RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of October 13, 1999 (the
"Agreement"), between Gold Banc Corporation, Inc., a Kansas
corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York corporation, as agent (the "Rights Agent").
WHEREAS, on October 13, 1999 (the "Rights Dividend
Declaration Date"), the Board of Directors of the Company
authorized and declared a dividend distribution of one Right for
each share of Common Stock of the Company outstanding at the
close of business on October 28, 1999 (the "Record Date"), and
has authorized the issuance of one (as such number may
hereinafter be adjusted pursuant to the provisions of Section
11(p) hereof) Right for each share of Common Stock issued between
the Record Date (whether originally issued or delivered from the
Company's treasury) and the Distribution Date, and, in certain
circumstances provided in Section 22 of this Agreement, after the
Distribution Date, each Right initially representing the right to
purchase one one-thousandth of a share of Preferred Stock of the
Company having the rights, powers and preferences set forth in
the form of Certificate of Designation, Preferences and Rights
attached hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth ("Rights"); and
WHEREAS, on October 13, 1999, the Board of Directors adopted
and approved a Rights Agreement, dated October 13, 1999 (the
"Rights Agreement"), in the form hereof;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean collectively any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of
15% or more of the shares of Common Stock then outstanding
(other than as a result of a Qualifying Offer) or was such a
Beneficial Owner at any time after the date hereof, whether
or not such Person together with all Affiliates or
Associates of such Person continues to be the Beneficial
Owner of 15% or more of the then outstanding Common Stock.
Notwithstanding the foregoing, (A) the term "Acquiring
Person" shall not include (i) the Company, (ii) any
Subsidiary of the Company, (iii) any employee benefit plan
of the Company or of any Subsidiary of the Company, (iv) any
Person or entity organized, appointed or established
by the Company for or pursuant to the terms of any such
plan, (v) any Person together with all Affiliates and
Associates of such Person who or which becomes the
Beneficial Owner of 15% or more of the then outstanding
shares of Common Stock as a result of the acquisition of
Common Stock directly from the Company (each of (i) through
(v), an "Exempted Person"); (B) no Person shall become an
"Acquiring Person" as a result of an acquisition of Common
Stock by the Company which, by reducing the number of such
shares then outstanding, increases the proportionate number
of shares beneficially owned by such Person together with
all Affiliates and Associates of such Person to 15% or more
of the outstanding Common Stock, except that if such Person,
after such share purchases by the Company, becomes the
Beneficial Owner of additional shares of Common Stock
constituting 1% or more of the then outstanding shares of
Common Stock other than pursuant to a Qualifying Offer, such
Person shall be deemed to be an "Acquiring Person"; and (C)
if the Board of Directors of the Company determines in good
faith that a Person, together with all Affiliates and
Associates of such Person, who would otherwise be an
"Acquiring Person" has become such inadvertently, and such
Person, together with all Affiliates and Associates of such
Person, divests as promptly as practicable a sufficient
number of shares of Common Stock so that such Person,
together with all Affiliates and Associates of such Person,
would no longer be an Acquiring Person, then such Person
shall not be deemed to be an "Acquiring Person." The term
"outstanding," when used with reference to 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.
(b) "Act" shall mean the Securities Act of 1933, as
amended and in effect on the date hereof.
(c) "Adjustment Shares" shall have the meaning set
forth in Section 11(a)(ii) of this Agreement.
(d) "Affiliate" shall have the meaning set forth in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act as amended and in effect on the date hereof.
(e) "Associate" shall have the meaning set forth in
Rule 12b-2 of the General Rules and Regulations under the
Exchange Act as amended and in effect on the date hereof.
(f) A Person shall be deemed the "Beneficial Owner"
of, and shall be deemed to "beneficially own," any
securities:
(i) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has
the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding (whether
or not in writing) or upon the exercise of conversion
rights, exchange rights, 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," (A)
securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or
exchange, or (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of a
Triggering Event which Rights were acquired by such
Person or any of such Person's Affiliates or Associates
prior to the Distribution Date or pursuant to Section
3(a) or Section 22 hereof ("Original Rights") or
pursuant to Section 11(i) hereof in connection with an
adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has
the right to vote or dispose of or has "beneficial
ownership" of (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange
Act as amended and in effect on the date hereof),
including pursuant to any agreement, arrangement or
understanding, whether or not in writing; provided,
however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any
security under this subparagraph (ii) as a result of an
agreement, arrangement or understanding to vote such
security if such agreement, arrangement or
understanding: (A) arises solely from a revocable proxy
given in response to a public proxy or consent
solicitation made pursuant to, and in accordance with,
the applicable provisions of the General Rules and
Regulations under the Exchange Act as amended and as in
effect on the date hereof, and (B) is not also then
reportable by such Person on Schedule 13D under
the Exchange Act (or any comparable or successor
report); or
(iii) which are beneficially owned, directly
or indirectly, by any other Person (or any Affiliate or
Associate thereof) with which such Person (or any of
such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not
in writing), for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as
described in the proviso to subparagraph (ii) of this
paragraph (f)) or disposing of any voting securities of
the Company;
provided, however, that nothing in this paragraph (f) shall
cause a person engaged in business as an underwriter of
securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through such
person's participation in good faith in a bona fide firm
commitment underwriting until the expiration of forty days
after the date of such acquisition. Notwithstanding
anything in this definition of Beneficial Owner to the
contrary, a Person who, prior to the Distribution Date, is a
member of the Board of Directors or an officer of the
Company or who is an Affiliate or Associate of a member of
the Board of Directors or officer of the Company (each, an
"Excluded Person") shall not be deemed to "beneficially own"
shares of Common Stock held by another Excluded Person
solely by reason of any agreement, arrangement or
understanding, written or otherwise, entered into in
opposition to any transaction or in support of a Qualifying
Offer.
(g) "Board of Directors" shall mean the Board of
Directors of the Company as constituted from time to time.
(h) "Business Day" shall mean any day other than a
Saturday, Sunday or a day on which banking institutions in
the States of Missouri or New York or the state in which the
principal office of the Rights Agent is located are
authorized or obligated by law or executive order to close.
(i) "Close of business" on any given date shall mean
5:00 p.m., New York City time, on such date; provided,
however, that if such date is not a Business Day it shall
mean 5:00 p.m., New York City time, on the next succeeding
Business Day.
(j) "Common Stock" shall mean the common stock, par
value $1.00 per share, of the Company (or in the
event of a subdivision, combination or reclassification with
respect to such shares of Common stock, the shares of Common
Stock resulting from such subdivision, combination or
reclassification), except, subject to the proviso in Section
13(b) of this Agreement, that "Common Stock" when used with
reference to any Person other than the Company shall mean
the capital stock (or other equity securities or equity
interests) of such Person with the greatest voting power to
control or direct the management of such Person, or if such
Person is a Subsidiary of another Person, the Person or
Persons which ultimately control such first-mentioned
Person.
(k) "Common Stock Equivalents" shall have the meaning
set forth in Section 11(a)(iii) of this Agreement.
(l) "Company" shall have the meaning set forth in the
introductory paragraph of this Agreement.
(m) "Current Market Price" shall have the meaning set
forth in Section 11(d).
(n) "Current Value" shall have the meaning set forth
in Section 11(a)(iii) of this Agreement.
(o) "Distribution Date" shall have the meaning set
forth in Section 3(a) of this Agreement.
(p) "Equivalent preferred stock" shall have the
meaning set forth in Section 11(b) of this Agreement.
(q) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended and in effect on the date hereof.
(r) "Exchange Ratio" shall have the meaning set forth
in Section 24(a) hereof.
(s) "Excluded Person" shall have the meaning set forth
in Section 1(f) of this Agreement.
(t) "Exempted Person" shall have the meaning set forth
in Section 1(a) of this Agreement.
(u) "Expiration Date" shall have the meaning set forth
in Section 7(a) of this Agreement.
(v) "Final Expiration Date" shall have the meaning set
forth in Section 7(a) of this Agreement.
(w) "Interested Stockholder" shall mean any Acquiring
Person or any Affiliate or Associate of an Acquiring Person
or any other Person in which such Acquiring Person,
Affiliate or Associate has an interest, or any other Person
acting directly or indirectly on behalf of or in concert
with any such Acquiring Person, Affiliate or Associate.
(x) "NASDAQ" shall have the meaning set forth in
Section 4(a) of this Agreement.
(y) "Original Rights" shall have the meaning set forth
in Section 1(f)(i) of this Agreement.
(z) "Person" shall mean any individual, firm,
corporation, partnership, limited liability company or other
entity.
(aa) "Preferred Stock" shall mean shares of Series A
Preferred Stock, no par value per share, of the Company (or
in the event of a subdivision, combination or
reclassification with respect to such shares of Preferred
Stock, the shares of Preferred Stock resulting from such
subdivision, combination or reclassification), and, to the
extent that there is not a sufficient number of shares of
Series A Preferred Stock authorized to permit the full
exercise of the Rights, any other series of preferred stock
of the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Preferred
Stock.
(bb) "Principal Party" shall have the meaning set forth
in Section 13(b) of this Agreement.
(cc) "Purchase Price" shall have the meaning set forth
in Section 4(a) of this Agreement.
(dd) "Qualifying Offer" shall mean an acquisition of
shares of Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of Common Stock at
a price and on terms determined by at least a majority of
the members of the Board of Directors, after receiving
advice from one or more nationally recognized investment
banking firms selected by the Board of Directors, to be
(a) fair to stockholders (taking into account all factors
which the Board of Directors may deem relevant including,
without limitation, prices which could reasonably be
achieved if the Company or its assets were sold on an
orderly basis designed to realize maximum value) and
(b) otherwise in the best interests of the Company and its
stockholders (other than the Person or any Affiliate
or Associate thereof on whose behalf the offer is being
made) taking into account all factors that the Board of
Directors may deem relevant; provided, however, that
(i) such determination is made by the Board of Directors
prior to the purchase of shares under such tender offer or
exchange offer, and (ii) a majority of the members of the
Board of Directors are not Acquiring Persons or Affiliates,
Associates, nominees or representatives of an Acquiring
Person.
(ee) "Record Date" shall have the meaning set forth in
the first "WHEREAS" clause at the beginning of this
Agreement.
(ff) "Redemption Date" shall have the meaning set forth
in Section 7(a) of this Agreement.
(gg) "Redemption Price" shall have the meaning set
forth in Section 23 of this Agreement.
(hh) "Rights" shall have the meaning set forth in the
first "WHEREAS" clause at the beginning of this Agreement.
(ii) "Rights Agent" shall have the meaning set forth in
the introductory paragraph of this Agreement.
(jj) "Rights Certificates" shall have the meaning set
forth in Section 3(a) of this Agreement.
(kk) "Rights Dividend Declaration Date" shall have the
meaning set forth in the first "WHEREAS" clause at the
beginning of this Agreement.
(ll) "Section 11(a)(ii) Event" shall have the meaning
set forth in Section 11(a)(ii) of this Agreement.
(mm) "Section 11(a)(ii) Trigger Date" shall have the
meaning set forth in Section 11(a)(iii) of this Agreement.
(nn) "Section 13 Event" shall mean any event described
in clauses (x), (y) or (z) of Section 13(a) of this
Agreement.
(oo) "Spread" shall have the meaning set forth in
Section 11(a)(iii) of this Agreement.
(pp) "Stock Acquisition Date" shall mean the earlier of
the date of (i) the public announcement (which, for purposes
of this definition, shall include, without limitation, a
report filed under the Exchange Act) by the Company
or an Acquiring Person that an Acquiring Person has become
such or (ii) the public disclosure of facts by the Company
or an Acquiring Person indicating that an Acquiring Person
has become an Acquiring Person; provided, however, that if
such Person is determined not to have become an Acquiring
Person pursuant to Section 1(a)(C) hereof, then no Stock
Acquisition Date shall be deemed to have occurred.
(qq) "Subsidiary" shall mean, with reference to any
Person, any corporation or other Person of which an amount
of voting securities sufficient to elect at least a majority
of the directors or others having similar authority over
such corporation or other Person is beneficially owned,
directly or indirectly, by such first-named Person, or
otherwise controlled by such first-named Person.
(rr) "Substitution Period" shall have the meaning set
forth in Section 11(a)(iii) of this Agreement.
(ss) "Summary of Rights" shall have the meaning set
forth in Section 3(b) of this Agreement.
(tt) "Trading Day" shall have the meaning set forth in
Section 11(d)(i) of this Agreement.
(uu) "Transaction" shall mean any merger, consolidation
or sale of assets or earning power described in Section
13(a) hereof or any acquisition of Common Stock which,
without regard to any required approval of the Company,
would result in a Person becoming an Acquiring Person.
(vv) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
(ww) "Vote" shall mean, with respect to any entity, the
ability to cast a vote at a stockholders', members' or
comparable meeting of such entity with respect to the
election of directors, managers or other members of such
entity's governing body, or the ability to cast a general
partnership or comparable vote.
(xx) "Voting Power" shall mean, with respect to any
entity as at any date, the aggregate number of Votes
outstanding as at such date in respect of such entity.
(yy) "Voting Securities" shall mean the Common Stock
and any other securities of the Company the holders of which
are ordinarily, in the absence of contingencies, entitled to
Vote, even though the right to such Vote has been suspended
by the happening of such a contingency.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company
hereby appoints the Rights Agent to act as agent for the Company
and the record holders of the Rights (who in accordance with
Section 3 hereof, shall prior to the Distribution Date also be
the record holders of Common Stock) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such
co-Rights Agents as it may deem necessary or desirable.
SECTION 3. ISSUE OF RIGHTS CERTIFICATES.
(a) Until the earlier of (i) the Close of business on
the tenth Business Day after the Stock Acquisition Date (or, if
the tenth Business Day after the Stock Acquisition Date occurs
before the Record Date, the close of business on the Record
Date), or (ii) the Close of business on the tenth Business Day
(or such later date as the Board of Directors shall determine)
after the date of the earlier of commencement by any Person
(other than an Exempted Person) of, or the first public
announcement of the intention of any Person (other than an
Exempted Person) to commence, a tender or exchange offer the
consummation of which would result in any Person becoming an
Acquiring Person (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) of this
Agreement) by the certificates for the Common Stock registered in
the names of the record holders of the Common Stock (which
certificates for Common Stock shall be deemed also to be
certificates for Rights) and not by separate certificates, and
(y) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a
transfer to the Company); provided, however, that if a tender or
exchange offer is terminated prior to the occurrence of a
Distribution Date, then no Distribution Date shall occur as a
result of such tender or exchange offer. The Board of Directors
may defer the date set forth in clause (ii) of the preceding
sentence to a specified later date or to an unspecified later
date, each to be determined by action of the Board of Directors.
As soon as practicable after the Distribution Date, the Company
shall prepare and execute and the Rights Agent will countersign
and, at the Company's expense, send by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock
as of the close of business on the Distribution Date, at the
address of such holder shown on the registry books for the Common
Stock of the Company, one or more rights certificates, in
substantially the form of Exhibit B hereto (the "Rights
Certificates"), evidencing one Right for each share of Common
Stock so held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per share
of Common Stock has been made pursuant to Section 11(p) hereof,
at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so that
Rights Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional Rights.
As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(a) As promptly as practicable following the Record
Date, the Company will send a copy of a Summary of Rights,
in substantially the form attached hereto as Exhibit C (the
"Summary of Rights"), by first-class, postage prepaid mail,
to each record holder of the Common Stock as of the close of
business on the Record Date, at the address of such holder
shown on the records of the Company. With respect to
certificates for the Common Stock outstanding as of the
Record Date, until the Distribution Date, the Rights will be
evidenced by such certificates for the Common Stock and the
record holders of the Common Stock shall also be the record
holders of the associated Rights. Until the earlier of the
Distribution Date or the Expiration Date, the transfer of
any certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with such
shares of Common Stock.
(b) Rights shall be issued in respect of all shares of
Common Stock which are issued (whether originally issued or
from the Company's treasury) after the Record Date but prior
to the earlier of the Distribution Date or the Expiration
Date, and, in certain circumstances provided in Section 22
of this Agreement, after the Distribution Date.
Certificates representing such shares of Common Stock shall
also be deemed to be certificates for Rights and shall bear
the following legend:
This certificate also evidences and entitles the
holder hereof to certain Rights as set forth in
the Rights Agreement between Gold Banc
Corporation, Inc. (the "Company") and American
Stock Transfer & Trust Company (the "Rights
Agent"), dated as of October 13, 1999 (the "Rights
Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of
which is on file at the principal offices of the
Company. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no
longer be evidenced by this certificate. The
Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in
effect on the date of mailing, without charge,
promptly after receipt of a written request
therefor. Under certain circumstances set forth
in the Rights Agreement, Rights issued to, or held
by, any Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof (as
such terms are defined in the Rights Agreement),
whether currently held by or on behalf of such
Person or by any subsequent holder, may become
null and void.
With respect to such certificates containing the foregoing
legend, until the earlier of the Distribution Date or the
Expiration Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such
certificates alone and record holders of Common Stock shall
also be the record holders of the associated Rights, and the
transfer of any of such certificates shall also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificates. In the event the Company
purchases or acquires any Common Stock after the Record Date
but prior to the Distribution Date, any Rights associated
with such Common Stock shall be deemed canceled and retired
so that the Company shall not be entitled to exercise any
Rights associated with the Common Stock which are no longer
outstanding. Notwithstanding this paragraph (c), the
omission of a legend shall not affect the enforceability of
any part of this Rights Agreement or the rights of any
holder of the Rights.
SECTION 4. FORM OF RIGHTS CERTIFICATES.
(a) The Rights Certificates (and the forms of election
to purchase and of assignment to be printed on the reverse
thereof) shall each be substantially in the form set forth
in Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem
appropriate and as are not inconsistent with the provisions
of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant
thereto, or with any rule or regulation of any stock
exchange or the National Association of Securities Dealers,
Inc. Automated Quotation System ("NASDAQ") on which or with
whom the Rights may from time to time be listed or quoted,
or to conform to usage. Subject to the provisions of
Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall entitle the record
holders thereof to purchase such number of one
one-thousandths of a share of Preferred Stock as shall be
set forth therein at the price set forth therein (such
exercise price per one one-thousandth of a share, the
"Purchase Price"), but the amount and the type of securities
purchasable upon the exercise of each Right and the Purchase
Price thereof shall be subject to adjustment as provided
herein.
(b) Any Rights Certificate issued pursuant to Section
3(a) or Section 22 hereof that represents Rights
beneficially owned by: (i) an Acquiring Person or any
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such Associate
or Affiliate) who becomes a transferee after the Acquiring
Person becomes such, or (iii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring
Person becoming such and receives such Rights pursuant to
either (A) a transfer (whether or not for consideration)
from the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement, arrangement
or understanding regarding the transferred Rights or (B) a
transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding
which has as a primary purpose or effect avoidance of
Section 7(e) hereof, and any Rights Certificate issued
pursuant to Section 6 or Section 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to
the extent feasible) the following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the
Rights represented hereby may become, or may have
already become, null and void in the circumstances
specified in Section 7(e) of such Agreement.
The provisions of Section 7(e) of this Agreement shall
be operative whether or not the foregoing legend is
contained in any such Rights Certificate.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION.
(a) The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, its
President or any Vice President, either manually or by
facsimile signature, and shall have affixed thereto the
Company's seal or a facsimile thereof which shall be
attested by the Secretary or an Assistant Secretary of the
Company, either manually or by facsimile signature. The
Rights Certificates shall be countersigned by an authorized
signatory of the Rights Agent, either manually or by
facsimile signature, and shall not be valid for any purpose
unless so countersigned. In case any officer of the Company
who shall have signed any of the Rights Certificates shall
cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and
delivery by the Company, such Rights Certificates,
nevertheless, may be countersigned by an authorized
signatory of 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. Any Rights Certificates may
be signed on behalf of the Company by any person who, at the
actual date of the execution of such Rights Certificate,
shall be a proper officer of the Company to sign such Rights
Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent
will keep or cause to be kept, at its principal office or
offices designated as the appropriate place for surrender of
Rights Certificates upon exercise or transfer, books for
registration and transfer of the Rights Certificates issued
hereunder. Such books shall show the names and addresses of
the respective record holders of the Rights Certificates,
the number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights
Certificates. The Company and Rights Agent may deem and
treat the person in whose name any Rights Certificate (or
prior to the Distribution Date, the associated Common Stock
Certificate) is recorded on the books for the registration
and transfer of Rights (or, the Common Stock) as the
absolute owner thereof, for all purposes whatsoever, and
neither the Company nor the Rights Agent shall be affected
by any notice to the contrary.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE
OF RIGHTS CERTIFICATES; MUTILATED, DESTROYED,
LOST OR STOLEN RIGHTS CERTIFICATES.
(a) Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, at any time after the
close of business on the Distribution Date, and at or prior
to the close of business on the Expiration Date, any Rights
Certificate or Certificates may be transferred, split up,
combined or exchanged for another Rights Certificate or
Certificates, entitling the record holder to purchase a like
number of one one-thousandths of a share of Preferred Stock
(or, following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as the
Rights Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a transfer) to
purchase. Any record holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Certificates
shall make such request in writing in a form acceptable and
delivered to the Rights Agent, and shall surrender the
Rights Certificate or Certificates to be transferred, split
up, combined or exchanged at the office or offices of the
Rights Agent designated for such purpose. Neither the
Rights Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the record holder shall
have completed and signed the certificate contained in the
form of assignment on the reverse side of such Rights
Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the
Company shall reasonably request. Thereupon the Rights
Agent shall, subject to Section 4(b), Section 7(e) and
Section 14 hereof, countersign and deliver to the Person
entitled thereto a Rights Certificate or Rights
Certificates, as the case may be, as so requested. The
Company may require payment by the record holder of a Rights
Certificate of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with
any transfer, split up, combination or exchange of Rights
Certificates.
(b) Subject to the provisions of Section 4(b), Section
7(e) and Section 14 hereof, upon receipt by the Rights Agent
of evidence reasonably satisfactory to it of the loss,
theft, destruction or mutilation of a Rights Certificate,
and, in case of loss, theft or destruction, of indemnity or
security to the Rights Agent and the Company reasonably
satisfactory to the Rights Agent and reimbursement to the
Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Rights Certificate, if mutilated,
the Company will execute and deliver a new Rights
Certificate of like tenor to the Rights Agent for
countersignature and delivery to the record holder in lieu
of the Rights Certificate so lost, stolen, destroyed or
mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE;
EXPIRATION DATE OF RIGHTS.
(a) Subject to Section 7(e) hereof, the record holder
of any Rights Certificate may exercise the Rights evidenced
thereby (except as otherwise provided herein including,
without limitation, the restrictions on exercisability set
forth in Section 9(c), Section 11(a)(iii),Section 23(a) and
Section 24(b) hereof) in whole or in part at any time after
the Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and the
certificate on the reverse side thereof duly executed, to
the Rights Agent at the office or offices of the Rights
Agent designated for such purpose, along with a signature
guarantee and such other and further documentation as the
Rights Agent may reasonably request, together with payment
of the aggregate Purchase Price with respect to the total
number of one one-thousandths of a share of Preferred Stock
(or, following the occurrence of a Triggering Event, Common
Stock or other securities, cash or other assets, as the case
may be) as to which such surrendered Rights are then
exercisable, at or prior to the earlier of (i) the close of
business on October 13, 2009 (the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided
in Section 23 hereof (the "Redemption Date"), (iii) the time
at which such Rights are exchanged as provided in Section 24
hereof, or (iv) the consummation of a transaction
contemplated by Section 13(d) hereof (the earliest of (i),
(ii), (iii) and (iv) being herein referred to as the
"Expiration Date").
(b) The Purchase Price for each one one-thousandth of
a share of Preferred Stock pursuant to the exercise of a
Right shall initially be $40.00, and shall be subject to
adjustment from time to time as provided in Sections 11 and
13(a) hereof and shall be payable in accordance with
paragraph (c) below.
(c) Upon receipt of a Rights Certificate representing
exercisable Rights, with the form of election to purchase
and the certificate duly executed, accompanied by payment,
with respect to each Right so exercised, of the Purchase
Price per one one-thousandth of a share of Preferred Stock
(or other shares, securities, cash or other assets, as the
case may be) to be purchased as set forth below and an
amount equal to any applicable transfer tax required to be
paid by the holder of such Rights Certificate in
accordance with Section 9 hereof, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly
(i) (A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent is
the transfer agent for such shares) certificates for the
total number of one one-thousandths of a share of Preferred
Stock to be purchased, and the Company hereby irrevocably
authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to
deposit the total number of shares of Preferred Stock
issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent
depositary receipts representing such number of one
one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of
Preferred Stock represented by such receipts shall be
deposited by the transfer agent with the depositary agent)
and the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company the
amount of cash, if any, to be paid in lieu of fractional
shares in accordance with Section 14 hereof, (iii) promptly
after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the
record holder of such Rights Certificate, registered in such
name or names as may be designated by such holder, and (iv)
after receipt thereof, promptly deliver such cash, if any,
to or upon the order of the record holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii) hereof)
shall be made in cash or by certified bank check or bank
draft payable to the order of the Company. In the event
that the Company is obligated to issue other securities
(including Common Stock) of the Company, pay cash and/or
distribute other property pursuant to Section 11(a) hereof,
the Company will make all arrangements necessary so that
such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when
appropriate. The Company reserves the right to require,
prior to the occurrence of a Triggering Event that, upon any
exercise of Rights, a number of Rights be exercised so that
only whole shares of Preferred Stock would be issued.
(d) In case the record holder of any Rights
Certificate shall exercise less than all the Rights
evidenced thereby, a new Rights Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall
be issued by the Rights Agent and delivered to, or upon the
order of, the record holder of such Rights Certificate,
registered in such name or names as may be designated
by such holder, subject to the provisions of Section 14
hereof.
(e) Notwithstanding anything in this Agreement to the
contrary, from and after the first occurrence of a Section
11(a)(ii) Event, any Rights beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person, (ii) a transferee of an Acquiring Person
(or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (iii)
a transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person
to holders of equity interests in such Acquiring Person or
to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding
the transferred Rights or (B) a transfer which the Board of
Directors has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect the
avoidance of this Section 7(e), shall become null and void
without any further action, and no record holder of such
Rights shall have any rights whatsoever with respect to such
Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to
ensure that the provisions of this Section 7(e) and Section
4(b) hereof are complied with, but neither the Rights Agent
nor the Company shall have any liability to any record
holder of Rights Certificates or other Person as a result of
the Company's failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates
or transferees hereunder. The Company may require (or cause
the Rights Agent or any transfer agent of the Company to
require) any Person who submits a Rights Certificate (or a
certificate representing shares of Common Stock that
evidences, or but for the provisions of this Section 7(e)
would evidence, Rights) for transfer on the registry books
or to exercise the Rights represented thereby to establish
to the satisfaction of the Company in its sole discretion
that such Rights have not become null and void pursuant to
the provisions of this Section 7(e).
(f) Notwithstanding anything in this Agreement to the
contrary, neither the Rights Agent nor the Company shall be
obligated to undertake any action with respect to a record
holder upon the occurrence of any purported exercise as set
forth in this Section 7 unless such 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 Rights Certificate surrendered for such
exercise, and (ii) provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial
Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHTS
CERTIFICATES. All Rights Certificates surrendered for the
purpose of exercise, transfer, split up, combination or exchange
shall, if surrendered to the Company or any of its agents, be
delivered to the Rights Agent for cancellation or in canceled
form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Rights Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Rights Certificate purchased or acquired by
the Company otherwise than upon the exercise thereof. The Rights
Agent shall deliver a certificate of cancellation to the Company
and shall destroy such canceled Rights Certificates in accordance
with applicable law and regulations.
SECTION 9. RESERVATION AND AVAILABILITY OF CAPITAL
STOCK.
(a) The Company covenants and agrees that it will
cause to be reserved and kept available out of its
authorized and unissued shares of Preferred Stock (and,
following the occurrence of a Triggering Event, out of its
authorized and unissued shares of Common Stock and/or other
securities or out of its authorized and issued shares held
in its treasury), the number of shares of Preferred Stock
(and, following the occurrence of a Triggering Event, Common
Stock and/or other securities) that, as provided in this
Agreement, including Section 11(a)(iii) hereof, will be
sufficient to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities) issuable and deliverable upon the
exercise of the Rights may be listed on any national
securities exchange or national automated 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 shares reserved for such issuance to
be listed on such exchange or authorized to be quoted on
such 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 a Section 11(a)(ii) Event on
which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance
with Section 11(a)(iii) hereof, a registration statement
under the Act with respect to the securities purchasable
upon exercise of the Rights on an appropriate form, (ii)
cause such registration statement to become effective as
soon as practicable after such filing, and (iii) cause such
registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act)
until the earlier of (A) the date as of which the Rights are
no longer exercisable for such securities, and (B) the
Expiration Date. The Company 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 (90) days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file
such registration statement and permit it to become
effective. Upon any such suspension, the Company shall make
a public announcement, and shall give simultaneous written
notice to the Rights Agent, stating that the exercisability
of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no
longer in effect. In addition, if the Company shall
determine that a registration statement is required
following the Distribution Date, the Company may temporarily
suspend the exercisability of the Rights until such time as
a registration statement has been declared effective.
Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any
jurisdiction if the requisite qualification in such
jurisdiction shall not have been obtained, the exercise
thereof shall not be permitted under applicable law or a
registration statement shall not have been declared
effective.
(d) The Company covenants and agrees that it will take
all such action as may be necessary to ensure that all one
one-thousandths of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock
and/or other securities, as the case may be) delivered upon
exercise of Rights shall, at the time of delivery of the
certificates for such shares, Common Stock, or other
securities, as the case may be (subject to payment of
the Purchase Price), be duly and validly authorized and
issued, and fully paid and nonassessable including, without
limitation, effecting such changes to the accounts of the
Company as may be necessary to accomplish the foregoing
purposes.
(e) The Company further covenants and agrees that it
will pay when due and payable any and all U.S. federal and
state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Rights
Certificates and of any certificates for a number of one
one-thousandths of a share of Preferred Stock (or Common
Stock or other securities, as the case may be) upon the
exercise of the Rights. The Company shall not, however, be
required to pay any transfer tax which may be payable in
respect of any transfer or delivery of Rights Certificates
to a Person other than, or the issuance or delivery of
certificates or depositary receipts for a number of one
one-thousandths of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) in
respect of a name other than that of, the record holder of
the Rights Certificates evidencing Rights surrendered for
exercise or to issue or deliver any certificates for a
number of one one-thousandths of a share of Preferred Stock
(or, following the occurrence of a Triggering Event, Common
Stock or other securities, as the case may be) in a name
other than that of the record holder upon the exercise of
any Rights until such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificate at
the time of surrender) or until it has been established to
the Company's satisfaction that no such tax is due.
SECTION 10. PREFERRED STOCK RECORD DATE. Each person in
whose name any certificate for a number of one one-thousandths of
a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder
of record of such fractional shares of Preferred Stock (or Common
Stock and/or other securities, as the case may be) represented
thereby on, and such certificate shall be dated, the date upon
which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable
transfer taxes) was made; provided, however, that if the date of
such surrender and payment is a date upon which the Preferred
Stock (or Common Stock and/or other securities, as the case may
be) transfer books of the Company are closed, such Person shall
be deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred
Stock (or Common Stock and/or other securities, as the
case may be) transfer books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the record holder
of a Rights Certificate shall not be entitled to any rights of a
stockholder of the Company with respect to shares for which the
Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to
exercise any preemptive rights, and shall not be entitled to
receive any notice of any proceedings of the Company, except as
provided herein.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, NUMBER AND KIND
OF SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number
and kind of shares covered by each Right and the number of Rights
outstanding are subject to adjustment from time to time as
provided in this Section 11.
(a) (i) In the event the Company shall at any time
after the date of this Agreement (A) declare a dividend on
the Preferred Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine
the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such
reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect
at the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of
Preferred Stock or capital stock, as the case may be,
issuable on such date, shall be proportionately adjusted so
that the record holder of any Right exercised after such
time shall be entitled to receive, upon payment of the
Purchase Price then in effect, the aggregate number and kind
of shares of Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised immediately
prior to such date and at a time when the Preferred Stock
transfer books of the Company were open, he would have owned
upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification.
If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i) shall be in
addition to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Section 24 hereof, in the event
any Person, alone or together with its Affiliates and
Associates, shall, at any time after the Rights
Dividend Declaration Date, become an Acquiring Person (such
an event being referred to herein as a "Section 11(a)(ii)
Event"), then, promptly following the occurrence of such
Section 11(a)(ii) Event, proper provision shall be made by
the Company so that each holder of a Right (except as
provided below and in Section 7(e) hereof) shall thereafter
have the right to receive, upon exercise thereof at the then
current Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one one-thousandths of a
share of Preferred Stock, such number of shares of Common
Stock of the Company as shall equal the result obtained by
(x) multiplying the then current Purchase Price by the then
number of one one-thousandths of a share of Preferred Stock
for which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event, and (y)
dividing that product (which, following such first
occurrence, shall thereafter be referred to as the "Purchase
Price" for each Right and for all purposes of this
Agreement) by 50% of the Current Market Price (determined
pursuant to Section 11(d) hereof) per share of Common Stock
on the date of such first occurrence (such number of shares
being referred to as the "Adjustment Shares"); provided,
however, that if the transaction that would otherwise give
rise to the foregoing adjustment is also subject to the
provisions of Section 13 hereof, then only the provisions of
Section 13 hereof shall apply and no adjustment shall be
made pursuant to this Section 11(a)(ii).
(iii) Subject to such limitations existing as
of the date hereof as are necessary to prevent a default
under any agreement to which the Company is a party, in the
event that the number of shares of Common Stock which are
authorized by the Company's certificate of incorporation but
not outstanding or reserved for issuance for purposes other
than upon exercise of the Rights are not sufficient to
permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii) of this Section 11(a), the
Company, acting by resolution of its Board of Directors
shall (A) determine the excess of (x) the value of the
Adjustment Shares issuable upon the exercise of a Right
determined as set forth below (the "Current Value"), over
(y) the Purchase Price (such excess, the "Spread"), and (B)
with respect to each Right (subject to Section 7(e) hereof),
make adequate provision to substitute for the Adjustment
Shares, upon the exercise of a Right and payment of the
applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other equity securities
of the Company (including, without limitation, shares or
units of shares of preferred stock, such as the Preferred
Stock, which the Board of Directors has deemed to
have essentially the same value or economic rights as shares
of Common Stock (such shares of preferred stock or other
equity securities being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5)
other assets, or (6) any combination of the foregoing,
having an aggregate value equal to the Current Value (less
the amount of any reduction in the Purchase Price), where
such aggregate value has been determined by the Board of
Directors based upon the advice of a nationally recognized
investment banking firm selected by the Board of Directors;
provided, however, that if the Company shall not have made
adequate provision to deliver value pursuant to clause (B)
above within thirty (30) days following the date on which
the Company's right of redemption pursuant to Section 23(a)
expires (such date being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be
obligated to deliver, upon the surrender for exercise of a
Right and without requiring payment of the Purchase Price
(other than an amount equal to the par value of the shares
of Common Stock to be issued), shares of Common Stock (to
the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the
Spread. If the Board of Directors determines in good faith
that it is likely that sufficient additional shares of
Common Stock could be authorized for issuance upon exercise
in full of the Rights, the thirty (30) day period set forth
above may be extended to the extent necessary, but not more
than ninety (90) days after the Section 11(a)(ii) Trigger
Date, in order that the Company may seek stockholder
approval for the authorization of such additional shares
(such thirty (30) day period, as it may be extended, is
herein called the "Substitution Period"). To the extent
that action is to be taken pursuant to the first and/or
second sentences of this Section 11(a)(iii), the Company (1)
shall provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding Rights, and
(2) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek such
stockholder approval for such authorization of additional
shares and/or to decide the appropriate form of distribution
to be made pursuant to such first sentence and to determine
the value thereof. In the event of any such suspension, the
Company shall make a public announcement and shall give
simultaneous written notice to the Rights Agent stating that
the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as
the suspension is no longer in effect. For purposes of this
Section 11(a)(iii), the Current Value of each Adjustment
Share shall be the Current Market Price per share of the
Common Stock on the Section 11(a)(ii) Trigger Date, and the
per share or per unit value of any Common Stock Equivalent
shall be deemed to equal the Current Market Price per share
of the Common Stock on such date.
(b) In case the Company shall fix a record date for
the issuance of rights, options or warrants to all record
holders of Preferred Stock entitling them to subscribe for
or purchase (for a period expiring within forty-five (45)
calendar days after such record date) Preferred Stock (or
shares having the same rights, privileges and preferences as
the shares of Preferred Stock ("equivalent preferred
stock")) or securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of Preferred
Stock or per share of equivalent preferred stock (or having
a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the
Current Market Price per share of Preferred Stock on such
record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the number of
shares of Preferred Stock and equivalent preferred stock
outstanding on such record date, plus the number of shares
of Preferred Stock and equivalent preferred stock which the
aggregate offering price of the total number of shares of
Preferred Stock and/or equivalent preferred stock so to be
offered (and/or the aggregate initial conversion price of
the convertible securities so to be offered) would purchase
at such Current Market Price, and the denominator of which
shall be the number of shares of Preferred Stock and
equivalent preferred stock outstanding on such record date,
plus the number of additional shares of Preferred Stock
and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In
case such subscription price may be paid by delivery of
consideration part or all of which may be in a form other
than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors, whose
determination shall be described in a statement filed with
the Rights Agent and shall be binding on the Rights Agent
and the holders of the Rights. Shares of Preferred Stock
and equivalent preferred stock owned by or held for the
account of the Company shall not be deemed outstanding for
the purpose of any such computation. Such adjustment shall
be made successively whenever such a record date is fixed,
and in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such record
date had not been fixed.
(c) In case the Company shall fix a record date for a
distribution to all record holders of Preferred Stock
(including any such distribution made in connection with a
consolidation or merger in which the Company is the
continuing or surviving corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in Preferred
Stock, but including any dividend payable in stock other
than Preferred Stock) or subscription rights or warrants
(excluding those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date shall
be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the
numerator of which shall be the Current Market Price (as
determined pursuant to Section 11(d) hereof) per share of
Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of
Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be binding
on the Rights Agent and the holders of the Rights) of the
portion of the cash, assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants
applicable to a share of Preferred Stock and the denominator
of which shall be such Current Market Price per share of
Preferred Stock. 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 be adjusted to be the Purchase Price
which would have been in effect if such record date had not
been fixed.
(d) (i) For the purpose of any computation hereunder,
other than computations made pursuant to Section 11(a)(iii)
hereof, the "Current Market Price" per share of Common Stock
on any date shall be deemed to be the average of the daily
closing prices per share of such Common Stock for the thirty
(30) consecutive Trading Days immediately prior to such
date, and for purposes of computations made pursuant to
Section 11(a)(iii) hereof, the Current Market Price per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices per share of such Common
Stock for the ten (10) consecutive Trading Days immediately
following such date; provided, however, that in the event
that the Current Market Price per share of the Common Stock
is determined during a period following the announcement by
the issuer of such Common Stock of (A) a dividend or
distribution on such Common Stock payable in shares of such
Common Stock or securities convertible into shares of
such Common Stock (other than the Rights), or (B) any
subdivision, combination or reclassification of such Common
Stock, and the ex-dividend or ex-distribution date for such
dividend or distribution, or the record date for such
subdivision, combination or reclassification shall not have
occurred prior to the commencement of the requisite thirty
(30) Trading Day or ten (10) Trading Day period, as set
forth above, then, and in each such case, the Current Market
Price shall be properly adjusted to reflect the current
market per share equivalent. 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 shares of
Common Stock are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the shares of Common Stock are listed or
admitted to trading or, if the shares of Common Stock are
not listed or admitted to trading on any national securities
exchange, the last sale price, regular way, or, if such last
sale price is not reported, the average of the high bid and
low asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use, or, if on any
such date the shares of Common Stock are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Common Stock selected by the Board of
Directors. If on any such date no market maker is making a
market in the Common Stock, the fair value of such shares on
such date as determined in good faith by the Board of
Directors shall be used. The term "Trading Day" shall mean
a day on which the principal national securities exchange on
which the shares of Common Stock are listed or admitted to
trading is open for the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading
on any national securities exchange, a Business Day. If the
Common Stock is not publicly held or not so listed or
traded, Current Market Price per share shall mean the fair
value per share as determined in good faith by the Board of
Directors, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes.
(ii) For the purpose of any computation hereunder,
the Current Market Price per share of Preferred Stock shall
be determined in the same manner as set forth above
for the Common Stock in clause (i) of this Section 11(d)
(other than the last sentence thereof). If the Current
Market Price per share of Preferred Stock cannot be
determined in the manner provided above or if the Preferred
Stock is not publicly held or listed or traded in a manner
described in clause (i) of this Section 11(d), the Current
Market Price per share of Preferred Stock shall be
conclusively deemed to be an amount equal to 1000 (as such
number may be appropriately adjusted for such events as
stock splits, stock dividends and recapitalizations with
respect to the Common Stock occurring after the date of this
Agreement) multiplied by the Current Market Price per share
of the Common Stock. If neither the Common Stock nor the
Preferred Stock is publicly held or so listed or traded,
Current Market Price per share of the Preferred Stock shall
mean the fair value per share as determined in good faith by
the Board of Directors, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes. For all purposes of
this Agreement, the Current Market Price of one one-thousandth
of a share of Preferred Stock shall be equal to
the Current Market Price of one share of Preferred Stock
divided by 1000.
(e) Anything herein to the contrary notwithstanding,
no adjustment in the Purchase Price shall be required unless
such adjustment would require an increase or decrease of at
least one percent (1%) in 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 hundred-thousandth of a share
of Common Stock or other share or one-millionth of a share
of Preferred Stock, 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 (3) years from the date of the
transaction which mandates such adjustment, or (ii) the
Expiration Date.
(f) If as a result of an adjustment made pursuant to
Section 11(a)(ii) or Section 13(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive
any shares of capital stock other than Preferred Stock,
thereafter the number of such other shares so receivable
upon exercise of any Right and the Purchase Price thereof
shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock
contained in Sections 11(a), (b), (c), (e), (g), (h), (i),
(j), (k) and (m), and the provisions of Sections 7, 9, 10,
13 and 14 hereof with respect to the Preferred Stock shall
apply on like terms to any such other shares.
(g) All Rights originally issued by the Company
subsequent to any adjustment made to the Purchase Price
hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-thousandths
of a share of Preferred Stock purchasable from time to time
hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment
of the Purchase Price as a result of the calculations made
in Sections 11(b) and (c), each Right outstanding
immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted
Purchase Price, that number of one one-thousandths of a
share of Preferred Stock (calculated to the nearest one-
millionth) obtained by (i) multiplying (x) the number of one
one-thousandths of a share covered by a Right immediately
prior to this adjustment, by (y) the Purchase Price in
effect immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment
of the Purchase Price.
(i) The Company may elect on or after the date of any
adjustment of the Purchase Price to adjust the number of
Rights, in lieu of any adjustment in the number of one
one-thousandths of a share of Preferred Stock purchasable
upon the exercise of a Right. Each of the Rights
outstanding after the adjustment in the number of Rights
shall be exercisable for the number of one one-thousandths
of a share of Preferred Stock for which a Right was
exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number
of Rights shall become that number of Rights (calculated to
the nearest one-millionth) 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 and shall give simultaneous
written notice to the Rights Agent of its election to adjust
the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day
thereafter, but, if the Rights Certificates have been
issued, shall be at least ten (10) days later than the date
of the public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to holders
of Rights Certificates on such record date Rights
Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as
a result of such adjustment, or, at the option of the
Company, shall cause to be distributed to such holders in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which such
holders shall be entitled after such adjustment. Rights
Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may
bear, at the option of the Company, the adjusted Purchase
Price) and shall be registered in the names of the holders
of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the
Purchase Price or the number by one one-thousandths of a
share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter
issued may continue to express the Purchase Price per one
one-thousandths of a share and the number of one
one-thousandths of a share which were expressed in the
initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par
value, if any, of the number of one one-thousandths of a
share of Preferred Stock, or the par value, if any, of any
shares of any other capital stock issuable upon exercise of
the Rights, the Company shall take any corporate action
which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue fully
paid and non-assessable such number of one one-thousandths
of a share of Preferred Stock (or such other shares) at such
adjusted Purchase Price. If upon any exercise of the
Rights, a holder is to receive a combination of Common Stock
and Common Stock Equivalents, a portion of the consideration
paid upon such exercise, equal to at least the then par
value of a share of Common Stock, shall be allocated as the
payment for each share of Common Stock so received.
(l) In any case in which this Section 11 shall require
that an adjustment in the Purchase Price be made effective
as of a record date for a specified event, the Company may
elect to defer, until the occurrence of such event, the
issuance to the record holder of any Right exercised after
such record date the number of one one-thousandths of a
share of Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such
exercise over and above the number of one one-thousandths of
a share of Preferred Stock, and other capital stock or
securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior
to such adjustment; provided, however, that the Company
shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder's right to receive such
additional shares (fractional or otherwise) or securities
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary
notwithstanding, the Company shall be entitled to make such
reductions in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to
the extent that in their good faith judgment the Board of
Directors shall determine to be advisable in order that any
(i) consolidation or subdivision of the Preferred Stock,
(ii) issuance wholly for cash of any shares of Preferred
Stock at less than the Current Market Price thereof, (iii)
issuance wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock
dividends, or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be
taxable to such holders.
(n) The Company covenants and agrees that it shall
not, at any time after the Distribution Date and so long as
the Rights have not been redeemed pursuant to Section 23
hereof or exchanged pursuant to Section 24 hereof, (i)
consolidate with any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section
11(o) hereof), (ii) merge with or into any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in
one transaction, or a series of related transactions, assets
or earning power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries (taken as
a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more
transactions each of which complies with Section 11(o)
hereof), if (x) at the time of or immediately after such
consolidation, merger or sale there are any certificate of
incorporation or bylaw provisions or any rights, warrants or
other instruments or securities outstanding or agreements in
effect or other actions taken which would substantially
diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with
or immediately after such consolidation, merger or sale, the
stockholders of the Person who constitutes, or would
constitute, the Principal Party for purposes of Section
13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates and
Associates.
(o) The company shall not consummate any such
consolidation, merger, sale or transfer unless prior thereto
the Company and such other person shall have executed and
delivered to the Rights Agent a supplemental agreement
evidencing compliance with this Section 11(n).
(p) The Company covenants and agrees that, after the
Distribution Date, it will not, except as permitted by
Section 23, Section 24 or Section 27 hereof, take (or permit
any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such
action will diminish substantially or otherwise eliminate
the benefits intended to be afforded by the Rights.
(q) Anything in this Agreement to the contrary
notwithstanding, in the event that the Company shall at any
time after the Rights Dividend Declaration Date and prior to
the Distribution Date (i) declare or pay any dividend on the
outstanding shares of Common Stock payable in shares of
Common Stock, (ii) subdivide or split the outstanding shares
of Common Stock into a greater number of shares, or (iii)
combine or consolidate the outstanding shares of Common
Stock into a smaller number of shares or effect a reverse
split of the outstanding shares of Common Stock, then, and
in each such event, the number of Rights associated with
each share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common Stock
following any such event shall equal the result obtained by
multiplying the number of Rights associated with each share
of Common Stock immediately prior to such event by a
fraction the numerator of which shall be the total number of
shares of Common Stock outstanding immediately prior to the
occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such
event.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR
NUMBER OF SHARES. Whenever an adjustment is made as provided in
Section 11 and Section 13 hereof, the Company shall (a) promptly
prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b)
promptly file with the Rights Agent, and with each transfer agent
for the Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail a brief summary thereof to each record
holder of a Rights Certificate (or, if prior to the Distribution
Date, to each record holder of a certificate representing shares
of Common Stock) in accordance with Section 26 hereof. The
Rights Agent shall be fully protected in relying on any such
certificate and on any adjustment therein contained and shall not
be deemed to have knowledge of such adjustment unless and until
it shall have received such certificate.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF
ASSETS OR EARNING POWER.
(a) In the event that, following the Stock Acquisition
Date (which for purposes of this Section 13(a) only shall
also include the date of the first public announcement
(including, without limitation, a report filed pursuant to
Section 13(d) under the Exchange Act) that any Person (other
than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of
the Company, or any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of
any such plan), together with any of such Person's
Affiliates and Associates, has become the Beneficial Owner
of 15% or more of the shares of Common Stock then
outstanding pursuant to a Qualifying Offer), directly or
indirectly, (x) the Company shall consolidate with, or merge
with and into, any other Person (other than a Subsidiary of
the Company in a transaction which complies with Section
11(o) hereof), and the Company shall not be the continuing
or surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof) shall
consolidate with, or merge with or into, the Company, and
the Company shall be the continuing or surviving corporation
of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding
shares of Common Stock shall be changed into or exchanged
for stock or other securities of any other Person or cash or
any other property, or (z) the Company shall sell or
otherwise transfer (or one or more of its Subsidiaries shall
sell or otherwise transfer), in one transaction or a series
of related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any Person or
Persons (other than the Company or any Subsidiary of the
Company in one or more transactions each of which complies
with Section 11(o) hereof), then, upon the first occurrence
of such event (except as may be contemplated by Section
13(d) hereof), proper provision shall be made so that: (i)
each holder of a Right, except as provided in Section 7(e)
hereof, shall thereafter have the right to receive, upon the
exercise thereof at the then current Purchase Price, in
accordance with the terms of this Agreement, such number of
validly authorized and issued, fully paid, non-assessable
and freely tradeable shares of Common Stock of the Principal
Party (as such term is hereinafter defined), not subject to
any liens, encumbrances, rights of first refusal or other
adverse claims, as shall be equal to the result obtained by
(1) multiplying the then current Purchase Price by the
number of one one-thousandths of a share of Preferred Stock
for which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first occurrence
of a Section 13 Event, multiplying the number of such one
one-thousandths of a share for which a Right was exercisable
immediately prior to the first occurrence of a Section
11(a)(ii) Event by the Purchase Price in effect immediately
prior to such first occurrence), and dividing that product
(which, following the first occurrence of a Section 13
Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by (2) 50% of
the Current Market Price (determined pursuant to Section
11(d)(i) hereof) per share of the Common Stock of such
Principal Party on the date of consummation, provided that
the Purchase Price and the number of shares of Common Stock
of such Principal Party issuable upon exercise of each Right
shall be further adjusted as provided in Section 11(f) of
this Agreement to reflect any events occurring in respect of
such Principal Party after the date of such Section 13
Event; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such Section 13 Event,
all the obligations and duties of the Company pursuant to
this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares
of its Common Stock) in connection with the consummation of
any such transaction as may be necessary to assure that the
provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its shares of Common
Stock thereafter deliverable upon the exercise of the
Rights; and (v) the provisions of Section 11(a)(ii) hereof
shall be of no effect following the first occurrence of any
Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in
clause (x) or (y) of the first sentence of Section
13(a): (A) the Person that is the issuer of any
securities into which shares of Common Stock of the
Company are converted in such merger or consolidation,
or if there is more than one such issuer, the issuer of
the shares of Common Stock which has the greatest
aggregate market value of shares outstanding, or (B) if
no securities are so issued, (1) the Person that is the
other party to the merger, if such Person survives said
merger, or, if there is more than one such Person, the
Person the shares of Common Stock of which has the
greatest aggregate market value of shares outstanding
or (2) if the Person that is the other party to the
merger does not survive the merger, the Person that
does survive the merger (including the Company if it
survives) or (3) the Person resulting from the
consolidation; and
(ii) in the case of any transaction described in
clause (z) of the first sentence of Section 13(a), the
Person that is the party receiving the greatest portion
of the assets or earning power transferred pursuant to
such transaction or transactions or, if each Person
that is a party to such transaction or transactions
receives the same portion of the assets or earning
power so transferred or if the Person receiving the
greatest portion of the assets or earning power cannot
be determined, whichever of such Persons as is the
issuer of the shares of Common Stock having the
greatest aggregate market value of shares outstanding;
provided, however, that in any such case, (1) if the Common
Stock of such Person is not at such time and has not been
continuously over the preceding twelve (12) month period
registered under Section 12 of the Exchange Act, and such
Person is a direct or indirect Subsidiary of another Person
the Common Stock of which is and has been so registered,
"Principal Party" shall refer to such other Person;
(2) in case such Person is a Subsidiary, directly or
indirectly, of more than one Person, the Common Stocks of
two or more of which are and have been so registered,
"Principal Party" shall refer to whichever of such Persons
is the issuer of the Common Stock having the greatest
aggregate market value of shares outstanding; and (3) in
case such Person is owned, directly or indirectly, by a
joint venture formed by two or more Persons that are not
owned, directly or indirectly, by the same Person, the rules
set forth in (1) and (2) above shall apply to each of the
chains of ownership having an interest in such joint venture
as if such party were a "Subsidiary" of both or all of such
joint venturers and the Principal Parties in each such chain
shall bear the obligations set forth in this Section 13 in
the same ratio as their direct or indirect interests in such
Person bear to the total of such interests.
(c) The Company shall not consummate any such
consolidation, merger, sale or transfer unless the Principal
Party covenants and agrees that it will cause to be reserved
and kept available out of its authorized and unissued shares
of Common Stock or out of its authorized and issued shares
held in its treasury, the number of shares of its Common
Stock that will be sufficient to permit the exercise in full
of all outstanding Rights under this Section 13 and unless
prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a
supplemental agreement confirming that the requirements set
forth in paragraphs (a) and (b) of this Section 13 shall be
promptly performed in accordance with their terms and
further providing that, as soon as practicable after
executing such agreement pursuant to this Section 13, the
Principal Party will:
(i) prepare and file a registration statement
under the 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 Act) until the
Expiration Date and similarly comply with applicable
state securities laws;
(ii) use its best efforts, if the shares of Common
Stock of the Principal Party shall be listed or
admitted to trading on a national securities exchange
or NASDAQ to list or admit to trading (or continue the
listing of) the Rights and the securities
purchasable upon exercise of the Rights on such
securities exchange or NASDAQ and, if the shares of
Common Stock of the Principal Party shall not be listed
or admitted to trading on a national securities
exchange or NASDAQ, to cause the Rights and the
securities purchasable upon exercise of the Rights to
be reported by such other system then in use;
(iii) deliver to record holders of the Rights
historical financial statements for the Principal Party
and each of its Affiliates which comply in all respects
with the requirements for registration on Form 10 under
the Exchange Act; and
(iv) obtain waivers of any rights of first refusal
or preemptive rights in respect of the shares of Common
Stock of the Principal Party subject to purchase upon
exercise of outstanding Rights.
The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall occur
at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised
shall thereafter become exercisable in the manner described
in Section 13(a). If, for any reason, the Rights cannot be
exercised for Common Stock of the Company or such Principal
Party, then a holder of Rights will have the right to
exchange such Rights for cash from the Company or such
Principal Party in an amount equal to the number of shares
of such Common Stock such holder would otherwise be entitled
to purchase times 50% of the then Current Market Price, as
determined pursuant to Section 11(d)(i) hereof, of such
stock of such Principal Party or the Company. If, for any
reason, including, without limitation, such Principal Party
is an individual, private partnership or private company,
the foregoing formulation cannot be applied to determine the
cash amount into which the Rights are exchangeable, then the
Board of Directors, based upon advice from one or more
nationally recognized investment banking firms, shall
determine such amount reasonably and with utmost good faith
to the holders of Rights. Any such determination shall be
binding and final.
(d) Notwithstanding anything in this Agreement to the
contrary, Section 13 shall not be applicable to a
transaction described in subparagraphs (x) and (y) of
Section 13(a) if (i) such transaction is consummated with a
Person or Persons who acquired shares of Common Stock
pursuant to a Qualifying Offer (or a wholly owned
Subsidiary of any such Person or Persons), (ii) the price
per share of Common Stock offered in such transaction is not
less than the price per share of Common Stock paid to all
record holders of shares of Common Stock whose shares were
purchased pursuant to such Qualifying Offer, and (iii) the
form of consideration being offered to the remaining record
holders of shares of Common Stock pursuant to such
transaction is the same as the form of consideration paid
pursuant to such Qualifying Offer. Upon consummation of any
such transaction contemplated by this Section 13(d), all
Rights hereunder shall expire.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company shall not be required to issue
fractions of Rights, except prior to the Distribution Date
as provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights. In lieu of
such fractional Rights, there shall be paid to the record
holders of the Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an amount in
cash equal to the same fraction of the current market value
of a whole Right. For 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 of the Rights for any
day shall be the last sale price, regular way, or, in case
no such sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are
not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last sale price or, if
such last sale price is not reported, the average of the
high bid and low asked prices in the over-the-counter
market, as reported by NASDAQ or such other system then in
use or, if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a
market in the Rights selected by the Board of Directors. If
on any such date no such market maker is making a market in
the Rights, the fair value of the Rights on such date
as determined in good faith by the Board of Directors shall
be used.
(b) The Company shall not be required to issue
fractions of shares of Preferred Stock (other than, except
as provided in Section 7(c), fractions which are integral
multiples of one one-thousandth of a share of Preferred
Stock) upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Preferred
Stock (other than fractions which are integral multiples of
one one-thousandth of a share of Preferred Stock).
Fractions of shares of Preferred Stock in integral multiples
of one one-thousandth of a share of Preferred Stock 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, however,
that such agreement shall provide that the holders of such
depositary receipts shall have the rights, privileges and
preferences to which they are entitled as beneficial owners
of the shares of Preferred Stock represented by such
depositary receipts. In lieu of fractional shares of
Preferred Stock that are not integral multiples of one
one-thousandth of a share of Preferred Stock, the Company
may pay to the record holders of Rights Certificates at the
time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market
value of one one-thousandth of a share of Preferred Stock.
For purposes of this Section 14(b), the current market value
of one one-thousandth of a share of Preferred Stock shall be
one one-thousandth of the closing price of a share of
Preferred Stock (as determined pursuant to Section 11(d)(ii)
hereof) for the Trading Day immediately prior to the date of
such exercise.
(c) Following the occurrence of a Triggering Event,
the Company shall not be required to issue fractions of
shares of Common Stock or distribute certificates which
evidence fractional shares of Common Stock. In lieu of
fractional shares of Common Stock the Company may pay to the
record holders of Rights Certificates at the time such
Rights are exercised as herein provided an amount in cash
equal to the same fraction of the current market value of
one share of Common Stock. For purposes of this Section
14(c), the current market value of one share of Common Stock
shall be determined in a manner set forth in Section
11(d)(i) hereof for the Trading Day immediately prior to the
date of such exercise.
(d) The record holder of a Right by the acceptance of
the Rights expressly waives his right to receive any
fractional Rights or any fractional shares upon exercise of
a Right, except as permitted by this Section 14.
SECTION 15. RIGHTS OF ACTION. All rights of action in
respect of this Agreement, excepting the rights of action given
to the Rights Agent, are vested in the respective record holders
of the Rights Certificates (and, prior to the Distribution Date,
the record holders of the Common Stock); and any record holder of
any Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), without the consent of the Rights Agent or of
the record holder of any other Rights Certificate (or, prior to
the Distribution Date, of the Common Stock), may, in his own
behalf and for his own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise
the Rights evidenced by such Rights Certificate in the manner
provided in such Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the
record holders of Rights, it is specifically acknowledged that
such holders of Rights would not have an adequate remedy at law
for any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and injunctive
relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
SECTION 16. AGREEMENT OF RIGHTS HOLDERS. Every holder of
a Right, by accepting the same, consents and agrees with the
Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of Common
Stock;
(b) after the Distribution Date, the Rights
Certificates are transferable only on the transfer books of
the Rights Agent if surrendered at the principal office or
offices of the Rights Agent designated for such purposes,
duly endorsed or accompanied by a proper instrument of
transfer and with the appropriate forms and certificates
fully executed;
(c) subject to Section 6(a) and Section 7(f) hereof,
the Company and the Rights Agent may deem and treat the
person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate)
is registered on the transfer books of the Rights Agent as
the absolute owner thereof and of the Rights evidenced
thereby (notwithstanding any notations of ownership or
writing on the Rights Certificates or the associated
Common Stock certificate made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever,
and neither the Company nor the Rights Agent, subject to the
last sentence of Section 7(e) hereof, shall be required to
be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the
contrary, neither the Company nor the Rights Agent shall
have any liability to any holder of a Right or other Person
as a result of its inability to perform any of its
obligations under this Agreement by reason of any
preliminary or permanent injunction or other order, decree
or ruling issued by a court of competent jurisdiction or by
a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive
order promulgated or enacted by any governmental authority,
prohibiting or otherwise restraining performance of such
obligations; provided, however, the Company must use its
reasonable efforts to have any such order, decree or ruling
lifted or otherwise overturned as soon as possible.
SECTION 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A
STOCKHOLDER. No holder, as such, of any Rights Certificate shall
be entitled to vote, receive dividends or be deemed for any
purpose the holder of the number of one one-thousandths of a
share of Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of the Rights
represented thereby, nor shall anything contained herein or in
any Rights Certificate be construed to confer upon the holder of
any Rights Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the election
of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate
action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in Section 25 hereof),
or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by such Rights Certificate
shall have been exercised in accordance with the provisions
hereof.
SECTION 18. CONCERNING THE RIGHTS AGENT.
(a) The Company agrees to pay to the Rights Agent such
compensation as shall be agreed to in writing between the
Company and the Rights Agent 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
disbursements 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
including its members, directors, officers, employees,
shareholders and agents, for, and to hold it harmless
against, any loss, liability, or expense, incurred without
gross negligence, bad faith or willful misconduct on the
part of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and
administration of this Agreement, including, without
limitation, the costs and expenses of defending against any
claim of liability in the premises (including reasonable
counsel fees and expenses). The indemnity provided for
herein shall survive the expiration of the Rights and the
termination of this Agreement.
(b) The Rights Agent shall be protected and shall
incur no liability for or in respect of any action taken,
suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights
Certificate or certificate for Common Stock or for other
securities of the Company, instrument of assignment or
transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be
signed, executed, and where necessary, verified, guaranteed
or acknowledged, by the proper Person or Persons.
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 corporate trust or stockholder services 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 the provisions of Section 21 hereof. In
case at the time such successor Rights Agent shall succeed
to the agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not
delivered; any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and deliver
such Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may countersign
such Rights Certificates in the name of the successor
Rights Agent; and in all such cases such Rights Certificates
shall have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent
shall be changed and at such time any of the Rights
Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature
under its prior name and deliver Rights Certificates so
countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights
Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases
such Rights Certificates shall have the full force provided
in the Rights Certificates and in this Agreement.
SECTION 20. DUTIES OF RIGHTS AGENT. The Rights Agent
undertakes the specific duties and obligations expressly imposed
by this Agreement, and no implied duties or obligations shall be
read into this Agreement against the Rights Agent, upon the
following terms and conditions, by all of which the Company and
the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal counsel
(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 any Acquiring Person and the
determination of "Current Market Price") be proved or
established by the Company prior to taking or omitting any
action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any Assistant
Treasurer, the Secretary or any Assistant Secretary of the
Company and delivered to the Rights Agent; and such
certificate shall be full authorization to the Rights Agent
for any action taken or omitted in good faith by it under
the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only
for its own gross negligence, bad faith or willful
misconduct.
(d) The Rights Agent shall not be liable for or by
reason of any of the statements of fact or recitals
contained in this Agreement or in the Rights Certificates or
be required to verify the same (except as to its
countersignature on such Rights Certificates), but all such
statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any
responsibility in respect of the validity of this Agreement
or the execution and delivery hereof (except the due
execution hereof by the Rights Agent) or in respect of the
validity or execution of any Rights Certificate (except its
countersignature thereof); nor shall it be responsible for
any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate;
nor shall it be responsible for any adjustment required
under the provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any such
adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates
after actual notice of any such adjustment); nor shall it by
any act hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or as
to whether any shares of Common Stock, Preferred Stock or
other securities, will when so issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by
the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of
its duties hereunder from the Chairman of the Board, the
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer of the
Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not
be liable for any action taken or omitted to be taken
by it in good faith in accordance with instructions of any
such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any 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 legal
entity.
(i) The Rights Agent may execute and exercise any of
the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or
agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company
resulting from any such act, default, neglect or misconduct,
provided, that reasonable care was exercised in the
selection and continued employment thereof.
(j) No provision of this Agreement shall require the
Rights Agent to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of
its duties hereunder or in the exercise of its rights if
there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against
such risk or liability is not reasonably assured to it.
(k) If, with respect to any Rights Certificate
surrendered to the Rights Agent for exercise or transfer,
the certificate attached to the form of assignment or form
of election to purchase, as the case may be, has either not
been completed or indicates an affirmative response to
clause 1 and/or 2 thereof, the Rights Agent shall not take
any further action with respect to such requested exercise
or transfer without first consulting with the Company.
(l) The Rights Agent shall have no responsibility to
the Company, any holders of Rights or any holders of shares
of Common Stock for interest or earnings on any moneys held
by the Rights Agent pursuant to this Agreement.
(m) The Rights Agent shall not be required to take
notice or be deemed to have notice of any event or condition
hereunder, including, but not limited to, a
Distribution Date, a Redemption Date, any adjustment of the
Purchase Price of the Common Stock, and adjustment to the
Purchase Price of the Preferred Stock, the existence of an
Acquiring Person or any other event or condition that may
require action by the Rights Agent, unless the Rights Agent
shall be specifically notified in writing of such event or
condition by the Company, and all notices or other
instruments required by this Agreement to be delivered to
the Rights Agent must, in order to be effective, be received
by the Rights Agent as specified in Section 26 hereof, and
in the absence of such notice so delivered, the Rights Agent
may conclusively assume no such event or condition exists.
SECTION 21. CHANGE OF RIGHTS AGENT. The Rights Agent or
any successor Rights Agent may resign and be discharged from its
duties under this Agreement upon thirty (30) days' notice in
writing, mailed to the Company and shall provide notice thereof
to each transfer agent of the Common Stock or Preferred Stock by
registered or certified mail, and to the holders of the Rights
Certificates in accordance with Section 26 hereof, or if prior to
the Distribution Date, to the holders of Rights through any
filing made by the Company pursuant to the Exchange Act. The
Company may remove the Rights Agent or any successor Rights Agent
upon thirty (30) days' notice in writing, mailed to the Rights
Agent or successor Rights Agent, as the case may be, and shall
provide notice thereof to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates in accordance with Section 26
hereof, or, if prior to the Distribution Date, to the holders of
Rights through any filing made by the Company pursuant to the
Exchange Act. If the Rights Agent shall resign or be removed or
shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days
after giving notice of such removal or after it has been notified
in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the record holder of a Rights
Certificate (who shall, with such notice, submit his Rights
Certificate for inspection by the Company), then the Company
shall become the Rights Agent until a successor Rights Agent has
been appointed, and any record holder of any Rights Certificate
or the Rights Agent may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation or banking association
organized and doing business under the laws of the United States
or of the State of Missouri or 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 Missouri or the State of New York), in good standing,
which is authorized under such laws to exercise corporate trust
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
$100,000,000. 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 and the rights and obligations
of the predecessor shall cease and terminate, but the predecessor
Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute
and deliver any further assurance, conveyance, act or deed
necessary for the purpose. Not later than the effective date of
any such appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each transfer agent
of the Common Stock and the Preferred Stock, and mail a notice
thereof in writing to the holders of the Rights Certificates in
accordance with Section 26 hereof, or, if prior to the
Distribution Date, give notice to the holders of Rights through
any filing made by the Company pursuant to the Exchange Act.
Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
SECTION 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.
Notwithstanding any of the provisions of this Agreement or of the
Rights to the contrary, the Company may, at its option, issue new
Rights Certificates evidencing Rights in such form as may be
approved by 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
Rights Certificates made in accordance with the provisions of
this Agreement. In addition, in connection with the issuance or
sale of shares of Common Stock following the Distribution Date
and prior to the redemption or expiration of the Rights, the
Company (a) shall, with respect to shares of Common Stock so
issued or sold pursuant to the exercise of stock options or under
any employee plan or arrangement, granted or awarded as of the
Distribution Date, or upon the exercise, conversion or exchange
of securities hereinafter issued by the Company, and (b) may, in
any other case, if deemed necessary or appropriate by the Board
of Directors, issue Rights Certificates representing the
appropriate number of Rights in connection with such issuance or
sale; provided, however, that (i) no such Rights Certificates
shall be issued and this sentence shall be null and void ab
initio if, and to the extent that, the Company shall be advised
by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to
whom such Rights Certificate would be issued, and (ii) no
such Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been made in
lieu of the issuance thereof
SECTION 23. REDEMPTION AND TERMINATION.
(a) The Board of Directors, at its option, at any time
prior to the earlier of (i) the close of business on the
tenth Business Day following the Stock Acquisition Date (or,
if the Stock Acquisition Date shall have occurred prior to
the Record Date, the close of business ono the tenth
Business Day following the Record Date), or (ii) the time at
which the Rights expire pursuant to this Agreement, redeem
all but not less than all the then outstanding Rights at a
redemption price of $.01 per Right (such redemption price
being hereinafter referred to as the "Redemption Price").
Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the
first occurrence of a Section 11(a)(ii) Event until such
time as the Company's right of redemption hereunder has
expired. The Company may, at its option, pay the Redemption
Price in cash, shares of Common Stock (based on the Current
Market Price of the Common Stock at the time of redemption)
or any other form of consideration deemed appropriate by the
Board of Directors. The redemption of the Rights may be
made effective at such time, on such basis and with such
conditions as the Board of Directors in its sole discretion
may establish.
(b) Immediately upon the action of the Board of
Directors ordering the redemption of the Rights pursuant to
Section 23(a) (or at such later time as the Board of
Directors may establish for the effectiveness of such
redemption), notice of which shall have been provided to the
Rights Agent, and without any further action and without any
notice, the right to exercise the Rights will terminate and
the only right thereafter of the holders of Rights shall be
to receive the Redemption Price for each Right so held.
Promptly after the action by the Board of Directors ordering
the redemption of the Rights becoming effective, the Company
shall provide notice of such redemption to the Rights Agent
and the holders of the then outstanding Rights in accordance
with Section 26 (provided that the failure to provide, or
any defect in, such notice shall not affect the validity of
such redemption). Any notice which is provided in the
manner herein provided shall be deemed given, whether or not
the record holder receives the notice. Each such notice of
redemption will state the method by which the payment of the
Redemption Price will be made.
SECTION 24. EXCHANGE.
(a) The Board of Directors 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 the provisions of Section 7(e) hereof) for
shares of Common Stock at an exchange ratio of one share of
Common Stock 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"), provided
that the shares of Common Stock so exchanged shall be of the
same class or series which the holders of such Rights would
have been entitled to receive upon the exercise thereof.
Notwithstanding the foregoing, the Board of Directors shall
not be empowered to effect such exchange at any time after
any Person (other than an Exempted Person), together with
all Affiliates and Associates of such Person, becomes the
Beneficial Owner of Voting Securities of the Company then
outstanding representing 50% or more of the Voting Power of
the Company.
(b) Immediately upon the action of the Board of
Directors ordering the exchange of any Rights pursuant to
Section 24(a) and without any further action and without any
notice, the right to exercise such Rights shall terminate
and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder
multiplied by the Exchange Ratio, provided that the shares
of Common Stock so exchanged shall be of the same class or
series which the holder of such Rights would have been
entitled to receive upon the exercise thereof. The Company
shall promptly make a public announcement of any such
exchange; provided, however, that the failure to make, or
any defect in, such public announcement shall not affect the
validity of such exchange. Promptly after the action of the
Board of Directors ordering the exchange of the Rights
becoming effective, the Company shall provide notice of such
exchange to the Rights Agent and all of the holders of the
then outstanding Rights in accordance with Section 25 hereof
(provided that the failure to give, or any defect in, such
notice shall not affect the validity of such exchange). Any
notice which is mailed in the manner provided in Section 26
hereof 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 shares of
Common Stock 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
based on the number of Rights (other than Rights which have
become void pursuant to the provisions of Section 7(e)
hereof) held by each holder of Rights.
(c) In the event that there shall not be authorized
and unissued shares of the applicable class or series of
Common Stock and/or authorized and issued shares of the
applicable class or series of Common Stock held in its
treasury sufficient to permit any exchange of Rights as
contemplated in accordance with this Section 24, the Company
shall take all such action as may be necessary to authorize
additional shares of the applicable class or series of
Common Stock for issuance upon exchange of the Rights. In
the event the Company shall, after good faith effort, be
unable to take all such action as may be necessary to
authorize such additional shares of the applicable class or
series of Common Stock, the Company shall substitute, for
each share of such class or series of Common Stock that
would otherwise be issuable upon exchange of a Right, a
number of shares of the applicable series of Preferred Stock
or fraction thereof (subject to Section 14(b) hereof) such
that the Current Market Price per share of the applicable
series of Preferred Stock multiplied by such number or
fraction is equal to the Current Market Price per share of
such class or series of Common Stock as of the date of
issuance of such shares of such series of Preferred Stock or
fraction thereof.
(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock,
the Company shall pay to the registered holders of the Right
Certificates with regard to which such fractional shares of
Common Stock would otherwise be issuable an amount in cash
equal to the same fraction of the Current Market Price per
share of the applicable class or series of Common Stock as
of the Trading Day immediately prior to the record date of
exchange pursuant to this Section 24.
SECTION 25. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose, at any time
after the Distribution Date, (i) to pay any dividend payable
in stock of any class to the holders of Preferred Stock or
to make any other distribution to the holders of Preferred
Stock (other than a regular quarterly cash dividend out of
earnings or retained earnings of the Company), or (ii) to
offer to the holders of Preferred Stock rights or
warrants to subscribe for or to purchase any additional
shares of Preferred Stock or shares of stock of any class or
any other securities, rights or options, or (iii) to effect
any reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or to effect any
sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more
than 50% of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Company and/or any of its
Subsidiaries in one or more transactions each of which
complies with Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company, then,
in each such case, the Company shall give to each holder of
a Rights Certificate and to the Rights Agent, to the extent
feasible and in accordance with Section 26 hereof, a notice
of such proposed action, which shall specify the record date
for the purposes of such stock dividend, distribution of
rights or warrants, or the date on which such
reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and
the date of participation therein by the holders of the
shares of Preferred Stock, if any such date is to be fixed,
and such notice shall be so given in the case of any action
covered by clause (i) or (ii) above at least twenty (20)
days prior to the record date for determining holders of the
shares of Preferred Stock for purposes of such action, and
in the case of any such other action, at least twenty (20)
days prior to the date of the taking of such proposed action
or the date of participation therein by the holders of the
shares of Preferred Stock whichever shall be the earlier.
(b) In the event that a Section 11(a)(ii) Event shall
occur, then in any such case (i) the Company shall as soon
as practicable thereafter give to each holder of a Rights
Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of the
event to holders of Rights under Section 11(a)(ii) hereof,
and (ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities of the
Company.
SECTION 26. NOTICES. Notices or demands authorized by
this Agreement to be given or made by the Rights Agent or by the
holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing
with the Rights Agent) as follows:
Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights
Agent shall be sufficiently given or made upon receipt by the
Rights Agent, if sent by registered or certified mail, postage
prepaid, addressed (until another address is filed in writing
with the Company) as follows:
American Stock Transfer & Trust Company, as Rights
Agent
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to the
holder of certificates representing shares of Common Stock) 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 Rights Agent (or, if
prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock of the Company).
SECTION 27. SUPPLEMENTS AND AMENDMENTS. Except as
provided in the penultimate sentence of this Section 27, for so
long as the Rights are then redeemable, the Company may in its
sole and absolute discretion, and the Rights Agent shall if the
Company so directs, supplement or amend any provision of this
Agreement without the approval of any holders of the Rights. At
any time when the Rights are no longer redeemable, except as
provided in the penultimate sentence of this Section 27, the
Company may, and the Rights Agent shall if the Company so
directs, supplement or amend this Agreement without the approval
of any holders of Rights Certificates in order to (i) cure any
ambiguity, (ii) correct or supplement any provision contained
herein which may be defective or inconsistent with any other
provisions herein, (iii) shorten or lengthen any time
period hereunder, or (iv) change or supplement the provisions
hereunder in any manner which the Company may deem necessary or
desirable; provided that no such supplement or amendment
adversely affects the interests of the holders of Rights as such
(other than an Acquiring Person or an Affiliate or Associate of
an Acquiring Person) and no such amendment may cause the Rights
again to become redeemable or cause the Agreement again to become
amendable other than in accordance with this sentence.
Notwithstanding anything contained in this Agreement to the
contrary, no supplement or amendment shall be made which changes
the Redemption Price. Upon the delivery of a certificate from an
appropriate officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms of this
Section 27, the Rights Agent shall execute such supplement or
amendment; provided, however, that the Rights Agent may, but
shall not be obligated to, enter into any such supplement or
amendment which adversely affects the Rights Agent's own rights,
duties or immunities under this Agreement. Prior to the
Distribution Date, the interests of the holders of Rights shall
be deemed coincident with the interests of the holders of Common
Stock.
SECTION 28. SUCCESSORS. All the covenants and provisions
of this Agreement by or for the benefit of the Company or the
Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
SECTION 29. DETERMINATIONS AND ACTIONS BY THE BOARD OF
DIRECTORS, ETC. For all purposes of this Agreement, any
calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the
particular percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the
General Rules and Regulations under the Exchange Act as amended
and in effect on the date hereof. The Board of Directors, except
as otherwise specifically provided for herein, shall have the
exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board
of Directors or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including,
without limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this
Agreement (including a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions,
calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the
foregoing) which are done or made by the Board of Directors in
good faith, shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights
Certificates (and, prior to the Distribution Date, record holders
of the Common Stock) and all other parties, and (y) not subject
the Board of Directors to any liability to the holders of the
Rights.
SECTION 30. BENEFITS OF THIS AGREEMENT. Nothing in this
Agreement shall be construed to give to any Person other than the
Company, the Rights Agent and the record holders of the Rights
Certificates (and, prior to the Distribution Date, record holders
of the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the
sole and exclusive benefit of the Company, the Rights Agent and
the record holders of the Rights Certificates (and, prior to the
Distribution Date, record holders of the Common Stock).
SECTION 31. 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;
provided, however, that notwithstanding anything in this
Agreement to the contrary, if any such term, provision, covenant
or restriction is held by such court or authority to be invalid,
void or unenforceable and the Board of Directors of the Company
determines in its good faith judgment that severing the invalid
language from this Agreement would adversely affect the purpose
or effect of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not expire until
the close of business on the tenth Business Day (or such longer
period of time as permitted pursuant to Section 27 of this
Agreement) following the date of such determination by the Board
of Directors. Without limiting the foregoing, if any provision
requiring that a determination be made by less than the entire
Board of Directors (or at a time or with the concurrence of a
group of directors consisting of less than the entire Board of
Directors) is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, such
determination shall then be made by the Board of Directors in
accordance with applicable law and the Company's Articles of
Incorporation and Bylaws.
SECTION 32. GOVERNING LAW. This Agreement, each Right
and each Rights Certificate issued hereunder shall be deemed to
be a contract made under the laws of the State of Kansas and for
all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts made and to
be performed entirely within such State.
SECTION 33. COUNTERPARTS. This Agreement may be executed
in any number of counterparts and each of such counterparts shall
for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
SECTION 34. DESCRIPTIVE HEADINGS. Descriptive headings
of the several Sections of this Agreement are inserted for
convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
GOLD BANC CORPORATION, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Chairman of the Board
and Chief Executive
Officer
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Rights Agent
By: ___________________________
Name:
Title:
_________________________________________________________________
_________________________________________________________________
RIGHTS AGREEMENT
GOLD BANC CORPORATION, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
Rights Agent
Dated as of October 13, 1999
_________________________________________________________________
_________________________________________________________________
TABLE OF CONTENTS
Page
Section 1. Certain Definitions . . . . . . . . . . . . . . .1
Section 2. Appointment of Rights Agent . . . . . . . . . . .8
Section 3. Issue of Rights Certificates. . . . . . . . . . .8
Section 4. Form of Rights Certificates . . . . . . . . . . .9
Section 5. Countersignature and Registration . . . . . . . 10
Section 6. Transfer, Split Up, Combination and Exchange of
Rights Certificates;
Mutilated, Destroyed, Lost or Stolen Rights
Certificates. . . . . . . . . . . . . . . . . . 11
Section 7. Exercise of Rights; Purchase Price; Expiration
Date of Rights. . . . . . . . . . . . . . . . . 12
Section 8. Cancellation and Destruction of Rights
Certificates. . . . . . . . . . . . . . . . . . 14
Section 9. Reservation and Availability of Capital Stock . 14
Section 10. Preferred Stock Record Date . . . . . . . . . . 16
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights . . . . . . . . . . 16
Section 12. Certificate of Adjusted Purchase Price or Number
of Shares . . . . . . . . . . . . . . . . . . . 25
Section 13. Consolidation, Merger or Sale or Transfer of
Assets or Earning Power . . . . . . . . . . . . 25
Section 14. Fractional Rights and Fractional Shares . . . . 29
Section 15. Rights of Action. . . . . . . . . . . . . . . . 30
Section 16. Agreement of Rights Holders . . . . . . . . . . 31
Section 17. Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . . . 31
Section 18. Concerning the Rights Agent . . . . . . . . . . 32
Section 19. Merger or Consolidation or Change of Name of
Rights Agent. . . . . . . . . . . . . . . . . . 32
Section 20. Duties of Rights Agent. . . . . . . . . . . . . 33
Section 21. Change of Rights Agent. . . . . . . . . . . . . 35
Section 22. Issuance of New Rights Certificates . . . . . . 36
Section 23. Redemption and Termination. . . . . . . . . . . 37
Section 24. Exchange. . . . . . . . . . . . . . . . . . . . 38
Section 25. Notice of Certain Events. . . . . . . . . . . . 39
Section 26. Notices . . . . . . . . . . . . . . . . . . . . 40
Section 27. Supplements and Amendments. . . . . . . . . . . 41
Section 28. Successors. . . . . . . . . . . . . . . . . . . 41
Section 29. Determinations and Actions by the Board of
Directors, Etc. . . . . . . . . . . . . . . . . 41
Section 30. Benefits of this Agreement. . . . . . . . . . . 42
Section 31. Severability. . . . . . . . . . . . . . . . . . 42
Section 32. Governing Law . . . . . . . . . . . . . . . . . 42
Section 33. Counterparts. . . . . . . . . . . . . . . . . . 42
Section 34. Descriptive Headings. . . . . . . . . . . . . . 42
EXHIBIT A -- Form of Certificate of Designation, Preferences
and Rights
EXHIBIT B -- Form of Rights Certificate
EXHIBIT C -- Form of Summary of Rights
EXHIBIT A
CERTIFICATE OF DESIGNATION
OF SERIES A PREFERRED STOCK
of
GOLD BANC CORPORATION, INC.
Pursuant to Section 17-6401(g) of the General Corporation Law
of the State of Kansas
We, Xxxxxxx X. Xxxxxxx, President, and Xxxxx X.
Xxxxxxx, Secretary of Gold Banc Corporation, Inc., a corporation
organized and existing under the General Corporation Law of the
State of Kansas (the "Corporation"), in accordance with the
provisions of Sections 17-6003 and 17-6401(g) thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon the Board
of Directors by the Restated Articles of Incorporation, as
amended, of the Corporation, the Board of Directors on October
13, 1999, adopted the following resolution creating a series of
Two Hundred Thousand (200,000) shares of Preferred Stock
designated as Series A Preferred Stock, no par value per share:
DESIGNATION OF PREFERRED STOCK
RESOLVED, that pursuant to the authority vested in
the Board of Directors of this Corporation in
accordance with the provisions of its Restated Articles
of Incorporation, as amended (the "Articles of
Incorporation"), a series of Preferred Stock, no par
value, of the Corporation be, and it hereby is,
created, and that the designation and amount thereof
and the voting powers, preferences and relative,
participating, optional and other special rights of the
shares of such series, and the qualifications,
limitations and restrictions thereof are as follows:
Section 1. DESIGNATION AND AMOUNT. The shares
of such series shall be designated as "Series A
Preferred Stock" and the number of shares constituting
such series shall be Two Hundred Thousand (200,000).
Such number of shares may be increased or decreased by
resolution of the Board of Directors, provided that no
decrease shall reduce the number of shares of Series A
Preferred Stock to a number less than the number of
shares outstanding plus the number of shares reserved
for issuance upon the exercise of outstanding rights to
purchase or convert into shares of Series A Preferred
Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(A) Subject to the prior and superior
rights of the holders of any shares of any
series of Preferred Stock ranking prior and
superior to the shares of 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 $1.00 per share (the "Common
Stock"), of the Corporation and of any other
class of stock ranking junior (either as to
dividends or upon liquidation, dissolution or
winding up) to the shares of Series A
Preferred Stock, together with Common Stock
("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, dividends payable
in cash in an amount per share (rounded to
the nearest cent), equal to the product of
the Series A Multiple (as defined below)
times the aggregate per share amount of all
cash dividends, plus the product of the
Series A Multiple times the aggregate per
share amount (payable in cash, based upon the
fair market value at the time the non-cash
dividend or other distribution is declared as
determined in good faith by the Board of
Directors) 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 (but
not withdrawn) on the Common Stock.
(B) As used herein, the Series A
Multiple shall initially be 1,000. In the
event the Corporation shall (i) declare any
dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the
outstanding Common Stock into a smaller
number of shares, then in each such case the
Series A Multiple 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.
(C) The Board of Directors of the
Corporation shall not declare a dividend or
distribution on the Common Stock (other than
a dividend payable in shares of Common Stock)
unless it shall concurrently therewith
declare a dividend or distribution on the
Series A Preferred Stock. Payment of a
dividend or distribution determined on the
Series A Preferred Stock shall be in
preference to payment of any dividend or
distribution on the Common Stock or any
Junior Stock.
(D) 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 no more than thirty (30) days
prior to the date fixed for the payment
thereof.
Section 3. VOTING RIGHTS. Except as otherwise
provided herein or by law and in addition to the rights
provided in Article Four of the Articles of
Incorporation, 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 a
number of votes equal to the product of the
Series A Multiple then in effect times the
number of votes that each share of Common
Stock entitles its holder to vote at such
meeting of the stockholders of the
Corporation.
(B) 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.
(C) The 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 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 on shares of
Series A Preferred Stock outstanding shall
have been paid in full, the Corporation shall
not:
(i) declare or pay dividends
(other than a dividend payable in shares
of Common Stock) on, make any other
distributions on, or redeem or purchase
or otherwise acquire for consideration
any shares of Junior Stock;
(ii) declare or pay dividends
on 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
("Parity Stock"), except dividends paid
ratably on the Series A Preferred Stock
and all such Parity Stock on which
dividends are payable or in arrears in
proportion to the total amounts to which
the holders of all such shares are then
entitled;
(iii) redeem or purchase or
otherwise acquire for consideration
shares of any Parity Stock, provided
that the Corporation may at any time
redeem, purchase or otherwise acquire
shares of any such Parity Stock in
exchange for shares of any Junior Stock;
or
(iv) purchase or otherwise
acquire for consideration any shares of
Series A Preferred Stock, or any shares
of Parity 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 purchase
or otherwise acquire for consideration any
shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of
this Section 4, purchase or otherwise acquire
such shares at such time and in such manner.
Section 5. REACQUIRED SHARES. Any shares of
Series A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein, in the Articles of Incorporation, in any other
Certificate of Designation establishing a series of
Preferred Stock or any similar stock or as otherwise
required by law.
Section 6. LIQUIDATION, DISSOLUTION OR WINDING
UP.
(A) In the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation, the holders of
the shares of the Series A Preferred Stock
shall be entitled to receive, in preference
to the holders of Junior Stock, the greater
of (a) $1,000.00 per share, plus accrued
dividends to the date of distribution,
whether or not earned or declared, or (b) an
amount per share equal to the product of the
Series A Multiple then in effect times the
aggregate amount to be distributed per share
to holders of Common Stock.
(B) In the event of any voluntary
or involuntary liquidation, dissolution or
winding up of the Corporation, the holders of
Parity Stock shall not receive any
distributions except for distributions made
ratably on the Series A Preferred Stock and
all other 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.
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 the shares of
the Series A Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share
equal to the product of the Series A Multiple then in
effect 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.
Section 8. NO REDEMPTION. The shares of
Series A Preferred Stock shall not be redeemable.
Section 9. RANKING. The Series A Preferred
Stock shall rank junior to all other series of the
Corporation's Preferred Stock, or any similar stock
that specifically provides that it shall rank prior to
the shares of Series A Preferred Stock, as to the
payment of dividends and the distribution of assets,
unless the terms of any such series shall provide
otherwise. Nothing herein shall preclude the Board of
Directors from creating any series of Preferred Stock
or any similar stock ranking on a parity with or prior
to the shares of Series A Preferred Stock as to the
payment of dividends or the distribution of assets.
Section 10. FRACTIONAL SHARES. Series A
Preferred Stock may be issued in fractions of a share
which shall entitle the holder, in proportion to such
holder's fractional shares, to exercise voting rights,
receive dividends, participate in distributions and to
have the benefit of all other rights of holders of
Series A Preferred Stock.
Section 11. AMENDMENT. The Articles of
Incorporation, including this Certificate of
Designation establishing the shares of the Series A
Preferred Stock, shall not be amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds or more
of the outstanding shares of Series A Preferred Stock
voting separately as a class.
IN WITNESS WHEREOF, this Certificate is executed on
behalf of the Corporation by its president and attested by it
Secretary this 15th day of October, 1999.
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chairman of the Board and
Chief Executive Officer
ATTEST:
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Secretary
STATE OF KANSAS )
) ss.
COUNTY OF XXXXXXX )
BE IT REMEMBERED, that before me, a notary public in and for
the aforesaid county and state, personally appeared Xxxxxxx X.
Xxxxxxx, Chairman of the Board and Chief Executive Officer, and
Xxxxx X. Xxxxxxx, Secretary, of Gold Banc Corporation, Inc., a
Kansas corporation, who are known to me to be the same persons
who executed the foregoing instrument, and duly acknowledged the
execution of the same this 15th day of October, 1999.
______________________________
Notary Public
My commission expires:
______________________
EXHIBIT B
FORM OF RIGHTS CERTIFICATE
Certificate No. R - __ Rights
NOT EXERCISABLE AFTER OCTOBER 13, 2009 OR EARLIER IF REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION
OF THE COMPANY, AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS
BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A
PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR
ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN
THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]
* The portion of the legend in brackets shall be inserted only
if applicable and shall replace the preceding sentence.
RIGHTS CERTIFICATE
GOLD BANC CORPORATION, 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 October 13, 1999, as amended (the "Rights
Agreement"), between Gold Banc Corporation, Inc., a Kansas
corporation (the "Company"), and American Stock Transfer & Trust
Company, a New York corporation (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 at any time prior to
5:00 p.m. (New York City time) on October 13, 2009 at the office
or offices of the Rights Agent designated for such purpose, or
its successors as Rights Agent, one onethousandth of a fully
paid, nonassessable share of Series A Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of $40.00
per one onethousandth of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the
Form of Election to Purchase and related Certification duly
executed. The number of Rights evidenced by this Rights
Certificate (and the number of one onethousandths of a
share of Preferred Stock which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set
forth above, are the number and Purchase Price as of October 13,
1999, based on the Preferred Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase Price and the
number and kind of shares of Preferred Stock or other securities
of the Company or any other Person (as such term is defined in
the Rights Agreement), which may be purchased upon the exercise
of the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events
including a Triggering Event (as such term is defined in the
Rights Agreement).
Upon the occurrence of a Section 11(a)(ii) Event (as such
term is defined in the Rights Agreement), if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an
Acquiring Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the Rights
Agreement), (ii) a transferee of any such Acquiring Person,
Affiliate or Associate, or (iii) under certain circumstances
specified in the Rights Agreement, a transferee of a person who,
after such transfer, became an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with
respect to such Rights from and after the occurrence of such
Section 11(a)(ii) Event.
This Rights Certificate is subject to all of the terms,
provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by
reference and made a part hereof and to which Rights Agreement
reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights under
the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the abovementioned
office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights
Certificates, upon surrender at the office or offices of the
Rights Agent designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a
like aggregate number of one onethousandths of a share of
Preferred Stock as the Rights evidenced by the Rights Certificate
or Rights Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall be
exercised in part, the holder shall be entitled to receive upon
surrender hereof another Rights Certificate or Rights
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the
Rights evidenced by this Certificate may be redeemed by the
Company at its option at a redemption price of $.01 per Right at
any time prior to the earlier of the close of business on (i)_the
tenth Business Day following the Stock Acquisition Date (as such
time period may be extended pursuant to the Rights Agreement),
and (ii) the Final Expiration Date. In addition, subject to the
provisions of the Rights Agreement, each Right evidenced by this
Certificate may be exchanged by the Company at its option for one
share of Common Stock of the Company (subject to adjustment for
any stock split, stock dividend or similar transaction) following
the Stock Acquisition Date and prior to the time an
Acquiring person owns 50% or more of the shares of Common Stock
then outstanding.
No fractional shares of Preferred Stock or other securities
will be issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples of one
onethousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts),
but in lieu thereof a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder
of shares of Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the
rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting stockholders (except as provided in
the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this
Rights Certificate shall have been exercised as provided in the
Rights Agreement.
This Rights Certificate shall not be valid or obligatory for
any purpose until it shall have been countersigned by the Rights
Agent.
WITNESS the facsimile signature of the proper officers of
the Company and its corporate seal.
Dated as of _______________, ____ GOLD BANC CORPORATION, INC.
By:_______________________
[SEAL] Name:
Title:
ATTEST:
_________________________
Name:
Title:
Countersigned:
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Rights Agent
By:_____________________
Name:
Title:
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On October 13, 1999, the Board of Directors of Gold
Banc Corporation, Inc. (the "Company") declared a dividend
distribution of one right (a "Right") for each outstanding share
of the Company's common stock, par value $1.00 per share (the
"Common Stock"), payable to stockholders of record at the close
of business on October 28, 1999 (the "Record Date") and with
respect to the Common Stock issued thereafter until the
Distribution Date (defined below) and, in certain circumstances,
with respect to the Common Stock issued after the Distribution
Date. Except as set forth below, each Right, when it becomes
exercisable, entitles the registered holder to purchase from the
Company a unit consisting initially of one one-thousandth of a
share (a "Unit") of Series A Preferred Stock, no par value (the
"Preferred Stock"), of the Company, at a purchase price of $40.00
per Unit, subject to adjustment (the "Purchase Price"). The
description and terms of the Rights are set forth in a Rights
Agreement, dated as of October 13, 1999, between the Company and
American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agreement").
Initially, the Rights will be attached to all
certificates representing shares of Common Stock then
outstanding, and no separate certificates evidencing the Rights
("Rights Certificates") will be distributed. The Rights will
separate from the Common Stock and a Distribution Date will occur
upon the earlier of (i) ten business days following public
announcement or disclosure that a person has become an "Acquiring
Person" (defined below) or of facts indicating that such person
has become an Acquiring Person, or (ii) ten business days (or
such later date as the Board shall determine) following the
commencement of, or an announcement of an intention to commence,
a tender or exchange offer that would result in a person or group
becoming an "Acquiring Person." Except as set forth below, an
"Acquiring Person" is collectively a person, together with all
Affiliates (defined below) and Associates (defined below) of such
person who or which has acquired beneficial ownership of 15% or
more of the outstanding shares of Common Stock except pursuant to
a Qualifying Offer (defined below). The term "Acquiring Person"
excludes (i) the Company, (ii) any subsidiary of the Company,
(iii) any employee benefit plan of the Company or any subsidiary
of the Company, (iv) any person or entity organized, appointed or
established by the Company for or pursuant to the terms of any
such plan, and (v) any person, together with such person's
Affiliates and Associates, who or which becomes a beneficial
owner of 15% or more of the outstanding shares of Common Stock as
a result of acquiring such shares directly from the Company.
An "Affiliate" of a person is a person that directly,
or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the person
specified. An "Associate" of a person is (i) any corporation or
organization (other than the Company or any majority-owned
subsidiary of the Company) of which such person is an officer or
partner or is, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities, (ii) any trust or
other estate in which such person has a substantial beneficial
interest or as to which such person serves as trustee or in a
similar fiduciary capacity, and (iii) any relative or
spouse of such person, or any relative of such spouse, who has
the same home as such person or who is a director or officer of
such person or any of its parents or subsidiaries.
No person shall become an "Acquiring Person" either:
(i) as the result of an acquisition of Common Stock by the
Company which, by reducing the number of such shares then
outstanding, increases the proportionate number of shares
beneficially owned by such person, together with all Affiliates
and Associates of such person, unless such persons, after such
share purchases by the Company, becomes the beneficial owner of
additional shares of Common Stock constituting 1% or more of the
then outstanding shares of Common Stock (other than pursuant to a
Qualifying Offer); or (ii) the Board of Directors of the Company
determines in good faith that a person who would otherwise be an
"Acquiring Person" has become such inadvertently, and such person
divests as promptly as practicable a sufficient number of shares
of Common Stock so that such person would no longer be an
Acquiring Person.
Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock certificates,
(ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by
reference, and (iii) the surrender for transfer of any
certificates for Common Stock outstanding will also constitute
the transfer of the Rights associated with the Common Stock
represented by such certificate. Pursuant to the Rights
Agreement, the Company reserves the right to require prior to the
occurrence of a Triggering Event (defined below) that, upon any
exercise of Rights, a number of Rights be exercised so that only
whole shares of Preferred Stock will be issued.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of the
Common Stock as of the close of business on the Distribution Date
and, thereafter, the separate Rights Certificates alone will
represent the Rights. Except in certain circumstances specified
in the Rights Agreement or as otherwise determined by the Board
of Directors, only shares of Common Stock issued prior to the
Distribution Date will be issued with Rights.
The Rights are not exercisable until after the
Distribution Date and until the Rights are no longer redeemable.
The Rights will expire at the close of business on October 13,
2009, unless extended or earlier redeemed by the Company as
described below.
In the event that, at any time following the
Distribution Date, a person becomes an Acquiring Person, except
pursuant to an offer for all outstanding shares of Common Stock
which a majority of the directors determine, after receiving
advice from one or more nationally recognized investment banking
firms, to be fair to the stockholders and otherwise in the best
interests of the Company and its stockholders (other than the
Acquiring Person on whose behalf the offer is being made) (a
"Qualifying Offer"), each holder of a Right will thereafter have
the right to receive, upon exercise of the Right, Common Stock
(or, in certain circumstances, cash, property or other securities
of the Company) having a value equal to two times the Purchase
Price of the Right. However, at the option of the Board
of Directors of the Company, during such time as an Acquiring
Person holds an amount of stock less than 50% of the outstanding
Common Stock, the Company may exchange, in whole or in part, each
right of each holder (other than the Acquiring Person) for one
share of Common Stock. Notwithstanding any of the foregoing,
following the occurrence of the event set forth in this
paragraph, all Rights that are, or (under certain circumstances
specified in the Rights Agreement) were, beneficially owned by
any Acquiring Person (or any Affiliate or Associate of an
Acquiring Person) will be null and void and nontransferable and
any holder of any such Right (including any purported transferee
or subsequent holder) will be unable to exercise or transfer any
such right.
For example, at the initial Purchase Price of $40.00
per Right, each Right not owned by an Acquiring Person following
an event set forth in the preceding paragraph would entitle its
holder to purchase $80.00 worth of Common Stock (or other
consideration, as noted above) for $40.00. Assuming that the
Common Stock had a per share value of $10.00 at such time, the
holder of each valid Right would be entitled to purchase 8 shares
of Common Stock for $40.00.
In the event that, at any time following the date on
which there has been public announcement or disclosure that a
person has become an Acquiring Person or of facts indicating that
such person has become an Acquiring Person (the "Stock
Acquisition Date") (which, for purposes of this paragraph also
includes the date on which there has been a public announcement
that any person has acquired 15% or more of the outstanding
shares of Common Stock pursuant to a Qualifying Offer), (i) the
Company merges or consolidates with another corporation or
association in a transaction in which the holders of all of the
outstanding shares of Common Stock immediately prior to the
consummation of the transaction are not the holders of all of the
surviving corporation's voting power, or (ii) more than 50% of
the Company's assets or earning power is sold or transferred, in
either case with or to an Acquiring Person or any Affiliate or
Associate or any other person in which such Acquiring Person,
Affiliate or Associate has an interest or any person acting on
behalf of or in concert with such Acquiring Person, Affiliate or
Associate, or, if in such transaction all holders of Common Stock
are not treated alike, any other person, then each holder of a
Right (except Rights which previously have been voided as set
forth above), shall thereafter have the right to receive upon
exercise of the Right, common stock of the acquiring company
having a value equal to two times the Purchase Price of the
Right. The events set forth in this paragraph and in the
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable, and the number of Units of
Preferred Stock or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are
granted certain rights or warrants to subscribe for or purchase
Preferred Stock at a price, or convertible into Preferred Stock
with a conversion price, less than the current market price of
the Preferred Stock, or (iii) upon the distribution to
holders of the Preferred Stock of evidences of indebtedness or
assets or of subscription rights or warrants (other than those
referred to above).
With certain exceptions, no adjustment in the Purchase
Price will be required until cumulative adjustments amount to at
least 1% of the Purchase Price.
Because of the nature of the Preferred Stock's
dividend, liquidation and voting rights, the value of the one
Unit of Preferred Stock purchasable upon exercise of each Right
should approximate the value of one share of Common Stock.
Shares of Preferred Stock purchasable upon exercise of the Rights
will not be redeemable. Each share of Preferred Stock will be
entitled to a quarterly dividend payment of 1000 times the
dividend declared per share of Common Stock. Preferred Stock
will only be entitled to receive dividends when concurrently
declared with the Common Stock and then at a rate equal to 1000
times the amount per share to be received by holders of Common
Stock. In the event of liquidation, the holders of shares of
Preferred Stock will be entitled to receive the greater of (i)
$1,000.00 per share, plus accrued dividends to the date of
distribution; or (ii) an amount per share equal to the product of
1,000 times the aggregate amount to be distributed per share to
holders of Common Stock. Each share of Preferred Stock will have
1000 votes, voting together with the shares of Common Stock.
These rights are protected by customary antidilution provisions.
At any time until ten business days following the Stock
Acquisition Date (or such later date as the Board of Directors
may determine), the Company may redeem the Rights in whole, but
not in part, at a price (the "Redemption Price") of $.01 per
Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Board of Directors) by resolution of
the Board of Directors. Immediately upon such action of the
Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will
be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to receive
dividends. While the distribution of the Rights will not be
taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income upon
the Distribution Date.
Any of the provisions of the Rights Agreement may be
amended by resolution of the Company's Board of Directors for so
long as the Rights are redeemable, except that the Redemption
Price cannot be changed. After the Rights cease to be
redeemable, the provisions of the Rights Agreement, may be
amended from time to time by resolution of the Company's Board of
Directors in order to cure any ambiguity, to make changes which
do not adversely affect the interests of holders of Rights
(excluding the interests of any Acquiring Person or its
affiliates or associates), or to shorten or lengthen any time
period under the Rights Agreement; provided, however, that no
amendment may cause the Rights again to become redeemable or to
be amendable more broadly than contemplated by this sentence.
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 incorporated herein by reference.
