Exhibit 99.1
=================================================================
GREYHOUND LINES, INC.
and
MELLON SECURITIES TRUST COMPANY
as Rights Agent
----------
Amended and Restated Rights Agreement
Dated as of April 8, 1997
=================================================================
TABLE OF CONTENTS
-----------------
Section Page
------- ----
1. Certain Definitions . . . . . . . . . . . . . . . . . . . 3
-------------------
2. Appointment of Rights Agent . . . . . . . . . . . . . . . 14
---------------------------
3. Issuance of Right Certificates . . . . . . . . . . . . . 14
------------------------------
4. Form of Right Certificates . . . . . . . . . . . . . . . 18
--------------------------
5. Countersignature and Registration . . . . . . . . . . . . 19
---------------------------------
6. Transfer, Split Up, Combination and Exchange of Right
-----------------------------------------------------
Certificates; Mutilated, Destroyed, Lost or Stolen Right
--------------------------------------------------------
Certificates . . . . . . . . . . . . . . . . . . . . . . 20
------------
7. Exercise of Rights; Exercise Price; Expiration Date of
------------------------------------------------------
Rights . . . . . . . . . . . . . . . . . . . . . . . . . 22
------
8. Cancellation and Destruction of Right Certificates . . . 27
--------------------------------------------------
9. Reservation and Availability of Shares of Preferred
---------------------------------------------------
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 28
-----
10. Preferred Stock Record Date . . . . . . . . . . . . . . 31
---------------------------
11. Adjustment of Exercise Price or Number of Shares . . . . 32
------------------------------------------------
12. Certification of Adjusted Exercise Price or Number of
-----------------------------------------------------
Shares . . . . . . . . . . . . . . . . . . . . . . . . . 41
------
13. Consolidation, Merger or Sale or Transfer of Assets or
------------------------------------------------------
Earning Power . . . . . . . . . . . . . . . . . . . . . . 42
-------------
14. Fractional Rights and Fractional Shares . . . . . . . . 49
---------------------------------------
15. Rights of Action . . . . . . . . . . . . . . . . . . . . 51
----------------
16. Agreement of Right Holders . . . . . . . . . . . . . . . 52
--------------------------
17. Right Certificate Holder Not Deemed a Stockholder . . . 53
-------------------------------------------------
18. Concerning the Rights Agent . . . . . . . . . . . . . . 54
---------------------------
19. Merger or Consolidation of, or Change in Name of, the
-----------------------------------------------------
Rights Agent . . . . . . . . . . . . . . . . . . . . . . 55
------------
Section Page
------- ----
20. Duties of Rights Agent . . . . . . . . . . . . . . . . . 56
----------------------
21. Change of Rights Agent . . . . . . . . . . . . . . . . . 60
----------------------
22. Issuance of New Right Certificates . . . . . . . . . . . 62
----------------------------------
23. Redemption . . . . . . . . . . . . . . . . . . . . . . . 62
----------
24. Notice of Proposed Actions . . . . . . . . . . . . . . . 65
--------------------------
25. Notices . . . . . . . . . . . . . . . . . . . . . . . . 67
-------
26. Supplements and Amendments . . . . . . . . . . . . . . . 68
--------------------------
27. Successors . . . . . . . . . . . . . . . . . . . . . . . 69
----------
28. Benefits of this Rights Agreement . . . . . . . . . . . 69
---------------------------------
29. Delaware Contract . . . . . . . . . . . . . . . . . . . 70
-----------------
30. Counterparts . . . . . . . . . . . . . . . . . . . . . . 70
------------
31. Descriptive Headings . . . . . . . . . . . . . . . . . . 70
--------------------
32. Severability . . . . . . . . . . . . . . . . . . . . . . 70
------------
Exhibit A - [Reserved]
Exhibit B - Form of Right Certificate
Exhibit C - Form of Amended and Restated Certificate of
Designations of Series A Junior Preferred Stock
AMENDED AND RESTATED RIGHTS AGREEMENT
-------------------------------------
Agreement, dated as of April 8, 1997, by and between
GREYHOUND LINES, INC., a Delaware corporation (the "Company"), and
Mellon Securities Trust Company, a New York corporation (the "Rights
Agent").
W I T N E S S E T H:
-------------------
WHEREAS, on March 22, 1994, the Board of Directors of the
Company authorized the issuance of, and declared a dividend payable
in, one right (a "Right") for each share of Common Stock, $0.01 par
value per share, of the Company outstanding as of the close of
business on April 4, 1994 (the "Record Date"), each such Right
representing the right to purchase one one-hundredth of a share of
Series A Junior Preferred Stock of the Company ("Preferred Stock")
having the rights and preferences set forth in the form of Certificate
of Designations attached as Exhibit C to that certain Rights
Agreement, dated as of March 22, 1994, by and between the Company and
the Rights Agent (the "Original Rights Agreement") and authorized by
the Board of Directors on March 22, 1994, upon the terms and subject
to the conditions set forth therein; and
WHEREAS, the Board of Directors of the Company further
authorized the issuance of one Right (subject to adjustment) with
respect to each share of Common Stock which may have been or may
be issued between the Record Date and the earlier to occur of the
Expiration Date or the Final Expiration Date (as such terms are
defined in the Original Rights Agreement);
WHEREAS, on March 11, 1997, the Board of Directors of the
Company authorized and directed the Company to execute and deliver
this Amended and Restated Rights Agreement (the "Rights Agreement"),
which Rights Agreement amends and restates the Original Rights
Agreement to, among other things, (i) remove therefrom the concept of
action required to be taken by "Continuing Directors", (ii) reduce
from one one-hundredth (1/100) to one one-thousandth (1/1,000) the
number of shares of Preferred Stock for which a Right may be exercised
while preserving the economic value of such Right, and (iii) amend and
restate the Certificate of Designations attached to the Original
Rights Agreement as Exhibit C to effect the changes described in
clause (ii) above;
WHEREAS, on March 11, 1997, the Board of Directors delegated
to a separate Committee of the Board authority to consider other
appropriate or desirable amendments to the Original Rights Agreement;
WHEREAS, on March 24, 197, that Committee authorized and
directed the Company to further amend the Original Rights Agreement to
increase to 20% the beneficial ownership threshold
for the definition of "Acquiring Person" in the Original Rights
Agreement;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
Section 1. Certain Definitions. For purposes of this
-------------------
Agreement, the following terms shall have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with all
Affiliates (as such term is hereinafter defined) and
Associates (as such term is hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is
hereinafter defined) of 20% or more of the shares of Voting
Stock (as such term is hereinafter defined) of the Company
then outstanding; provided that, an Acquiring Person shall
not include an (i) Exempt Person (as such term is
hereinafter defined), or (ii) any Person, together with all
Affiliates and Associates of such Person, who or which would
be an Acquiring Person solely by reason of (A) being the
Beneficial Owner of shares of Voting Stock of the Company,
the Beneficial Ownership of which was acquired by such
Person pursuant to any action or transaction or series of
related actions or
transactions approved by the Board of Directors before such
Person otherwise became an Acquiring Person or (B) a
reduction in the number of issued and outstanding shares of
Voting Stock of the Company pursuant to a transaction or a
series of related transactions approved by the Board of
Directors of the Company; provided further, that in the
event such Person described in this clause (ii) does not
become an Acquiring Person by reason of subclause (A) or (B)
of this clause (ii), such Person nonetheless shall become an
Acquiring Person in the event such Person thereafter
acquires Beneficial Ownership of an additional 1% of the
Voting Stock of the Company, unless the acquisition of such
additional Voting Stock would not result in such Person
becoming an Acquiring Person by reason of subclause (A) or
(B) of this clause (ii). Notwithstanding the foregoing, if
the Board of Directors of the Company determines in good
faith that a Person who would otherwise be an "Acquiring
Person" as defined pursuant to the foregoing provisions of
this paragraph (a) has become such inadvertently, and such
Person divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person would
no longer be an "Acquiring Person" as defined
pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed an "Acquiring Person"
for any purposes of this Rights Agreement.
(b) "Affiliate" shall have the meaning ascribed to
such term in Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended
("Exchange Act"), as in effect on the date of this Rights
Agreement.
(c) "Associate" of a Person (as such term is
hereinafter defined) shall mean (i) with respect to a
corporation, any officer or director thereof or of any
Subsidiary (as such term is hereinafter defined) thereof, or
any Beneficial Owner (as such term is hereinafter defined)
of 10% or more of any class of equity security thereof,
(ii) with respect to an association, any officer or director
thereof or of a Subsidiary thereof, (iii) with respect to a
partnership, any general partner thereof or any limited
partner thereof who is, directly or indirectly, the
Beneficial Owner of a 10% ownership interest therein,
(iv) with respect to a business trust, any officer or
trustee thereof or of any Subsidiary thereof, (v) with
respect to any other trust or an estate, any trustee,
executor or similar fiduciary or any Person who has a
15% or greater interest as a beneficiary in the income from
or principal of such trust or estate, (vi) with respect to a
natural person, any relative or spouse of such person, or
any relative of such spouse, who has the same home as such
person, and (vii) any Affiliate of such Person.
(d) A person shall be deemed the "Beneficial Owner"
of, or to "Beneficially Own", any securities (and
correlative terms shall have correlative meanings):
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly, for purposes of Section 13(d) of the
Exchange Act and Regulations 13D and 13G thereunder (or
any comparable or successor law or regulation), in each
case as in effect on the date hereof; or
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time or the fulfillment of a
condition or both) pursuant to any agreement,
arrangement or understanding, or upon the exercise of
conversion
rights, exchange rights, other rights (other than these
Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "Beneficially Own",
securities tendered pursuant to a tender or exchange
offer made by such Person or any of such Person's
Affiliates or Associates until such tendered securities
are accepted for purchase or exchange or (B) the right
to vote, alone or in concert with others, pursuant to
any agreement, arrangement or understanding (whether or
not in writing); provided, however, that a Person shall
not be deemed the "Beneficial Owner" of, or to
"Beneficially Own", any securities if the agreement,
arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given
in response to a proxy or consent solicitation made
pursuant to, and in accordance with, the applicable
rules and regulations under the Exchange Act and (2) is
not at the time reportable by such Person on a Schedule
13D report under the Exchange Act (or any comparable or
successor report), other than by
reference to a proxy or consent solicitation being
conducted by such Person; or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person
or any of such Person's Affiliates or Associates has
any agreement, arrangement or understanding (whether or
not in writing) for the purpose of acquiring, holding,
voting (except as described in clause (B) of
subparagraph (ii) of this paragraph (d)) or disposing
of any securities of the Company; provided, however,
that for purposes of determining Beneficial Ownership
of securities under this Rights Agreement, officers and
directors of the Company solely by reason of their
status as such shall not constitute a group
(notwithstanding that they may be Associates of one
another or may be deemed to constitute a group for
purposes of Section 13(d) the Exchange Act) and shall
not be deemed to own shares owned by another officer or
director of the Company.
Notwithstanding anything in this paragraph (d) to the
contrary, a Person shall not be deemed the "Beneficial
Owner" of, or to "Beneficially Own," any security
Beneficially Owned by another Person solely by
reason of an agreement, arrangement or understanding with
such other Person for the purposes of: (x) soliciting the
Company's stockholders for the election of director nominees
or any other stockholder resolution, the formation of and
membership on any committee for the purpose of promoting or
opposing any stockholder resolution or for electing a slate
of nominees to the Company's Board of Directors, service on
such a slate of nominees, or agreement to a slate of
director nominees, provided that such other Person retains
the right at any time to withdraw as a nominee or member of
any such committee, and to withhold or revoke any vote or
proxy for or against any such stockholder resolution or for
such slate of nominees; (y) entering into revocable voting
agreements or the granting or solicitation of revocable
proxies with respect to any of the matters described in the
foregoing clause (x); or (z) the sharing of expenses and the
indemnification against expenses and liabilities by any such
other Person with respect to expenses incurred or conduct
occurring during the time such other Person is a nominee or
a member of any such committee described in the foregoing
clause (x). Further, notwithstanding anything in this
paragraph (d)
to the contrary, a Person engaged in the business of
underwriting securities shall not be deemed the "Beneficial
Owner" of, or to "Beneficially Own," any securities acquired
in good faith in a firm commitment underwriting until the
expiration of forty days after the date of such acquisition.
(e) "Business Day" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in
the State of Texas are authorized or obligated by law or
executive order to close.
(f) "Close of Business" on any given date shall mean
5:00 P.M., Texas time, on such date; provided, however, that
if such date is not a Business Day it shall mean 5:00 P.M.,
Texas time, on the next succeeding Business Day.
(g) "Common Stock" when used with reference to the
Company shall mean the Common Stock (presently $0.01 par
value) of the Company. "Common Stock" when used with
reference to any Person other than the Company which shall
be organized in corporate form shall mean the capital stock
or other equity security with the greatest per share voting
power of such Person. "Common Stock" when used with
reference to any Person other than the Company which shall
not be
organized in corporate form shall mean units of beneficial
interest which shall represent the right to participate in
profits, losses, deductions and credits of such Person and
which shall be entitled to exercise the greatest voting
power per unit of such Person.
(h) "Distribution Date" shall have the meaning set
forth in Section 3(b) hereof.
(i) "Exchange Act" shall have the meaning set forth in
Section 1(b) hereof.
(j) "Exempt Person" shall mean (i) the Company, (ii)
any Subsidiary of the Company or (iii) any employee benefit
plan or employee stock plan of the Company or any Subsidiary
of the Company, or any trust or other entity organized,
appointed, established or holding Common Stock for or
pursuant to the terms of any such plan.
(k) "Exercise Price" shall have the meaning set forth
in Sections 4 and 7(b) hereof.
(l) "Expiration Date" shall have the meaning set forth
in Section 7(a) hereof.
(m) "Fair Market Value" of any property shall mean the
fair market value of such property as determined in
accordance with Section 11(b) hereof.
(n) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(o) "NASDAQ" shall have the meaning set forth in
Section 9(b) hereof.
(p) "Person" shall mean any individual, firm,
corporation or other entity.
(q) "Principal Party" shall have the meaning set forth
in Section 13(b) hereof.
(r) "Qualifying Tender Offer" shall mean a tender or
exchange offer for all outstanding shares of Common Stock of
the Company approved by a majority of the Board of
Directors, after taking into account the potential long-term
value of the Company and all other factors that they
consider relevant.
(s) "Redemption Price" shall have the meaning set
forth in Section 23(a) hereof.
(t) "Right Certificate" shall have the meaning set
forth in Section 3(d) hereof.
(u) "Stock Acquisition Date" shall mean the first date
on which there shall be a public announcement by the Company
or an Acquiring Person that an Acquiring Person has become
such (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d)
of the Exchange Act) or
such earlier date as a majority of the members of the Board
of Directors shall become aware of the existence of an
Acquiring Person.
(v) "Subsidiary" of a Person shall mean any
corporation or other entity of which securities or other
ownership interests having voting power sufficient to elect
a majority of the board of directors or other persons
performing similar functions are beneficially owned,
directly or indirectly, by such Person or by any corporation
or other entity that is otherwise controlled by such Person.
(w) "Summary of Rights" shall have the meaning set
forth in Section 3(a) hereof.
(x) "Trading Day" shall have the meaning set forth in
Section 11(b) hereof.
(y) "Transfer Tax" shall mean any tax or charge,
including any documentary stamp tax, imposed or collected by
any governmental or regulatory authority in respect of any
transfer of any security, instrument or right, including
Rights, shares of Common Stock and shares of Preferred
Stock.
(z) "Voting Stock" shall mean (i) the Common Stock of
the Company and (ii) any other shares of capital stock of
the Company entitled to vote generally
in the election of directors or entitled to vote together
with the Common Stock in respect of any merger,
consolidation, sale of all or substantially all the
Company's assets, liquidation, dissolution or winding up.
Any determination required to be made by the Board of Directors of the
Company for purposes of applying the definitions contained in this
Section 1 shall be made by the Board of Directors in its good faith
judgment, which determination shall be binding on the Rights Agent and
the holders of the Rights.
Section 2. Appointment of Rights Agent. The Company hereby
---------------------------
appoints the Rights Agent to act as agent for the Company and the
holders of the Rights in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such Co-Rights Agents as it may
deem necessary or desirable.
Section 3. Issuance of Right Certificates.
------------------------------
(a) [Reserved].
(b) Until the close of business on the day which is the
earlier of (i) the tenth day after the Stock Acquisition Date or (ii)
the tenth business day (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by any
Person (other than an Exempt Person) of, or
the first public announcement of the intent of any Person (other than
an Exempt Person) to commence, a tender or exchange offer upon the
successful consummation of which such Person, together with its
Affiliates and Associates, would be the Beneficial Owner of 30% or
more of the then outstanding shares of Voting Stock of the Company
(irrespective of whether any shares are actually purchased pursuant to
any such offer) (the earlier of such dates being herein referred to as
the "Distribution Date"), (x) the Rights shall be evidenced by the
certificates for Common Stock registered in the name of the holders of
Common Stock (together with, in the case of certificates for Common
Stock outstanding as of the Record Date, the Summary of Rights) and
not by separate Right certificates and the record holders of such
certificates for Common Stock shall be the record holders of the
Rights represented thereby and (y) each Right shall be transferable
only simultaneously and together with the transfer of a share of
Common Stock (subject to adjustment as hereinafter provided). Until
the Distribution Date (or, if earlier, the Expiration Date or Final
Expiration Date), the surrender for transfer of any certificate for
Common Stock shall constitute the surrender for transfer of the Right
or Rights associated with the Common Stock evidenced thereby, whether
or not accompanied by a copy of the Summary of Rights.
(c) Rights shall be issued in respect of all shares of
Common Stock that become outstanding after the Record Date but prior
to the earlier of the Distribution Date, the Expiration Date or the
Final Expiration Date and, in certain circumstances provided in
Section 22 hereof, may be issued in respect of shares of Common Stock
that become outstanding after the Distribution Date. Certificates for
Common Stock (including, without limitation, certificates issued upon
original issuance, disposition from the Company's treasury or transfer
or exchange of Common Stock) after the date hereof but prior to the
earliest of the Distribution Date, the Expiration Date, or the Final
Expiration Date (or, in certain circumstances as provided in
Section 22 hereof, after the Distribution Date) shall have impressed,
printed, written or stamped thereon or otherwise affixed thereto the
following legend:
This certificate also evidences and entitles
the holder hereof to the same number of Rights
(subject to adjustment) as the number of shares of
Common Stock represented by this certificate, such
Rights being on the terms provided under the
Amended and Restated Rights Agreement between
GREYHOUND LINES, INC. and Mellon Securities Trust
Company (the "Rights Agent"), dated as of April 8,
1997, as it may be amended from time to time (the
"Rights Agreement"), the terms of which are
incorporated herein by reference and a copy of
which is on file at the principal executive
offices of GREYHOUND LINES, INC. Under certain
circumstances, as set forth in the Rights
Agreement, such Rights shall be evidenced by
separate certificates and shall no longer be
evidenced by this certificate.
GREYHOUND LINES, INC. shall mail to the registered holder of
this certificate a copy of the Rights Agreement without
charge within five days after receipt of a written request
therefor. Under certain circumstances as provided in
------------------------------------------
Section 7(e) of the Rights Agreement, Rights issued to or
---------------------------------------------------------
Beneficially Owned by Acquiring Persons or their Affiliates
-----------------------------------------------------------
or Associates (as such terms are defined in the Rights
------------------------------------------------------
Agreement) or any subsequent holder of such Rights shall be
-----------------------------------------------------------
null and void and may not be transferred to any Person.
------------------------------------------------------
(d) As soon as practicable after the Distribution Date, the
Company will prepare and execute, the Rights Agent will countersign,
and the Company will send or cause to be sent (and the Rights Agent
will, if requested, send), by first class mail, postage prepaid, to
each record holder of the Common Stock as of the close of business on
the Distribution Date, as shown by the records of the Company, at the
address of such holder shown on such records, a certificate in the
form provided by Section 4 hereof (a "Right Certificate"), evidencing
one Right (subject to adjustment as provided herein) for each share of
Common Stock so held. As of and after the Distribution Date, the
Rights shall be evidenced solely by Right Certificates and may be
transferred by the transfer of the Right Certificate as permitted
hereby, separately and apart from any transfer of one or more shares
of Common Stock.
Section 4. Form of Right Certificates.
--------------------------
The Right Certificates (and the forms of election to
purchase shares, certificate and assignment to be printed on the
reverse thereof), when, as and if issued, shall be substantially in
the form set forth in Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule
or regulation of any stock exchange on which the Common Stock or the
Rights may from time to time be listed or as the Company may deem
appropriate to conform to usage or otherwise and as are not
inconsistent with the provisions of this Rights Agreement. Subject to
the provisions of Section 22 hereof, Right Certificates evidencing
Rights whenever issued, (i) shall be dated as of the date of issuance
of the Rights they represent and (ii) subject to adjustment from time
to time as provided herein, on their face shall entitle the holders
thereof to purchase such number of shares (including fractional shares
which are integral multiples of one-thousandth of a share) of
Preferred Stock as shall be set forth therein at the price payable
upon exercise of a Right provided by Section 7(b) hereof as the same
may from time to time be adjusted as provided herein (the "Exercise
Price").
Section 5. Countersignature and Registration.
---------------------------------
(a) Each Right Certificate shall be executed on behalf of
the Company by its Chairman of the Board, President or any Vice
President, either manually or by facsimile signature, and have affixed
thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. Each Right Certificate
shall be countersigned by the Rights Agent either manually or by
facsimile signature and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have
signed any Right Certificate shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and
delivery of the certificate by the Company, such Right Certificate,
nevertheless, may be countersigned by the Rights Agent and issued and
delivered with the same force and effect as though the person who
signed such Right Certificate had not ceased to be such officer of the
Company. Any Right Certificate may be signed on behalf of the Company
by any person who, on the date of the execution of such Right
Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its principal office or one or more
offices designated as the appropriate place for surrender of Right
Certificates upon exercise or transfer, and in such other locations as
may be required by law, books for registration and transfer of the
Right Certificates issued hereunder. Such books shall show the names
and addresses of the respective holders of the Right Certificates, the
number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of
-----------------------------------------------
Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
--------------------------------------------------------------
Certificates.
------------
(a) Subject to the provisions of Section 7(e), 7(f) and 14
hereof, at any time after the Close of Business on the Distribution
Date, and at or prior to the Close of Business on the earlier of the
Expiration Date or the Final Expiration Date, any Right Certificate,
may be (i) transferred or (ii) split up, combined or exchanged for one
or more other Right Certificates, entitling the registered holder to
purchase a like number of shares of Preferred Stock as the Right
Certificate or Rights Certificates surrendered then entitled such
holder to purchase. Any registered holder desiring to transfer any
Right Certificate shall surrender the Right Certificate at the office
of the Rights
Agent designated for the surrender of Right Certificates with the form
of certificate and assignment on the reverse side thereof duly
endorsed (or there shall be enclosed with such Right Certificate a
written instrument of transfer in form satisfactory to the Company and
the Rights Agent), duly executed by the registered holder thereof or
his attorney duly authorized in writing, and with such signature duly
guaranteed. Any registered holder desiring to split up, combine or
exchange any Right Certificate shall make such request in writing
delivered to the Rights Agent, and shall surrender the Right
Certificate to be split up, combined or exchanged at the office of the
Rights Agent designated therefor. Thereupon, the Rights Agent shall
countersign and deliver to the person entitled thereto a Right
Certificate or Right Certificates, as the case may be, as so
requested. The Company may require payment of a sum sufficient to
cover any Transfer Tax that may be imposed in connection with any
transfer, split up, combination or exchange of any Right Certificates.
(b) Subject to the provisions of Section 7(e), 7(f) and 14
hereof, upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them
and, if requested by the Company,
reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, or upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company shall
issue and deliver a new Right Certificate of like tenor to the Rights
Agent for delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Exercise Price; Expiration
----------------------------------------------
Date of Rights.
--------------
(a) The Rights shall not be exercisable until, and shall
become exercisable on the Distribution Date (unless otherwise provided
herein, including, without limitation, the restrictions on
exercisability set forth in Section 7(e) and 23(a) hereof). Except as
otherwise provided herein, the Rights may be exercised, in whole or in
part, at any time commencing with the Distribution Date upon surrender
of the Right Certificate, with the form of election to purchase and
certificate on the reverse side thereof duly executed (with signatures
duly guaranteed), to the Rights Agent at the principal office of the
Rights Agent in East Hartford, Connecticut, together with payment of
the then applicable Exercise Price for each Right exercised, at or
prior to the Close of Business on the earlier of (i) March 22, 2004
(the "Final Expiration Date") or (ii) the date on which the Rights are
redeemed as provided in
Section 23 hereof (such earlier date being herein referred to as the
"Expiration Date").
(b) The Exercise Price shall initially be $35.00 for each
one one-thousandth (1/1000) of a share of Preferred Stock issued
pursuant to the exercise of a Right. The Exercise Price and the
number of shares of Preferred Stock or other securities to be acquired
upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof. The Exercise Price
shall be payable in lawful money of the United States of America, in
accordance with paragraph (c) below.
(c) Except as otherwise provided herein, upon receipt of a
Right Certificate representing exercisable Rights with the form of
election to purchase duly executed, accompanied by payment by
certified check, cashier's check, bank draft or money order payable to
the Company or the Rights Agent of the Exercise Price for the shares
to be purchased and an amount equal to any applicable Transfer Tax
required to be paid by the holder of the Right Certificate in
accordance with Section 9(e) hereof, the Rights Agent shall thereupon
promptly (i) requisition from any transfer agent of the Preferred
Stock of the Company one or more certificates representing the number
of shares of Preferred Stock to be so purchased, and the Company
hereby authorizes and directs such transfer agent to comply with all
such requests, (ii) as
provided in Section 14(b), at the election of the Company, cause
depositary receipts to be issued in lieu of fractional shares of
Preferred Stock, (iii) if the election provided for in the immediately
preceding clause (ii) has not been made, requisition from the Company
the amount of cash to be paid in lieu of the issuance of fractional
shares in accordance with Section 14(b) hereof, (iv) after receipt of
such Preferred Stock certificates and, if applicable, depositary
receipts, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate, registered in such name
or names as may be designated by such holder and (v) when appropriate,
after receipt, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate; provided, however, that
in the case of a purchase of securities, other than Preferred Stock,
pursuant to Section 13 hereof, the Rights Agent shall promptly take
the appropriate actions corresponding in such case to that referred to
in the foregoing clauses (i) through (v) of this Section 7(c).
Notwithstanding the foregoing provisions of this Section 7(c), the
Company may suspend the issuance of shares of Preferred Stock upon
exercise of a Right for a reasonable period, not in excess of 90 days,
during which the Company seeks to register under the Securities Act of
1933, as amended (the "Act"), and any applicable securities law of any
other jurisdiction, the shares of Preferred Stock to be issued
pursuant to the Rights; provided, however, that nothing contained in
this Section 7(c) shall relieve the Company of its obligations under
Section 9(c) hereof.
(d) In case the registered holder of any Right Certificate
shall exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent to the registered
holder of such Right Certificate or his assign, subject to the
provisions of Section 14(b) hereof.
(e) Notwithstanding any provision of this Rights Agreement
to the contrary, from and after the time (the "invalidation time")
when any Person first becomes an Acquiring Person, other than pursuant
to a Qualifying Tender Offer, any Rights that are beneficially owned
by (x) such Acquiring Person (or any Associate or Affiliate of such
Acquiring Person), (y) a transferee of such Acquiring Person (or any
such Associate or Affiliate) who becomes a transferee after the
invalidation time or (z) a transferee of such Acquiring Person (or any
such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the invalidation time pursuant to either (I) a
transfer from the Acquiring Person to holders of its equity securities
or to any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (II)
a transfer which the Board of Directors has
determined is part of a plan, arrangement or understanding which has
the purpose or effect of avoiding the provisions of this Section 7(e),
and subsequent transferees of such Persons referred to in clause (y)
and (z) above, shall be void without any further action and any holder
of such Rights shall thereafter have no rights whatsoever with respect
to such Rights under any provision of this Rights Agreement. The
Company shall use all reasonable efforts to ensure that the provisions
of this Section 7(e) are complied with, but shall have no liability to
any holder of Right Certificates or any other Person as a result of
its failure to make any determination with respect to an Acquiring
Person or its Affiliates, Associates or transferees hereunder. No
Right Certificate shall be issued pursuant to Section 3 hereof that
represents Rights Beneficially Owned by an Acquiring Person whose
Rights would be void pursuant to the provisions of this Section 7(e)
or any Associate or Affiliate thereof; no Right Certificate shall be
issued at any time upon the transfer of any Rights to an Acquiring
Person whose Rights would be void pursuant to the provisions of this
Section 7(e) or any Associate or Affiliate thereof or to any nominee
of such Acquiring Person, Associate or Affiliate; and any Right
Certificate delivered to the Rights Agent for transfer to an Acquiring
Person whose Rights would be void pursuant to the provisions of this
Section 7(e) shall be cancelled.
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated
to undertake any action with respect to a registered holder upon the
occurrence of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed and signed the
certificate following the form of election to purchase set forth on
the reverse side of the Right Certificate surrendered for such
exercise and (ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Right
-------------------------------------
Certificates. All Right Certificates surrendered for the purpose of
------------
exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to
the Rights Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by it, and no
Right Certificates shall be issued in lieu thereof except as expressly
permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall cancel and retire, any Right
Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. The Rights Agent shall deliver all cancelled
Right Certificates to the
Company, or shall, at the written request of the Company, destroy such
cancelled Right Certificates, and in such case shall deliver a
certificate of destruction thereof to the Company.
Section 9. Reservation and Availability of Shares of
-----------------------------------------
Preferred Stock.
---------------
(a) The Company covenants and agrees that it will cause to
be reserved and kept available out of its authorized and unissued
shares of Preferred Stock or out of authorized and issued shares of
Preferred Stock held in its treasury, such number of shares of
Preferred Stock as will from time to time be sufficient to permit the
exercise in full of all outstanding Rights.
(b) The Company shall use its best efforts to cause, from
and after such time as the Rights become exercisable, all shares of
Preferred Stock issued or reserved for issuance in accordance with
this Rights Agreement to be listed, upon official notice of issuance,
upon the principal national securities exchange, if any, upon which
the Common Stock is listed or, if the principal market for the Common
Stock is not on any national securities exchange, to be eligible for
quotation in the National Association of Securities Dealers, Inc.
Automated Quotation System ("NASDAQ") or any successor thereto or
other comparable quotation system.
(c) The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of Preferred
Stock delivered upon exercise of Rights shall, at the time of delivery
of the certificates for such shares (subject to payment of the
Exercise Price in respect thereof), be duly and validly authorized and
issued and fully paid and nonassessable shares.
(d) The Company shall use its best efforts to (i) file, as
soon as practicable following the occurrence of the event described in
Section 11(a)(ii), or as soon as is required by law following the
Distribution Date, as the case may be, a registration statement under
the Act, with respect to the shares of Preferred Stock purchasable
upon exercise of the Rights on an appropriate form, (ii) cause such
registration statement to become effective as soon as practicable
after such filing, and (iii) cause such registration statement to
remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of which
the Rights are no longer exercisable for Preferred Stock, and (b) the
date of the expiration of the Rights. The Company may temporarily
suspend, for a period of time not to exceed ninety days, the issuance
of shares of Preferred Stock upon exercise of a Right in order to
prepare and file a registration statement under the Act and permit it
to become effective. The Company will also take such
action as may be appropriate under, or to ensure compliance with, the
securities or "blue sky" laws of the various states in connection with
the exercisability of the Rights. Notwithstanding any provision of
this Agreement to the contrary, the Rights shall not be exercisable in
any jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained and until a registration
statement under the Act (if required) shall have been declared
effective.
(e) The Company covenants and agrees that it will pay when
due and payable any and all federal and state Transfer Taxes which may
be payable in respect of the issuance or delivery of the Right
Certificates or of any shares of Preferred Stock issued or delivered
upon the exercise of Rights. The Company shall not, however, be
required to pay any Transfer Tax which may be payable in respect of
any transfer or delivery of a Right Certificate to a Person other
than, or the issuance or delivery of certificates for Preferred Stock
upon exercise of Rights in a name other than that of, the registered
holder of the Right Certificate, and the Company shall not be required
to issue or deliver a Right Certificate or certificate for Preferred
Stock to a Person other than such registered holder until any such
Transfer Tax shall have been paid (any such Transfer Tax being payable
by the holder of such Right Certificate at the time of surrender) or
until it
has been established to the Company's satisfaction that no such
Transfer Tax is due.
Section 10. Preferred Stock Record Date. Each Person in
---------------------------
whose name any certificate for shares of Preferred Stock is issued
upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Stock represented thereby
on, and such certificate shall be dated as of, the date upon which the
Right Certificate evidencing such Rights was duly surrendered and
payment of the Exercise Price (and any applicable Transfer Taxes) was
made; provided, however, that, if the date of such surrender and
payment is a date upon which the Preferred Stock transfer books of the
Company are closed, such Person shall be deemed to have become the
record holder of such shares on, and such certificate shall be dated
as of, the next succeeding Business Day on which the Preferred Stock
transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Right Certificate, as such,
shall not be entitled to any rights of a stockholder of the Company
with respect to shares for which the Rights shall be exercisable,
including, without limitation, the right to vote, to receive dividends
or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the
Company, except as provided herein.
Section 11. Adjustment of Exercise Price or Number of
-----------------------------------------
Shares. The Exercise Price and the number of shares of Preferred
------
Stock which may be purchased upon exercise of a Right are subject to
adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Rights Agreement (A) declare or pay
any dividend on Common Stock payable in shares of Common
Stock, (B) subdivide or split the outstanding shares of
Common Stock into a greater number of shares or (C) combine
or consolidate the outstanding shares of Common Stock into a
smaller number of shares or effect a reverse split of the
outstanding shares of Common Stock, then and in each such
event the number of shares of Preferred Stock issuable upon
the exercise of a Right after the record date for such event
(if one shall have been established or, if not, after the
date of such event) shall be the number of shares of
Preferred Stock issuable immediately prior to such event
multiplied by a fraction the numerator of which is the
number of Rights outstanding immediately prior to such event
and the denominator of which is the number of Rights
outstanding immediately after such event and the Exercise
Price after such event shall be the Exercise
Price in effect immediately prior to such event multiplied
by such fraction. If an event occurs which would require an
adjustment under both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made
prior to, any adjustment required pursuant to Section
11(a)(ii).
(ii) In the event that any Person (other than an
Exempt Person), alone or together with its Affiliates and
Associates, shall become an Acquiring Person, except
pursuant to a Qualifying Tender Offer, then, subject to the
last sentence of Section 23(a) and except as otherwise
provided in this Section 11, each holder of a Right, except
as provided in Section 7(e) hereof, shall thereafter have
the right to receive upon exercise of such Right in
accordance with the terms of this Rights Agreement and
payment of the Exercise Price, the greater of (1) the number
of one one-thousandths of a share of Preferred Stock for
which such Right was exercisable immediately prior to the
first occurrence of the event described in this
Section 11(a)(ii) or (2) such number of one one-thousandths
of a share of Preferred Stock, based on the per share Fair
Market Value of the Preferred Stock
(determined pursuant to Section 11(b) hereof) on the date of
such first occurrence, having a value equal to twice the
Exercise Price; provided, however, that if the transaction
that would otherwise give rise to the foregoing adjustment
is also subject to the provisions of Section 13 hereof, then
only the provisions of Section 13 hereof shall apply and no
adjustment shall be made pursuant to this Section 11(a)(ii).
(iii) In the event that the Company does not have
available sufficient authorized but unissued Preferred Stock
to permit the adjustments required pursuant to the foregoing
subparagraph (i) or the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii), the Company
shall take all such action as may be necessary to authorize
and reserve for issuance such number of additional shares of
Preferred Stock as may from time to time be required to be
issued upon the exercise in full of all Rights from time to
time outstanding and, if necessary, shall use its best
efforts to obtain stockholder approval thereof. In lieu of
issuing shares of Preferred Stock in accordance with the
foregoing subparagraphs (i) and (ii), the Company may, if
the Board of Directors determines that such action is
necessary or appropriate and not
contrary to the interests of holders of Rights, elect to
issue or pay, upon the exercise of the Rights, cash,
property, shares of Preferred or Common Stock, or any
combination thereof, having an aggregate Fair Market Value
equal to the Fair Market Value of the shares of Preferred
Stock which otherwise would have been issuable pursuant to
Section 11(a)(ii), which Fair Market Value shall be
determined by an investment banking firm selected by the
Board of Directors. For purposes of the preceding sentence,
the Fair Market Value of the Preferred Stock shall be as
determined pursuant to Section 11(b). Subject to Section 23
hereof, any such election by the Board of Directors of the
Company must be made and publicly announced within thirty
(30) days after the date on which the event described in
Section 11(a)(ii) occurs.
(b) For the purpose of this Rights Agreement, the "Fair
Market Value" of any share of Preferred Stock, Common Stock or any
other stock or any Right or other security or any other property on
any date shall be determined as provided in this Section 11(b). In
the case of a publicly-traded stock or other security, the Fair Market
Value on any date shall be deemed to be the average of the daily
closing prices per share of such stock or per unit of such other
security for the 30 consecutive Trading
Days (as such term is hereinafter defined) immediately prior to such
date; provided, however, that in the event that the Fair Market Value
per share of any share of Common Stock is determined during a period
which includes any date that is within 30 Trading Days after (i) the
ex-dividend date for a dividend or distribution on such stock payable
in shares of Common Stock or securities convertible into shares of
Common Stock, or (ii) the effective date of any subdivision, split,
combination, consolidation, reverse stock split or reclassification of
such stock, then, and in each such case, the Fair Market Value shall
be appropriately adjusted by the Board of Directors of the Company to
take into account ex-dividend or post-effective date trading. The
closing price for any day shall be the last sale price, regular way,
or, in case no such sale takes place on such day, the average of the
closing bid and asked prices, regular way (in either case, as reported
in the applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock
Exchange), or, if the securities are not listed or admitted to trading
on the New York Stock Exchange, as reported in the applicable
transaction reporting system with respect to securities listed on the
principal national securities exchange on which such security is
listed or admitted to trading; or, if not listed or admitted to
trading on any national securities exchange, the last quoted price
(or, if
not so quoted, the average of the high bid and low asked prices) in
the over-the-counter market, as reported by the NASDAQ or such other
system then in use; or, if no bids for such security are quoted by any
such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in such
security selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which such security is listed or admitted to
trading is open for the transaction of business or, if such security
is not listed or admitted to trading on any national securities
exchange, a Business Day. If a security is not publicly held or not
so listed or traded, "Fair Market Value" shall mean the fair value per
share of stock or per other unit of such other security, as determined
by an independent investment banking firm experienced in the valuation
of securities selected in good faith by the Board of Directors of the
Company, or, if no such investment banking firm is, in the good faith
judgment of the Board of Directors, available to make such
determination, as determined in good faith by the Board of Directors
of the Company; provided, however, that for purposes of making the
adjustment provided for by Section 11(a)(ii) hereof, the Fair Market
Value of a share of Preferred Stock shall not be less than 100% of the
product of the Fair Market Value of a share of Common Stock multiplied
by the
Dividend Multiple applicable to the Preferred Stock (as defined in the
Certificate of Designations relating to the Preferred Stock) and shall
not exceed 105% of the product of the then Fair Market Value of a
share of Common Stock multiplied by the Dividend Multiple applicable
to the Preferred Stock. In the case of property other than
securities, the "Fair Market Value" thereof shall be determined in
good faith by the Board of Directors of the Company based upon such
appraisals or valuation reports of such independent experts as the
Board of Directors of the Company shall in good faith determine to be
appropriate in accordance with good business practices and the
interests of the holders of Rights. Any such determination of Fair
Market Value shall be described in a statement filed with the Rights
Agent and shall be binding upon the Rights Agent.
(c) All calculations under this Section 11 shall be made to
the nearest cent or to the nearest one one-thousandth of a share, as
the case may be.
(d) Irrespective of any adjustment or change in the
Exercise Price or the number of shares of Preferred Stock issuable
upon the exercise of the Rights, the Right Certificates theretofore
and thereafter issued may continue to express the Exercise Price and
the number of shares to be issued upon exercise of the Rights as in
the initial Right Certificates
issued hereunder but, nevertheless, shall represent the Rights as so
adjusted.
(e) Before taking any action that would cause an adjustment
reducing the purchase price per whole share of Preferred Stock upon
exercise of the Rights below the then par value, if any, of the shares
of Preferred Stock, the Company shall use its best efforts to take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and non-assessable shares of such Preferred Stock at such
adjusted purchase price per share.
(f) Anything in this Section 11 to the contrary
notwithstanding, in the event of any reclassification of stock of the
Company or any recapitalization, reorganization or partial liquidation
of the Company or similar transaction, the Company shall be entitled
to make such further adjustments in the number of shares of Preferred
Stock which may be acquired upon exercise of the Rights, and such
adjustments in the Exercise Price therefor, in addition to those
adjustments expressly required by the other paragraphs of this Section
11, as the Board of Directors of the Company shall determine to be
necessary or appropriate in order for the holders of the Rights in
such event to be treated equitably and in accordance with the purpose
and intent of this Rights Agreement or in order that any such event
shall not, but for such adjustment, in the opinion of counsel to the
Company, result in the stockholders of the Company being subject to
any United States federal income tax liability by reason thereof.
(g) In the event the Company shall at any time after the
Record Date make any distribution on the shares of Common Stock of the
Company, whether by way of a dividend or a reclassification of stock,
a recapitalization, reorganization or partial liquidation of the
Company or otherwise, in cash or any debt security, debt instrument,
real or personal property or any other property (other than any shares
of Common Stock or other capital stock of the Company and other than
any right or warrant to acquire any such shares, including any debt
security convertible into or exchangeable for any such share, at less
than the Fair Market Value of such shares) and the amount of such cash
dividend or the Fair Market Value of such debt security, debt
instrument or property exceeds 150% of the aggregate amount of the
cash dividends declared or paid on the Common Stock of the Company in
the 15-month period immediately preceding such distribution, then and
in each such event, unless such distribution is part of or is made in
connection with a transaction to which Section 11(a)(ii) or Section 13
hereof applies, the Exercise Price shall be reduced by an amount equal
to the cash or the Fair Market Value of such distribution, as the
case may be, per share of Common Stock of the Company. For purposes
hereof, the Fair Market Value of any property distributed to the
holders of shares of Common Stock of the Company shall be the Fair
Market Value of such property as determined by an independent
investment banking firm experienced in the valuation of securities or
the other property so distributed, as the case may be, selected in
good faith by the Board of Directors of the Company, or, if no such
investment banking firm is in the good faith judgment of the Board of
Directors available to make such determination, in good faith by the
Board of Directors of the Company, whose determination shall be final
and binding on the Company, the Rights Agent and the holders of
Rights.
Section 12. Certification of Adjusted Exercise Price or
-------------------------------------------
Number of Shares. Whenever an adjustment is made as provided in
----------------
Section 11, 13 or 23(c), the Company shall (a) promptly prepare a
certificate setting forth such adjustment, and a brief statement of
the facts giving rise to such adjustment, (b) promptly file with the
Rights Agent and with each transfer agent for the Preferred Stock a
copy of such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 25.
Notwithstanding the foregoing sentence, the failure of the Company to
make such certification or give such notice shall not affect the
validity of or the force
or effect of the requirement for such adjustment. Any adjustment to
be made pursuant to Section 11, 13 or 23(c) of this Rights Agreement
shall be effective as of the date of the event giving rise to such
adjustment. The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained and shall
not be deemed to have knowledge of any adjustment unless and until it
shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of
--------------------------------------------
Assets or Earning Power.
-----------------------
(a) Except for any transaction approved by the Board of
Directors, in the event that, at any time on or after the Distribution
Date, (x) the Company shall, directly or indirectly, consolidate with,
or merge with and into, any other Person or Persons (other than an
Exempt Person) and the Company shall not be the surviving or
continuing corporation of such consolidation or merger, or (y) any
Person or Persons (other than an Exempt Person) shall, directly or
indirectly, consolidate with, or merge with and into, the Company, and
the Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such consolidation or
merger, all or part of the outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities of any other
Person (other than an Exempt Person) or of the Company or
cash or any other property, or (z) the Company or one or more of its
Subsidiaries shall, directly or indirectly, sell or otherwise transfer
to any Persons (other than an Exempt Person) in one or a series of
related transactions, or the Company or one or more of its
Subsidiaries shall sell or otherwise transfer to any Persons (other
than an Exempt Person) in one or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as a whole),
then, on the first occurrence of any such event, proper provision
shall be made so that (i) each holder of record of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof and payment of the Exercise Price
in accordance with the terms of this Rights Agreement, such number of
shares of validly issued, fully paid, non-assessable and freely
tradeable Common Stock of the Principal Party (as defined in paragraph
(b) below), not subject to any liens, encumbrances, rights of first
refusal or other adverse claims, as shall, based on the Fair Market
Value of the Common Stock of the Principal Party on the date of the
Consummation of such consolidation, merger, sale or transfer, equal
twice the Exercise Price; (ii) such Principal Party shall thereafter
be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Rights
Agreement; (iii) the term "Company" for all purposes of this Rights
Agreement shall thereafter be deemed to refer to such Principal Party;
(iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its
Common Stock in accordance with the provisions of Section 9 hereof
applicable to the reservation of Preferred Stock) in connection with
such consummation as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; provided, however, that, upon the
subsequent occurrence of any merger, consolidation, sale of all or
substantially all of the assets, recapitalization, reclassification of
shares, reorganization or other extraordinary transaction in respect
of such Principal Party, each holder of a Right shall thereupon be
entitled to receive, upon exercise of a Right and payment of the
Exercise Price, such cash, shares, rights, warrants and other property
which such holder would have been entitled to receive had it, at the
time of such transaction, owned the shares of Common Stock of the
Principal Party purchasable upon the exercise of a Right, and such
Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the
subsequent exercise of the Rights in accordance with the terms
hereof for such cash, shares, rights, warrants and other property and
(v) the provisions of Section 11(a)(ii) hereof shall be of no effect
following the occurrence of any event described in clause (x), (y) or
(z) above of this Section 13(a).
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (x) or
(y) of the first sentence of Section 13(a) hereof: (A) the Person
that is the issuer of the securities into which shares of Common Stock
of the Company are changed or otherwise exchanged or converted in such
merger or consolidation, or, if there is more than one such issuer,
the issuer of the Common Stock of which has the greatest market value
or (B) if no securities are so issued, (x) the Person that is the
other party to the merger or consolidation and that survives such
merger or consolidation, or, if there is more than one such Person,
the Person the Common Stock of which has the greatest market value or
(y) if the Person that is the other party to the merger or
consolidation does not survive the merger or consolidation, the Person
that does survive the merger or consolidation (including the Company
if it survives); and
(ii) in the case of any transaction described in (z) of
the first sentence in Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions,
or, if each Person that is a party to such transaction or transactions
receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the
assets or earning power cannot be determined, whichever of such
Persons as is the issuer of Common Stock having the greatest market
value of shares outstanding; provided, however, that in any such case,
if the Common Stock of such Person is not at such time and has not
been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a direct or
indirect Subsidiary of another Person the Common Stock of which is and
has been so registered, the term "Principal Party" shall refer to such
other Person, or if such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of all of which
are and have been so registered, the term "Principal Party" shall
refer to whichever of such Persons is the issuer of the Common
Stock having the greatest market value of shares outstanding.
(c) The Company shall not consummate any consolidation,
merger or sale or transfer of assets or earning power referred to in
Section 13(a) unless the Principal Party shall have a sufficient
number of authorized shares of its Common Stock that have not been
issued or reserved for issuance to permit exercise in full of all
Rights in accordance with this
Section 13 and unless prior thereto the Company and the Principal
Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the Principal Party shall, upon
consummation of such consolidation, merger or sale or transfer of
assets or earning power, assume this Rights Agreement in accordance
with Section 13(a) hereof and that all rights of first refusal or
preemptive rights in respect of the issuance of shares of Common Stock
of the Principal Party upon exercise of outstanding Rights have been
waived and that such transaction shall not result in a default by the
Principal Party under this Rights Agreement, and further providing
that, as soon as practicable after the date of any consolidation,
merger or sale or transfer of assets or earning power referred to in
Section 13(a) hereof, the Principal Party will:
(i) prepare and file a registration statement under
the Act with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate
form, use its best efforts to cause such registration
statement to become effective as soon as practicable after
such filing and use its best efforts to cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act)
until the date of expiration
of the Rights, and similarly comply with applicable state
securities laws;
(ii) use its best efforts to list (or continue the
listing of) the Rights and the securities purchasable upon
exercise of the Rights on a national securities exchange or
to meet the eligibility requirements for quotation on
NASDAQ; and
(iii) deliver to holders of the Rights historical
financial statements for the Principal Party which comply in
all respects with the requirements for registration on Form
10 (or any successor form) under the Exchange Act. In the
event that any of the transactions described in Section
13(a) hereof shall occur at any time after the occurrence of
a transaction described in Section 11(a)(ii) hereof, the
Rights which have not theretofore been exercised shall,
subject to the provisions of Section 7(e) hereof, thereafter
be exercisable in the manner described in Section 13(a).
(d) In case the Principal Party which is to be a party to a
transaction referred to in this Section 13 has provision in any of its
authorized securities or in its certificate of incorporation or
by-laws or other instrument governing its affairs, which provision
would have the effect of (i) causing such Principal Party to issue, in
connection with, or as a
consequence of, the consummation of a transaction referred to in this
Section 13, shares of Common Stock of such Principal Party at less
than the then Fair Market Value per share (determined pursuant to
Section 11(b) hereof) or securities exercisable for, or convertible
into, Common Stock of such Principal Party at less than such then Fair
Market Value (other than to holders of Rights pursuant to this Section
13) or (ii) providing for any special tax or similar payment in
connection with the issuance to any holder of a Right of Common Stock
of such Principal Party pursuant to the provisions of this Section 13,
then, in such event, the Company shall not consummate any such
transaction unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a supplemental
agreement providing that the provision in question of such Principal
Party shall have been canceled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable
provision will have no effect in connection with, or as a consequence
of, the consummation of the proposed transaction.
Section 14. Fractional Rights and Fractional Shares.
---------------------------------------
(a) The Company shall not be required to issue fractions of
Rights or to distribute Right Certificates which evidence fractional
Rights (i.e., Rights to acquire less than one one-thousandth of a
----
share of Preferred Stock), unless such
fractional Rights result from a transaction referred to in Section
11(a)(i) hereof. If the Company shall determine not to issue such
fractional Rights, then, in lieu of such fractional Rights, there
shall be paid to the holders of record of the Right Certificates with
regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the Fair Market Value of
a whole Right.
(b) The Company shall not be required to issue fractions of
shares of Preferred Stock (other than fractions which are integral
multiples of one-thousandth of a share) upon exercise of the Rights or
to distribute certificates which evidence fractional shares (other
than fractions which are integral multiples of one-thousandth of a
share). In lieu of issuing fractions of shares of Preferred Stock,
the Company may, at its election, issue depositary receipts evidencing
fractions of shares pursuant to an appropriate agreement between the
Company and a depositary selected by it, provided that such agreement
shall provide that the holders of such depositary receipts shall have
all of the rights, privileges and preferences to which they would be
entitled as owners of the Preferred Stock. With respect to fractional
shares that are not integral multiples of one-thousandth of a share,
if the Company does not issue such fractional shares or depositary
receipts in lieu thereof, there shall be paid to the holders of record
of Right Certificates at
the time such Right Certificates are exercised as herein provided an
amount in cash equal to the same fraction of the Fair Market Value of
a share of Preferred Stock.
(c) The holder of a Right by the acceptance of a Right
expressly waives his right to receive any fractional Right or any
fractional shares of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share) upon exercise of
a Right.
Section 15. Rights of Action. All rights of action in
----------------
respect of this Rights Agreement, except the rights of action given to
the Rights Agent in Section 18 hereof, are vested in the respective
registered holders of the Right Certificates (and, prior to the
Distribution Date, the holders of record of the Common Stock); and any
holder of record of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Right Certificate (or,
prior to the Distribution Date, of the Common Stock), may, in his own
behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the
Rights evidenced by such Right Certificate in the manner provided in
such Right Certificate and in this Rights Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights, it
is specifically acknowledged that the holders of Rights would not have
an adequate remedy at law for any breach of this Rights Agreement and
will be entitled to specific performance of the obligations under, and
injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Rights Agreement.
Section 16. Agreement of Right Holders. Each holder of a
--------------------------
Right, by accepting the same, consents and agrees with the Company and
the Rights Agent and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights shall be
evidenced by the certificates for Common Stock registered in the
name of the holders of Common Stock (together, as applicable,
with the Summary of Rights), which certificates for Common Stock
shall also constitute certificates for Rights, and not by
separate Right Certificates, and each Right shall be transferable
only simultaneously and together with the transfer of shares of
Common Stock;
(b) on and after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent if surrendered at the office of the Rights Agent
designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the
person in whose name the Right Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
-------------------------------------
Stockholder. No holder, as such, of any Right Certificate shall be
-----------
entitled to vote, receive dividends or be deemed for any purpose the
holder of Preferred Stock or any other securities which may at any
time be issuable on the exercise of the Rights represented thereby,
nor shall anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate, as such,
any of the rights of a stockholder of the Company or any right to vote
for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to
any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in Section 24
hereof), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Right Certificate shall
have been exercised in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
---------------------------
(a) The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and,
from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the
administration and execution of this Rights Agreement and the exercise
and performance of its duties hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence, bad faith or
willful misconduct on the part of the Rights Agent, for anything done
or omitted to be done by the Rights Agent in connection with the
acceptance and administration of this Rights Agreement, including the
cost and expenses of defending against any claim of liability relating
to the Rights or this Rights Agreement.
(b) The Rights Agent shall be protected against, and shall
incur no liability for or in respect of, any action taken, suffered or
omitted by it in connection with its administration of this Rights
Agreement in reliance upon any Right Certificate or certificate for
Preferred Stock or for other securities of the Company, instrument of
assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it to be
genuine and to be signed, executed and, where necessary, verified or
acknowledged, by the proper person or persons or otherwise upon the
advice of counsel in accordance with paragraph 20.
Section 19. Merger or Consolidation of, or Change in Name
---------------------------------------------
of, the Rights Agent.
--------------------
(a) Any corporation into which the Rights Agent or any
successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights Agent
shall be a party, or any corporation succeeding to the corporate trust
or stock transfer business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this Rights
Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21 hereof. In case at the time
such successor Rights Agent shall succeed to the agency created by
this Rights Agreement any of the Rights Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent
and deliver such Right Certificates so countersigned; and in case at
that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in
the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right
Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall
be changed and at such time any of the Right Certificates shall have
been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates
so countersigned; in case at that time any of the Right Certificates
shall not have been countersigned, the Rights Agent may countersign
such Right Certificates either in its prior name or in its changed
name; in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Rights Agreement.
Section 20. Duties of Rights Agent. The Rights Agent
----------------------
undertakes the duties and obligations imposed by this Rights Agreement
upon the following terms and conditions, by all of which the Company
and the holders of Right Certificates by their acceptance thereof
shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of
such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good
faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Rights Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by
a certificate signed by the Chairman of the Board, the President or
any Vice President and by the Treasurer or the Secretary of the
Company and delivered to the Rights Agent. Any such certificate shall
be full authorization to the Rights Agent for any action taken or
suffered in good faith by it under the provisions of this Rights
Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its
own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason
of any of the statements of fact or recitals contained in this Rights
Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements
and recitals are and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under any responsibility
in respect of the validity of this Rights Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right
Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition
contained in this Rights Agreement or in any Right Certificate; nor
shall it be responsible for any adjustment required under the
provisions of Section 11, 13 or 23(c) hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of
the existence of facts that would require any such adjustment (except
with respect to the exercise of Rights evidenced by Right Certificates
after receipt of a certificate pursuant to Section 12 describing any
such adjustment); nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation
of any shares of Preferred Stock to be issued pursuant to this Rights
Agreement or any Right Certificate or as to whether any shares of
Preferred Stock will, when issued, be validly authorized and issued,
fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the
provisions of the Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties
hereunder from the Chairman of the Board, the President or any Vice
President or the Secretary or the Treasurer of the Company, and to
apply to such officers for advice or instructions in connection with
its duties, and it shall not be liable for any action taken or
suffered to be taken by it in good faith in accordance with
instructions of any such officer, or for any delay in acting while
waiting for those instructions.
(h) The Rights Agent and any shareholder, director, officer
or employee of the Rights Agent may buy, sell or deal in any of the
Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested,
or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not the Rights Agent under this
Rights Agreement. Nothing herein shall preclude the Rights Agent from
acting in any other capacity for the Company or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents,
and the Rights Agent shall not be answerable or accountable for any
act, default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the
selection and continued employment thereof.
Section 21. Change of Rights Agent. The Rights Agent or
----------------------
any successor Rights Agent may resign and be discharged from its
duties under this Rights Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common Stock
and the Preferred Stock by registered or certified mail. The Company
may remove the Rights Agent or any successor Rights Agent (with or
without cause) upon 30 days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and the Preferred Stock by
registered or certified mail. If the Rights Agent shall resign or be
removed or shall otherwise become incapable of acting, the Company
shall appoint a successor to the Rights Agent. Notwithstanding the
foregoing provisions of this Section 21, in no event shall the
resignation or removal of a Rights Agent be effective until a
successor Rights Agent shall have been appointed and have accepted
such appointment. If the Company shall fail to make such appointment
within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning
or
incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the incumbent Rights Agent or the
holder of record of any Right Certificate may apply to any court of
competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a
court, shall be (a) a corporation organized and doing business under
the laws of the United States or of any state thereof, in good
standing, which is authorized under such laws to exercise corporate
trust or stock transfer powers and is subject to supervision or
examination in the conduct of its corporate trust or stock transfer
business by federal or state authorities and which has at the time of
its appointment as Rights Agent a combined capital and surplus of at
least $5,000,000 or (b) an Affiliate controlled by a corporation
described in clause (a) of this sentence. After appointment, the
successor Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed, but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose.
Not later than the effective date of any such appointment, the Company
shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock and Preferred Stock, and
mail a notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for in this
Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent
or the appointment of the successor Rights Agent, as the case may be.
Notwithstanding the foregoing provisions, in the event of resignation,
removal or incapacity of the Rights Agent, the Company shall have the
authority to act as the Rights Agent until a successor Rights Agent
shall have assumed the duties of the Rights Agent hereunder.
Section 22. Issuance of New Right Certificates.
----------------------------------
Notwithstanding any of the provisions of this Rights Agreement or of
the Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be approved
by its Board of Directors to reflect any adjustment or change in the
Exercise Price per share and the number or kind or class of shares of
stock or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Rights
Agreement.
Section 23. Redemption.
----------
(a) The Company may, at its option, but only by the vote of
a majority of the Board of Directors, redeem all but not
less than all of the then outstanding Rights, at any time prior to the
Close of Business on the earlier of (i) the tenth day following the
Stock Acquisition Date (subject to extension by the Company as
provided in Section 26 hereof) or (ii) the Final Expiration Date, at a
redemption price of $.01 per Right, subject to adjustments as provided
in subsection (c) below (the "Redemption Price"). Notwithstanding
anything contained in this Agreement to the contrary, the Rights shall
not be exercisable pursuant to Section 11(a)(ii) prior to the
expiration of the Company's right of redemption hereunder.
(b) Without any further action and without any notice, the
right to exercise the Rights will terminate effective at the time of
the action of the Board of Directors ordering the redemption of the
Rights and the only right thereafter of the holders of Rights shall be
to receive the Redemption Price. Within 10 days after the effective
time of the action of the Board of Directors ordering the redemption
of the Rights, the Company shall give notice of such redemption to the
holders of the then outstanding Rights by mailing such notice to all
such holders at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock. Any notice
which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice.
Each notice of redemption will state the method by which the payment
of the Redemption Price will be made. At the option of the Board of
Directors, the Redemption Price may be paid in cash to each Rights
holder or by the issuance of shares (and, at the Company's election
pursuant to Section 14(b) hereof, cash or depositary receipts in lieu
of fractions of shares other than fractions which are integral
multiples of one one-thousandth (1/1,000) of a share) of Preferred
Stock having a Fair Market Value equal to such cash payment.
(c) In the event the Company shall at any time after the
date of this Rights Agreement (A) pay any dividend on Common Stock in
shares of Common Stock, (B) subdivide or split the outstanding shares
of Common Stock into a greater number of shares or (C) combine or
consolidate the outstanding shares of Common Stock into a smaller
number of shares or effect a reverse split of the outstanding shares
of Common Stock, then, and in each such event, the Redemption Price
shall be adjusted so that the Redemption Price after such event shall
equal the Redemption Price immediately prior to such event multiplied
by a fraction the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock outstanding immediately
prior to such event; provided, however, that in each case such
adjustment to the Redemption Price shall be made only
if the amount of the Redemption Price shall be reduced or increased by
$.01 per Right.
Section 24. Notice of Proposed Actions.
--------------------------
(a) In case the Company, after the Distribution Date, shall
propose (i) to effect any of the transactions referred to in Section
11(a)(i) or 11(g) or (ii) to offer to the holders of record of its
Common Stock options, warrants, or other rights to subscribe for or to
purchase shares of Common Stock (including any security convertible
into or exchangeable for Common Stock) or shares of stock of any class
or any other securities, options, warrants, convertible or
exchangeable securities or other rights, or (iii) to effect any
reclassification of its Preferred Stock or Common Stock or any
recapitalization or reorganization of the Company, or (iv) to effect
any consolidation or merger with or into, or to effect any sale or
other transfer (or to permit one or more of its Subsidiaries to effect
any sale or other transfer), in one or more transactions, of more than
50% of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person or Persons (other than an
Exempt Person), or (v) to effect the liquidation, dissolution or
winding up of the Company, then, in each such case, the Company shall
give to each holder of record of a Right Certificate, in accordance
with Section 25, notice of such proposed action, which shall specify
the record date for the purposes of such
transaction referred to in Section 11(a)(i) or such dividend or
distribution, or the date on which such reclassification,
recapitalization, reorganization, consolidation, merger, sale or
transfer of assets, liquidation, dissolution, or winding up is to take
place and the record date for determining participation therein by the
holders of record of Common Stock or Preferred Stock, if any such date
is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least 10 days prior to
the record date for determining holders of record of the Preferred
Stock for purposes of such action, and in the case of any such other
action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of
record of Common Stock or Preferred Stock, whichever shall be the
earlier. The failure to give notice required by this Section 24 or
any defect therein shall not affect the legality or validity of the
action taken by the Company or the vote upon any such action.
(b) In case any of the transactions referred to in Section
11(a)(i), 11(g) or 13 of this Rights Agreement are proposed, then, in
any such case, the Company shall give to each holder of Rights, in
accordance with Section 25 hereof, notice of the proposal of such
transaction at least 10 days prior to consummating such transaction,
which notice shall specify the proposed event and the consequences of
the event to holders of
Rights under Section 11(a)(i), 11(g) or 13 hereof, as the case may be,
and, upon consummating such transaction, shall similarly give notice
thereof to each holder of Rights.
Section 25. Notices. Notices or demands authorized by this
-------
Rights Agreement to be given or made by the Rights Agent or by the
holder of record of any Right Certificate or Right to or on the
Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
GREYHOUND LINES, INC.
00000 Xxxxx Xxxxxx Xxxxxxx
P.O. Box 660032
Xxxxxx, Xxxxx 00000
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or demand
authorized by this Rights Agreement to be given or made by the Company
or by the holder of record of any Right Certificate or Right to or on
the Rights Agent shall be sufficiently given or made if sent by first-
class mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
Mellon Securities Trust Company
c/o Mellon Securities Transfer Services
000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxx Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Notices or demands authorized by this Rights Agreement to be given or
made by the Company or the Rights Agent to the holder of
record of any Right Certificate or Right shall be sufficiently given
or made if sent by first-class mail, postage prepaid, addressed to
such holder at the address of such holder as shown on the registry
books of the Company.
Section 26. Supplements and Amendments. For as long as the
--------------------------
Rights are then redeemable and except as provided in the last sentence
of this Section 26, the Company may in its sole and absolute
discretion, and the Rights Agent shall if the Company so directs,
supplement or amend any provision of this Agreement without the
approval of any holders of the Rights. At any time when the Rights
are not then redeemable and except as provided in the last sentence of
this Section 26, the Company may, and the Rights Agent shall if the
Company so directs, supplement or amend this Rights Agreement without
the approval of any holders of Right Certificates (i) to cure any
ambiguity, (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein or (iii) to change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable, provided that no such supplement or amendment pursuant to
this clause (iii) shall materially adversely affect the interest of
the holders of Right Certificates. Upon the delivery of a certificate
from an appropriate officer of the Company which states that the
proposed supplement or amendment is in compliance with the terms of
this
Section 26, the Rights Agent shall execute such supplement or
amendment. This Agreement may be amended or supplemented at any time
with the approval of a majority of the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Stock).
Notwithstanding anything contained in this Rights Agreement to the
contrary, no supplement or amendment shall be made which changes the
Redemption Price or the Final Expiration Date.
Section 27. Successors. All of the covenants and
----------
provisions of this Rights Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of
their respective successors and assigns hereunder.
Section 28. Benefits of this Rights Agreement. Nothing in
---------------------------------
this Rights Agreement shall be construed to give to any person or
corporation other than the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the holders of Common Stock in their capacity as
holders of the Rights) any legal or equitable right, remedy or claim
under this Rights Agreement; but this Rights Agreement shall be for
the sole and exclusive benefit of the Company, the Rights Agent and
the holders of record of the Right Certificates (and, prior to the
Distribution Date, the holders of Common Stock in their capacity as
holders of the Rights).
Section 29. Delaware Contract. This Rights Agreement and
-----------------
each Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of Delaware and for all
purposes shall be governed by and construed and enforced in accordance
with the laws of such state applicable to contracts to be made and
performed entirely within such state.
Section 30. Counterparts. This Rights Agreement may be
------------
executed in any number of counterparts and each of such counterparts
shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 31. Descriptive Headings. Descriptive headings of
--------------------
the several Sections of this Rights Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Section 32. Severability. If any term, provision, covenant
------------
or restriction of this Rights Agreement is held by a court of
competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Rights Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have caused this
Rights Agreement to be duly executed, all as of the day and year first
above written.
GREYHOUND LINES, INC.
By /s/ Xxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Vice President, General
Counsel and Secretary
MELLON SECURITIES TRUST COMPANY
By /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
