STANDARD MOTOR PRODUCTS, INC.
and
REGISTRAR & TRANSFER CO.
Rights Agreement
Dated as of February 15, 1996
TABLE OF CONTENTS
Page
Section 1. Certain Definitions. -1-
Section 2. Appointment of Rights Agent. -7-
Section 3. Issue of Right Certificates. -7-
Section 4. Form of Right Certificates. -10-
Section 5. Countersignature and Registration. -11-
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates;
Mutilated, Destroyed, Lost or
Stolen Right Certificates. -12-
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. -13-
Section 8. Cancellation and Destruction of Right
Certificates. -16-
Section 9. Availability of Preferred Shares. -16-
Section 10. Preferred Shares Record Date. -19-
Section 11. Adjustment of Purchase Price, Number
of Shares or Number of Rights. -19-
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. -32-
Section 13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power. -32-
Section 14. Fractional Rights and Fractional Shares. -35-
Section 15. Rights of Action. -36-
Section 16. Agreement of Right Holders. -37-
Section 17. Right Certificate Holder Not Deemed a
Stockholder. -38-
Section 18. Concerning the Rights Agent. -38-
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. -39-
Section 20. Rights and Duties of Rights Agent. -40-
Section 21. Change of Rights Agent. -44-
Section 22. Issuance of New Right Certificates. -45-
Section 23. Redemption. -46-
Section 24. Exchange. -47-
Section 25. Notice of Certain Events. -48-
Section 26. Notices. -50-
Section 27. Supplements and Amendments. -51-
Section 28. Successors. -52-
Section 29. Benefits of this Agreement. -52-
Section 30. Severability. -52-
Section 31. Governing Law. -52-
Section 32. Counterparts. -53-
Section 33. Descriptive Headings. -53-
Exhibit A - Form of Certificate of Amendment
Exhibit B - Form of Right Certificate
Exhibit C - Summary of Rights to Purchase Preferred Shares
RIGHTS AGREEMENT
Agreement, dated as of February 15, 1996, between STANDARD
MOTOR PRODUCTS, INC., a New York corporation (the "Company"), and
REGISTRAR & TRANSFER CO. (the "Rights Agent").
The Board of Directors of the Company has authorized and
declared a dividend of one preferred share purchase right (a
"Right") for each Common Share (as hereinafter defined) of the
Company outstanding as of the Close of Business (as hereafter
defined) on February 15, 1996 (the "Record Date"), each Right
representing the right to purchase one one-thousandth of a
Preferred Share (as hereinafter defined), upon the terms and
subject to the conditions herein set forth, and has further
authorized and directed the issuance of one Right with respect to
each Common Share that shall become outstanding between the
Record Date and the earliest of the Distribution Date, the
Redemption Date and the Final Expiration Date (as such terms are
hereinafter defined).
Accordingly, 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 have the meanings indicated:
(a) "Acquiring Person" shall mean any Person (as
hereinafter defined) who or which, together with all Affiliates
and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as hereinafter defined) of
20% or more of the Common Shares then outstanding, but shall not
include (i) the Company, (ii) any Subsidiary (as hereinafter
defined) of the Company, (iii) any employee benefit plan of the
Company or any Subsidiary of the Company, (iv) any Person holding
Common Shares for or pursuant to the terms of any such plan or
(v) any Person who is a Continuing Director (as hereinafter
defined) or a spouse, parent, sibling, child or grandchild of a
Continuing Director or any trust or estate the sole beneficiaries
of which are such Persons (each of the Persons specified in (v),
an "Exempt Person"); provided that an Exempt Person shall not be
excluded from this definition if such Exempt Person acquires any
Common Shares after the date hereof other than (A) through
purchase, gift or inheritance from another Exempt Person or (B)
solely as a result of such Exempt Person's serving as an executor
or administrator (or in a similar fiduciary capacity) of, or
appointment by a court of competent jurisdiction to serve as an
executor or administrator (or in a similar fiduciary capacity)
of, any estate of, or appointment and service as trustee of any
trust of, any Exempt Person or acquisition of a substantial
beneficial interest in any trust or estate of an Exempt Person.
Notwithstanding the foregoing, no Person shall become an
"Acquiring Person" as the result of an acquisition of Common
Shares by the Company which, by reducing the number of Common
Shares outstanding, increases the proportionate number of Common
Shares Beneficially Owned by such Person to 20% or more of the
Common Shares then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 20% or more of the
Common Shares then outstanding by reason of acquisition of Common
Shares by the Company and shall, after such acquisition by the
Company, become the Beneficial Owner of any additional Common
Shares, then such Person shall be deemed to be an "Acquiring
Person". 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 Common Shares 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 to be or have ever been an
"Acquiring Person" for any purposes of this Agreement.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12B-2 of the
General Rules and Regulations under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), as in effect on the
date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of
and shall be deemed to "Beneficially Own" or have "Beneficial
Ownership" of any securities:
(i) which such Person or any of such Person's
Affiliates or Associates beneficially owns, directly or
indirectly;
(ii) which such Person or any of such Person's
Affiliates or Associates has (A) the right to acquire or direct
the acquisition of (whether such right is exercisable immediately
or only after the passage of time) pursuant to any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities), or upon
the exercise of conversion rights, exchange rights, rights (other
than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner
of, or to Beneficially Own, or have Beneficial Ownership of,
securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted for
purchase or exchange; or (B) the right to vote or direct the
voting of, whether pursuant to any agreement, arrangement or
understanding or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to Beneficially
Own, or have Beneficial Ownership of, any security if the
agreement, arrangement or understanding to vote such security (1)
arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations promulgated under the Exchange Act and (2) is not
also then reportable on Schedule 13D under the Exchange Act (or
any comparable or successor report); or
(iii) which are Beneficially Owned, directly or
indirectly, by any other Person with which such Person or any
such Person's Affiliates or Associates has any agreement,
arrangement or understanding (other than customary agreements
with and between underwriters and selling group members with
respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent
contemplated by the proviso to Section 1(c)(ii)(B)) or disposing
of any securities of the Company.
Notwithstanding anything in this definition to the contrary,
the phrase "then outstanding," when used with reference to a
Person who is Beneficial Owner of or who Beneficially Owns or a
Person's Beneficial Ownership of securities of the Company, shall
mean the number of such securities then issued and outstanding
together with the number of such securities not then actually
issued and outstanding which such Person would be deemed to
Beneficially Own hereunder.
(d) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in New
York are authorized or obligated by law or executive order to
close.
(e) "Close of Business" on any given date shall mean
5:00 P.M., New York time, on such date; provided, however, that
if such date is not a Business Day it shall mean 5:00 P.M., New
York time, on the next succeeding Business Day.
(f) "Common Shares" shall mean (i) the shares of common
stock, par value $2.00 per share, of the Company or (ii) if such
common stock shall have been converted into or exchanged for
other securities, the then authorized Equity Shares (as
hereinafter defined) of the Company. "Equity Shares" when used
with reference to any Person (including the Company) shall mean
the capital stock (or equity interest) with the greatest voting
power in an election of directors or similar governing body of
such other Person or, if such other Person is a Subsidiary of
another Person, the Person or Persons which ultimately control
such first-mentioned Person.
(g) "Continuing Director" shall mean each director of
the Company on the date of this Agreement and each director
subsequently elected if such Person was approved at the time of
his or her election by a majority of the Continuing Directors.
(h) "Distribution Date" shall have the meaning set forth
in Section 3(a) hereof.
(i) "Equivalent Preferred Shares" shall have the meaning
set forth in Section 11(b) hereof.
(j) "Exchange Ratio" shall have the meaning set forth in
Section 24(a) hereof.
(k) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) hereof.
(l) "Person" shall mean any individual, firm,
corporation, limited liability company, partnership, trust or
other entity, and shall include any successor (by merger or
otherwise) thereof or thereto.
(m) "Preferred Shares" shall mean shares of Series A
Participating Preferred Stock, $20.00 par value per share, of the
Company having the rights and preferences set forth in the Form
of Certificate of Amendment attached to this Agreement as Exhibit
A.
(n) "Purchase Price" shall have the meaning set forth in
Section 4 hereof.
(o) "Redemption Date" shall have the meaning set forth
in Section 7(a) hereof.
(p) "Redemption Price" shall have the meaning set forth
in Section 23(a) hereof.
(q) "Right Certificate" shall have the meaning set forth
in Section 3(a) hereof.
(r) "Securities Act" shall have the meaning set forth in
Section 9(c) hereof.
(s) "Shares Acquisition Date" shall mean the first date
of public announcement (which, for purposes of this definition
shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(t) "Subsidiary" of any Person shall mean any Person of
which a majority of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly,
by such Person.
(u) "Summary of Rights" shall have the meaning set forth
in Section 3(b) hereof.
(v) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) hereof.
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as rights agent in accordance
with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time
appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Right Certificates. (a) Until the
earlier of (i) the Close of Business on the tenth Business Day
after the Shares Acquisition Date or (ii) the Close of Business
on the tenth Business Day (or such later date as may be
determined by action of the Company's 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 the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, any Person holding
Common Shares for or pursuant to the terms of any such plan or
any Person who is a Continuing Director or a spouse, parent,
sibling, child or grandchild of a Continuing Director or any
trust or estate the sole beneficiaries of which are such Persons)
of, or of the first public announcement of the intention of any
Person (other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any Subsidiary of
the Company or any Person holding Common Shares for or pursuant
to the terms of any such plan) to commence a tender or exchange
offer the consummation of which would result in any Person
becoming an Acquiring Person (including in either such case, any
such date which is after the date of this Agreement and prior to
the issuance of the Rights; the earlier of such dates being
herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced (subject to Section 3(b) hereof) by the
certificates for Common Shares registered in the names of the
holders thereof (which certificates shall also be deemed to be
Right Certificates) and not by separate Right Certificates, (y)
the registered holders of Common Shares shall also be the
registered holders of the Rights issued with respect thereto and
(z) the Rights will be transferable by, and only in connection
with, the transfer of Common Shares. As soon as practicable
after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign, and the Company will
send or cause to be sent (and the Rights Agent will, if
requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common Shares as of the Close of
Business on the Distribution Date, at the address of such holder
shown on the records of the Company or the transfer agent or
registrar for the Common Shares, a Right Certificate, in
substantially the form of Exhibit B hereto (a "Right
Certificate"), evidencing one Right for each Common Share so
held. As of and after the Distribution Date, the Rights will be
evidenced solely by such Right Certificates, and the Rights will
be transferable only separately from the transfer of Common
Shares.
The Company shall notify the Rights Agent in writing upon
the occurrence of the Distribution Date and, if such notification
is given orally, the Company shall confirm same in writing on or
prior to the Business Day next following. Until such notice is
received by the Rights Agent, the Rights Agent may presume
conclusively for all purposes that the Distribution Date has not
occurred.
(b) On the Record Date, or as soon as practicable
thereafter, the Company will send a copy of a Summary of Rights
to Purchase Preferred Shares, in substantially the form of
Exhibit C hereto (the "Summary of Rights"), by first-class,
postage-prepaid mail, to each record holder of Common Shares as
of the Close of Business on the Record Date, at the address of
such holder shown on the records of the Company or the transfer
agent or registrar for the Common Shares. With respect to
certificates for Common Shares outstanding as of the Record Date,
until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof
whether or not a copy of the Summary of Rights is attached
thereto. Until the Distribution Date (or the earlier of the
Redemption Date or the Final Expiration Date), the surrender for
transfer of any certificate for Common Shares outstanding on the
Record Date, with or without a copy of the Summary of Rights
attached thereto, shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby.
(c) The Company shall cause certificates for Common
Shares which become outstanding (including, without limitation,
reacquired Common Shares referred to in the last sentence of this
paragraph (c)) after the Record Date but prior to the earliest of
the Distribution Date, the Redemption Date or the Final
Expiration Date, to bear the following legend:
This certificate also evidences and entitles the holder
hereof to certain rights as set forth in a Rights Agreement
between Standard Motor Products, Inc. and Registrar & Transfer
Co., dated as of February 15, 1996 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of
Standard Motor Products, Inc. Under certain circumstances, as
set forth in the Rights Agreement, such Rights will be evidenced
by separate certificates and will no longer be evidenced by this
certificate. Standard Motor Products, Inc. will mail to the
holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under
certain circumstances, as set forth in the Rights Agreement,
Rights issued to any Person who becomes an Acquiring Person or
any Affiliate or Associate thereof (as defined in the Rights
Agreement), or the transferees thereof, may become null and void.
With respect to such certificates containing the foregoing
legend, until the Distribution Date, the Rights associated with
the Common Shares represented by such certificates shall be
evidenced by such certificates alone, and the surrender for
transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares
represented thereby. In the event that the Company purchases or
acquires any Common Shares after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Shares
shall be deemed cancelled and retired so that the Company shall
not be entitled to exercise any Rights associated with the Common
Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase Preferred
Shares and of assignment to be printed on the reverse thereof)
shall be substantially the same as Exhibit B hereto and may have
such marks of identification or designation and such legends,
summaries or endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with this Agreement, or
as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange or inter-dealer quotation system
on which the Rights may from time to time be listed or traded, or
to conform to usage. Subject to Section 22 hereof, the Right
Certificates shall entitle the holders thereof to purchase such
number of one one-thousandths of a Preferred Share as shall be
set forth therein at the price per one one-thousandth of a
Preferred Share set forth therein (the "Purchase Price"), but the
number of such one one-thousandths of a Preferred Share and the
Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration. The Right
Certificates shall be executed on behalf of the Company by its
President, any of its Vice Presidents, or its Treasurer, either
manually or by facsimile signature, shall have affixed thereto
the Company's seal or a facsimile thereof, and shall be attested
by the Secretary or an Assistant Secretary of the Company, either
manually or by facsimile signature. The Right Certificates shall
be manually countersigned by the Rights Agent and shall not be
valid for any purpose unless countersigned. In case any officer
of the Company who shall have signed any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be
countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the Person who
signed such Rights Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf
of the Company by any Person who, at the actual date of the
execution of such Right Certificate, shall be a proper officer of
the Company to sign such Right Certificate, although at the date
of the execution of this Rights Agreement any such Person was not
such an officer.
Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its office designated for such purpose,
books for registration and transfer of the Rights Certificates
issued hereunder. Such books shall show the names and addresses
of the respective holders of the 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. Subject to Section 14 hereof, at any time after
the Close of Business on the Distribution Date, and at or prior
to the Close of Business on the earlier of the Redemption Date or
the Final Expiration Date, any Right Certificate or Right
Certificates (other than Right Certificates representing Rights
that have become void pursuant to Section 11(a)(ii) hereof or
that have been exchanged pursuant to Section 24 hereof) may be
transferred split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered
holder thereof to purchase a like number of one one-thousandths
of a Preferred Share as the Right Certificate or Right
Certificates surrendered then entitled such holder to purchase.
Any registered holder desiring so to transfer, split up, combine
or exchange any Right Certificate or Right Certificates shall
make such requests in writing delivered to the Rights Agent, and
shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the office of the
Rights Agent designated for such purpose. The Right Certificates
are transferable only on the registry books of the Rights Agent.
Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any
such surrendered Right Certificate or Certificates until the
registered holder thereof shall have (i) completed and signed the
certificate contained in the form of assignment set forth on the
reverse side of each such Right Certificate, (ii) provided such
additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) thereof and of the Rights evidenced
thereby and the Affiliates and Associates of such Beneficial
Owner (or former Beneficial Owner) as the Company shall
reasonably request, and (iii) paid a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Right
Certificates as required by Section 9(e) hereof. 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, registered in such name or names as may
be designated by the surrendering registered holder. The Rights
Agent shall promptly forward any such sum collected by it to the
Company or to such Persons as the Company shall specify by
written notice.
(b) Upon receipt by the Company and the Rights Agent of
evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of
loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancellation of the Right Certificate if
mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered holder in lieu of
the Right Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. (a) Subject to Section 11(a)(ii) hereto, the
registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided in this
Rights Agreement) in whole or in part at any time after the
Distribution Date upon surrender of the Right Certificate, with
the form of election to purchase on the reverse side thereof duly
executed, to the Rights Agent at the office of the Rights Agent
designated for such purpose, together with payment of the
Purchase Price for each one one-thousandth of a Preferred Share
as to which the Rights are exercised, and an amount equal to any
tax or governmental charge required to be paid under Section 9(e)
hereof by certified check, cashier's check, bank draft or money
order payable to the order of the Company, at or prior to the
earliest of (i) the Close of Business on February 28, 2006 (the
"Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the "Redemption
Date"), or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof.
(b) The Purchase Price for each one one-thousandth of a
Preferred Share purchasable pursuant to the exercise of a Right
shall initially be $80.00, and shall be subject to adjustment
from time to time as provided in Section 11 or 13 hereof and
shall be payable in lawful money of the United States of America
in accordance with paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the
shares to be purchased and an amount equal to any applicable tax
or governmental charge required to be paid under Section 9(e)
hereof by certified check, cashier's check, bank draft or money
order payable to the order of the Company, subject to Section
20(j) hereof, the Rights Agent shall thereupon promptly (i)(A)
requisition from any transfer agent of the Preferred Shares
certificates for the number of Preferred Shares to be purchased
and the Company hereby irrevocably authorizes each such transfer
agent to comply with all such requests, or (B) requisition from
the depositary agent depositary receipts representing such number
of one one-thousandths of a Preferred Share as are to be
purchased (in which case certificates for the Preferred Shares
represented by such receipts shall be deposited by the transfer
agent with the depositary agent) and the Company hereby directs
each such depositary agent to comply with such request, (ii) when
appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance
with Section 14 hereof, (iii) after receipt of such certificates
or depositary receipts, cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate,
registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, deliver such
cash to or upon the order of the registered holder of such Right
Certificate.
(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 to
his duly authorized assigns, subject to the provisions of Section
14 hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a registered
holder of Rights upon the occurrence of any purported exercise as
set forth in this Section 7 unless such registered holder shall
have (i) completed and signed the certificate contained in 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) thereof and of the Rights evidenced
thereby and of the Affiliates and Associates of such Beneficial
Owner (or former Beneficial Owner) 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 so
cancel and retire, any other Right Certificate purchased or
acquired by the Company otherwise than upon the exercise thereof.
The Rights Agent shall deliver all cancelled Right Certificates
to the Company, or shall, at the written request of the Company,
destroy such cancelled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section 9. Availability of Preferred Shares. (a) The
Company will cause to be reserved and kept available out of its
authorized and unissued Preferred Shares or any Preferred Shares
held in its treasury, the number of Preferred Shares that will be
sufficient to permit the exercise in full of all outstanding
Rights in accordance with this Agreement. The Company will take
all such action as may be necessary to ensure that all Preferred
Shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such Preferred Shares (subject
to payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and nonassessable shares.
(b) So long as the Company's capital stock and other
securities issuable and deliverable upon the exercise of the
Rights may be listed or traded on any national securities
exchange or inter-dealer quotation system, the Company shall use
its best efforts to cause, from and after such time as the Rights
become exercisable (but only to the extent that it is reasonably
likely that the Rights will be exercised), all the Company's
capital stock and other securities reserved for such issuance to
be listed on such exchange or inter-dealer quotation system upon
official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to (i) file,
as soon as practicable following the earliest date after the
first occurrence of an event described in the first sentence of
Section 11(a)(ii) hereof on which the consideration to be
delivered by the Company upon exercise of the Rights has been
determined pursuant to this Agreement, or as soon as is required
by law following the Distribution Date, as the case may be, a
registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Company's
capital stock and other securities issuable and deliverable upon
the exercise of the Rights on an appropriate form, (ii) cause
such registration statement to become effective as soon as
practicable after such filing, and (iii) cause such registration
statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the earlier
of (A) the date as of which the Rights are no longer exercisable
for such capital stock or securities, or (B) the Expiration Date.
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. The Company may temporarily suspend, for a period
of time not to exceed ninety days after the date set forth in
clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. Upon
any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has
been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary,
the Rights shall not be exercisable in any jurisdiction unless
the requisite registration or qualification under the securities
or "blue sky" laws of such jurisdiction shall have been obtained.
(d) The Company will take all such action as may be
necessary to ensure that all the Company's capital stock issued
and delivered upon exercise of Rights shall, at the time of
delivery of the certificates therefor (subject to payment of the
Purchase Price and compliance with all other applicable
provisions of this Agreement), be duly and validly authorized and
issued, fully paid and nonassessable.
(e) The Company will pay when due and payable any and
all federal and state taxes and governmental charges which may be
payable in respect of the issuance or delivery of the Right
Certificates or of any debt or equity securities upon the
exercise of Rights. The Company shall not, however, be required
to pay any tax or governmental charge which may be payable in
respect of any transfer or delivery of Right Certificates to a
Person other than, or the issuance or delivery of certificates or
depositary receipts for such securities in a name other than that
of, the registered holder of the Right Certificate evidencing
Rights surrendered for exercise or to issue or to deliver any
certificates or depositary receipts for such securities upon the
exercise of any Rights until any such tax or governmental charge
shall have been paid (any such tax or governmental charge being
payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's
reasonable satisfaction that no such tax or governmental charge
is due.
Section 10. Preferred Shares Record Date. Each Person in
whose name any certificate for Preferred Shares is issued upon
the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares represented
thereby on, and such certificate shall be dated, the date upon
which the Right Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and any applicable
taxes or governmental charges) was duly made; provided, however,
that if the date of such surrender and payment is a date upon
which the Preferred Shares transfer books of the Company are
closed, such Person shall be deemed to have become the record
holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the Preferred Shares
transfer books of the Company are open. Prior to the exercise of
the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred
Shares for which the Rights shall be exercisable, including,
without limitation, the right to vote, to receive dividends or
other distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any proceedings of
the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights. The Purchase Price, the number of Preferred
Shares covered by each Right and the number of Rights outstanding
are subject to adjustment from time to time as provided in this
Section 11.
(a) (i) In the event the Company shall at any time after
the date of this Agreement (A) declare a dividend on the
Preferred Shares payable in Preferred Shares, (B) subdivide the
outstanding Preferred Shares, (C) combine or consolidate the
outstanding Preferred Shares into a smaller number of Preferred
Shares or (D) issue any shares of its capital stock in a
reclassification of Preferred Shares (including any
reclassification in connection with a consolidation or merger in
which the Company is the continuing or surviving corporation),
except as otherwise provided in this Section 11(a), the Purchase
Price in effect at the time of the record date for such dividend
or of the effective date of such subdivision, combination,
consolidation or reclassification, and the number and kind of
shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if
such Right had been exercised immediately prior to such date and
at a time when the Preferred Shares transfer books of the Company
were open, it would have owned upon such exercise and been
entitled to receive by virtue of such dividend, subdivision,
combination, consolidation or reclassification; provided,
however, that in no event the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the
shares of capital stock of the Company issuable upon exercise of
one Right.
(ii) Subject to Section 24 of this Agreement, and to the
immediately succeeding paragraph, in the event that on or after
the Distribution Date any Person is or becomes an Acquiring
Person, each holder of a Right shall thereafter have a right to
receive, upon exercise thereof at a price equal to the then
current Purchase Price multiplied by the number of one one-
thousandths of a Preferred Share for which a Right is then
exercisable, in accordance with the terms of this Agreement such
number of one one-thousandths of a Preferred Share as shall equal
the result obtained by (x) multiplying the then current Purchase
Price by the number of one one-thousandths of a Preferred Share
for which a Right is then exercisable and dividing that product
by (y) 50% of the then current per share market price of the
Company's Preferred Shares (determined pursuant to Section 11(d)
hereof) on the date of the occurrence of such event. In the
event that on or after the Distribution Date any Person is or
becomes an Acquiring Person and the Rights shall then be
outstanding, the Company shall not take any action which would
eliminate or diminish the benefits intended to be afforded by the
Rights.
From and after the occurrence of such event, any
Rights that are or were acquired or Beneficially Owned by any
Acquiring Person (or any Associate or Affiliate of such Acquiring
Person) shall be void without any further action and any holder
of such Rights shall thereafter have no right whatsoever with
respect to such Rights, under any provision of this Agreement or
otherwise. No Right Certificate shall be issued pursuant to
Section 3 that represents Rights Beneficially Owned by an
Acquiring Person whose Rights would be void pursuant to the
preceding sentence 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 preceding sentence 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 preceding sentence or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person,
Associate or Affiliate shall be cancelled. The Company shall
give the Rights Agent written notice of the identity of any such
Acquiring Person, Associate or Affiliate, or the nominee of any
of the foregoing, and the Rights Agent may rely on such notice in
carrying out its duties under this Agreement.
(iii) In the event that there shall not be sufficient
Preferred Shares or Common Shares issued but not outstanding or
authorized but unissued to permit the exercise or exchange in
full of the Rights in accordance with the foregoing subparagraph
(ii) or Section 24 hereof, the Company shall either (i) call a
meeting of shareholders seeking approval to cause sufficient
additional Preferred Shares or Common Shares to be authorized
(provided that if such approval is not obtained the Company will
take the action specified in clause (ii) of this sentence) or
(ii) take such action as shall be necessary to ensure and
provide, to the extent permitted by applicable law and any
agreements or instruments in effect on the Shares Acquisition
Date to which it is a party, that each Right shall thereafter
constitute the right to receive, (x) at the Company's option,
either (A) in return for the then current Purchase Price, debt or
equity securities or other assets (or a combination thereof)
having a fair value equal to twice the then current Purchase
Price, or (B) without payment of consideration (except as
otherwise required by applicable law), debt or equity securities
or other assets (or a combination thereof) having a fair value
equal to the then current Purchase Price, or (y) if the Board of
Directors of the Company elects to exchange the Rights in
accordance with Section 24 hereof, debt or equity securities or
other assets (or a combination thereof) having a fair value equal
to the product of the current per share market price of a share
of Common Stock (as determined pursuant to Section 11(d) hereof)
on the date such election is made times the Exchange Ratio in
effect on such date, where in any case set forth in (x) or (y)
above the fair value of such debt or equity securities or other
assets shall be as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally
recognized investment banking firm, which determination shall be
described in a statement filed with the Rights Agent.
(b) In case the Company shall fix a record
date for the issuance of rights, options or warrants to all
holders of Preferred Shares entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe for
or purchase Preferred Shares or shares having the same rights,
privileges and preferences as the Preferred Shares ("Equivalent
Preferred Shares") or securities convertible into Preferred
Shares or Equivalent Preferred Shares at a price per Preferred
Share or Equivalent Preferred Share (or having a conversion price
per share, if a security is convertible into Preferred Shares or
Equivalent Preferred Shares) less than the then current per share
market price of the Preferred Shares (as determined pursuant to
Section 11(d) hereof) on such record date, the Purchase Price to
be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be
the number of Preferred Shares outstanding on such record date
plus the number of Preferred Shares which the aggregate price of
the total number of Preferred Shares and/or Equivalent Preferred
Shares so to be offered (plus the aggregate initial conversion
price of any such convertible securities so to be offered) would
purchase at such current market price, and the denominator of
which shall be the number of Preferred Shares outstanding on such
record date plus the number of additional Preferred Shares and/or
Equivalent Preferred Shares to be offered for subscription or
purchase (or into which the convertible securities so to be
offered are initially convertible); provided, however, that in no
event shall the consideration to be paid upon the exercise of one
Right be less than the aggregate par value of the shares of
capital stock of the Company issuable upon exercise of one Right.
In case such subscription price may be paid in a consideration
part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith
by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent.
Preferred Shares owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever
such a record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price shall
be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record
date for the making of a distribution to all holders of the
Preferred Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is
the continuing or surviving corporation) of securities (including
evidences of indebtedness) or assets (other than a regular
quarterly cash dividend or a dividend payable in Preferred
Shares) or rights, options or warrants (excluding those referred
to in Section 11(b) hereof), the Purchase Price to be in effect
after such record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record date by
a fraction, the numerator of which shall be the then current per
share market price of the Preferred Shares on such record date,
less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent) of the
portion of the securities or assets or of such rights, options or
warrants so to be distributed applicable to one Preferred Share,
and the denominator of which shall be such current per share
market price of the Preferred Shares; provided, however, that in
no event shall the consideration to be paid upon the exercise of
one Right be less than the aggregate par value of the shares of
capital stock of the Company to be issued upon exercise of one
Right. Such adjustments shall be made successively whenever such
a record date is fixed; and in the event that such distribution
is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record
date had not been fixed.
(d) (i) For the purpose of any computation
hereunder, the "current per share market price" of any security
(a "Security" for the purpose of this Section 11(d)(i)) on any
date shall be deemed to be the average of the daily closing
prices per share of such Security for the 30 consecutive Trading
Days (as hereinafter defined) immediately prior to such date;
provided, however, that in the event that the current per share
market price of the Security is determined during a period
following the announcement by the issuer of such Security of (A)
a dividend or distribution on such Security payable in shares of
such Security or securities convertible into such shares, or (B)
any subdivision, combination or reclassification of such Security
and prior to the expiration of 30 Trading Days after the ex-
dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then,
and in each such case, the current per share market price shall
be appropriately adjusted to reflect the current market price per
share equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock
Exchange or, if the Security is not listed or admitted to trading
on the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange
on which the Security is listed or admitted to trading or, if the
Security is not listed or admitted to trading on any 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 on the Nasdaq Stock Market or such
other system then in use, or, if on any such date the Security is
not quoted by any such system, the average of the closing bid and
asked prices as furnished by a professional market maker making a
market in the Security selected in good faith by the Board of
Directors of the Company. The term "Trading Day" shall mean a
day on which the principal national securities exchange on which
the Security is listed or admitted to trading is open for the
transaction of business or, if the Security is not listed or
admitted to trading on any national securities exchange, a
Business Day.
(ii) For the purpose of any computation hereunder, if
the Preferred Shares are publicly traded, the "current per share
market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i). If the
Preferred Shares are not publicly traded but the Common Shares
are publicly traded, the "current per share market price" of the
Preferred Shares shall be conclusively deemed to be the current
per share market price of the Common Shares as determined
pursuant to Section 11(d)(i) (appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring
after the date hereof), multiplied by one thousand. If neither
the Common Shares nor the Preferred Shares are publicly traded,
the "current per share market price" shall mean the fair value
per share as determined in good faith by the Board of Directors
of the Company, whose determination shall be described in a
statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall
be required unless such adjustment would require an increase or
decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are
not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to the
nearest one-millionth of a Preferred Share or one ten-thousandth
of any other share or security as the case may be.
Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later
than the earlier of (i) three years from the date of the
transaction which would require such adjustment but for this
Section 11(e) or (ii) the date of the expiration of the right to
exercise any Rights.
(f) If as a result of an adjustment made
pursuant to Section 11(a) hereof, the holder of any Right
thereafter exercised shall become entitled to receive any shares
of capital stock of the Company other than Preferred Shares,
thereafter the number of such other shares so receivable upon
exercise of any Right shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Shares contained
in Section 11(a) through (e), inclusive, and the provisions of
Sections 7, 9, 10, 13 and 14 with respect to the Preferred Shares
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-thousandths of a Preferred
Share purchasable from time to time hereunder upon exercise of
the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised
its election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made in
Sections 11(b) and (c) hereof, each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that
number of one one-thousandths of a Preferred Share (calculated to
the nearest one one-millionth of a Preferred Share) obtained by
(i) multiplying (x) the number of one one-thousandths of a share
covered by a Right immediately prior to this adjustment by (y)
the Purchase Price in effect immediately prior to such adjustment
of the Purchase Price and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust the number
of Rights, in substitution for any adjustment in the number of
one one-thousandths of a Preferred Share purchasable upon the
exercise of a Right. Each of the unexercised Rights outstanding
after such adjustment of the number of Rights shall be
exercisable for the number of one one-thousandths of a Preferred
Share for which a Right was exercisable immediately prior to such
adjustment. Each unexercised Right held outstanding prior to
such adjustment of the number of Rights shall become that number
of unexercised Rights (calculated to the nearest one ten-
thousandth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the
Purchase Price in effect immediately after adjustment of the
Purchase Price. The Company shall make a public announcement of
its election to adjust the number of Rights, indicating the
record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the
date on which the Purchase Price is adjusted or any day
thereafter, but, if the Right Certificates have been issued,
shall be at least 10 days later than the date of the public
announcement. If Right Certificates have been issued, upon each
adjustment of the number of Rights pursuant to this Section
11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be
entitled as a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders of record
in substitution and replacement for the Right Certificates held
by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Right
Certificates evidencing all the Rights to which such holders
shall be entitled after such adjustment. Right Certificates so
to be distributed shall be issued, executed and delivered by the
Company, and countersigned and delivered by the Rights Agent, in
the manner provided for herein and shall be registered in the
names of the holders of record of Right Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or change
in the Purchase Price or the number of one one-thousandths of a
Preferred Share issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue
to express the Purchase Price and the number of one one-
thousandths of a Preferred Share which were expressed in the
initial Right Certificates issued hereunder.
(k) Before taking any action that would cause
an adjustment reducing the Purchase Price below one one-
thousandth of the then par value, if any, of the Preferred Shares
issuable upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue
fully paid and nonassessable Preferred Shares at such adjusted
Purchase Price.
(l) In any case in which this Section 11
shall require that any adjustment in the Purchase Price be made
effective as of a record date for a specified event, the Company
may elect to defer until the occurrence of such event the issuing
to the holder of any Right exercised after such record date of
the Preferred Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the
Preferred Shares and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the
Purchase Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a due xxxx
or other appropriate instrument evidencing such holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled to make
such reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the
extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the
Preferred Shares, issuance wholly for cash of any Preferred
Shares at less than the current market price, issuance wholly for
cash of Preferred Shares or securities convertible into or
exchangeable for Preferred Shares, dividends on Preferred Shares
payable in Preferred Shares or issuance of rights, options or
warrants referred to hereinabove in Section 11(b), hereafter made
by the Company to holders of its Preferred Shares shall not be
taxable to such stockholders.
(n) In the event that at any time after the
date of this Agreement and prior to the Distribution Date, the
Company shall (i) declare or pay any dividend on the Common
Shares payable in Common Shares or (ii) effect a subdivision,
combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in
Common Shares) into a greater or lesser number of Common Shares,
then in any such case (A) the number of one one-thousandths of a
Preferred Share purchasable after such event upon proper exercise
of each Right shall be determined by multiplying the number of
one one-thousandths of a Preferred Shares so purchasable
immediately prior to such event by a fraction, the numerator of
which is the number of Common Shares outstanding immediately
before such event and the denominator of which is the number of
Common Shares outstanding immediately after such event, and (B)
each Common Share outstanding immediately after such event shall
have issued with respect to it that number of Rights which each
Common Share outstanding immediately prior to such event had
issued with respect to it. The adjustments provided for in this
Section 11(n) shall be made successively whenever such a dividend
is declared or paid or such a subdivision, combination or
consolidation is effected.
(o) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(p)
hereof) or
(ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(p) hereof), if (x) at the time of or
immediately after such consolidation or merger there are any
rights, options, warrants or other instruments or securities
outstanding or agreements in effect which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or
immediately after such consolidation or merger, the shareholders
of the Person consolidating or merging shall have received a
distribution of Rights previously Beneficially Owned by such
Person or any of its Affiliates and Associates.
(p) The Company covenants and agrees that,
after the Distribution Date, it will not, except as permitted by
Sections 23, 24, or 27 hereof, take (or permit any Subsidiary to
take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish
substantially or eliminate the benefits intended to be afforded
by the Rights.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement
of the facts accounting for such adjustment, (b) file with the
Rights Agent and with each transfer agent for the Common Shares
or the Preferred Shares a copy of such certificate and (c) mail a
brief summary thereof to each holder of a Right Certificate in
accordance with Section 25 and Section 26 hereof.
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power. In the event, directly or indirectly,
at any time on or after the Distribution Date a Person is or
becomes an Acquiring Person, (a) the Company shall consolidate
with, or merge with and into, any other Person (other than a
Subsidiary of the Company) and the Company shall not be the
continuing or surviving corporation, (b) any Person (other than a
Subsidiary of the Company) shall consolidate with, or merge with
and into, the Company and the Company shall be the continuing or
surviving corporation, and, in connection therewith, all or part
of the Common Shares shall be changed into or exchanged for stock
or other securities of any other Person (or the Company) or cash
or any other property, or (c) the Company shall sell, dispose of
or otherwise transfer (or one or more of its Subsidiaries shall
sell, dispose of or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of
the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person other than the Company or one or
more of its wholly-owned Subsidiaries, then, and in each such
case, proper provision shall be made so that (i) each holder of a
Right (except as otherwise provided in this Rights Agreement)
shall thereafter have the right to receive, upon the exercise
thereof at a price equal to the then current Purchase Price
multiplied by the number of one one-thousandths of a Preferred
Share for which a Right is then exercisable, in accordance with
the terms of this Agreement, and in lieu of Preferred Shares,
such number of validly authorized and issued, fully paid, non-
assessable and freely tradable Equity Shares of such other Person
(including the Company as successor thereto or as the surviving
corporation) as shall equal the result obtained by (A)
multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right is then
exercisable and dividing that product by (B) 50% of the then
current per share market price of the Equity Shares of such other
Person (determined pursuant to Section 11(d) hereof) on the date
of consummation of such consolidation, merger, sale, disposition
or transfer; (ii) the issuer of such Equity Shares shall
thereafter be liable for, and shall have been deemed to assume,
by virtue and operation of such consolidation, merger, sale,
disposition or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such issuer; and (iv) such
issuer shall take such steps (including, but not limited to, the
reservation of a sufficient number of its Equity Shares to permit
the exercise of Rights in full for such Equity Shares) in
connection with such consummation as may be necessary to assure
that the provisions hereof shall thereafter be applicable, as
nearly as reasonably may be, in relation to the Equity Shares
thereafter deliverable upon the exercise of the Rights. The
Company shall not consummate any such consolidation, merger,
sale, disposition or transfer unless such issuer shall have a
sufficient number of authorized Equity Shares which have not been
issued or reserved for issuance to permit the exercise in full of
the Rights in accordance with this Section 13 and unless prior
thereto the Company and such issuer shall have executed and
delivered to the Rights Agent a supplemental agreement providing
for the terms set forth in this Section 13 and further providing
that, as soon as practicable after the date of any such
consolidation, merger, sale, disposition or transfer, such issuer
will:
(i) prepare and file a registration statement under
the Securities Act with respect to the Rights and the securities
purchasable upon exercise of the Rights on an appropriate form,
and will use its best efforts to cause such registration
statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the
Expiration Date; and
(ii) will deliver to holders of the Rights
historical financial statements for the issuer and each of its
Affiliates which comply in all respects with the requirements for
registration on Form 10 under the Exchange Act.
In the event that a merger, consolidation, sale, disposition or
transfer described in the first sentence of this Section 13 shall
occur at any time after the occurrence of an event described in
the first sentence of Section 11(a)(ii) hereof, the Rights which
have not theretofore been exercised shall thereupon become
immediately exercisable in the manner described in this
Agreement. The Company shall not enter into any transaction of
the kind referred to in this Section 13 if at the time of such
transaction there are any rights, options, warrants, instruments
or securities outstanding or any agreements or arrangements
which, as result of the consummation of such transaction, would
eliminate or substantially diminish the benefits intended to be
afforded by the Rights. The provisions of this Section 13 shall
similarly apply to successive mergers or consolidations or sales
or dispositions or other transfers.
Section 14. Fractional Rights and Fractional Shares. (a)
The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates which evidence fractional
Rights. In lieu of such fractional Rights, there shall be paid
to the registered holders of the Right Certificates with regard
to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a),
the current market value of a whole Right shall be the closing
price of the Rights for the Trading Day immediately prior to the
date on which such fractional Rights would have been otherwise
issuable. The closing price for any day shall be determined in
accordance with Section 11(d) hereof.
(b) Subject to this Section 14(b), the Company shall not
be required to issue fractions of Preferred Shares (other than
fractions which are integral multiples of one one-thousandth of a
Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other
than fractions which are integral multiples of one one-thousandth
of a Preferred Share). Fractions of Preferred Shares in integral
multiples of one one-thousandth of a Preferred Share may, at the
election of the Company, be evidenced by depositary receipts,
pursuant to an appropriate agreement between the Company and a
depositary selected by it, provided that such agreement shall
provide that the holders of such depositary receipts shall have
all the rights, privileges and preferences to which they are
entitled as beneficial owners of the Preferred Shares represented
by such depositary receipts. In lieu of fractional Preferred
Shares that are not integral multiples of one one-thousandth of a
Preferred Share, the Company shall pay to the registered holders
of Right Certificates at the time such Rights are exercised as
herein provided an amount in cash equal to the same fraction of
the current market value of one Preferred Share. For the
purposes of this Section 14(b), the current market value of a
Preferred Share shall be the closing price of a Preferred Share
(as determined in accordance with Section 11(d) hereof) for the
Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right
expressly waives his right to receive any fractional Rights or
any fractional shares upon exercise of a Right (except as
expressly provided above).
Section 15. Rights of Action. (a) All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent under Section 18 and Section 20 hereof, are
vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares). Any registered holder of any
Right Certificate (or, prior to the Distribution Date, of the
Common Shares), without the consent of the Rights Agent or of the
holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in its own behalf
and for its own benefit, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, its right to exercise the Rights
evidenced by such Right Certificate in the manner provided in
such Right Certificate and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights,
it is specifically acknowledged that the holders of Rights would
not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the
obligations under, and injunctive relief against actual or
threatened violations of the obligations of any Person subject
to, this Agreement.
(b) Notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall have any
liability to any holder of a Right or other Person as a result of
its inability to perform any of its obligations under this
Agreement by reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court or by a
governmental, regulatory, self-regulatory or administrative
agency or commission, or any statute, rule, regulation or
executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of
such obligation; provided, however, that the Company must use all
reasonable efforts to have any such injunction, order, decree or
ruling lifted or otherwise overturned as soon as possible.
Section 16. Agreement of Right Holders. Every holder of a
Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common
Shares;
(b) after the Distribution Date, the Right Certificates
are transferable only on the registry books of the Rights Agent
if surrendered at the office 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 Shares 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 Shares
certificate made by anyone other than the Company or the Rights
Agents 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 the Preferred Shares 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 25 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 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 (including, without limitation, the
reasonable expenses of legal counsel), incurred without
negligence. bad faith or willful misconduct on the part of the
Rights Agent, for anything done or omitted by the Rights Agent in
connection with the acceptance, administration, exercise and
performance of its duties under this Agreement. The indemnity
provided for herein shall survive the termination of this
Agreement and the exercise or expiration of the Rights.
(b) The Rights Agent shall be protected and shall incur
no liability for, or in respect of any action taken, suffered or
omitted by it in connection with, its acceptance and
administration of this Agreement and the exercise and performance
of its duties hereunder, in reliance upon any Right Certificate
or certificate for the Preferred Shares or Common Shares or for
other securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged, by the
proper Person or Persons, or otherwise upon the advice of counsel
as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. (a) Any corporation into which the Rights Agent
or any successor Rights Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or
consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the
rights agent business of the Rights Agent or any successor Rights
Agent, shall be the successor to the Rights Agent under this
Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto; provided,
that such corporation would be eligible for appointment as a
successor Rights Agent under Section 21 hereof. In case at the
time such successor Rights Agent shall succeed to the agency
created by this Agreement, any of the Right Certificates shall
have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of the predecessor
Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor
Rights Agent may countersign such Right Certificates either in
the name of the predecessor Rights Agent or in the name of the
successor Rights Agent; and in all such cases such Right
Certificates shall have the full force provided in the Right
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Right Certificates
shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver
Right Certificates so countersigned; and in case at that time any
of the Right Certificates shall not have been countersigned, the
Rights Agent may countersign such Right Certificates either in
its prior name or in its changed name; and in all such cases such
Right Certificates shall have the full force provided in the
Right Certificates and in this Agreement.
Section 20. Rights and Duties of Rights Agent. The Rights
Agent undertakes to perform only the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who
may be legal counsel for the Company), and the opinion of such
counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in
good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable
that any fact or matter (including without limitation, the
identity of an Acquiring Person) and the current per share market
price of any security) 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 any one of the
President, any Vice President, the Treasurer or the Secretary of
the Company and delivered to the Rights Agent; and such
certificate shall be full authorization and protection to the
Rights Agent for any action taken or suffered in good faith by it
under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the
Company and any other Person only for its own negligence, bad
faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals contained in
this Agreement or in the Right Certificates (except its
countersignature thereof) or be required to verify the same, but
all such statements and recitals are and shall be deemed to have
been made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement or
the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate except its countersignature
thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any
change in the exercisability of the Rights (including the Rights
becoming void pursuant to Section 11(a)(ii) hereof) or any
adjustment in the terms of the Rights (including the manner,
method or amount thereof) provided for in Section 3, 11, 13, 23
or 24, or the ascertaining of the existence of facts that would
require any such change or adjustment (except with respect to the
exercise of Rights evidenced by Right Certificates after receipt
of the certificate described in Section 12 hereof, upon which the
Rights Agent may rely); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares to be issued
pursuant to this Agreement or any Right Certificate or as to
whether any Preferred Shares will, when issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and
delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for
the carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from any one of the President, any Vice
President, the Treasurer or the Secretary of the Company, and to
apply to such officers for advice or instructions in connection
with its duties, and it shall not be liable for any action taken
or omitted by it in good faith in accordance with instructions of
any such officer or for any delay in acting while waiting for
those instructions. Any application by the Rights Agent for
written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be
taken or omitted by the Rights Agent under this Rights Agreement
and the date on and/or after which such action shall be taken or
such omission shall be effective. The Rights Agent shall not be
liable for any action taken by, or omission of, the Rights Agent
in accordance with a proposal included in any such application on
or after the date specified in such application (which date shall
not be less than five Business Days after the date any officer of
the Company actually receives such application, unless any such
officer shall have consented in writing to an earlier date)
unless, prior to taking any such action (or the effective date in
the case of an omission), the Rights Agent shall have received
written instructions in response to such application specifying
the action to be taken or omitted.
(h) If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the
certificate contained in the form of assignment or the form of
election to purchase set forth on the reverse thereof, as the
case may be, has either not been completed or indicates an
affirmative response to clause 1 or 2 thereof, the Rights Agent
shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.
(i) The Rights Agent and any stockholder, director,
officer or employee of the Rights Agent may buy, sell or deal in
any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were not Rights
Agent under this Agreement. Nothing herein shall preclude the
Rights Agent from acting in any other capacity for the Company or
for any other Person.
(j) The Rights Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty
hereunder either itself, (through its directors, officers and
employees) 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 Agreement upon 30 days' notice in writing
mailed to the Company and to each transfer agent of the Common
Shares or Preferred Shares known to the Rights Agent by
registered or certified mail, and to the holders of the Right
Certificates by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days' notice
in writing, mailed to the Rights Agent or successor Rights Agent,
as the case may be, and to each transfer agent of the Common
Shares or Preferred Shares by registered or certified mail, and
to the holders of the Right Certificates by first-class mail. If
the Rights Agent shall resign or be removed or shall otherwise
become incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of
such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by
the Company), then the registered holder of any Right Certificate
may apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor Rights Agent,
whether appointed by the Company or by such a court, shall be (a)
a corporation organized and doing business under the laws of the
United States or of the State of New York (or of any other state
of the United States so long as such corporation is authorized to
do business as a banking institution in the State of New York),
in good standing, having an office in the State of New York,
which is authorized under such laws to exercise corporate trust
or stock transfer powers and is subject to supervision or
examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million or (b) an Affiliate of such a
corporation. 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 Shares or Preferred Shares, 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.
Section 22. Issuance of New Right Certificates.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Right Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any adjustment or
change in the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under the
Right Certificates made in accordance with the provisions of this
Agreement.
Section 23. Redemption. (a) The Board of Directors of the
Company may, at its option, at any time prior to such time as any
Person becomes an Acquiring Person, redeem all but not less than
all the then outstanding Rights at a redemption price of $.001
per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as
the "Redemption Price"). The redemption of the Rights by the
Board of Directors may be made effective at such time, on such
basis and with such conditions as the Board of Directors in its
sole discretion may establish.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the redemption of the Rights
pursuant to paragraph (a) of this Section 23, and without any
further action and without any notice, the right to exercise the
Rights shall terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The
Company shall promptly give public notice of any such redemption;
provided, however, that the failure to give, or any defect in,
any such notice shall not affect the legality or validity of such
redemption. Within 10 days after such action of the Board of
Directors so ordering the redemption of the Rights, the Company
shall mail a notice of redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon
the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the transfer agent
for the Common Shares. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be
made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights
at any time in any manner other than that specifically set forth
in this Section 23 or in Section 24 hereof, and other than in
connection with the purchase of Common Shares prior to the
Distribution Date.
Section 24. Exchange. (a) The Board of Directors of the
Company may, at its option, at any time after any Person becomes
an Acquiring Person, exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have
become void pursuant to Section 11(a)(ii) hereof) for Common
Shares at a ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio
being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not
be empowered to effect such exchange at any time after any Person
(other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any such Subsidiary, any
Person holding Common Shares for or pursuant to the terms of any
such plan or any Person who is a Continuing Director or a spouse,
parent, sibling, child or grandchild of a Continuing Director or
any trust or estate the sole beneficiaries of which are such
Persons), together with all Affiliates and Associates of such
Person, becomes Beneficial Owner of 50% or more of the Common
Shares then outstanding.
(b) Immediately upon the action of the Board of
Directors of the Company ordering the exchange of any Rights
pursuant to paragraph (a) of this Section 24 and without any
further action and without any notice, the right to exercise such
Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Common Shares
equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the
legality or validity of such exchange. The Company promptly
shall mail a notice of any such exchange to all the holders of
such Rights at their last addresses as they appear upon the
registry books of the Rights Agent. Any notice which is mailed
in the manner herein provided shall be deemed given, whether or
not the holder receives the notice. Each such notice of exchange
will state the method by which the exchange of the Common Shares
for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number
of Rights (other than Rights which have become void pursuant to
the provisions of Section 11(a)(ii) hereof) held by each holder
of Rights.
(c) In the event that there shall not be sufficient
Common Shares issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Xxxxxxx 00, Xxxxxxx 00(x)(xxx) of this
Agreement shall apply.
(d) The Company shall not be required to issue fractions
of Common Shares or to distribute certificates which evidence
fractional Common Shares. In lieu of such fractional Common
Shares, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional Common
Shares would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole Common
Share. For the purposes of this paragraph (d), the current
market value of a whole Common Share shall be the closing price
of a Common Share (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior
to the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events. (a) In case the
Company shall propose (i) to pay any dividend payable in stock of
any class to the holders of its Preferred Shares or to make any
other distribution to the holders of its Preferred Shares (other
than a regular quarterly cash dividend), (ii) to offer to the
holders of its Preferred Shares rights, options, or warrants to
subscribe for or to purchase any additional Preferred Shares or
shares of stock of any class or any other securities, rights,
options, or warrants, (iii) to effect any reclassification of
Preferred Shares (other than a reclassification involving only
the subdivision of outstanding Preferred Shares), (iv) to effect
any consolidation or merger into or with, or to effect any sale,
disposition or other transfer (or to permit one or more of its
Subsidiaries to effect any sale, disposition or other transfer),
in one or more transactions, of 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a
whole) to, any other Person, (v) to effect the liquidation,
dissolution or winding up of the Company, or (vi) to declare or
pay any dividend on the Common Shares payable in Common Shares or
to effect a subdivision, combination or consolidation of the
Common Shares (by reclassification or otherwise than by payment
of dividends in Common Shares), then, in each such case, the
Company shall give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of
such stock dividend, or distribution of rights, options or
warrants, or the date on which such reclassification,
consolidation, merger, sale, disposition, transfer, liquidation,
dissolution, or winding up is to take place and the date of
participation therein by the holders of the Common Shares and/or
Preferred Shares, if any such date is to be fixed, and such
notice shall be so given in the case of any action covered by
clause (i) or (ii) above at least 10 days prior to the record
date for determining holders of the Preferred Shares for purposes
of such action, and in the case of any such other action, at
least 10 days prior to the date of the taking of such proposed
action or the date of participation therein by the holders of the
Common Shares and/or Preferred Shares, whichever shall be the
earlier.
(b) In case the event set forth in Section 11(a)(ii)
hereof shall occur, then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate, in
accordance with Section 26 hereof, a notice of the occurrence of
such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section
11(a)(ii) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the
holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Standard Motor Products, Inc.
00-00 Xxxxxxxx Xxxxxxxxx
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: President
Subject to the provisions of Section 21 hereof, any notice or
demand authorized by this Agreement to be given or made by the
Company or by the holder of any Right Certificate to or on the
Rights Agent shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another
address is filed in writing with the Company) as follows:
Registrar & Transfer Co.
00 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at
the address of such holder as shown on the registry books of the
Company.
Section 27. Supplements and Amendments. Subject to this
Section 27, the Company may from time to time supplement or amend
this Agreement without the approval of any holders of Right
Certificates in order to cure any ambiguity, to correct or
supplement any provision contained herein which may be defective
or inconsistent with any other provisions herein, or to make any
other provisions with respect to the Rights which the Company may
deem necessary or desirable, any such supplement or amendment to
be evidenced by a writing signed by the Company and the Rights
Agent; provided, however, that from and after such time as any
Person becomes an Acquiring Person, this Agreement shall not be
amended in any manner which would adversely affect the interests
of the holders of Rights. Without limiting the foregoing, the
Board of Directors of the Company may at any time prior to such
time as any Person becomes an Acquiring Person amend this
Agreement to amend the thresholds set forth in Sections 1(a) and
3(a) to not less than the greater of (i) the sum of .001% and the
largest percentage of the outstanding Common Shares then known by
the Company to be beneficially owned by any Person (other than
the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any Subsidiary of the Company, any Person
holding Common Shares for or pursuant to the terms of any such
plan) and (ii) 20%. Upon the delivery of a certificate from an
appropriate officer of the Company that states that the proposed
supplement or amendment complies with this Section 27, the Rights
Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made that changes
the Redemption Price, the Final Expiration Date, the Purchase
Price or the number of shares of Common Stock for which a Right
is exercisable. Prior to the Distribution Date, the interests of
the holders of Rights shall be deemed coincident with the
interests of the holders of Common Shares.
Section 28. Successors. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common
Shares) any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares).
Section 30. Severability. If any term, provision covenant
or restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants
and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract
made under the laws of the State of New York and for all purposes
shall be governed by and construed in accordance with the laws of
such State applicable to contracts to be made and performed
entirely within such State.
Section 32. Counterparts. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section 33. Descriptive Headings. Descriptive headings of
the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the day and
year first above written.
Attest: STANDARD MOTOR PRODUCTS, INC.
By_____________________ By___________________________
Title: Secretary Title:
Attest: REGISTRAR & TRANSFER CO.
as Rights Agent
By______________________ By__________________________
Title: Title:
Exhibit A
FORM
of
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
STANDARD MOTOR PRODUCTS, INC.
under Section 805 of the Business Corporation Law
Xxxxxxxx X. Xxxxx, President, and Xxxxxxx Xxx, Secretary of
Standard Motor Products, Inc., a New York corporation for profit
with its principal place of business at 00-00 Xxxxxxxx Xxxxxxxxx,
Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000, (hereinafter called the
"Corporation"), hereby certify pursuant to Sections 502 and 805
of the New York Business Corporation Law ("BCL") as follows:
1. The name of the Corporation is Standard Motor
Products, Inc.
2. The Restated Certificate of Incorporation of the
Corporation under Section 807 of the BCL was filed at the
Department of State on August 1, 1990.
3. The Restated Certificate of Incorporation of the
Corporation is hereby amended by the addition of a provision
stating the number, designation, relative rights, preferences and
limitations of the Corporation's Series A Participating Preferred
Stock, par value $20.00 per share, as fixed by the Corporation's
Board of Directors at a meeting duly called and held on the 18th
day of December, 1995 in accordance with Article Fourth of the
Corporation's Restated Certificate of Incorporation, as follows:
"Series A Participating Preferred Stock:
Section 1. Designation and Amount. The shares of such
series shall be designated as "Series A Participating Preferred
Stock" (the "Series A Preferred Stock") and the number of shares
constituting the Series A Preferred Stock shall be 30,000.
Section 2. Dividends and Distributions.
(A) Subject to the rights of the holders of any
shares of any class of Preferred Stock ranking prior and superior
to the Series A Preferred Stock with respect to dividends, the
holders of shares of Series A Preferred Stock, in preference to
the holders of Common Stock, par value $2.00 per share (the
"Common Stock"), of the Corporation, and of any other junior
stock, shall be entitled to receive, when, as and if declared by
the Board of Directors out of funds legally available for the
purpose, quarterly dividends payable in cash on the first day of
March, June, September and December in each year (each such date
being referred to herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A
Preferred Stock, in an amount per share (rounded to the nearest
cent) equal to the greater of (a) $10.00 or (b) subject to the
provision for adjustment hereinafter set forth, 1,000 times the
aggregate per share amount of all cash dividends, and 1,000 times
the aggregate per share amount (payable in kind) of all non-cash
dividends or other distributions, other than a dividend payable
in shares of Common Stock or a subdivision of the outstanding
shares of Common Stock (by reclassification or otherwise),
declared on the Common Stock since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first
Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Preferred Stock. In the
event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the amount to which holders of shares of
Series A Preferred Stock were entitled immediately prior to such
event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator
of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or
distribution on the Series A Preferred Stock as provided in
paragraph (A) of this Section immediately after it declares a
dividend or distribution on the Common Stock (other than a
dividend payable in shares of Common Stock); provided that, in
the event no dividend or distribution shall have been declared on
the Common Stock during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend Payment
Date, a dividend of $10.00 per share on the Series A Preferred
Stock shall nevertheless be payable on such subsequent Quarterly
Dividend Payment Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock from
the Quarterly Dividend Payment Date next preceding the date of
issue of such shares, unless the date of issue of such shares is
prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to
accrue from the date of issue of such shares, or unless the date
of issue is a Quarterly Dividend Payment Date or is a date after
the record date for the determination of holders of shares of
Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of
which events such dividends shall begin to accrue and be
cumulative from such Quarterly Dividend Payment Date. Accrued
but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on
such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive payment
of a dividend or distribution declared thereon, which record date
shall be not more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of shares of Series
A Preferred Stock shall have the following voting rights:
(A) Each share of Series A Preferred Stock shall
entitle the holder thereof to one thousand votes on all matters
submitted to a vote of the stockholders of the Corporation. The
holders of fractional Series A Preferred Stock (except for
holders of integral multiples of one one-thousandth of a share of
Series A Preferred Stock) shall not be entitled to any vote on
any matter submitted to a vote of the shareholders of the
Corporation.
(B) The holders of Series A Preferred Stock shall
be entitled to elect two directors of the Corporation whenever
dividends payable on Series A Preferred Stock shall be in default
as qualified therein. For purposes of exercising such right, the
Corporation's Bylaws and other provisions of law shall apply, as
if the Series A Preferred Stock were the only class of the
Corporation's shares outstanding.
(C) Except as otherwise provided herein, in the
Restated Certificate of Incorporation of the Corporation, in any
other Certificate of Amendment creating a series of Preferred
Stock or any similar stock, or by law, the holders of shares of
Series A Preferred Stock and the holders of shares of Common
Stock and any other capital stock of the Corporation having
general voting rights shall vote together as one class on all
matters submitted to a vote of stockholders of the Corporation,
(D) Except as set forth herein, in the Restated
Certificate of Incorporation of the Corporation, or as otherwise
provided by law, holders of Series A Preferred Stock shall have
no special voting rights and their consent shall not be required
(except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any corporate
action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends
or distributions payable on the Series A Preferred Stock as
provided in Section 2 are in arrears, thereafter and until all
accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding shall
have been paid in full, the Corporation shall not:
(i) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to
the Series A Preferred Stock;
(ii) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up)
with the Series A Preferred Stock, except dividends paid ratably
on the Series A Preferred Stock and all such parity stock on
which dividends are payable or in arrears in proportion to the
total amounts to which the holders of all such shares are then
entitled;
(iii) redeem, purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock, provided that the Corporation may at
any time redeem, purchase or otherwise acquire shares of any such
junior stock in exchange for shares of any stock of the
Corporation ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred
Stock at least to the same extent as the junior stock so
redeemed, purchased or acquired; or
(iv) redeem, purchase or otherwise acquire for
consideration any shares of Series A Preferred Stock, or any
shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except in accordance with a purchase offer made
in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the
Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective
series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to redeem, purchase or otherwise
acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section
4, redeem, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but
unissued Preferred Stock and may be reissued as part of a new
series of Preferred Stock subject to the conditions and
restrictions on issuance set forth herein, in the Corporation's
Restated Certificate of Incorporation, or in any other
Certificate of Amendment creating a series of Preferred Stock or
any similar stock or as otherwise required by law.
Section 6. Liquidation, Dissolution or Winding Up. Upon
any liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock
unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received $1,000.00 per share, plus an
amount equal to accrued and unpaid dividends and distributions
thereon, whether or not declared, to the date of such payment,
provided that the holders of shares of Series A Preferred Stock
shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth,
equal to 1,000 times the aggregate amount to be distributed per
share to holders of shares of Common Stock, or (2) to the holders
of shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series A
Preferred Stock, except distributions made ratably on the Series
A Preferred Stock and all such parity stock in proportion to the
total amounts to which the holders of all such shares are
entitled upon such liquidation, dissolution or winding up. In
the event the Corporation shall at any time declare or pay any
dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common
Stock) into a greater or lesser number of shares of Common Stock,
then in each such case the aggregate amount to which holders of
shares of Series A Preferred Stock were entitled immediately
prior to such event under the proviso in clause (1) of the
preceding sentence shall be adjusted by multiplying such amount
by a fraction the numerator of which is the number of shares of
Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger,
combination or other transaction in which the shares of Common
Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case
each share of Series A Preferred Stock shall at the same time be
similarly exchanged or changed into an amount per share, subject
to the provision for adjustment hereinafter set forth, equal to
1,000 times the aggregate amount of stock, securities, cash
and/or any other property (payable in kind), as the case may be,
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time
declare or pay any dividend on the Common Stock payable in shares
of Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in
shares of Common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or change of
shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
Section 9. Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, on a parity with any other series of Preferred Stock.
Section 10. Amendment. Subject to the provisions of
Article FOURTH of the Corporation's Restated Certificate of
Incorporation, the Bylaws of the Corporation shall not be
amended, altered or repealed in any manner which would affect
adversely the voting powers, rights or preferences of the holders
of the Series A Preferred Stock so as to affect them adversely
without the affirmative vote of the holders of at least two-
thirds of the outstanding shares of Series A Preferred Stock,
voting together as a single class."
IN WITNESS WHEREOF, this Certificate of Amendment is
subscribed and affirmed as true under the penalties of perjury on
behalf of the Corporation by its President and its Secretary this
_____ day of February, 1996.
__________________________________
Xxxxxxxx X. Xxxxx
President; Chief Operating Officer
__________________________________
Xxxxxxx Xxx
Secretary
Exhibit B
Form of Right Certificate
Certificate No. R- Rights
NOT EXERCISABLE AFTER FEBRUARY 28, 2006, OR EARLIER IF
REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO
REDEMPTION AT $.001 PER RIGHT AND TO EXCHANGE ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
STANDARD MOTOR PRODUCTS, INC.
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Rights
Agreement, dated as of February 15, 1996 (the "Rights
Agreement"), between Standard Motor Products, Inc., a New York
corporation (the "Company"), and Registrar & Transfer Co. (the
"Rights Agent"), to purchase from the Company at any time after
the Distribution Date (as such term is defined in the Rights
Agreement) and prior to 5:00 P.M., New York time, on February 28,
2006, at the office of the Rights Agent, or at the office of its
successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series A Participating Preferred Stock,
$20.00 par value per share (the "Preferred Shares"), of the
Company, at a purchase price of $80.00 per one one-thousandth of
a Preferred Share (the "Purchase Price"), upon presentation and
surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of one one-thousandths of a
Preferred Share which may be purchased upon exercise hereof) set
forth above, and the Purchase Price set forth above, are the
number and Purchase Price as of February 15, 1996, based on the
Preferred Shares as constituted at such date. As provided in the
Rights Agreement, the Purchase Price and the number of one one-
thousandths of a Preferred Share which may be purchased upon the
exercise of the Rights evidenced by this Right Certificate are
subject to modification and adjustment upon the happening of
certain events.
This Right Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof, and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights Agreement are on file
at the principal executive offices of the Company and the above-
mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office of the Rights Agent
designated for such purpose, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date
evidencing Rights entitling the holder to purchase a like
aggregate number of Preferred Shares as the Rights evidenced by
the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right Certificate
shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate (i) may be redeemed by the
Company at a redemption price of $.001 per Right or (ii) may be
exchanged in whole or in part for Preferred Shares or shares of
the Company's Common Stock, par value $2.00 per share.
No fractional Preferred Shares will be issued upon the
exercise of any Right or Rights evidenced hereby (other than
fractions which are integral multiples of one one-thousandth of a
Preferred Share, which may, at the election of the Company, be
evidenced by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of the Preferred Shares or of any other securities of the Company
which may at any time be issuable on the exercise hereof, nor
shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Right Certificate shall have been exercised as provided in the
Rights Agreement.
This Right Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal. Dated as of , 199 .
ATTEST: STANDARD MOTOR PRODUCTS, INC.
__________________________ By__________________________
Title: Title:
Countersigned:
REGISTRAR & TRANSFER CO.
By_________________________
Authorized Signature
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ______________________________________________
hereby sells, assigns and transfers unto ________________________
_________________________________________________________________
(Please print name and address of transferee)
this Right Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and
appoint ________________________ Attorney, to transfer the
within Right Certificate on the books of the within-named
Company, with full power of substitution.
Dated: , 199
___________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a participant in the
Securities Transfer Agent Medallion Program, the Stock Exchanges
Medallion Program or the New York Stock Exchange, Inc. Medallion
Signature Program.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Right Certificate \ \ is \ \ is not being sold,
assigned or transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of any Acquiring
Person (as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it \ \ did \ \ did not acquire the Rights
evidenced by this Right Certificate from any Person who is, was
or subsequently became an Acquiring Person or an Affiliate or
Associate thereof.
Dated: , 199
___________________________________
Signature
Form of Reverse Side of Right Certificate -- continued
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if such holder
desires to exercise Rights represented by the Right Certificate.)
TO: STANDARD MOTOR PRODUCTS, INC.
The undersigned hereby irrevocably elects to exercise
Rights represented by this Right Certificate to purchase the
number of one one-thousandths of a Preferred Share issuable upon
the exercise of such Rights and requests that certificates for
such Preferred Shares be issued in the name of:
_____________________________________
_____________________________________
_____________________________________
(Please print name and address)
Please insert social security
or other identifying number
_____________________________________
If such number of Rights shall not be all the Rights evidenced by
this Right Certificate, a new Right Certificate for the balance
remaining of such Rights shall be registered in the name of and
delivered to:
_____________________________________
_____________________________________
_____________________________________
(Please print name and address)
Please insert social security
or other identifying number
_____________________________________
Dated: , 199_
__________________________________
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc., or a commercial bank or
trust company having an office or correspondent in the United
States.
The undersigned hereby certifies by checking the appropriate
boxes that:
(1) this Right Certificate \ \ is \ \ is not being sold,
assigned or transferred by or on behalf of a Person who is or was
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: _________________, 19
___________________________________
Signature
NOTICE
The signature in the Form of Assignment or Form of Election
to Purchase, as the case may be, must conform to the name as
written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
In the event the certification set forth above in the Form
of Assignment or the Form of Election to Purchase, as the case
may be, is not completed, the Company and the Rights Agent will
deem the beneficial owner of the Rights evidenced by this Right
Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such
Assignment or Election to Purchase will not be honored.
Exhibit C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED SHARES
Introduction
On January 17, 1996, the Board of Directors of Standard
Motor Products, Inc. (the "Company") declared a dividend of one
preferred share purchase right (a "Right") for each outstanding
common share, par value $2.00 per share (the "Common Shares"), of
the Company. The dividend is payable on March 1, 1996 to the
shareholders of record as of February 15, 1996 (the "Record
Date"). The description and terms of the Rights are set forth in
a Rights Agreement (the "Rights Agreement") between the Company
and Registrar & Transfer Co., as Rights Agent (the "Rights
Agent"). The Rights contain important "flip-over" and "flip-in"
features designed to protect the Company from unfair takeovers.
Purchase Price
Each Right entitles the registered holder to purchase from
the Company one one-thousandth of a share of Series A
Participating Preferred Stock, $20.00 par value per share
("Preferred Shares"), of the Company at a price of $80.00 per one
one-thousandth of a Preferred Share (the "Purchase Price"),
subject to adjustment.
Flip-Over
If the Company is acquired in a merger or other business
combination or if 50% or more of its consolidated assets or
earning power is sold after a person or group has become an
Acquiring Person (as defined below), each holder of a Right will
thereafter have the right to receive, upon exercise, that number
of shares of equity securities of the acquiring company which
then will have a market value of two times the exercise price of
the Right.
Flip-In
If any person or group of affiliated or associated persons
becomes an Acquiring Person (subject to certain exceptions), each
holder of a Right, other than Rights beneficially owned by the
Acquiring Person, which will thereafter be void, will thereafter
have the right to receive upon exercise that number of one
one-thousandths of a share having a market value of two times the
exercise price of the Right.
Transfer and Detachment
Until the Distribution Date, the Rights will be evidenced,
with respect to any of the Common Share certificates outstanding
as of the Record Date, by such Common Share certificate with a
copy of this Summary of Rights attached thereto. Until the
Distribution Date (or earlier redemption or expiration of the
Rights), the Rights will be transferred with and only with the
Common Shares, and transfer of those certificates will also
constitute transfer of those Rights.
As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common
Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will thereafter evidence
the Rights.
Distribution Date
The "Distribution Date" is the earlier of
(i) 10 business days following a public announcement
that a person or group of affiliated or associated persons
(subject to certain exceptions) (an "Acquiring Person") have
acquired beneficial ownership of 20% or more of the outstanding
Common Shares; or
(ii) 10 business days (or such later date as may be
determined by action of the Board of Directors before any person
or group becomes an Acquiring Person) following the commencement
of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 20% or more of the
outstanding Common Shares.
Exercisability
The Rights are not exercisable until the Distribution Date.
The Rights will expire on February 28, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is extended
or unless the Rights are earlier redeemed or exchanged by the
Company, as described below.
Adjustments
The Purchase Price, and the number of Preferred Shares or
other securities or property issuable, upon exercise of the
Rights are subject to adjustment from time to time to prevent
dilution, in the event of:
(i) a stock dividend on, or a subdivision, combination
or reclassification of, the Preferred Shares,
(ii) the grant to holders of the Preferred Shares of
certain rights to subscribe for or purchase Preferred Shares at a
price, or securities convertible into Preferred Shares with a
conversion price, less than the then current market price of the
Preferred Shares, or
(iii) the distribution to holders of the Preferred
Shares of securities (including evidences of indebtedness) or
assets (excluding regular periodic cash dividends paid out of
earnings or retained earnings or dividends payable in Preferred
Shares) or of subscription rights, options or warrants (other
than those referred to above),
The number of outstanding Rights is also subject to
adjustment upon certain occurrences prior to the Distribution
Date,
With certain exceptions, no adjustment in the Purchase Price
will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional
Preferred Shares will be issued (other than fractions which are
integral multiples of one one-thousandth of a Preferred Share,
which may, at the election of the Company, be evidenced by
depositary receipts) and in lieu thereof, an adjustment in cash
will be made based on the market price of the Preferred Shares on
the last trading day prior to the date of exercise.
Preferred Shares
Preferred Shares purchasable upon exercise of the Rights
will not be redeemable. Each Preferred Share will be entitled to
a minimum preferential quarterly dividend payment of $10.00 per
share but will be entitled to an aggregate dividend of 1,000
times the dividend declared per Common Share. In the event of
liquidation, the holders of the Preferred Shares will be entitled
to a minimum preferential liquidation payment of $1,000.00 per
share but will be entitled to an aggregate payment of 1,000 times
the payment made per Common Share. Each Preferred Share will
have one thousand votes, voting together with the Common Shares.
Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each Preferred
Share will be entitled to receive 1,000 times the amount received
per Common Share. The dividend and liquidation rights and rights
upon a merger, consolidation or other transaction are protected
by customary antidilution provisions.
The value of the one one-thousandth interest in a Preferred
Share purchasable upon exercise of each Right should, because of
the nature of the Preferred Shares' dividend and liquidation
rights, approximate the value of one Common Share.
Exchange
At any time after any person or group becomes an Acquiring
Person, and prior to the acquisition by that person or group of
50% or more of the outstanding Common Shares, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by the Acquiring Person, which will have become
void), in whole or in part, at an exchange ratio of one Common
Share, or one one-thousandth of a Preferred Share (or of a share
of a class or series of the Company's preferred stock having
equivalent rights, preferences and privileges), per Right
(subject to adjustment).
Redemption
At any time prior to any person or group becoming an
Acquiring Person, the Board of Directors of the Company may
redeem all the Rights at a price of $.001 per Right (the
"Redemption Price"). The redemption may be made effective at
such time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. Immediately upon
any redemption, the right to exercise the Rights will terminate
and the only right of the holders of Rights will be to receive
the Redemption Price.
Amendments
The terms of the Rights may be amended by the Board of
Directors of the Company without the consent of the holders of
the Rights, including an amendment to change the 20% threshold
described above to not less than the greater of (i) the sum of
.001% and the largest percentage of the outstanding Common Shares
then known to the Company to be beneficially owned by any person
or group of affiliated or associated persons and (ii) 20%, except
that after any person or group becomes an Acquiring Person no
such amendment may adversely affect the interests of the holders
of the Rights.
Rights as Holders
Until a Right is exercised, the holder thereof, as such,
will have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive dividends.
Further Information
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated February 15, 1996. A
copy of the Rights Agreement is available free of charge from the
Company's Shareholder Relations Department. This summary
description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement,
which is hereby incorporated herein by reference.
[STANDARD MOTOR LETTERHEAD]
Date: January , 1996
Contact: _______________________
For Release Immediately
STANDARD MOTOR PRODUCTS, INC. DECLARES DIVIDEND
DISTRIBUTION OF PREFERRED SHARE PURCHASE RIGHTS
LONG ISLAND CITY, NEW YORK... The Board of Directors of Standard
Motor Products, Inc. today declared a dividend of one Preferred
Share Purchase Right on each outstanding Standard Motor common
share.
Xxxxxxxx X. Xxxxx, President and Chief Operating Officer, said,
"The Rights are designed to assure that all of Standard Motor's
shareholders receive fair and equal treatment in any proposed
takeover of the Company and to guard against abusive tactics to
gain control of the Company without paying all shareholders a
premium for that control. The Rights are not being adopted in
response to any specific takeover threat. They are in response
to the general takeover environment, which has changed
significantly in recent months.
"The Rights will not prevent a legitimate takeover attempt. They
are, however, intended to enable all Standard Motor shareholders
to realize the long-term value of their investment in the
Company, and should encourage anyone seeking to acquire the
Company to negotiate with the Board prior to attempting a
takeover. Protection of our existing shareholder interests is of
particular importance now, because your Board strongly believes
that Standard Motor enjoys extraordinary growth opportunities,
which will be pursued vigorously in the next several years."
The Rights will be exercisable only if a person or group
acquires, or announces a tender offer to acquire, 20 percent or
more of Standard Motor's common shares. Each Right will entitle
shareholders to buy one one-thousandth of a share of a new series
of participating preferred stock at an exercise price of $80.00.
If a person or group acquires 20 percent or more of Standard
Motor's outstanding common shares, each Right will entitle its
holder to purchase, at the then current exercise price, a number
of one one-thousandths of a share of the new series of
participating preferred stock having a market value of twice that
price. In addition, if Standard Motor is acquired in a merger or
other business combination or if 50% or more of its consolidated
assets or earning power is sold after an acquiring company has
acquired 20 percent or more of the Company's common shares, each
Right will entitle its holder to purchase, at the Right's then
current exercise price, a number of the acquiring company's
common shares having a market value of twice the exercise price.
The acquiring person will not be entitled to exercise these
Rights.
Following the acquisition of 20 percent or more of the Company's
common shares and prior to acquisition of 50 percent or more of
the common shares, the Board of Directors may exchange the Rights
at an exchange ratio of ________ common share (or ______ one-
thousandths of a share of the new series of participating
preferred stock) per Right. The acquiring person will not be
entitled to receive any shares in this exchange.
Prior to the acquisition of 20 percent or more of the Company's
common shares, the Rights are redeemable for one-tenth of one
cent per Right at the option of the Board of Directors.
The Board of Directors is also authorized to change the 20
percent threshold for triggering the Rights, provided it does not
drop below 20 percent.
The dividend will be made on January __, 1996 to shareholders of
record on that date, and is not taxable to shareholders. The
Rights will expire on December __, 2005.
[Add standard closing paragraph of press releases.]
