the provisions of Sections
7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock
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 share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
18
(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) hereof, each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-thousandths of a share of Preferred Stock (calculated to
the nearest one-ten millionth of a share) obtained by (i) multiplying (x) the number of one
one-thousandths of a share covered by a Right immediately prior to this 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 Rights, in lieu of any adjustment in the number of one one-thousandths of a
share of Preferred Stock issuable 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 share of Preferred Stock 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 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
Rights Certificates have been issued, shall be at least ten days later than the date of the public
announcement. If Rights Certificates have been issued, upon each adjustment of the number of
Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such
holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall
cause to be distributed to such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Rights Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Rights Certificates so to be distributed shall be
issued, executed and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders
of record of Rights 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 share of Preferred Stock issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the Purchase Price per one
one-thousandth of a share and the number of one one-thousandths of a share which were expressed in
the initial Rights 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 number of one one-thousandths of a share of Preferred Stock
issuable upon exercise of the Rights, the Company shall take any
19
corporate action which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue, as fully paid and non-assessable, such number of one
one-thousandths of a share of Preferred Stock 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 issuance to the holder of any Right exercised
after such record date the number of one one-thousandths of a share of Preferred Stock and other
capital stock or securities of the Company, if any, issuable upon such exercise over and above the
number of one one-thousandths of a share of Preferred Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due xxxx or other appropriate instrument evidencing such holder’s right to receive
such additional shares upon the occurrence of the event requiring such adjustment.
(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 the Board in its sole discretion
shall determine to be advisable in order that any (i) consolidation or subdivision of the
Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred Stock at less than the
current market price, (iii) issuance wholly for cash of shares of Preferred Stock or securities
which by their terms are convertible into or exchangeable for Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to hereinabove in this
Section 11, hereafter made by the Company to holders of its Preferred Stock shall not be
taxable to such stockholders.
(n) The Company shall not, at any time after the Distribution Date, (i) consolidate with any
other Person (other than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof) or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one transaction, or a series of
related transactions, assets or earning power aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company and/or any of its Subsidiaries in one or more transactions each of which complies
with Section 11(o) hereof), if (x) at the time of or immediately after such consolidation,
merger or sale 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 or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, 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 and Associates.
(o) Except as permitted by Section 23, Section 24 or Section 27
hereof, the Company shall not take (or permit any Subsidiary to take) after the Distribution Date
any action
20
if at the time such action is taken it is reasonably foreseeable that such action will
diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, in the event that the
Company, prior to the Distribution Date, shall (i) declare a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares of Common
Stock or (iii) combine the outstanding shares of Common Stock into a smaller number of shares, the
number of Rights associated with each share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that
the number of Rights thereafter associated with each share of Common Stock following any such
event shall equal the result obtained by multiplying the number of Rights associated with each
share of Common Stock immediately prior to such event by a fraction the numerator of which shall
be the total number of shares of Common Stock outstanding immediately prior to the occurrence of
the event and the denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 or Section 13 hereof,
the Company shall (a) promptly prepare a certificate setting forth such adjustment, and a brief
statement of the facts and computations accounting for such adjustment, (b) promptly file with the
Rights Agent and with each transfer agent for the Preferred Stock and the Common Stock a copy of
such certificate and (c) mail or deliver a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to each holder of a certificate representing
shares of Common Stock) in accordance with 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 adjustment unless and until it shall have received
such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
(a) Subject to Section 23 hereof, in the event that, following the Stock Acquisition
Date, directly or indirectly,
(x) the Company shall consolidate with, or merge with and into, any other Person (other
than a Subsidiary of the Company in a transaction which complies with Section 11(o)
hereof),
(y) any Person (other than a Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof) shall consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all or part of the outstanding shares of
Common Stock shall be changed into or exchanged for stock or other securities of any other
Person (or of the Company) or cash or any other property, or
21
(z) the Company shall sell or otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of which complies with Section 11(o)
hereof),
then, and in each such case, proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e) hereof, shall, upon
the expiration of the Redemption Period (as defined in Section 23(a) hereof), thereafter
have the right to receive, upon the exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, such number of validly authorized and issued, fully
paid, non-assessable and freely tradable shares of Common Stock of the Principal Party (as
hereinafter defined), 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 share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section 13 Event, multiplying the number of one one-thousandths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect immediately prior to such first occurrence), and | ||
(2) | dividing that product (which product, following the first occurrence of a Section 13 Event, shall be referred to as the “Purchase Price” for each Right and for all purposes of this Agreement) by 50% of the current per share market price of the shares of Common Stock of such Principal Party on the date of consummation of such Section 13 Event (or the fair market value on such date of other securities or property of the Principal Party, as provided for herein); |
(ii) such Principal Party shall thereafter be liable for, and shall assume, by virtue of
such Section 13 Event, all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term “Company” shall thereafter be deemed to refer to such Principal Party, it
being specifically intended that the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13 Event;
(iv) such Principal Party shall take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its Common Stock) in connection with the
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
22
relation to its shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and
(v) the provisions of Section 11(a)(ii) hereof shall be of no effect following the
first occurrence of any Section 13 Event.
(b) “Principal Party” shall mean
(i) in the case of any transaction described in clause (x) or (y) of the first sentence of
Section 13(a) hereof, (A) the Person (including the Company as successor thereto or as the
surviving corporation) that is the issuer of any securities into which shares of Common Stock of
the Company are converted in the merger or consolidation so described, or, if there is more than
one such issuer, the issuer of Common Stock that has the highest aggregate current market price (as
determined pursuant to Section 11(d) hereof) and (B) if no securities or other equity
interests are so issued, the Person (including the Company as successor thereto or as the surviving
corporation) that is the other constituent party to such merger or consolidation, or, if there is
more than one such Person, the Person that is a constituent party to such merger or consolidation,
the Common Stock of which has the highest aggregate current market price (as determined pursuant to
Section 11(d) hereof); and
(ii) in the case of any transaction described in clause (z) of the first sentence of
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 transferred pursuant to such transaction or transactions or if the Person
receiving the greatest portion of the assets or earning power cannot be determined, whichever of
such Persons is the issuer of Common Stock having the highest aggregate current market price (as
determined pursuant to Section 11(d) hereof);
provided, however, that in any such case: (1) if the Common Stock of such Person is
not at such time and has not been continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so registered, “Principal
Party” shall refer to such other Person; (2) if the Common Stock of such Person is not and has not
been so registered and such Person is a Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and have been so registered, “Principal
Party” shall refer to whichever of such Persons is the issuer of the Common Stock having the
greatest aggregate market value; and (3) if the Common Stock of such Person is not and has not been
so registered and such Person is owned, 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
(1) and (2) above shall apply to each of the chains of ownership having an interest in such joint
venture as if such party were a Subsidiary of both or all of such joint venturers, and the
Principal Parties in each such chain shall bear the obligations set forth in this Section
13 in the same ratio as their direct or indirect interests in such Person bear to the total of
such interests.
(c) The Company shall not consummate any Section 13 Event unless the Principal Party shall
have a sufficient number of authorized shares of its Common Stock which
23
have not been issued or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and such Principal
Party shall have executed and delivered to the Rights Agent a supplemental agreement providing for
the terms set forth in paragraphs (a) and (b) of this Section 13 and further providing
that, as soon as practicable after the date of any such Section 13 Event, the Principal Party
shall:
(i) prepare and file a registration statement under the Securities Act, with respect to the
Rights and the securities purchasable upon exercise of the Rights on an appropriate form, and use
its best efforts to cause such registration statement to (A) become effective as soon as
practicable after such filing and (B) remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Date;
(ii) deliver to holders of the Rights historical financial statements for the Principal Party
and each of its Affiliates that comply in all respects with the requirements for registration on
Form 10 under the Exchange Act;
(iii) use its best efforts to obtain any necessary regulatory approvals in respect of the
securities purchasable upon exercise of outstanding Rights; and
(iv) use its best efforts, if such Common Stock of the Principal Party shall be listed or
admitted to trading on the New York Stock Exchange or on another national securities exchange or
(for so long as it is not a national securities exchange) on the NASDAQ Global Select Market, 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 on such securities exchange or (for
so long as it is not a national securities exchange) on the NASDAQ Global Select Market, or if the
securities of the Principal Party purchasable upon exercise of the Rights shall not be listed or
admitted to trading on the New York Stock Exchange or a national securities exchange or (for so
long as it is not a national securities exchange) on the NASDAQ Global Select Market, to cause the
Rights and the securities purchasable upon exercise of the Rights to be reported by such other
system then in use.
(d) In case the Principal Party that is to be a party to a transaction referred to in this
Section 13 has at the time of such transaction, or immediately following such transaction
shall have, a provision in any of its authorized securities or in its certificate or articles of
incorporation or by-laws or other instrument governing its affairs, or any other agreements or
arrangements, which provision would have the effect of (i) causing such Principal Party to issue,
in connection with, or as a consequence of, the consummation of a transaction referred to in this
Section 13, shares of Common Stock of such Principal Party at less than the then current
per share market price (as determined pursuant to Section 11(d) hereof) or securities
exercisable for, or convertible into, Common Stock of such Principal Party at less than such then
current market price (other than to holders of Rights pursuant to this Section 13), (ii)
providing for any special payment, tax or similar provisions in connection with the issuance of
the Common Stock of such Principal Party pursuant to the provisions of this Section 13 or
(iii) otherwise eliminating or substantially diminishing the benefits intended to be afforded by
the Rights in connection with, or as a consequence of, the consummation of a transaction referred
to in this Section 13, then, in such event, the Company shall not consummate any such
transaction unless prior thereto the Company and such Principal Party shall have executed and
delivered to the Rights
24
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 shall have no effect in connection with, or as a
consequence of, the consummation of such transaction.
(e) The provisions of this Section 13 shall similarly apply to successive mergers or
consolidations or sales or other transfers. In the event that a Section 13 Event shall occur at
any time after the occurrence of a Section 11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the manner described in Section
13(a) hereof.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights except prior to the
Distribution Date as provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of such fractional Rights, there shall be
paid to the registered holders of the Rights 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 the 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 consolidated transaction reporting system with respect to
securities listed or admitted to trading on the NASDAQ Global Select Market or, if the Rights are
not listed or admitted to trading on the NASDAQ Global Select Market, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted to trading or, if the
rights are not listed or admitted to trading on any national securities exchange, the last 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 NASDAQ or such other system then in use or, if on any such
date the Rights are not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Rights selected by the
Board. 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 shall be used. In the event
the Rights are listed or admitted to trading on a national securities exchange, 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 high bid and low asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect to the national
securities exchange on which the Rights are listed or admitted to trading.
(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a share of Preferred Stock)
upon exercise of the Rights or to distribute certificates which evidence fractional shares of
Preferred Stock (other than fractions which are integral multiples of one one-thousandth of a
share of Preferred Stock). In lieu of fractional shares of Preferred Stock that are not integral
multiples of one one-thousandth of a share of Preferred Stock, the
25
Company may pay to the registered holders of Rights 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 one-thousandth of a share of Preferred Stock. For purposes of this Section
14(b), the current market value of one one-thousandth of a share of Preferred Stock shall be
one one-thousandth of the closing price of a share of Preferred Stock (as determined pursuant to
Section 11(d)(ii) hereof) for the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of one of the events specified in Section 11 hereof
giving rise to the right to receive Common Stock, common stock equivalents or other securities
upon the exercise of a Right, the Company shall not be required to issue fractions of shares of
Common Stock, common stock equivalents or other securities upon exercise of the Rights or to
distribute certificates which evidence fractional shares of Common Stock, common stock equivalents
or other securities. In lieu of fractional shares of Common Stock, common stock equivalents or
other securities, the Company may pay to the registered holders of Rights 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 share of Common Stock, common stock equivalents or other securities.
For purposes of this Section 14(c), the current market value of one share of Common Stock
shall be the closing price of one share of Common Stock (as determined pursuant to Section
11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Rights expressly waives such holder’s
right to receive any fractional Rights or any fractional shares upon exercise of a Right, except
as permitted by this Section 14.
Section 15. Rights of Action.
All rights of action in respect of this Agreement, except the rights of action vested in the
Rights Agent pursuant to Section 18 and Section 19 hereof, are vested in the
respective registered holders of the Rights Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered holder of any Rights Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of the Rights Agent or of
the holder of any other Rights Certificate (or, prior to the Distribution Date, of the Common
Stock), may, in his own behalf and for his own benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Rights Certificate in the manner provided in such
Rights 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 shall be entitled to specific
performance of the obligations under, and injunctive relief against actual or threatened violations
of, the obligations hereunder of any Person subject to this Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting such Right consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
26
(a) prior to the Distribution Date, the Rights shall be transferable only in connection with
the transfer of the Common Stock;
(b) after the Distribution Date, the Rights Certificates shall be transferable only on the
registry books of the Rights Agent if surrendered at the office of the Rights Agent designated for
such purposes, duly endorsed or accompanied by a proper instrument of transfer and with the
appropriate form of assignment and the certificate contained therein duly completed and executed;
(c) subject to Section 6(a) and Section 7(f) hereof, the Company and the
Rights Agent may deem and treat the Person in whose name the Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing
on the Rights Certificates or the associated Common Stock certificate made by anyone other than
the Company or the Rights Agent) for all purposes whatsoever, and neither the Company nor the
Rights Agent, subject to the last sentence of Section 7(e) hereof, shall be affected by
any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a Right or other Person as a result of its
inability to perform any of its obligations under this Agreement by reason of any preliminary or
permanent injunction or other order, decree, judgment or ruling (whether interlocutory or final)
issued by a court of competent jurisdiction or by a governmental, regulatory or administrative
agency or commission, or any statute, rule, regulation or executive order promulgated or enacted
by any governmental authority, prohibiting or otherwise restraining performance of such
obligation; provided, however, the Company shall use its best efforts to have any
such order, decree or ruling lifted or otherwise overturned as soon as practicable.
Section 17. Rights Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Rights Certificate shall be entitled to vote, to receive dividends
or to be deemed for any purpose the holder of the Preferred Stock or any other securities of the
Company which may at any time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of a stockholder of the Company or any right
to vote for the election of directors or upon any matter submitted to stockholders at any meeting
thereof, or to give or withhold consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in Section 25 hereof), or to
receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in accordance with the provisions hereof.
Section 18. Compensation and Indemnification of the Rights Agent.
(a) The Company agrees to pay to the Rights Agent such compensation as shall be agreed in
writing between the Company and the Rights Agent for all services rendered
27
by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and expenses 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, its officers, employees, agents and directors for, and
to hold each of them harmless against, any loss, liability or expense, incurred without gross
negligence, bad faith or willful misconduct on the part of the Rights Agent, for any action taken,
suffered or omitted by the Rights Agent or such other indemnified party in connection with the
acceptance and administration of this Agreement and the exercise of its duties hereunder,
including, but not limited to, the costs and expenses of defending against any claim (whether
asserted by the Company, a holder of Rights, or any other Person) of liability in the premises.
The indemnity provided for hereunder shall survive the expiration of the Rights and the
termination of this Agreement.
(b) The Rights Agent shall be authorized and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its administration of
this Agreement or the exercise of its duties hereunder in reliance upon any Rights Certificate or
certificate for Common Stock or for other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it to be genuine and to be signed
and executed by the proper person or persons.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any Person into which the Rights Agent or any successor Rights Agent may be merged or
with which it may be consolidated, or any Person resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any Person succeeding to
all or substantially all the stock transfer business 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,
however, that such Person would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the Rights Certificates shall
have been countersigned but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Rights 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 Rights Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and at any such time
any of the Rights Certificates shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such Rights Certificates either in its prior name
or in its changed name; and in all such cases such Rights Certificates shall have the full force
provided in the Rights Certificates and in this Agreement.
28
Section 20. Duties of Rights Agent.
The Rights Agent undertakes only the duties and obligations expressly imposed by this
Agreement upon the following terms and conditions, by all of which the Company and the holders of
Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel of its selection (who may be legal
counsel for the Company), and the advice or opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent, and the Rights Agent shall incur no liability,
for or in respect of any action taken or omitted by it in good faith and in accordance with such
advice or 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 (including, without limitation, the
identity of any Acquiring Person and the determination of “current market price”) be proved or
established by the Company prior to taking or suffering or omitting to take any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein specifically prescribed)
may be deemed to be conclusively proved and established by a certificate signed by any person
believed by the Rights Agent to be any one of the Chief Executive Officer, President, Chief
Financial Officer, Vice President, Secretary or General Counsel of the Company and delivered to
the Rights Agent; and such certificate shall be full authorization to the Rights Agent, and the
Rights Agent shall incur no liability, for or in respect of any action taken, omitted 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 only for its own gross negligence, bad faith
or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights Certificates (except as to its
countersignature thereof) or be required to verify the same, but all such statements and recitals
are and shall be deemed to have been made by the Company only.
(e) The Rights Agent is serving as an administrative agent and shall not be under any
responsibility in respect of the validity of any provision of this Agreement or the execution and
delivery of this Agreement (except the due execution hereof by the Rights Agent) or in respect of
the validity or execution of any Rights 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 Rights Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming null and void pursuant to Section
7(e) hereof) or any adjustment required under any of the provisions hereof or responsible for
the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to the exercise of Rights evidenced by
Rights Certificates after the Rights Agent’s actual receipt of notice of any such adjustment); nor
shall it by any act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or shares of Preferred Stock to be
issued pursuant to this Agreement or any Rights
29
Certificate or as to whether any shares of Common Stock or shares of Preferred Stock will,
when so issued, be validly authorized and issued, fully paid and non-assessable, nor shall the
Rights Agent be responsible for the legality of the terms hereof in its capacity as an
administrative agent.
(f) The Company shall 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 believed by the Rights Agent to be any one
of the Chief Executive Officer, President, Chief Financial Officer, Vice President, Secretary or
General Counsel of the Company, and to apply to such officers for advice or instructions in
connection with its duties, and it shall not be liable for any action taken, omitted to be taken
or suffered to be taken 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, suffered or omitted by the Rights Agent under this
Agreement and the date on or after which such action shall be taken or suffered or such omission
shall be effective. The Rights Agent shall not be liable for any action taken or suffered 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 instruction in response to such application specifying the action to be taken, suffered or
omitted.
(h) The Rights Agent and any stockholder, affiliate, director, officer or employee of the
Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or
become pecuniarily interested in any transaction in which the Company may be interested, or
contract with or lend money to the Company or otherwise act as fully and freely as though it were
not the Rights Agent under this Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other Person or 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, however, that the Rights Agent exercised
reasonable care 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 attached to the form of assignment or form of election to purchase,
as the case may be, has either not been properly completed or indicates an affirmative
30
response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further action
with respect to such requested exercise of 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 thirty (30) days’ notice in writing mailed to the Company. The Company
may remove the Rights Agent or any successor Rights Agent upon thirty (30) days’ notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and to each transfer
agent of the Common Stock and the Preferred Stock by registered or certified mail, and to the
holders of the Rights 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 thirty (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
Rights Certificate (who shall, with such notice, submit his Rights Certificate for inspection by
the Company), then the Rights Agent or the registered holder of any Rights Certificate may, at the
expense of the Company, 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 (i) a Person organized and doing business under the laws of the United States or the State
of Delaware or New York (or of any other state of the United States so long as such Person is
authorized to do business in the State of Delaware or New York), in good standing, having an office
in the State of Delaware or New York which is authorized under such laws to exercise corporate
trust power and is subject to supervision or examination by federal or state authority and which
has at the time of its appointment as Rights Agent a combined capital and surplus of at least $50
million or (ii) an affiliate of such a Person. After appointment, the successor Rights Agent shall
be vested with the same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent of the Common Stock and the
Preferred Stock, and mail a notice thereof in writing to the registered holders of the Rights
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 Rights Certificates.
Notwithstanding any of the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights in such form as may be
approved by the Board to reflect any adjustment or change in the Purchase Price per share and the
number or kind of class of shares or other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock following the Distribution Date (other than
upon exercise of a Right) and prior to the redemption
31
or expiration of the Rights, the Company (a) shall, with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or under any employee plan or arrangement,
or upon the exercise, conversion or exchange of securities hereinafter issued by the Company, and
(b) may, in any other case, if deemed necessary or appropriate by the Board, issue Rights
Certificates representing the appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Rights Certificate shall be issued if,
and to the extent that, the Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the Person to whom such
Rights Certificates would be issued, and (ii) no such Rights Certificates shall be issued if, and
to the extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance
thereof.
Section 23. Redemption.
(a) The Board may, at its option, at any time during the period commencing on the date first
set forth above and ending on the earlier of (i) the Close of Business on the tenth day following
the Stock Acquisition Date (or, if the Stock Acquisition Date shall have occurred prior to the
Record Date, the Close of Business on the tenth day following the Record Date), or (ii) the Close
of Business on the Final Expiration Date (the “Redemption Period”), cause the Company to
redeem all but not less than all the then outstanding Rights at a redemption price of $.001 per
Right, as such amount may be appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such redemption price being hereinafter
referred to as the “Redemption Price”); provided, however, that, if the
Board authorizes redemption of the Rights on or after the time a Person becomes an Acquiring
Person, then such authorization shall require the concurrence of two-thirds of the authorized
number of members of the Board. Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first occurrence of a Section 11(a)(ii)
Event or a Section 13 Event until such time as the Company’s right of redemption hereunder has
expired. The redemption of the Rights by the Board pursuant to this paragraph (a) may be made
effective at such time, on such basis and with such conditions as the Board in its sole discretion
may establish. The Company may, at its option, pay the Redemption Price in cash, shares of Common
Stock (based on the current market price of the Common Stock at the time of redemption) or any
other form of consideration deemed appropriate by the Board.
(b) Immediately upon the action of the Board ordering the redemption of the Rights, evidence
of which shall have been filed with the Rights Agent, and without any further action and without
any notice, the right to exercise the Rights shall terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. Promptly after the action of the
Board ordering the redemption of the Rights, the Company shall give notice of such redemption to
the Rights Agent and the holders of the then outstanding Rights by mailing such notice to all such
holders at their last addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the transfer agent for the Common Stock;
provided, however, that the failure to give, or any defect in, any such notice
shall not affect the validity of such redemption. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
32
Each such notice of redemption shall state the method by which the payment of the Redemption
Price will be made.
Section 24. Exchange.
(a) The Board may, at its option, at any time after any Person becomes an Acquiring Person,
exchange all or part of the then outstanding and exercisable Rights (which shall not include
Rights that have become null and void pursuant to the provisions of Section 7(e) hereof)
for shares of Common Stock at an exchange ratio of one share of Common Stock per each outstanding
Right, as appropriately adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred to as the
“Exchange Ratio”). Notwithstanding the foregoing, the Board shall not be empowered to
effect such exchange at any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any such Subsidiary, or any entity holding
Common Stock for or pursuant to the terms of any such plan), together with all Affiliates and
Associates of such Person, becomes the Beneficial Owner of 50% or more of the Common Stock then
outstanding. The exchange of the Rights by the Board may be made effective at such time, on such
basis and with such conditions as the Board in its sole discretion may establish.
(b) Immediately upon the action of the Board ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action and without any notice,
the right to exercise such Rights shall terminate and the only right thereafter of a holder of
such Rights shall be to receive that number of shares of Common Stock equal to the number of such
Rights held by such holder multiplied by the Exchange Ratio. The Company 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
promptly shall mail a notice of any such exchange to all of the holders of such Rights at their
last addresses as they appear upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the holder receives the
notice. Each such notice of exchange shall state the method by which the exchange of Common Stock
for Rights will be effected and, in the event of any partial exchange, the number of Rights that
will be exchanged. Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its option, may
substitute common stock equivalents (as defined in Section 11(a)(iii) hereof) for shares
of Common Stock exchangeable for Rights, at the initial rate of one common stock equivalent for
each share of Common Stock, as appropriately adjusted to reflect adjustments in dividend,
liquidation and voting rights of common stock equivalents pursuant to the terms thereof, so that
each common stock equivalent delivered in lieu of each share of Common Stock shall have
essentially the same dividend, liquidation and voting rights as one share of Common Stock.
(d) In the event that there shall not be sufficient shares of Common Stock issued but not
outstanding or authorized but unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such action as may
33
be necessary to authorize additional shares of Common Stock for issuance upon exchange of the
Rights.
(e) The Company shall not be required to issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares of Common Stock. In lieu of such
fractional shares, the Company shall pay to the registered holders of the Rights Certificates with
regard to which such fractional shares would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole share of Common Stock. For the purposes of
this paragraph (e), the current market value of a whole share of Common Stock shall be the closing
price of a share of Common Stock (as determined pursuant to the second and the following sentences
of Section 11(d) 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 propose, at any time after the Distribution Date, (i) to pay
any dividend payable in capital stock of any class to the holders of Preferred Stock or to make
any other distribution to the holders of Preferred Stock (other than a regular quarterly cash
dividend out of earnings or retained earnings) or (ii) to offer to the holders of Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or
shares of capital stock of any class or any other securities, rights or options, or (iii) to
effect any reclassification of its Preferred Stock (other than a reclassification involving only
the subdivision of outstanding Preferred Stock), or (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one or more transactions, of more than 50%
of the assets or earning power of the Company and its Subsidiaries (taken as a whole) to, any
other Person, or (v) to effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 26 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend, distribution of rights or
warrants, or the date on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution or winding up is to take place and the date of participation therein by
the holders of the shares of Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of any action covered by clause (i) or (ii) above at least 10 days
prior to the record date for determining holders of the shares of Preferred Stock for purposes of
such action and, in the case of any such other action, at least 10 days prior to the date of the
taking of such proposed action or the date of participation therein by the holders of the shares
of Preferred Stock, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then, in any such case, (i) the Company
shall as soon as practicable thereafter give to each holder of a Rights Certificate and to the
Rights Agent, to the extent feasible and in accordance with Section 26 hereof, a notice of
the occurrence of such event, which shall specify the event and the consequences of the event to
holders of Rights under Section 11(a)(ii) hereof, and (ii) all references in the paragraph
(a) of this Section 25 to Preferred Stock shall be deemed thereafter to refer to Common
Stock and/or, if appropriate, other securities.
34
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 Rights 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:
Royal Gold, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Secretary
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
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 Rights 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:
Computershare Trust Company, N.A.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Corporate Actions
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attn: Corporate Actions
Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Rights Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to any such holder at the address of such holder as
shown on the registry books of the Company.
Section 27. Supplements and Amendments.
Except as provided in the penultimate sentence of 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 provided in the penultimate sentence of 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 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 which changes the Redemption Price. Upon the delivery of a certificate
from inappropriate officer of the Company
35
which states that the proposed supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or amendment.
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 Rights Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock) 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 Rights Certificates (and, prior to the
Distribution Date, the registered holders of Common Stock). Prior to the Distribution Date, the
interests of the holders of Rights shall be deemed coincident with the interests of the holders of
shares of Common Stock.
Section 30. Severability.
If any term, provision, covenant or restriction of 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 Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law.
This Agreement, each Right and each Rights Certificate issued hereunder shall be deemed to be
a contract made under the internal laws of the State of Delaware and for all purposes shall be
governed by and construed in accordance with the laws of such State applicable to contracts to be
made and performed entirely within such State.
Section 32. Counterparts.
This Agreement may be executed in any number of counterparts. It shall not be necessary that
the signature of or on behalf of each party appears on each counterpart, but it shall be sufficient
that the signature of or on behalf of each party appears on one or more of the counterparts. All
counterparts shall collectively constitute a single agreement. It shall not be necessary in any
proof of this Agreement to produce or account for more than a number of counterparts containing the
respective signatures of or on behalf of all of the parties.
36
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.
Section 34. Determinations and Actions by the Board, Etc.
For all purposes of this Agreement, any calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes of determining the particular percentage
of such outstanding shares of Common Stock of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act. The Board (with, where specifically provided for herein, the
concurrence of two-thirds of the authorized number of members of the Board) shall have the
exclusive power and authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board (with, where specifically provided for herein, the concurrence of
two-thirds of the authorized number of members of the Board) or to the Company, or as may be
necessary or advisable in the administration of this Agreement, including, without limitation, the
right and power to (i) interpret the provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement (including without
limitation a determination to redeem or not redeem the Rights or to amend the Agreement). All such
actions, calculations, interpretations and determinations which are done or made by the Board
(with, where specifically provided for herein, the concurrence of two-thirds of the authorized
number of members of the Board) in good faith, shall be final, conclusive and binding on the
Company, the Rights Agent, the holders of the Rights and all other Persons.
[Remainder of Page Intentionally Left Blank]
37
IN WITNESS WHEREOF, the parties hereto have caused this First Amended and Restated Rights
Agreement to be duly executed, as of the day and year first above written.
ROYAL GOLD, INC. |
||||
By: | /s/ Xxxxx X. Xxxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxxx | |||
Title: | Vice President and General Counsel | |||
COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent |
||||
By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | Vice President |
EXHIBIT A
FORM
OF
ROYAL GOLD, INC.
AMENDED AND RESTATED
CERTIFICATE OF DESIGNATIONS
OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
(Pursuant to Section 151 of the
Delaware General Corporation Law)
Delaware General Corporation Law)
Royal Gold, Inc., a corporation organized and existing under the General Corporation Law of
the State of Delaware (hereinafter called the “Company”),
hereby certifies that (i) no shares of the class or series
described in this Amended and Restated Certificate of Designations of
Series A Junior Participating Preferred Stock have been issued
and (ii) the following
resolution was adopted by the Board of Directors of the Company as required by Section 151 of the
General Corporation Law at a meeting duly called and held on August 23, 2007:
RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors of
the Company (hereinafter called the “Board of Directors” or the “Board”) in accordance with the
provisions of the Certificate of Incorporation, as amended to date (hereinafter called the
“Certificate of Incorporation”), the Board of Directors, on August 10, 1997, created a series of
preferred stock, par value $.01 per share, of the Company and the Company thereafter filed a
Certificate of Designations with the Secretary of State of the State of Delaware to state the
designation and number of shares, and fix the relative rights, preferences, and limitations
thereof.
RESOLVED, that pursuant to the authority granted to and vested in the Board in accordance with
the provisions of the Certificate of Incorporation, the Board hereby amends and restates the
designation and number of shares, and fixes the relative rights, preferences, and limitations
thereof as follows:
Section 1. Designation and Amount. The shares of such series shall be designated as
“Series A Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of
shares constituting the Series A Preferred Stock shall be 500,000. Such number of shares may be
increased or decreased by resolution of the Board of Directors; provided, however, that no decrease
shall reduce the number of shares of Series A Preferred Stock 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 or exchangeable for Series A Preferred Stock.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any shares of any series of preferred stock of the
Company (the “Preferred Stock”) (or any similar stock) ranking prior and superior to the Series A
Preferred Stock with respect to dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of Common Stock, par value $.01 per share of the Company (the “Common
Stock”), and of any other stock of the Company ranking junior to the Series A Preferred Stock,
shall be entitled to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, semi-annual dividends payable in cash on the first day of June
and December 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 Preferred Stock, 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 shares of Common Stock, declared on the Common Stock 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 Preferred Stock. In the event the Company shall at
any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding shares of Common Stock (by
the classification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior to such event under
clause (b) of the preceding sentence shall be adjusted by multiplying such amount by a fraction,
the numerator of which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Company shall declare a dividend or distribution on the Series A Preferred Stock as
provided in paragraph (A) of this Section immediately after it declares a dividend or distribution
on the Common Stock (other than a dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on the Common Stock during the
period between any Dividend Payment Date and the next subsequent Dividend Payment Date, a dividend
of $1 per share on the Series A Preferred Stock shall nevertheless be payable on such subsequent
Dividend Payment Date.
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock 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 shares of Series A Preferred Stock entitled to receive a
semi-annual 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 shares of
Series A Preferred Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of Directors may fix a record date for the
determination of holders of shares of Series A Preferred Stock 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 shares of Series A Preferred Stock shall
have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth and except as otherwise
provided in the Certificate of Incorporation or required by law, each share of Series A Preferred
Stock shall entitle the holder thereof to 1,000 votes on all matters upon which the holders of the
Company are entitled to vote. In the event the Company shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision or
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock 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 shares of Common
Stock outstanding immediately after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Certificate of Incorporation or in any other
Certificate of Designations creating a series of Preferred Stock or any similar stock, and except
as otherwise required by law, the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock and any other capital stock of the Company having general voting rights
shall vote together as one class on all matters submitted to a vote of stockholders of the Company.
(C) Except as set forth herein, or as otherwise provided by law, holders of Series A Preferred
Stock shall have no special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever semi-annual dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not declared, on shares of Series A Preferred Stock
outstanding shall have been paid in full, the Company shall not:
(i) declare or pay dividends, or make any other distributions, on any shares of stock ranking
junior (as to dividends) to the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other distributions, on any shares of stock ranking
on a parity (as to dividends) with the Series A Preferred Stock, except dividends paid ratably on
the Series A Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration shares of any stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Company may at any time redeem, purchase or otherwise acquire
shares of any such junior stock in exchange for shares of any stock of the Company ranking junior
(as to dividends and upon dissolution, liquidation or winding up) to the Series A Preferred Stock;
(iv) redeem or purchase or otherwise acquire for consideration any shares of Series A
Preferred Stock, or any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined by the Board of Directors)
to all holders of such shares upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and preferences of the respective series
and classes, shall determine in good faith will result in fair and equitable treatment among the
respective series or classes.
(B) The Company shall not permit any subsidiary of the Company to purchase or otherwise
acquire for consideration any shares of stock of the Company unless the Company could, under
paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such time and in such
manner.
Section 5. Reacquired Shares. Any shares of Series A Preferred Stock purchased or
otherwise acquired by the Company in any manner whatsoever shall be retired and canceled 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 the Common Stock
or of shares of any other stock of the Company ranking junior upon liquidation, dissolution or
winding up to the Series A Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received the greater of (x) $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of
such payment, or (y) 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 shares of Common Stock, or (B) to the holders of shares of stock ranking on a parity
upon liquidation, dissolution or winding up with the Series A Preferred Stock, except distributions
made ratably on the Series A Preferred Stock and all such parity stock in proportion to the total
amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Company shall at any time declare or pay any dividend on the Common
Stock (by reclassification or otherwise than by payment of a dividend in shares of Common Stock)
into a greater or lesser number of shares of Common Stock, then in each such case the aggregate
amount to which holders of shares of Series A Preferred Stock 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 shares of Common Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. In case the Company shall enter into any
consolidation, merger, combination or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Preferred Stock shall at the same time be similarly exchanged
for or changed into such other stock or securities, cash and/or any other property in an amount per
share (subject to the provision for adjustment hereinafter set forth) equal to 1,000 times the
aggregate amount of stock, securities, cash and /or any other property payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged. In the
event the Company shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or change of shares of
Series A Preferred Stock shall be adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were outstanding immediately
prior to such event.
Section 8. No Redemption. The shares of Series A Preferred Stock shall not be
redeemable from any holder.
Section 9. Rank. The Series A Preferred Stock 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 Preferred Stock and senior to the Common Stock.
Section 10. Amendment. If any proposed amendment to the Certificate of Incorporation
(including this Certificate of Designations) would alter, change or repeal any of the preferences,
powers or special rights given to the Series A Preferred Stock so as to affect the Series A
Preferred Stock adversely, then the holders of the Series A Preferred Stock shall be entitled to
vote separately as a class upon such amendment, and the affirmative vote of two-thirds of the
outstanding shares of the Series A Preferred Stock, voting separately as a class, shall be
necessary for the adoption thereof, in addition to such other vote as may be required by the
General Corporation Law of the State of Delaware.
* * * * * *
IN WITNESS WHEREOF, this Amended and Restated Certificate of Designations is executed on
behalf of the Company by its Vice President and General Counsel on this 10th day of September,
2007.
Xxxxx X. Xxxxxxxxx | ||||
Vice President and General Counsel |
EXHIBIT B
FORM OF RIGHTS CERTIFICATE
Certificate No. R | Rights |
NOT EXERCISABLE AFTER SEPTEMBER 10, 2017 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS. THE
RIGHTS ARE SUBJECT TO REDEMPTION AT $.001 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.
Rights Certificate
ROYAL GOLD, INC.
This Rights Certificate 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 that certain First Amended and Restated
Rights Agreement, dated as of September 10, 2007 (the “Rights Agreement”), between Royal Gold,
Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A. (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., Denver time, on September 10, 2017 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 and non-assessable share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the “Preferred Shares”), of the Company, at a purchase
price of $175.00 per one one-thousandth of a Preferred Share (the “Purchase Price”), upon
presentation and surrender of this Rights 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 Preferred 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 September 10, 2007,
based on the Preferred Shares as constituted at such date. As provided in the Rights Agreement,
the Purchase Price, the number of one one-thousandths of a Preferred Share which may be purchased
upon the exercise of the Rights and the number of Rights evidenced by this Rights Certificate are
subject to modification and adjustment upon the happening of certain events.
This Rights Certificate is subject to all of the terms, provisions and conditions of the
Rights Agreement, as the same may be amended from time to time, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights Agent, the Company and the holders of
the Rights Certificates. Copies of the Rights Agreement are on file at the principal executive
offices of the Company and the designated office or agency of the Rights Agent. The
Company will mail to the holder of this Rights Certificate a copy of the Rights Agreement
without charge after receipt of a written request therefor.
This Rights Certificate, with or without other Rights Certificates, upon surrender at the
office or agency of the Rights Agent designated for such purpose, may be exchanged for another
Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of Preferred Shares as the Rights evidenced by the
Rights Certificate or Rights Certificates surrendered shall have entitled such holder to purchase.
If this Rights Certificate shall be exercised in part, the holder shall be entitled to receive upon
surrender hereof another Rights Certificate or Rights Certificates for the number of whole Rights
not exercised.
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 $.001 per Right or (ii) may be
exchanged in whole or in part for Preferred Shares or shares of the Company’s Common Stock, par
value $.01 per share.
No fractional Preferred 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
Preferred 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 Rights Certificate, as such, shall be entitled to vote or receive dividends
or be deemed for any purpose the holder of the Preferred Shares or of any other securities of the
Company which may at any time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for the election of directors or upon
any matter submitted to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting stockholders (except
as provided in the Rights Agreement) or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Rights Agreement. This Rights Certificate shall not be valid or obligatory for any
purpose until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of September 10, 2007.
ATTEST: | ROYAL GOLD, INC. | |||||||||
By:
|
By: | |||||||||
Xxxxx X. Xxxxx, | Xxxx Xxxxxx | |||||||||
Vice President and Secretary | President & Chief Executive Officer | |||||||||
COUNTERSIGNED: | ||||||||||
COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent |
||||||||||
By: |
||||||||||
FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate)
holder desires to transfer the Rights Certificate)
FOR VALUE RECEIVED hereby sells, assigns
and transfer unto
(Please print name, address
and social security number of transferee)
and social security number of transferee)
this Rights Certificate, together with all right, title and interest therein, and does hereby
irrevocably constitute and appoint Attorney, to transfer the within
Rights Certificate on the books of the within-named Company, with full power of substitution.
Dated:
Signature
Signature Guaranteed: Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers, Inc., or a
commercial bank 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 Rights 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
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
Rights represented by the Rights Certificate)
ROYAL GOLD, INC.: This undersigned hereby irrevocably elects to exercise Rights
represented by this Rights Certificate to purchase the Preferred Shares issuable upon the exercise
of such Rights and requests that certificates for such Preferred Shares be issued in the name of:
(Please print name, address and social security number)
If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a
new Rights Certificate for the balance remaining of such Rights shall be registered in the name of
and delivered to:
(Please print name, address and social security number)
Dated:
Signature
(Signature must conform to holder specified on Rights Certificate)
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 certifies that the Rights evidenced by this Rights 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 Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever. In the event the certification set
forth above in the Form of Assignment or the Form of Election to Purchase, as the case may be, is
not completed, the Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Rights Certificate to be an Acquiring Person or an Affiliate or Associate thereof
(as defined in the Rights Agreement) and such Assignment or Election to Purchase will not be
honored.