EXHIBIT 4
THE X.X. XXXXXXXX COMPANY
and
MELLON INVESTOR SERVICES
as Rights Agent
Second Amended and Restated Rights Agreement
Dated as of March 13, 2002
Table of Contents
Section Page
Section 1. Certain Definitions. 1
Section 2. Appointment of Rights Agent. 6
Section 3. Issuance of Rights Certificates. 7
Section 4. Form of Rights Certificates. 8
Section 5. Countersignature and Registration. 9
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. 10
Section 8. Cancellation and Destruction of Rights Certificates. 12
Section 9. Reservation and Availability of Shares of Class A Common
Stock; Other Covenants. 12
Section 10. Class A Common Stock Record Date; Etc. 14
Section 11. Antidilution Adjustments. 14
Section 12. Certificate of Adjustments. 23
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power. 23
Section 14. Fractional Rights and Fractional Shares. 25
Section 15. Rights of Action. 26
Section 16. Agreement of Rights Holders. 27
Section 17. Rights Certificate Holder Not Deemed a Stockholder. 27
Section 18. Concerning the Rights Agent. 28
Section 19. Merger or Consolidation or Change of Name of Rights Agent. 28
Section 20. Rights and Duties of Rights Agent. 29
Section 21. Change of Rights Agent. 31
Section 22. Issuance of New Rights Certificates. 32
Section 23. Redemption and Termination. 33
Section 24. Exchange. 33
Section 25. Notice of Proposed Actions. 34
Section 26. Notices. 35
Section 27. Supplements and Amendments. 36
Section 28. Successors. 36
Section 29. Determinations and Actions by the Board; etc. 36
Section 30. Benefits of this Agreement. 37
Section 31. Severability. 37
Section 32. Governing Law. 37
Section 33. Counterparts. 38
Section 34. Descriptive Headings. 38
SECOND AMENDED AND RESTATED RIGHTS AGREEMENT
This Second Amended and Restated Rights Agreement, dated as of March
13, 2002, (the "Rights Agreement") by and between The X.X. Xxxxxxxx
Company, a Massachusetts corporation (the "Company") and Mellon Investor
Services LLC, a New Jersey limited liability company (the "Rights Agent")
amends and restates the Amended and Restated Rights Agreement, dated as of
May 23, 2000, by and between the Company and Fleet National Bank (f/k/a
BankBoston, N.A., f/k/a The First National Bank of Boston) ("Fleet") which
Amended and Restated Rights Agreement amended and restated the Rights
Agreement dated as of June 6, 1990 by and between the Company and Fleet,
and reflects the change in Rights Agent.
W I T N E S S E T H:
WHEREAS, the Board of Directors of the Company (the "Board")
authorized on June 6, 1990 the issuance of rights (collectively, the
"Rights," and individually a "Right"), each Right being a right to
purchase, on the terms and subject to the provisions of this Rights
Agreement, shares of the Company's Class A Common Stock (or in certain
circumstances provided in this Agreement, other securities of the Company
or Common Stock or other securities of certain other Persons); and
WHEREAS, on June 6, 1990 (the "Declaration Date") the Board
authorized and declared a dividend distribution of one Right for every
share of Class A Common Stock and Class B Common Stock of the Company
outstanding at the Close of Business (as hereinafter defined) on June 18,
1990 (the "Dividend Record Date") and authorized the issuance of, and
agreed to issue, one Right (as such number may be adjusted in accordance
with Sections 11(i) or 11(p) hereof) for every share of Class A Common
Stock and Class B Common Stock of the Company issued between the Dividend
Record Date and the Distribution Date (as hereinafter defined);
WHEREAS, on May 22, 2000, the Board adopted resolutions providing for
the further amendment and extension of the Rights Agreement;
WHEREAS, on March 6, 2002, the Board adopted resolutions providing
for the further amendment and extension of the Amended and Restated Rights
Agreement; and
WHEREAS, the Company desires to appoint the Rights Agent to act on
behalf of the Company and the Rights Agent is willing to so act;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereto hereby agree as follows:
Section 1. Certain Definitions.
For purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean (a) any Person who or which,
together with all Affiliates of such Person, shall be the Beneficial Owner
(whether such Beneficial Ownership is of shares of Class A Common Stock,
shares of Class B Common Stock or shares of Class A Common Stock and Class
B Common Stock) of 15% or more of the shares of Class A Common Stock and
Class B Common Stock (taken together as a single class, treating each share
of Class B Common Stock outstanding as one share of Class A Common Stock
outstanding for the purposes of calculating such Beneficial Ownership) then
outstanding or (b) any Person who or which, together with all Affiliates of
such Person, is, as of May 23, 2000, an Acquiring Person (as such term is
defined in the Rights Agreement dated as of June 6, 1990 between the
Company and The First National Bank of Boston (now known as Fleet National
Bank), as Rights Agent (the "1990 Rights Agreement"), which definition is
hereby incorporated by reference, irrespective of the termination of said
1990 Rights Agreement) under the terms of the 1990 Rights Agreement;
provided, that neither clause (a) nor clause (b) shall include: (i) the
Company, (ii) any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company, (iv) any Person
organized, appointed, or established by the Company or a Subsidiary of the
Company for or pursuant to the terms of any plan described in clause (iii)
above, or (v) any such Person who (A) has reported or is required to report
such ownership on Schedule 13G under the Exchange Act (or any comparable or
successor report) or on Schedule 13D under the Exchange Act (or any
comparable or successor report) which Schedule 13D does not state any
intention to or reserve the right to control or influence the management or
policies of the Company or engage in any of the actions specified in Item 4
of such Schedule (other than the disposition of the Common Stock), (B)
within 10 Business Days of being requested by the Company to advise it
regarding the same, certifies to the Company that such Person acquired
shares of Class A Common Stock and/or Class B Common Stock in excess of
14.9% inadvertently or without knowledge of the terms of the Rights and
who, together with all of such Person's Affiliates, thereafter does not
acquire additional shares of Class A Common Stock and/or Class B Common
Stock while the Beneficial Owner of 15% or more of the shares of Class A
Common Stock and Class B Common Stock then outstanding, provided, however,
that if the Person requested to so certify fails to do so within 10
Business Days, then such Person shall become an Acquiring Person
immediately after such 10 Business Day Period and (C) if requested to do so
by the Company, within a specified number of Business Days (to be specified
by the Company, but in no case fewer than ten) following such request from
the Company to such Person, reduces its Beneficial Ownership of Common
Stock to below 15% of the Class A Common Stock and Class B Common Stock
then outstanding, provided, however, that if the Person requested to so
reduce its Beneficial Ownership fails to do so within such specified number
of Business Days, then such Person shall become an Acquiring Person
immediately after such specified number of Business Days.
(b) "Act" shall mean the Securities Act of 1933 (or any successor
act), as amended and as may from time to time be in effect.
(c) "Affiliate," with respect to any Person, shall mean any other
Person who is, or who would be deemed to be, an "affiliate" or an
"associate" of such Person within the respective meanings ascribed to such
terms in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act, as such Rule is in effect on the Declaration Date.
(d) A Person shall be deemed the "Beneficial Owner" of, and shall
be deemed to "beneficially own" or have "Beneficial Ownership" of, any
securities:
(i) which such Person or any of such Person's Affiliates has
"beneficial ownership" of within the meaning of Rule 13d-3 of the
General Rules and Regulations under the Exchange Act, as such Rule is
in effect on the Declaration Date;
(ii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the right to acquire (whether such right is
exercisable immediately or after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing)
or upon the exercise of conversion, exchange or other rights,
warrants or options, or otherwise;
(iii) which such Person or any of such Person's Affiliates has,
directly or indirectly, the right to vote or dispose of, 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 for
purposes of this Section 1(d)(iii) 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 proxy
solicitation rules and regulations promulgated under the Exchange Act
or (B) is made in connection with, or is to otherwise participate in,
a proxy or consent solicitation made, or to be made, pursuant to, and
in accordance with, the applicable proxy solicitation rules and
regulations promulgated under the Exchange Act, in either case
described in clause (A) or (B) above, whether or not such agreement,
arrangement or understanding is also then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or
successor report); or
(iv) which are beneficially owned, directly or indirectly, by
any other Person or any Affiliate thereof with which such Person or
any of such Person's Affiliates has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy or
in connection with a proxy or consent solicitation described in
clause (A) or (B) of the proviso to Section 1(d)(iii) hereof) or
disposing of any securities of the Company;
provided, however, that for purposes of this Section 1(d) 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 such
Person or any of such Person's Affiliates 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 Common Stock
Event, or (C) securities issuable upon exercise of Rights which were held
by a Person or its Affiliates prior to the Distribution Date as long as
such Person is not responsible for the occurrence of the Common Stock Event
giving rise to the Distribution Date; and provided, further, however, that
nothing in this Section 1(d) 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 par-
ticipation in good faith in a firm commitment underwriting until the
expiration of 40 days after the date of such acquisition.
(e) "Board" shall have the meaning set forth in the preamble to
this Agreement.
(f) "Business Day" shall mean any day other than a Saturday, Sunday
or a day on which banking institutions in The Commonwealth of Massachusetts
or the State of New Jersey are authorized or obligated by law or executive
order to close.
(g) "Class A Common Stock" shall mean the Class A Common Stock, par
value of $1.00 per share, of the Company.
(h) "Class A Common Stock Equivalents" shall have the meaning set
forth in Section 11(a)(iii) hereof.
(i) "Class B Common Stock" shall mean the Class B Common Stock, par
value of $1.00 per share, of the Company.
(j) "Close of Business" on any given date shall mean 5:00 p.m.,
Boston, Massachusetts time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 p.m., Boston, Massachusetts
time, on the next succeeding Business Day.
(k) "Closing Price" shall have the meaning set forth in Section
11(d) hereof.
(l) "Common Stock" shall mean or shall include the Class A Common
Stock and the Class B Common Stock, except that "Common Stock" when used
with respect to any Person other than the Company shall mean either (i) the
common stock (or other capital stock or shares of beneficial interest) of
such Person with the greatest voting power, or (ii) the equity securities
or other equity interests having power to control or direct the management
and affairs of such Person, or (iii) if such Person is a Subsidiary of
another Person, the Person (A) who ultimately controls such Person that is
the Subsidiary and (B) which has outstanding such common stock (or such
other capital stock, equity securities or interests).
(m) "Common Stock Event" shall mean the occurrence of any event
described in (i) Section 11(a)(ii) hereof or (ii) clause (a), (b) or (c) of
the first sentence of Section 13 hereof.
(n) "Company" shall have the meaning set forth in the preamble to
this Agreement.
(o) "Current Market Price" shall have the meaning set forth in
Section 11(d) hereof.
(p) "Current Value" shall have the meaning set forth in Section
11(a)(iii) hereof.
(q) "Declaration Date" shall have the meaning set forth in the
preamble to this Agreement.
(r) "Directors" shall mean the members of the Board.
(s) "Disqualified Transferee" shall mean any Person who is a direct
or indirect transferee of any Right from an Acquiring Person or an
Affiliate of an Acquiring Person and became such a transferee (x) after the
occurrence of a Common Stock Event or (y) prior to or concurrently with the
Acquiring Person becoming such and received such Right pursuant to a
transfer (whether or not for value) (A) from the Acquiring Person to
holders of its Common Stock or other equity securities or to any Person
with whom the Acquiring Person has any continuing agreement, arrangement,
or understanding (whether or not in writing) regarding the transferred
Right, or (B) which a majority of the Board reasonably determines is part
of a plan, arrangement, or understanding (whether or not in writing) which
has as a primary purpose or effect, the avoidance of Section 7(e) hereof.
(t) "Distribution Date" shall mean the date which is the earlier of
(x) the 10th Business Day following the Stock Acquisition Date (or such
specified or unspecified date thereafter which is on or after the Dividend
Record Date, as may be determined by a majority of the Board) or (y) the
10th Business Day following the Offer Commencement Date (or such specified
or unspecified date thereafter which is on or after the Dividend Record
Date, as may be determined by a majority of the Board).
(u) "Dividend Record Date" shall have the meaning set forth in the
preamble to this Agreement.
(v) "Excess Amount" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(w) "Exchange Act" shall mean the Securities Exchange Act of 1934
(or any successor act), as in effect on the Declaration Date.
(x) "Exchange Ratio" shall have the meaning set forth in
Section 24(a) hereof.
(y) "Expiration Date" shall have the meaning set forth in Section
7(a) hereof.
(z) "Offer Commencement Date" shall mean the date of the
commencement by any Person, other than (i) the Company, (ii) a Subsidiary
of the Company, (iii) any employee benefit plan of the Company or of any
Subsidiary of the Company or (iv) any Person organized, appointed, or
established by the Company or such Subsidiary pursuant to the terms of any
such plan, of a tender or exchange offer (including when such offer is
first published or sent or given within the meaning of Rule 14d-2(a) of the
General Rules and Regulations under the Exchange Act) if upon consummation
thereof the Person and Affiliates thereof would be the Beneficial Owner
(whether such Beneficial Ownership is of shares of Class A Common Stock,
shares of Class B Common Stock or shares of Class A Common Stock and Class
B Common Stock) of 15% or more of the then outstanding shares of Class A
Common Stock and Class B Common Stock (taken together as a single class,
treating each share of Class B Common Stock outstanding as one share of
Class A Common Stock outstanding for the purposes of calculating such
Beneficial Ownership) (including any such date which is after the date of
this Agreement and prior to the issuance of the Rights thereafter).
(a) "Officers' Certificate" has the meaning set forth in
Section 20(b) hereof.
(b) "Other Consideration" has the meaning set forth in Section 6(a)
hereof.
(c) "Person" shall mean a corporation, association, partnership,
limited liability company, joint venture, trust, estate, organization,
business, entity or individual.
(d) "Purchase Price" shall have the meaning set forth in Section
7(b) hereof.
(e) "Redemption Price" shall have the meaning set forth in Section
23 hereof.
(f) "Rights" shall have the meaning set forth in the preamble to
this Agreement.
(g) "Rights Agent" shall have the meaning set forth in the preamble
of this Agreement subject to the appointment of a successor Rights Agent
pursuant to Section 21 hereof.
(h) "Rights Certificates" shall have the meaning set forth in
Section 3(a) hereof.
(i) "Stock Acquisition Date" shall mean the later of (i) the date
of the first public announcement by an Acquiring Person or the Company that
an Acquiring Person has become such (including the first date on which any
filing with any governmental authority disclosing that an Acquiring Person
has become such becomes available to the public), or (ii) the date on which
an executive officer of the Company has actual knowledge that an Acquiring
Person has become such.
(j) "Subsidiary" shall mean, as of any date, any Person of which
the Company (or other specified Person) owns directly, or indirectly
through a Subsidiary or Subsidiaries, at least a majority of the
outstanding capital stock (or other shares of beneficial interest) entitled
to vote generally, or holds directly, or indirectly through a Subsidiary or
Subsidiaries, at least a majority of partnership or similar interests, or
is a general partner, or of which the Company (or other specified Person)
owns voting securities sufficient to elect at least a majority of the
directors of such Person.
(k) "Substitution Period" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(l) "Summary of Rights" shall have the meaning set forth in Section
3(b) hereof.
(m) "Trading Day" shall mean a day on which the principal national
securities exchange on which such security is listed or admitted to trading
is open for the transaction of business or, if such security is not listed
or admitted to trading on any national securities exchange, a day which is
a Business Day.
Section 2. Appointment of Rights Agent.
The Company hereby appoints the Rights Agent to act as agent for the
Company in accordance with the terms and conditions hereof, and the Rights
Agent hereby accepts such appointment. The Company may from time to time,
upon prior written notice to the Rights Agent, appoint such Co-Rights
Agents as it may deem necessary or desirable, upon ten (10) days' prior
written notice to the Rights Agent. The Rights Agent shall have no duty to
supervise, and shall in no event be liable for, the acts or omissions of
any such Co-Rights Agent. The respective duties of the Rights Agent and
any Co-Rights Agent shall be as the Company shall determine.
Section 3. Issuance of Rights Certificates.
(a) Until the Distribution Date, (i) the Rights will be evidenced
(subject to the provisions of Section 3(b) hereof) by the certificates
representing shares of Common Stock registered in the names of the holders
of the Common Stock (which certificates shall be deemed also to be
certificates for the associated Rights) and not by separate rights
certificates, and (ii) the Rights will be transferable only in connection
with the transfer of the associated shares of Common Stock. As soon as
practicable after the Distribution Date, the Rights Agent will, if provided
with a shareholder list and all other relevant information, send by
first-class, insured, postage prepaid mail, to each record holder of the
Common Stock as of the Close of Business on the Distribution Date, at the
address of such holder shown on the stock transfer records of the Company,
one or more rights certificates, in substantially the form of Exhibit A
hereto (the "Rights Certificates"), evidencing in the aggregate that number
of Rights to which such holder is entitled in accordance with the
provisions of this Agreement. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates. The Rights
are exercisable only in accordance with the provisions of Section 7 hereof
and are redeemable only in accordance with Section 23 hereof.
The Company shall promptly notify the Rights Agent orally or in
writing upon the occurrence of the Distribution Date and, if such
notification is given orally, the Company shall confirm the same in writing
on or prior to the Business Day next following. Until such notice is
received by the Rights Agent, the Rights Agent may presume conclusively for
all purposes that the Distribution Date has not occurred.
(b) The Company caused a copy of a Summary of Rights to be sent by
first-class, postage prepaid mail, to each record holder of the Common
Stock as of the Close of Business on the Dividend Record Date, at the
address of such holder shown on the stock transfer records of the Company.
With respect to certificates for the Common Stock outstanding as of the
Dividend Record Date, until the Distribution Date, the Rights associated
with the shares of Common Stock represented by such certificates will 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 redemption,
expiration or termination of the Rights), the surrender for transfer of any
of the certificates representing shares of the Common Stock outstanding on
the Dividend Record Date, with or without a copy of the Summary of Rights,
shall also constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
(c) Rights shall be issued in respect of all shares of Common Stock
issued (whether originally issued or delivered from the Company's treasury)
after the Dividend Record Date but prior to the earliest of (i) the
Distribution Date, (ii) the Expiration Date, or (iii) the redemption of the
Rights. Certificates representing such shares of Common Stock and
certificates issued on transfer of such shares of Common Stock, with or
without a copy of the Summary of Rights, prior to the Distribution Date (or
earlier expiration or redemption of the Rights) shall be deemed also to be
certificates for the associated Rights, and commencing as soon as
reasonably practicable following March 13, 2002 shall bear the following
legend (or a legend substantially in the form thereof):
This certificate also evidences and entitles the holder to Rights set
forth in a Rights Agreement between the issuer and Fleet National
Bank (f/k/a The First National Bank of Boston), as Rights Agent,
dated as of June 6, 1990, as amended and restated on May 23, 2000,
and as further amended and restated by the Second Amended and
Restated Rights Agreement by and between the issuer and Mellon
Investor Services LLC as Rights Agent (the "Rights Agent"), dated
March 13, 2002 (the "Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of which is on file at
both the principal office of the issuer and the office of the Rights
Agent designated for such purpose. The Rights Agent will mail to the
registered holder of this certificate a copy of the Rights Agreement,
as in effect on the date of mailing, without charge upon written
request. Under certain circumstances set forth in the Rights
Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Under certain
circumstances set forth in the Rights Agreement, Rights issued to, or
held by any Person who is, was or becomes, or acquires shares from,
an Acquiring Person or any Affiliate of an Acquiring Person (as each
such term is defined in the Rights Agreement and generally relating
to the ownership or purchase of large shareholdings), whether
currently held by or on behalf of such Person or Affiliate or by
certain subsequent holders, may become null and void.
Until the Distribution Date or the earlier redemption, expiration or
termination of the Rights, the Rights associated with the Common Stock
shall be evidenced by the Common Stock certificates alone and the
registered holders of Common Stock shall also be the registered holders of
the associated Rights, and the surrender for transfer of any of such
certificates shall also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate. Rights shall be
issued to the extent provided in Section 22 hereof after the Distribution
Date and prior to the Expiration Date.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the form of assignment and the
form of exercise notice and certificate to be printed on the reverse
thereof) shall each be substantially in the form set forth in Exhibit A
hereto and may have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the Company may deem
appropriate (but which do not affect the rights, duties, or
responsibilities of the Rights Agent) 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 traded, or to conform to usage. Subject to the
provisions of Sections 11 and 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Dividend Record Date (or, if the
shares pursuant to which the Rights are attached are issued thereafter,
such date of issuance), shall include the date of countersignature and on
their face shall entitle the holders thereof to purchase such number of
shares of Class A Common Stock as shall be set forth therein at the
Purchase Price (as hereinafter defined), but the amount and type of
securities issuable upon the exercise of each Right and the Purchase Price
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued pursuant to Section 3(a) or 22
hereof that represents Rights beneficially owned by (i) any Acquiring
Person or any Affiliate of an Acquiring Person, or (ii) any Disqualified
Transferee, and any other Rights Certificate issued pursuant to Section 6
or 11 hereof upon the transfer, exchange, replacement, or adjustment of any
such Rights Certificate, shall contain (to the extent feasible and to the
extent the Rights Agent has been notified thereof) 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 (which includes both affiliates and associates) of an
Acquiring Person (as each such term is defined in the Rights
Agreement between the issuer and Fleet National Bank (f/k/a The First
National Bank of Boston), as Rights Agent dated as of June 6, 1990,
as amended and restated on May 23, 2000 and as further amended and
restated by the Second Amended and Restated Rights Agreement by and
between the issuer and Mellon Investor Services LLC as Rights Agent
(the "Rights Agent"), dated as of March 13, 2002 (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 the Rights Agreement. The Rights Agent
will mail to the registered holder of this certificate a copy of the
Rights Agreement, as in effect on the date of such mailing, without
charge upon written request.
Section 5. Countersignature and Registration.
The Rights Certificates shall be executed on behalf of the Company by
its Chairman of the Board, President, Treasurer or any Vice President,
either manually or by facsimile signature, and shall have affixed thereto
the Company's seal or facsimile thereof which shall be attested by the
Clerk or an Assistant Clerk of the Company, either manually or by facsimile
signature. The Rights Certificates shall be countersigned, either manually
or by facsimile signature, 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, issued, and
delivered 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.
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 Agreement any such person was
not such an officer.
Following the Distribution Date, receipt by the Rights Agent of
notice to that effect and all other relevant information referred to in
Section 3(a), the Rights Agent shall keep or cause to be kept, at the
office of the Rights Agent designated for such purpose, 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 countersignature thereof by the
Rights Agent.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to the provisions of Sections 4(b), 7(e), and 14
hereof, at any time after the Close of Business on the Distribution Date,
and at or prior to the earlier of the Close of Business on the Expiration
Date or the redemption of the Rights, any Rights Certificate may be
transferred, split up, combined or exchanged for another Rights Certificate
or Rights Certificates, entitling the registered holder to purchase a like
number of shares of Class A Common Stock (or, following a Common Stock
Event, Class A Common Stock and/or such other securities, cash, or other
assets as shall be issuable in respect of the Rights in accordance with the
terms of this Agreement (such other securities, cash or other assets being
referred to herein as "Other Consideration")) as the Rights Certificate
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 to be transferred, split up, combined, or exchanged at the
office of the Rights Agent designated for such purpose, accompanied by a
signature guarantee and such other documentation as the Rights Agent may
reasonably request. The Right Certificates are transferable only on the
registry books of the Rights Agent. 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 (i) properly completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate, (ii) provided such additional evidence of the identity
of the Beneficial Owner (or former Beneficial Owner) from whom the Rights
evidenced by such Rights Certificate are to be transferred (or the
Beneficial Owner to whom such Rights are to be transferred) or Affiliates
thereof as the Company or the Rights Agent shall reasonably request, and
(iii) paid a sum sufficient to cover any tax or charge that may be imposed
in connection with any transfer, split up combination or exchange of Rights
Certificates that the Company is not required by pay pursuant to Section
9(d) hereof. Thereupon, subject to Sections 4(b), 7(e) and 14 hereof, the
Company shall execute and the Rights Agent shall countersign and deliver to
the Person entitled thereto a Rights Certificate or Rights Certificates, as
the case may be, as so requested. The Company may require payment by the
holders 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 which the Company is not
required to pay in accordance with Section 9(d) hereof. The Right Agent
shall have no duty or obligation to take any action under any Section of
this Agreement which requires the payment by a Rights holder of applicable
taxes and governmental charges unless and until the Rights Agent is
reasonably satisfied that all such taxes and/or charges have been paid.
(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, the receipt of indemnity or security satisfactory to them, and
at the Company's or the Rights Agent's request and upon 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, accompanied by a signature guarantee and
such other documentation as the Rights Agent may reasonably request, the
Company will execute and deliver a new Rights Certificate of like tenor to
the Rights Agent for countersignature 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) Except as otherwise provided herein, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby in whole
or in part at any time from and after the Distribution Date and at or prior
to the Close of Business on May 23, 2010 (the "Expiration Date") or the
earlier redemption of the Rights. Immediately after the Close of Business
on the Expiration Date (or the earlier redemption of the Rights), all
Rights shall be extinguished and all Rights Certificates shall become null
and void. To exercise Rights, the registered holder of the Rights
Certificate evidencing such Rights shall surrender such Rights Certificate,
with the form of election to purchase on the reverse side thereof and the
certificate contained therein duly executed, to the Rights Agent at the
office of the Rights Agent designated for such purpose, accompanied by a
signature guarantee and such other documentation as the Rights Agent may
reasonably request, together with payment in cash, only by electronic or
wire transfer, or by certified check or bank check, of the Purchase Price
with respect to the total number of shares of Class A Common Stock (or,
after a Common Stock Event, shares and/or similar units of Class A Common
Stock and/or Other Consideration) as to which the Rights are exercised
(which payment shall include any additional amount payable by such Person
in accordance with Section 9(d) hereof). The Rights Agent shall promptly
deliver to the Company all payments of the Purchase Price received in
receipt of Rights Certificates accepted for exercise.
(b) The purchase price for each share of Class A Common Stock
issuable pursuant to the exercise of a Right (the "Purchase Price") shall
initially be $92.00, shall be subject to adjustment as provided in Section
11 hereof, and shall be payable in lawful money of the United States of
America.
(c) Upon receipt of a Rights Certificate representing the Rights,
with the form of election to purchase set forth on the reverse side thereof
and the certificate contained therein duly executed, accompanied by payment
of the Purchase Price, with respect to each Right so exercised and an
amount equal to any applicable tax or charge required to be paid by the
holder of such Rights Certificate in accordance with Section 9(d) hereof,
the Rights Agent, subject to Sections 7(e), 11(a)(iii) and 20(k) hereof,
shall thereupon promptly (i) requisition from any transfer agent of the
Class A Common Stock (or from the Company if there shall be no such
transfer agent, or make available if the Rights Agent is such transfer
agent) certificates for the total number of shares of Class A Common Stock
to be purchased and the Company hereby irrevocably authorizes such transfer
agent to comply with any such request, (ii) after receipt of such
certificates, 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 in writing by such holder, and (iii) when
appropriate, requisition from the Company the amount of cash to be paid in
lieu of issuance of a fractional share in accordance with Section 14 hereof
and after receipt promptly deliver such cash to or upon the order of the
registered holder of such Rights Certificate. After the occurrence of a
Common Stock Event, the Company shall make all necessary arrangements so
that any Other Consideration then deliverable in respect of the Rights is
available for distribution by the Rights Agent if and when necessary to
comply with this agreement. For purposes of this Section 7, the Rights
Agent shall be entitled to rely, and shall be protected in relying, on an
Officers' Certificate from the Company to the effect that the Distribution
Date has occurred.
(d) Subject to Sections 4(b), 7(e) and 14 hereof, 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 executed and
delivered by the Company to the Rights Agent and countersigned and
delivered by the Rights Agent to the registered holder of such Rights
Certificate or to such holder's duly authorized assigns.
(e) Notwithstanding anything in this Agreement to the contrary,
from and after the first occurrence of a Common Stock Event, any Rights
beneficially owned by (i) an Acquiring Person or an Affiliate of an
Acquiring Person, or (ii) a Disqualified Transferee 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 notify the
Rights Agent when this Section 7(e) applies and shall use all reasonable
efforts to ensure that the provisions of this Section 7(e) and Section 4(b)
hereof are complied with, but neither the Company nor the Rights Agent
shall have any liability to any holder of Rights Certificates or other
Person and none of the terms of this Agreement or the Rights shall be
deemed to be waived with respect to such holder or other Person as a result
of any failure by the Company or the Rights Agent to make any
determinations with respect to an Acquiring Person or any Affiliate of an
Acquiring Person or Disqualified Transferees hereunder or any failure to
have a legend placed on any Rights Certificate in accordance with
Section 4(b) hereof or on any Common Stock certificate in accordance with
Section 3(c) hereof.
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 holder of any Rights Certificate upon the occurrence of
any purported exercise thereof unless such holder shall have (i) duly and
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 from whom the
Rights evidenced by such Rights Certificate are to be transferred (or the
Beneficial Owner to whom such Rights are to be transferred) or Affiliates
thereof as the Company or the Rights Agent shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates.
All Rights Certificates surrendered for the purpose of and accepted
for exercise, or surrendered for the purpose of redemption, transfer, split
up, combination or exchange shall, if surrendered to the Company or to any
of its agents (other than the Rights Agent), be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered to the
Rights Agent, shall be canceled by it, and no Rights Certificates shall be
issued in lieu thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificates purchased or retired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all canceled Rights Certificates to the Company, or may, at the
written request of the Company, but shall not be required to, destroy such
canceled Rights Certificates, and in such case shall deliver a certificate
of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of Class A Common Stock;
Other Covenants.
(a) The Company covenants and agrees that as long as the Rights are
outstanding, it shall use reasonable efforts to cause to be reserved and
kept available out of its authorized and unissued shares of Class A Common
Stock (or, following the occurrence of a Common Stock Event, out of its
authorized and unissued shares of Class A Common Stock and/or Other
Consideration, or out of its authorized and issued shares held in its
treasury), the number of shares of Class A Common Stock (or, following a
Common Stock Event, shares and/or similar units of Class A Common Stock
and/or Other Consideration) that, except as provided in Section 11(a)(iii)
hereof, would then be sufficient to permit the exercise in full of all
outstanding Rights; provided, however, that the reservation of such shares
shall be subject and subordinate to any other reservation of such shares
made by the Company at any time for any lawful purpose; provided, further,
however, that in no event shall such failure to so reserve shares affect
the rights of any holder of Rights hereunder.
(b) The Company covenants and agrees that so long as the Class A
Common Stock (or, following a Common Stock Event, shares and/or similar
units of Class A Common Stock and/or Other Consideration) issuable upon the
exercise of Rights may be listed on any national securities exchange, the
Company shall use its best efforts to cause all shares (or similar units)
reserved for such issuance to be listed on such exchange upon official
notice of issuance upon such exercise.
(c) The Company covenants and agrees that it shall take all such
action as may be necessary to ensure that each share of Class A Common
Stock (or, following a Common Stock Event, each share and/or similar unit
of Class A Common Stock and/or Other Consideration) delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such
shares (or units), subject to payment in full of the Purchase Price, be
duly and validly authorized and issued and fully paid and nonassessable.
(d) The Company covenants and agrees that it shall pay when due and
payable any and all taxes and governmental charges which may be payable in
respect of the issuance or delivery of the Rights Certificates or of any
shares of Class A Common Stock (or, following the occurrence of a Common
Stock Event, each share and/or similar unit of Class A Common Stock and/or
Other Consideration) upon the exercise of Rights; provided, however, that
the Company shall not be required to pay any tax or charge which may be
payable in respect of any transfer involved in the transfer or delivery of
Rights Certificates or in the issuance or delivery of certificates for any
shares of Class A Common Stock (or, following the occurrence of a Common
Stock Event, each share and/or similar unit of Class A Common Stock and/or
Other Consideration) 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 any shares of Class A Common Stock
(and, following the occurrence of a Common Stock Event, any shares and/or
similar units of Class A Common Stock and/or Other Consideration) 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 thereof) or until it has been
established to the Company's satisfaction that no such tax or charge is
due.
(e) The Company shall use its best efforts (i) to file, as soon as
practicable following the earliest date after the first occurrence of a
Common Stock 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 Act, with
respect to the securities issuable upon exercise of the Rights on an
appropriate form, (ii) to cause such registration statement to become
effective as soon as practicable after such filing, and (iii) to cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (A) the date as
of which the Rights are no longer exercisable for such securities, or (B)
the Expiration Date or earlier redemption of the Rights. The Company will
also take such action as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the various states of the United
States in connection with the exercisability of the Rights. The Company
may temporarily suspend, for a period of time not to exceed ninety (90)
days after the date set forth in clause (i) of the first sentence of this
Section 9(e), the exercisability of the Rights in order to prepare and file
such registration statement or to permit it to become effective. Upon any
such suspension, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended. The
Company shall thereafter issue a public announcement at such time as the
suspension is no longer in effect. The Company shall notify the Rights
Agent whenever it makes a public announcement pursuant to this Section 9(e)
and give the Rights Agent a copy of such announcement. Notwithstanding any
provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained.
Section 10. Class A Common Stock Record Date; Etc.
Each Person in whose name any certificate for any shares of Class A
Common Stock (or, following the occurrence of a Common Stock Event, shares
and/or similar units of Class A Common Stock and/or Other Consideration) is
issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of such shares of Class A Common Stock (or such
shares and/or similar units of Class A Common Stock and/or Other
Consideration, as the case may be) represented thereby, and such
certificate shall be dated the date which is the later of (i) the date upon
which the Rights Certificate evidencing such Rights was duly surrendered,
or (ii) the date upon which payment of the Purchase Price (and any
applicable taxes and charges) in respect thereof was made; provided,
however, that if such date is a date upon which the relevant transfer books
of the Company are closed, such Person shall be deemed to have become the
record holder of such shares (or Other Consideration) on, and such
certificate shall be dated, the next succeeding Business Day on which such
transfer books of the Company are open; provided, further, that the Company
covenants and agrees that it shall not close such transfer books for a
period exceeding ten consecutive days. Prior to the exercise of the Rights
evidenced thereby (which shall be deemed to have occurred on the date such
certificate for shares and/or similar units of Class A Common Stock or
Other Consideration shall be dated in accordance with this Section 10), the
holder of a Rights Certificate, as such, shall not be entitled to any
rights of a security holder of the Company with respect to the shares of
Class A Common Stock (and/or such shares or similar units of Class A Common
Stock or Other Consideration) 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
expressly provided herein.
Section 11. Antidilution Adjustments.
The Purchase Price and the number and kind of securities covered by
each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event that the Company shall at any time after the
date of this Agreement (A) declare and pay a dividend on the Class A Common
Stock or Class B Common Stock payable in shares of Class A Common Stock or
Class B Common Stock, (B) subdivide the outstanding Class A Common Stock or
Class B Common Stock, (C) combine the outstanding Class A Common Stock or
Class B Common Stock into a smaller number of shares, or (D) issue, change,
or alter any of its shares of capital stock in a reclassification or
recapitalization (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
Person), except as otherwise provided in this Section 11(a) and Section
7(e) hereof, then, and in each such case, the Purchase Price in effect at
the time of the record date for such dividend or the effective time of such
subdivision, combination, reclassification or recapitalization, and the
number and kind of shares of capital stock issuable upon exercise of the
Rights at such time, shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of Common Stock or other capital stock
which, if such Right had been exercised immediately prior to such time at
the Purchase Price then in effect and at a time when the transfer books for
the Common Stock (or other capital stock) of the Company were open, such
holder would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, combination, reclassification or
recapitalization. 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 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) In the event
(A) any Person shall at any time after the Declaration
Date become an Acquiring Person; or
(B) any Acquiring Person or any Affiliate of any
Acquiring Person, at any time after the Declaration Date,
directly or indirectly, shall (1) merge into the Company or
otherwise combine with the Company, and the Company shall be
the continuing or surviving corporation of such merger or
combination and either or both of the Class A Common Stock
and/or the Class B Common Stock of the Company shall remain
outstanding and no shares thereof shall be changed or otherwise
transformed into stock or other securities of any other Person
or the Company or cash or any other property, (2) in one or
more transactions, transfer any assets to the Company in
exchange (in whole or in part) for shares of any class of its
equity securities or for securities exercisable for or
convertible into shares of any such class or otherwise obtain
from the Company, with or without consideration, any additional
shares of any such class or securities exercisable for or
convertible into shares of any such class (other than as part
of a pro rata distribution to all holders of such class), (3)
sell, purchase, lease, exchange, mortgage, pledge, transfer or
otherwise dispose (in one transaction or a series of
transactions) to, from or with the Company or any of the
Company's Subsidiaries, assets with an aggregate fair market
value in excess of 25% of the assets of the Company and its
Subsidiaries determined on a consolidated basis on terms and
conditions less favorable to the Company than the Company would
be able to obtain through arm's-length negotiation with an
unaffiliated third party, (4) receive any compensation from
the Company or any of the Company's Subsidiaries other than
compensation as a director of the Company or for full-time
employment as a regular employee at rates in accordance with
the Company's (or such Subsidiary's) past practices, (5)
receive the benefit (except proportionately as a stockholder),
of any loans, advances, guarantees, pledges or other financial
assistance provided by the Company or any of its Subsidiaries
on terms and conditions less favorable to the Company (or such
Subsidiary) than the Company would be able to obtain through
arm's-length negotiation with an unaffiliated third party or
(6) commence a tender or exchange offer for securities of the
Company; or
(C) during such time as there is an Acquiring Person at
any time after the Declaration Date, there shall be any
reclassification of securities (including any combination
thereof), or recapitalization of the Company, or any merger or
consolidation of the Company with any of its Subsidiaries
(whether or not with or into or otherwise involving an
Acquiring Person or any Affiliate of an Acquiring Person), or
any repurchase by the Company or any of its Subsidiaries of
shares of the Common Stock of the Company, or any other class
or series of securities issued by the Company, which
reclassification, recapitalization, merger, consolidation or
repurchase is effected at a time when a majority of the Board
consists of persons who are the Acquiring Person or its
Affiliates, or nominees or designees of any thereof, which has
the effect, directly or indirectly, of increasing by more than
1% the proportionate share of the outstanding shares of any
class of equity securities or securities exercisable for or
convertible into any class of equity securities of the Company
or any of its Subsidiaries which is directly or indirectly
owned by an Acquiring Person or any Affiliate of an Acquiring
Person then, in each such case, upon the Close of Business 10 Business Days
after the occurrence of such event, proper provision shall be made so
that each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon exercise
thereof at the Purchase Price in effect at the time of exercise in
accordance with the terms of this Agreement, in lieu of one share of
Class A Common Stock, such number of shares of Class A Common Stock
of the Company as shall equal the result obtained by (x) multiplying
an amount equal to the then current Purchase Price by an amount equal
to the number of shares of Class A Common Stock for which a Right
was or would have been exercisable immediately prior to the first
occurrence of any such event whether or not such Right was then
exercisable, and (y) dividing that product by 50% of the Current
Market Price per share of the Class A Common Stock of the Company (as
defined in Section 11(d) hereof) determined as of the date of such
first occurrence.
(iii) In lieu of issuing whole or fractional shares of Class A
Common Stock in accordance with Section 7(c) hereof, the Company
shall (i) in the event that the number of shares of Class A Common
Stock which are authorized by the Company's charter but not
outstanding or reserved for issuance for purposes other than upon
exercise of the Rights are not sufficient to permit the exercise in
full of the Rights in accordance with Section 7(c) hereof, or (ii) if
a majority of the Board determines that it would be appropriate and
not contrary to the interests of the holders of Rights (other than
any Acquiring Person or Disqualified Transferee or any Affiliate of
the Acquiring Person or Disqualified Transferee), (A) determine an
amount, if any, (the "Excess Amount") equal to the excess of (1) the
value (the "Current Value") of the whole or fractional shares of
Class A Common Stock issuable upon the exercise of a Right in
accordance with Section 7(c) hereof, over (2) the Purchase Price, and
(B) with respect to each Right, (subject to Section 7(e) hereof) make
adequate provision to substitute for such whole or fractional shares
of Class A Common Stock, upon payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the Purchase Price, (3) Class A
Common Stock or other equity securities of the Company (including,
without limitation, shares or units of Class B Common Stock or
preferred stock which the Board has deemed in good faith to have the
same value as a share of Class A Common Stock (such other equity
securities or shares of preferred stock being referred to herein as
"Class A Common Stock Equivalents")), (4) debt securities of the
Company, (5) other assets, or (6) any combination of the foregoing
(which would include the additional consideration provided to any
holder by reducing the Purchase Price) having an aggregate value
equal to the Current Value, where such aggregate value has been
determined by the Board; provided, however, subject to the provisions
of Section 9(e) hereof, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B) above
within 30 days following the Close of Business 10 Business Days after
the first occurrence of a Common Stock Event described in Section
11(a)(ii) hereof, then the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring
payment of the Purchase Price, whole or fractional shares of Class A
Common Stock (to the extent available) and then, if necessary, cash,
securities, and/or assets which in the aggregate are equal to the
Excess Amount. If the Board shall determine in good faith that it is
likely that sufficient additional shares of Class A Common Stock or
Class A Common Stock Equivalents could be authorized for issuance
upon exercise in full of the Rights, the 30-day period set forth
above may be extended to the extent necessary, but not more than 90
days following the Close of Business 10 Business Days after the first
occurrence of such a Common Stock Event (such 30 day period) as it
may be extended to 90 days, is referred to herein as the
"Substitution Period"). To the extent that the Company determines
that some 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 (except as to the form of consideration
which shall be determined as appropriate by a majority of the Board)
such action shall apply uniformly to all outstanding Rights which
shall not have become null and void, 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
such provisions 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. The Company shall thereafter issue a public announcement
at such time as the suspension is no longer in effect. The Company
shall give the Rights Agent prompt written notice of each such
suspension or termination of such suspension. For purposes of this
Section 11(a)(iii), the value of the Class A Common Stock issuable
upon exercise of a Right in accordance with Section 7(c) hereof shall
be the Current Market Price per share of the Class A Common Stock (as
determined pursuant to Section 11(d) hereof) on the Close of Business
10 Business Days after the date of the first occurrence of such a
Common Stock Event and the value of any Class A Common Stock
Equivalent shall be deemed to be equal to the Current Market Price
per share of the Class A Common Stock on such date.
(b) In the event the Company shall, after the Dividend Record Date,
fix a record date for the issuance of any options, warrants, or other
rights to all holders of Class A Common Stock and/or Class B Common Stock
entitling them (for a period expiring within 45 calendar days after such
record date) to subscribe for or purchase (i) Class A Common Stock or (ii)
securities convertible into or exchangeable for Class A Common Stock at a
price per share of Class A Common Stock (or having a conversion price per
share of Class A Common Stock, if a security is convertible into Class A
Common Stock) less than the Current Market Price per share of Class A
Common Stock (determined in accordance with Section 11(d) hereof)
determined as of 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 Class A Common Stock outstanding
on such record date plus the number of shares of Class A Common Stock which
the aggregate minimum offering price of the total number of shares of Class
A Common Stock so to be offered (and/or the aggregate minimum conversion
price of such 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 Class A Common Stock outstanding on such record date plus the
maximum number of additional shares of Class A Common Stock to be offered
for subscription or purchase (or the maximum number of shares into which
such convertible securities so to be offered are convertible). In case
such subscription price may be paid by delivery of consideration part or
all of which shall be in a form other than cash, for purposes of this
Section 11(b) the value of such consideration shall be the fair market
value thereof as determined in good faith by the Board (which determination
shall be described in an Officers' Certificate filed with the Rights
Agent). Shares of Class A Common 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 options, warrants or other
rights 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 (subject, however, to such other adjustments as are provided
herein).
(c) In the event that the Company shall, after the Dividend Record
Date, fix a record date for the making of a distribution to all holders of
Class A Common Stock and/or Class B Common Stock (including any such
distribution made in connection with a consolidation or merger in which the
Company is the surviving or continuing Person) of evidences of
indebtedness, cash (other than cash dividends paid out of the earnings or
retained earnings of the Company and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting
principles consistently applied), other property (other than a dividend
payable in shares of Class A Common Stock or Class B Common Stock, but
including any dividend payable in capital stock other than Class A Common
Stock or Class B Common 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, of which the numerator shall be (i) the Current Market Price per
share of Class A Common Stock (as defined in Section 11(d) hereof)
determined as of such record date, less (ii) the sum of (A) that portion of
cash plus (B) the fair market value, as determined in good faith by the
Board (which determination shall be described in an Officers' Certificate
filed with the Rights Agent) of that portion of such evidences of
indebtedness, such other property, and/or such subscription rights or
warrants applicable to one share of Class A Common Stock and of which the
denominator shall be such Current Market Price per share of the Class A
Common Stock. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event 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 (subject,
however, to such other adjustments as are provided herein).
(d) For purposes of any computation pursuant to Section 11(a)(iii)
hereof, the "Current Market Price" per share (or unit) of any security on
any date shall be deemed to be the average of the daily Closing Price of
such security for the 10 consecutive Trading Days immediately after such
date, and for the purpose of any other computation hereunder, the "Current
Market Price" per share (or unit) of any security on any date shall be
deemed to be the average of the daily Closing Price of such security for
the 20 consecutive Trading Days immediately prior to but not including such
date; provided, however, that in the event that the Current Market Price
per share of such security is determined during a period following the
announcement by the issuer of such security of (i) a dividend or
distribution on such security payable in shares (or units) of such security
or securities convertible into shares (or units) of such security, or (ii)
any subdivision, combination or reclassification of such security, and
prior to the expiration of such 10 Trading Days or 20 Trading Days after
(A) the ex-dividend date for such dividend or distribution, or (B) the
record date for such subdivision, combination or reclassification, as the
case may be, then, and in each such case, the "Current Market Price" shall
be the Closing Price of such security on the last day of such respective 10
Trading Day or 20 Trading Day period. For purposes of this Agreement, the
"Closing Price" of any security on any day shall be the last sale price,
regular way, with respect to shares (or units) of such security, or, in
case no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, with respect to such security, in either
case as reported in the principal consolidated transaction reporting system
with respect to securities listed or admitted to trading on the New York
Stock Exchange; or, if such security is not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities listed on the
principal national securities exchange on which such security is listed or
admitted to trading; or, if such security is not so listed or admitted to
trading, the last quoted sale price with respect to shares (or units) of
such security, or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market with respect to shares (or
units) of such security, as reported by the National Association of
Securities Dealers, Inc. Automated Quotation System or such other similar
system then in use; or, if on any such date such security is not quoted by
any such organization, the average of the closing bid and asked prices with
respect to shares (or units) of such security, as furnished by a
professional market maker making a market in such security selected by the
Board; or, if no such market maker is available, the fair market value of
shares (or units) of such security as of such day as determined in good
faith by the Board (which determination shall be described in an Officers'
Certificate filed with the Rights Agent).
(e) No adjustment in the Purchase Price shall be required unless
adjustment would require an increase or decrease of at least 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 (or similar unit) of Class A Common Stock or
other securities. Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the transaction which
mandates the adjustment or (ii) the Expiration Date. 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
required by this Section 11, as it in its discretion shall determine to be
advisable in order that any dividends, subdivision of shares, distribution
of rights to purchase shares of beneficial interest or other stock or
securities, or distribution of securities convertible into or exchangeable
for stock hereafter made by the Company to its stockholders shall not be
taxable.
(f) In the event that at any time, as a result of an adjustment
made in respect of a Common Stock Event, the holder of any Right thereafter
exercised shall become entitled to receive any shares of capital stock of
the Company other than shares of Class A Common 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 such other shares contained in Sections 11(a),
(b), (c), (e), (g), (h), (i), (j), (k), (m) and (p) hereof, and the
provisions of Sections 7, 9, 10, 11(d), 13 and 14 hereof with respect to
the shares of Class A Common 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 shares of Class A
Common Stock purchasable from time to time hereunder upon exercise of the
Rights represented thereby, all subject to further adjustment as provided
herein.
(h) Unless the Company shall have exercised its election as
provided in Section 11(i) hereof, upon each adjustment of the Purchase
Price as a result of the calculations made pursuant to Sections 11(b) and
11(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 shares of Class A Common Stock
(calculated to the nearest ten-thousandth of a share) obtained by (i)
multiplying (x) the number of shares 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) Assuming that no other adjustment pursuant to this Section 11
has been made, the Company may elect on or after the date of any adjustment
of the Purchase Price to adjust the number of Rights in substitution for
any adjustment in the number of shares of Class A Common Stock purchasable
upon the exercise of a Right. Each of the Rights outstanding after such
adjustment of the number of Rights shall be exercisable for the number of
shares of Class A Common 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 such adjustment of the
Purchase Price by the Purchase Price in effect immediately after such
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 and shall promptly give the Rights Agent a record
of such announcement. 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 10 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 whole or fractional shares of Class A Common Stock
issuable upon exercise of such Rights, the Rights Certificates theretofore
and thereafter issued may continue to express the Purchase Price per share
and the number of shares 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 shares of Class A Common Stock issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally
issue such number of fully paid and nonassessable shares of Class A Common
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 (and shall give prompt
written notice of such election to the Rights Agent) until the occurrence
of such event the issuing to the holder of any Right exercised after such
record date of the number of shares of Class A Common Stock and other
shares of beneficial interest or other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the number of
shares of Class A Common Stock and other shares of beneficial interest or
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 securities upon the occurrence of the
event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding,
the Company shall be entitled to make such reductions in the Purchase
Price, in addition to those adjustments expressly required by this Section
11, as and to the extent that it, by means of a resolution of the Board
acting in good faith, shall determine to be advisable in order that any
consolidation or subdivision of the Class A Common Stock, issuance wholly
for cash of any Class A Common Stock at less than the Current Market Price
thereof, issuance wholly for cash of Class A Common Stock (or other
securities which by their terms are convertible into or exchangeable for
Class A Common Stock), dividends payable in shares of Class A Common Stock
or other capital stock or shares of beneficial interest, or issuance of
rights, options, or warrants referred to hereinabove in this Section 11,
hereafter made or declared by the Company to the holders of its Class A
Common Stock, shall not be taxable to such holders.
(n) The Company covenants and agrees that it 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 that 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, more than 25% of (A) the assets (taken at net asset value as
stated on the books of the Company and determined on a consolidated basis
in accordance with generally accepted accounting principles consistently
applied) or (B) the earning power of the Company and its Subsidiaries
(determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied) to any other Person or Persons
(other than the Company 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 (whether or not in writing) in effect that 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 such other Person shall
have received a distribution of Rights previously owned by such Person or
any of its Affiliates.
(o) The Company covenants and agrees that, after the Distribution
Date, it will not, except as permitted by Section 23 or 27 hereof, take (or
permit any Subsidiary to take) any action if at the time such action is
taken it is reasonably foreseeable that such action will diminish
substantially or 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 shall at any time after the date hereof and
prior to the Distribution Date (i) declare or pay a dividend on the
outstanding shares of Class A Common Stock and/or Class B Common Stock
payable in shares of Class A Common Stock and/or Class B Common Stock, or
(ii) effect a subdivision, combination or consolidation of the outstanding
Class A Common Stock and/or Class B Common Stock (by reclassification or
otherwise than by payment of dividends in shares of Class A Common Stock
and/or Class B Common Stock) into a greater or smaller number of shares,
then in any such case, (x) the number of shares of Class A Common Stock
purchasable after such event upon proper exercise of each Right shall be
determined by multiplying the number of shares of Class A Common Stock so
purchasable 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; and (y) each share of
Common Stock outstanding immediately after such event shall have issued
with respect to it that number of Rights which each share of Common Stock
outstanding immediately prior to such event had issued with respect to it.
The adjustments provided for in this Section 11(p) shall be made
successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
Section 12. Certificate of Adjustments.
Whenever an adjustment is made as provided in Section 11 and/or 13
hereof, the Company shall (a) promptly prepare an Officers' Certificate
setting forth such adjustment, including any adjustment in Purchase Price,
the number of shares or Other Consideration payable, and a brief,
reasonably detailed statement of the facts, computations and methodology
accounting for such adjustment, (b) promptly file with the Rights Agent and
with the transfer agent for the Class A Common Stock a copy of such
Officers' Certificate, and (c) mail a brief summary thereof to each
registered holder of a Rights Certificate in accordance with Section 26
hereof. The Rights Agent shall be fully protected in relying on any such
Officers' Certificate and on any adjustment therein contained, and shall
have no duty with respect to and shall not be deemed to have knowledge of
any such adjustment unless and until it shall have received such an
Officers' Certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
In the event that, following the Stock Acquisition Date,
directly or indirectly, (a) the Company shall consolidate with, or merge
with and into, any other Person (other than a Subsidiary of the Company in
a transaction that complies with Section 11(o) hereof) and the Company
shall not be the continuing or surviving Person of such consolidation or
merger, (b) any Person (other than a Subsidiary of the Company in a
transaction that complies with Section 11(o) hereof) shall consolidate
with, or merge with and into, the Company, the Company shall be the
continuing or surviving Person of such consolidation or merger and, in
connection with such consolidation or merger, all or part of the Common
Stock of the Company shall be changed or otherwise transformed into other
stock or other securities of any other Person or the Company or cash or any
other property, or (c) 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, more than 25% of (A) the
assets (taken at net asset value as stated on the books of the Company and
determined on a consolidated basis in accordance with generally accepted
accounting principles consistently applied) or (B) the earning power of the
Company and its Subsidiaries (determined on a consolidated basis in
accordance with generally accepted accounting principles consistently
applied) to any Person (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies with Section
11(o) hereof) then, from and after such event, proper provision shall be
made so that (i) each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the exercise
thereof at the Purchase Price in effect at the time of such exercise in
accordance with the terms of this Agreement, such number of whole or
fractional shares of validly authorized and issued, fully paid,
non-assessable, and freely tradeable Common Stock of such other Person (or
in the case of a transaction or series of transactions described in clause
(c) above, the Person receiving the greatest amount of the assets or
earning power of the Company, or if the Common Stock of such other Person
is not and has not been continuously registered under Section 12 of the
Exchange Act for the preceding 12-month period and such Person is a direct
or indirect Subsidiary of another Person, that other Person, or if such
other Person is a direct or indirect Subsidiary of more than one other
Person, the Common Stock of two or more of which are and have been so
registered, such other Person whose outstanding Common Stock has the
greatest aggregate value), free and clear of any liens, encumbrances,
rights of first refusal, or other adverse claims, as shall be equal to the
result obtained by (x) multiplying the Purchase Price in effect immediately
prior to the first occurrence of any Common Stock Event described in this
Section 13 by the number of shares of Class A Common Stock for which a
Right is exercisable immediately prior to such first occurrence (and
without taking into account any prior adjustment made pursuant to
11(a)(ii)) and (y) dividing that product by 50% of the Current Market Price
per share (as defined in Section 11(d) hereof) of the Common Stock of such
other Person determined as of the date of consummation of such
consolidation, merger, sale, or transfer; (ii) the issuer of such Common
Stock shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale, or transfer, all the obligations and duties of
the Company pursuant to this Agreement; (iii) the term "Company" shall
thereafter be deemed, for all purposes of this Agreement, to refer to such
issuer, it being specifically intended that the provisions of Section 11
hereof (other than Section 11(a)(ii) hereof) shall apply only to such
issuer following the first occurrence of a Common Stock Event described in
this Section 13; (iv) such issuer shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with such consummation as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the whole or fractional shares of its
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 Common Stock Event described in
clauses (a), (b) or (c) of this Section 13. The Company shall not
consummate any such consolidation, merger, sale or transfer unless (i) such
issuer shall have a sufficient number of authorized shares of its Common
Stock which have not been issued or reserved for issuance as will permit
the exercise in full of the Rights in accordance with this Section 13, and
(ii) prior thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement so providing and
further providing that as soon as practicable after the date of any Common
Stock Event described above in this Section 13 such issuer shall (A)
prepare and file a registration statement under the Act, with respect to
the Rights and the securities purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts to cause such registration
statement to (I) become effective as soon as practicable after such filing
and (II) remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date, and (B) will deliver to
holders of the Rights historical financial statements of such issuer and
each of its Affiliates which comply in all respects with the requirements
for registration on Form 10 under the Exchange Act. Furthermore, in case
the Person which is to be party to a transaction referred to in this
Section 13 has any provision in any of its authorized securities or in its
charter or by-laws or other agreement or instrument governing its affairs,
which provision would have the effect of causing such Person to issue, in
connection with, or as a consequence of, the consummation of a Common Stock
Event described in clauses (a), (b), or (c) of this Section 13, whole or
fractional shares of Common Stock of such Person at less than the then
Current Market Price per share thereof (as defined in Section 11(d)
hereof), or to issue securities exercisable for, or convertible into,
Common Stock of such Person at less than such then Current Market Price,
then, in such event, the Company hereby agrees with each holder of the
Rights that it shall not consummate any such transaction unless prior
thereto the Company and such Person shall have executed and delivered to
the Rights Agent a supplemental agreement providing that such provision in
question shall have been canceled, waived, or amended so that it will have
no effect in connection with, or as a consequence of, the consummation of
the proposed transaction. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales or other
transfers. In the event that a Common Stock Event described in this
Section 13 shall occur at any time after the occurrence of a Common Stock
Event described in Section 11(a)(ii) hereof, the Rights which have not
theretofore been exercised shall thereafter become exercisable, except as
provided in Section 7(e) hereof, in the manner described in this Section
13.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights
or to distribute fractions of Rights, except prior to the Distribution Date
as provided in Section 11(i) hereof, or to distribute Rights Certificates
which evidence fractional Rights. In lieu of issuing such fractional
Rights, at the election of the Company, there shall be paid to the
registered holders of the Rights with regard to which such fractional
Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For the purposes of
this Section 14(a), the current market value of a whole Right shall be the
Closing Price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise issuable.
(b) The Company shall not be required to issue fractions of shares
of its capital stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares. In lieu of fractional
shares, at the election of the Company, there shall be paid to the
registered holders of Rights 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 a share of such capital stock. For purposes of this
Section 14(b), the current market value of a share of such capital stock
shall be the Closing Price of such capital stock for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right, by the acceptance of the Right,
expressly waives such holder's right to receive any fractional Rights or
(except as provided in Section 14(b) hereof) any fractional share upon
exercise of a Right.
(d) Whenever a payment for fractional Rights or fractional shares
is to be made by the Rights Agent, the Company shall (i) promptly prepare
and deliver to the Rights Agent a certificate setting forth in reasonable
detail the facts related to such payments and the prices and/or formulas
utilized in calculating such payments, and (ii) provide sufficient monies
to the Rights Agent in the form of fully collected funds to make such
payments. The Rights Agent shall be fully protected in relying upon such a
certificate and shall have no duty with respect to, and shall not be deemed
to have any knowledge of any payment for fractional Rights or fractional
shares under any Section of this Agreement relating to the payment of
fractional Rights or fractional shares unless and until the Rights Agent
shall have received such a certificate and sufficient monies.
Section 15. Rights of Action.
Excepting the rights of action given the Rights Agent under Section
18 hereof and except as set forth in Section 20(l) hereof, all rights of
action in respect of this Agreement are vested in the registered holder of
each Right; and any registered holder of any Right, without the consent of
the Rights Agent or of the holder of any other Right, may, in its own
behalf and for its own benefit, enforce, and may institute and maintain any
suit, action, or proceeding against the Company to enforce, or otherwise
act in respect of, such registered holder's right to exercise the rights
evidenced by such Right in the manner provided in such Rights Certificate
and in this Agreement, and the Company hereby agrees to reimburse such
registered holder for all expenses (including reasonable attorneys' fees)
incurred by such registered holder in connection therewith. 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 the obligations hereunder, and
shall be entitled to 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 the same consents and agrees
with the Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of Common Stock;
(b) from and after the Distribution Date, the Rights Certificates
are transferable only on the registry books of the Rights Agent if
surrendered at the offices of the Rights Agent, duly endorsed or
accompanied by a proper instrument of transfer with a form of assignment
and certificate set forth on the reverse side thereof duly executed,
accompanied by a signature guarantee and such other documentation as the
Rights Agent may reasonably request;
(c) subject to Sections 6(a) and 7(f) hereof, the Company and the
Rights Agent may deem and treat the person in whose name a 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 Certificate or, prior to the Distribution Date, the
associated Common Stock certificate, made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and neither the Company
nor the Rights Agent shall be affected by any notice to the contrary; 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 or ruling 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 agrees to use its best efforts to have any such order, decree
or ruling lifted or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not Deemed a Stockholder.
No holder, as such, of any Rights Certificate shall be entitled to
vote, receive dividends, or otherwise be deemed for any purpose the holder
of any securities of the Company which may 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 in the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to
any action by the Company, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 25 hereof),
or to receive dividends or preemptive rights, or otherwise, until the time
specified in Section 10 hereof.
Section 18. Concerning the Rights Agent.
The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand
of the Rights Agent, its reasonable expenses and counsel fees and other
disbursements incurred in the preparation, delivery, amendment, administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any and all loss, liability, damage, judgment, fine,
claim, demand, settlement, cost or expense (including, without limitation, the
reasonable fees and expenses of legal counsel), incurred without gross
negligence, bad faith or willful misconduct on the part of the Rights Agent
(each as determined by a final, non-appealable order, judgment, decree or
ruling of a court of competent jurisdiction), for any action taken, suffered,
or omitted by the Rights Agent in connection with the acceptance,
administration, exercise and performance of its duties under this Agreement,
including the costs and expenses (including reasonable attorneys' fees and
expenses) of defending against any claim of liability hereunder. The costs
and expenses incurred by the Rights Agent in enforcing this right of
indemnification shall be paid by the Company unless it is determined by a
final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction that the Rights Agent is not entitled to
indemnification due to the Rights Agent's gross negligence, bad faith or
willful misconduct. The provisions of this Section 18 and Section 20 below
shall survive the termination of this Agreement, the exercise or expiration
of the Rights and the resignation or removal of the Rights Agent.
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 acceptance and administration of this Agreement and
the exercise and performance of its duties hereunder, in reliance upon any
Rights Certificate or certificate for any shares of Class A Common Stock or
for other securities of the Company, instrument of assignment or transfer,
power of attorney, endorsement, affidavit, letter, notice, instruction,
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, and verified or acknowledged as required by this
Agreement, or otherwise upon the advice of reputable counsel as set forth
in Section 20 hereof. The Rights Agent shall not be deemed to have any
knowledge of any event of which it was supposed to receive notice thereof
hereunder, and the Rights Agent shall be fully protected and shall incur no
liability for failing to take any action in connection therewith unless and
until it has received such notice in accordance with this Agreement.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
Any Person into which the 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 shall be a party, or any Person
succeeding to the business of the 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 and 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.
In case at any time the name of the Rights Agent shall be changed and
at 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 such 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.
Section 20. Rights and Duties of Rights Agent.
The Rights Agent undertakes only the duties and obligations expressly
imposed upon it by this Agreement and no implied duties or obligations
shall be read into this Agreement against the Rights Agent. The Rights
Agent shall perform its duties and obligations hereunder upon the following
terms and conditions:
(a) The Rights Agent may consult with reputable legal counsel of
its selection (who may be legal counsel to the Company or an employee of
the Rights Agent), 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, suffered or omitted by it in good faith in accordance with such
advice or opinion; provided, that the Company agrees that Xxxxxx Xxxx &
Xxxxxx LLP and its attorneys shall be considered "reputable legal counsel"
for purposes of this Agreement.
(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 Per Share Market Price) be proved or
established by the Company prior to taking, 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 (an "Officers' Certificate") signed
by a person believed by the Rights Agent to be the Chairman of the Board,
the President or any Vice President and by the Treasurer or any Assistant
Treasurer or the Clerk or any Assistant Clerk of the Company and delivered
to the Rights Agent; and such Officers' Certificate shall be full
authorization and protection to the Rights Agent for any action taken,
suffered or omitted by it under the provisions of this Agreement in
reliance upon such Officers' Certificate.
(c) The Rights Agent shall be liable hereunder only for its own
gross negligence, bad faith, or willful misconduct (each as determined by a
final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction). Anything to the contrary notwithstanding, in no
event shall the Rights Agent be liable for special, indirect,
consequential, or incidental loss or damage of any kind whatsoever
(including but not limited to lost profits), even if the Rights Agent has
been advised of the likelihood of such loss or damage.
(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 its countersignature on such Rights
Certificate) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any 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, a transfer to an Acquiring Person or any
adjustment required under the provisions of Sections 11 or 13 hereof or be
responsible for the manner, method or amount of any such adjustment or
procedures or the ascertaining of the existence of facts that would require
any such adjustment or procedure (except with respect to the exercise of
Rights evidenced by Rights Certificates after receipt by the Rights Agent
of a certificate delivered pursuant to Section 12 hereof, describing any
such adjustment or procedures, upon which the Rights Agent may rely); nor
shall it by any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any Class A Common Stock
or other securities to be issued pursuant to this Agreement or any Rights
Certificate or as to whether any shares of Class A Common Stock, or any
shares or similar units of other securities, will, when issued, be validly
authorized and issued, fully paid, and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver, or cause to be performed, executed, acknowledged and
delivered, all such further and other acts, instruments and assurances as
may reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person believed by the Rights Agent to be the Chairman of the Board,
the President or any Vice President or the Clerk or any Assistant Clerk or
the Treasurer or any Assistant Treasurer of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and
such instructions shall be full authorization and protection to the Rights
Agent, and the Rights Agent shall not be liable for any action taken,
suffered or omitted by it in accordance with instructions of any such
officer or for any delay in acting while waiting for those instructions,
absent its own gross negligence, bad faith, or willful misconduct (each as
determined by a final, non-appealable order, judgment, decree or ruling of
a court of competent jurisdiction). Any application by the Rights Agent
for written instructions from the Company may, at the option of the Rights
Agent, set forth in writing any action proposed to be taken or omitted by
the Rights Agent with respect to its duties or obligations under this
Agreement and the date on and/or after which such action shall be taken or
such omission shall be effective. The Rights Agent shall not be liable for
any action taken by, or omission of, the Rights Agent in accordance with a
proposal included in any such application on or after the date specified in
such application (which date shall not be less than five (5) Business Days
after the date any such officer 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 has received written instructions from
the Company 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 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.
(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 or any other
Person resulting from any such act, default, neglect or misconduct, absent
gross negligence, bad faith or willful misconduct (each as determined by a
final, non-appealable order, judgment, decree or ruling of a court of
competent jurisdiction) in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights if it believes that repayment of such funds or adequate
indemnification against such risk or liability is not reasonably assured to
it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise or transfer, the certification appearing on the
reverse side thereof following the form of assignment or form of election
to purchase, as the case may be, has either not been completed or indicates
an affirmative 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.
(l) The provisions of this Section 20 are solely for the benefit of
the Rights Agent or the Company and any failure or omission under this
Section 20 shall not affect the rights of the Company under this Agreement
and neither the Rights Agent nor the Company shall have any liability to
any holder of Rights or other Person on account of such failure or
omission.
Section 21. Change of Rights Agent.
The Rights Agent or any successor Rights Agent may resign and be
discharged from its duties under this Agreement upon 30 days' notice in
writing mailed to the Company and to the transfer agent of the Class A
Common Stock by registered or certified mail, and, subsequent to the
Distribution Date, to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, to the transfer agent of the
Class A Common Stock by registered or certified mail, and, subsequent to
the Distribution Date, 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 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 such holder's Rights
Certificate for inspection by the Company), then the registered holder of
any Rights Certificate may apply to any court of competent jurisdiction for
the appointment of a new Rights Agent. Any successor Rights Agent, whether
appointed by the Company or by such a court, shall be (i) a Person
organized and doing business under the laws of the United States, the State
of New York or The Commonwealth of Massachusetts (or of any other State of
the United States so long as such Person is authorized to do business as a
banking institution in the State of New York or The Commonwealth of
Massachusetts), in good standing, having an office designated for such
purpose in the State of New York or The Commonwealth of Massachusetts,
which is authorized under such laws to exercise stock transfer powers and
is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital
and surplus of at least $50,000,000, or (ii) an Affiliate of a Person
described in clause (i). 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; and, except as the context herein otherwise
requires, such successor Rights Agent shall be deemed to be the "Rights
Agent" for all purposes of this Agreement. Not later than the effective
date of any such appointment the Company shall file notice thereof in
writing with the predecessor Rights Agent and the transfer agent of the
Class A Common 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 or class of shares of stock 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 by the Company of shares of Common Stock following the Distribution
Date and prior to the redemption 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 evidenced by a
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 would be issued, and (ii) no such Rights Certificate 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 and Termination.
The Board, by majority vote, may, at its option, at any time prior to
the earlier of (i) the Distribution Date or (ii) the Close of Business on
the Expiration Date, redeem all (but not less than all) of the then
outstanding Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend, combination of shares,
or similar transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price"). 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 majority of the Board). Immediately upon the taking of such action
ordering the redemption of all 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 so redeemed will
terminate and the only right thereafter of the holders of such Rights so
redeemed shall be to receive the Redemption Price (without the payment of
any interest thereon). Within 10 days after such action ordering the
redemption of all of the Rights, the Company shall give prompt written
notice of such redemption to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice to the Rights Agent and all such
holders at their last addresses as they appear upon the registry books of
the Rights Agent or, prior to the Distribution Date, on the registry books
of the transfer agent for the Common Stock. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption shall state the method
by which the payment of the Redemption Price shall be made.
Section 24. Exchange.
(a) The Board, by majority vote, 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 for shares of Class A Common Stock
at an exchange ratio of one share of Class A Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio,
as the same may be so adjusted from time to time, being hereinafter
referred to as the "Exchange Ratio"). Notwithstanding the foregoing, such
Board shall not be empowered to effect such exchange at any time after any
Person (other than (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any such Subsidiary,
or (iv) any Person organized, appointed or established for or pursuant to
the terms of any such plan), together with all Affiliates of such Person,
becomes the Beneficial Owner (whether such Beneficial Ownership is of
shares of Class A Common Stock, shares of Class B Common Stock or shares of
Class A Common Stock and Class B Common Stock)of 50% or more of the shares
of Class A Common Stock and Class B Common Stock (taken together as a
single class, treating each share of Class B Common Stock outstanding as
one share of Class A Common Stock outstanding for the purposes of
calculating such Beneficial Ownership) then outstanding.
(b) Immediately upon the action of the Board ordering the exchange
of any Rights pursuant to subsection (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 holders of such Rights
shall be to receive that number of shares of Class A 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
(with prompt written notice thereof to the Rights Agent); 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 the Class A Common
Stock for Rights shall be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of Section
7(e) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient shares of Class
A 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 be necessary to
authorize additional Class A Common Stock for issuance upon exchange of the
Rights.
(d) The Company shall not be required to issue fractions of shares
of Class A Common Stock or to distribute certificates which evidence
fractional shares of Class A Common Stock. In lieu of such fractional
shares of Class A Common Stock, the Company shall pay to each registered
holder of a Rights Certificate with regard to which a fractional share of
Class A Common Stock would otherwise be issuable an amount in cash equal to
the same fraction of the current market value of a whole share of Class A
Common Stock. For the purposes of this paragraph (d), the current market
value of a whole share of Class A Common Stock shall be the Closing Price
of a share of Class A Common Stock (as determined pursuant to Section 11(d)
hereof) for the Trading Day immediately prior to the date of exchange
pursuant to this Section 24.
Section 25. Notice of Proposed Actions.
In case the Company shall after the Distribution Date propose (a) to
pay any dividend payable in stock of any class to the holders of its Class
A Common Stock or to make any other distribution to the holders of its
Class A Common Stock (other than a cash dividend out of earnings or the
retained earnings of the Company), or (b) to offer to the holders of its
Class A Common Stock rights or warrants to subscribe for or to purchase any
additional shares of Class A Common Stock, Class B Common Stock or shares
of stock of any other class or any other securities, rights, or options, or
(c) to effect any reclassification of the Class A Common Stock (other than
a reclassification involving only the subdivision of outstanding shares of
Class A Common Stock), or (d) 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 transaction
or a series of related transactions, of more than 25% of (i) the assets of
the Company and its Subsidiaries (taken at net asset value as stated on the
books of the Company and determined on a consolidated basis in accordance
with generally accepted accounting principles consistently applied) or (ii)
the earning power of the Company and its Subsidiaries (determined on a
consolidated basis in accordance with generally accepted accounting
principles consistently applied) to any other Person or Persons, or (e) to
effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to the Rights Agent and each holder
of a Right, 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 Class A Common 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 (a) or (b) above at least twenty days prior to the record date
for determining holders of the Class A Common Stock for purposes of such
action, and in the case of any such other action, at least twenty days
prior to the date of the taking of such proposed action or the date of
participation therein by the holders of Class A Common Stock whichever
shall be the earlier. The failure to give notice required by this Section
25 or any defect therein shall not affect the legality or validity of the
action taken by the Company or the vote upon any such action.
In case any Common Stock Event described in Section 11(a)(ii) hereof
shall occur, then, in any such case, the Company shall as soon as
practicable thereafter give to the Rights Agent and each holder of a Rights
Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such Common Stock Event, which shall specify such event and
the consequences of the event to holders of Rights under Section 11(a)(ii)
hereof.
Notwithstanding anything in this Agreement to the contrary, prior to
the Distribution Date a filing by the Company with the Securities and
Exchange Commission shall constitute sufficient notice to the holders of
securities of the Company, including the Rights, for purposes of this
Agreement and no other notice need be given.
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 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) or by facsimile transmission as follows:
The X.X. Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxxxx 00000
Attention: Treasurer
Facsimile No.: (000) 000-0000
Copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Subject to the provisions of Sections 19 and 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) or
by facsimile transmission as follows:
Mellon Investor Services LLC
000 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxxx Xxxxxxxx, XX 00000
Attn: Relationship Manager
Facsimile No.: (000) 000-0000
with a copy to:
Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
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 such holder at the address of such holder as shown on
the registry books of the Company.
Section 27. Supplements and Amendments.
Prior to the Distribution Date, the Board, upon the vote of a
majority of the Board, may from time to time supplement or amend this
Agreement without the approval of any holders of the Rights. From and
after the Distribution Date, the Board may, upon the vote of a majority of
the Board, from time to time amend this Agreement without the approval of
any holders of the Rights in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, (iii) to change any time
period governing redemption of the Rights or any other time period or
(iv) to make any other provisions in regard to matters or questions arising
hereunder which the Board, upon the vote of a majority of the Board, may
deem necessary or desirable and which shall not adversely affect the
interests of the holders of the Rights (other than any Acquiring Person or
Disqualified Transferee or any Affiliate of an Acquiring Person or
Disqualified Transferee). The Rights Agent shall join with the Company in
the execution and delivery of any such supplement or amendment, unless such
supplement or amendment affects or changes in any way any of the rights,
duties, liabilities, obligations or immunities of the Rights Agent
hereunder, in which case the Rights Agent may, but shall not be required
to, join in such execution and delivery.
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. Determinations and Actions by the Board; etc.
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, 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 (including a determination to redeem or not redeem the
Rights or to amend this Agreement) deemed necessary or advisable for the
administration of this Agreement. All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y)
below all omissions with respect to the foregoing) which are done or made
by the Board in good faith and with the concurrence of a majority of the
Board shall (x) be final, conclusive and binding on the Company, the Rights
Agent, the holders of the Rights and all other Persons and (y) not subject
any Director to any liability to the holders of the Rights. The Rights
Agent shall always be entitled to assume that the Board acted in good faith
and shall be fully protected and incur no liability in reliance thereon.
Section 30. 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 associated
shares of Common Stock) any legal or equitable right, remedy, or claim
under this Agreement or the Rights; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent, and the
registered holders of the Rights (and, prior to the Distribution Date, the
associated Common Stock).
Section 31. Severability.
The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or
provision hereof. 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; provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be invalid, void or
unenforceable and the Board determines in its good faith judgment that
severing the invalid language from this Agreement would adversely affect
the purpose or effect of this Agreement, the right of redemption set forth
in Section 23 hereof shall be reinstated (with prompt written notice the
Rights Agent) and shall not expire until the Close of Business on the tenth
day following the date of such determination by the Board.
Section 32. Governing Law.
This Agreement and each Rights Certificate issued hereunder shall be
deemed to be a contract made under the laws of The Commonwealth of
Massachusetts and for all purposes shall be governed by and construed in
accordance with the laws of said Commonwealth applicable to contracts to be
made and performed entirely within said Commonwealth; provided, however,
that all provisions regarding the rights, duties and obligations of the
Rights Agent shall, with respect to such rights, duties and obligations, be
governed by and construed in accordance with the laws of the State of New
York applicable to contracts made and to be performed entirely within said
State.
Section 33. Counterparts.
This Agreement may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and the same
instrument.
Section 34. 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.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and set their respective hands and seals, all as of the
day and year first above written.
THE X.X. XXXXXXXX COMPANY
By: /s/ Xxxxx Xxxxxxxxxx, Xx.
Title: VP & CFO
Attest:
By: /s/ Xxxxx XxXxxxxx
Title: Asst. to Treasurer
MELLON INVESTOR SERVICES, LLC
By: /s/ Xxxxxx X. XxXxxxxx
Title: Vice President
Attest:
By: /s/ Xxx Tinto
Title: Vice President
EXHIBIT A
FORM OF RIGHTS CERTIFICATE
Certificate No. R- _______ Rights
NOT EXERCISABLE AFTER May 23, 2010 OR EARLIER IF ORDER OF REDEMPTION
IS GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES AND
ASSOCIATES) OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN
THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY
BECOME NULL AND VOID. THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL
BE 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. [THE RIGHTS REPRESENTED BY THIS
CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES
AND ASSOCIATES) OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS 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 THE RIGHTS AGREEMENT. THE
RIGHTS AGENT WILL MAIL TO THE REGISTERED HOLDER OF THIS CERTIFICATE A
COPY OF THE RIGHTS AGREEMENT, AS IN EFFECT ON THE DATE OF SUCH
MAILING, WITHOUT CHARGE UPON WRITTEN REQUEST.]*
Rights Certificate
THE X.X. XXXXXXXX COMPANY
This certifies that , or registered
assigns, is the registered owner of the number of Rights set forth above,
each of which entitles the owner thereof, subject to the terms, provisions,
and conditions of the Rights Agreement dated as of June 6, 1990, as amended
and restated as of May 23, 2000 between The X.X. Xxxxxxxx Company (the
"Company"), and Fleet National Bank (f/k/a BankBoston, N.A., f/k/a The
First National Bank of Boston, and as further amended and restated by the
Second Amended and Restated Rights Agreement between the Company and Mellon
Investor Services LLC (the "Rights Agent"), dated March 13, 2002 (the
"Rights Agreement"), 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. (Boston, Massachusetts time) on May 23, 2010 (the
"Expiration Date") at the office of the Rights Agent designated for such
purpose, or its successors as Rights Agent, one share of Class A Common
Stock, with a par value of $1.00 per share ("Class A Common Stock"), of the
Company per each Right represented hereby, at a purchase price of $92.00
per share (the "Purchase Price") upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase set forth on the
reverse side hereof and the certificate contained therein duly completed
and executed, accompanied by a signature guarantee and such other
documentation as the Rights Agent may reasonably request. The number of
Rights evidenced by this Rights Certificate (and the number of shares which
may be purchased upon exercise thereof) set forth above, and the Purchase
Price per share set forth above, are the number and Purchase Price as of
May 23, 2000, based on the shares of Common Stock of the Company as
constituted at such date.
As more fully set forth in the Rights Agreement, upon the occurrence
of a Common Stock Event (as such term is defined in the Rights Agreement),
if the Rights evidenced by this Rights Certificate are beneficially owned
by (i) an Acquiring Person or an Affiliate of an Acquiring Person (as each
such term is defined in the Rights Agreement) or (ii) a Disqualified
Transferee (as defined in the Rights Agreement), such Rights shall
automatically become null and void and no holder hereof shall have any
right with respect to such Rights from and after the occurrence of such
Common Stock Event.
The Rights evidenced by this Rights Certificate shall not be
exercisable, and shall be 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.
As provided in the Rights Agreement, the Purchase Price and the
number and type of securities which may be purchased upon the exercise of
the Rights evidenced by this Rights Certificate are subject to modification
and adjustment upon the happening of certain events.
In the circumstances described in Section 13 of the Rights Agreement,
the securities issuable upon the exercise of the Rights evidenced hereby
shall be the common stock or similar equity securities or equity interests
of an entity other than the Company.
This Rights Certificate is subject to all of the terms, provisions,
and conditions of the Rights Agreement, which terms, provisions, and
conditions are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties, and
immunities hereunder of the Rights Agent, the Company, and the holders of
the Rights Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement. Copies of the Rights
Agreement are on file at the office of the Rights Agent designated for such
purpose and may be obtained by the holder of any Rights upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the office of the Rights Agent designated for such
purpose, accompanied by a signature guarantee and such other documentation
as the Rights Agent may reasonably request, 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 shares
of Class A Common Stock (or other consideration, as the case may be) 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 Rights Certificate may be redeemed by the Company by a
majority vote of the Board (as defined in the Rights Agreement) at any time
prior to the Expiration Date, at a redemption price of $.01 per Right
(which amount is subject to adjustment as provided in the Rights
Agreement). In addition, in certain circumstances, the Rights may be
exchanged, in whole or in part, for shares of Class A Common Stock.
Immediately upon action of the Board ordering the exchange of any Rights
and without further action and without any notice, the right to exercise
such Rights will terminate and the only right thereafter of a holder of
such Rights will be to receive that number of shares of Class A Common
Stock issuable upon exchange.
The Company is not obligated to issue whole or fractional shares of
Class A Common Stock (or other securities) upon the exercise of any Right
or Rights evidenced hereby, but in lieu thereof a cash payment may be made
at the election of the Company, 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 Class
A Common Stock or of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall anything contained in
the Rights Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
action by the Company, 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 and the seal
of the Company. Dated as of _______ __, ____.
THE X.X. XXXXXXXX COMPANY
By______________________________
Title:
ATTEST:
____________________
Title:
Countersigned:
____________________
MELLON INVESTOR SERVICES, LLC
By____________________
Authorized Signatory
Date of Countersignature:
[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)
FOR VALUE RECEIVED ________________________ hereby sells, assigns and
transfers unto ______________________
_________________________________________________________________
(Please print name and address of transferee)
______________________________________________________________________
whose social security or tax identification number is: ______________ the
Rights evidenced by this Rights Certificate, together with all right, title
and interest herein, 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:*
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate of an Acquiring Person (as each
such term is defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate after the occurrence of a Common Stock Event from any Person
who is, was or subsequently became an Acquiring Person or an Affiliate of
an Acquiring Person.
Dated:____________________ ______________________________
Signature
Signature Guaranteed:*
____________________________
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate
in every particular, without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Rights Certificate)
To The X.X. Xxxxxxxx Company
The undersigned hereby irrevocably elects to exercise
_________________ Rights represented by this Rights Certificate to purchase
the number of shares of Class A Common Stock (or other securities) issuable
upon the exercise of such Rights and requests that certificates for such
shares be issued in the name of:
Please insert social security
or other identifying number ________________________________________
_____________________________________________________________
(Please print name and address)
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 insert social security
or other identifying number ________________________________________
_________________________________________________________________
(Please print name and address)
Dated: _______________________, ____
______________________________
Signature
(Signature must conform in all respects
to name of holder as specified on the
face of this Rights Certificate)
Signature Guaranteed:**
Certificate
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate of any such Acquiring Person (as each such term is
defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate after the occurrence of a Common Stock Event (as such term is
defined in the Rights Agreement) from any Person who is, was, or
subsequently became an Acquiring Person or an Affiliate of an Acquiring
Person.
Dated: _________________, ____ _________________________
Signature
Signature Guaranteed:***
* The portion of the legend in brackets shall be inserted only if applicable.
* Signature must be guaranteed by an "Eligible Guarantor Institution"
(with membership in an approved signature guarantees medallion
program)pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934.
** Signature must be guaranteed by an "Eligible Guarantor Institution" (with
membership in an approved signature guarantees medallion program) pursuant
to Rule 17Ad-15 of the Securities Exchange Act of 1934.
*** Signature must be guaranteed by an "Eligible Guarantor Institution"
(with membership in an approved signature guarantees medallion program)
pursuant to Rule 17Ad-15 of the Securities Exchange Act of 1934.
