UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
MARYLAND 52-1782444
--------------------------------------- --------------------
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
101 CRAIN HIGHWAY, S.E., GLEN BURNIE, MARYLAND 21061
----------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
|
If this form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), please check the following box. [ ]
If this form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the Act: NONE
Securities to be registered pursuant to Section 12(g) of the Act:
NOTE: This Form 8-A/A is being filed to amend the Registrant's Form 8-A to reflect the reduction in the par value of the Registrant's common stock from $10.00 per share to $1.00 per share and to update certain other disclosures.
DESCRIPTION OF COMMON STOCK
The Company is authorized to issue 15,000,000 shares of Common Stock. As of September 30, 1999, there were 908,293 shares outstanding. Each share of the Common Stock has the same relative rights as, and is identical in all respects with, each other share of Common Stock. The Common Stock is not subject to redemption and is not convertible into any other class of securities. Upon payment of the full purchase price therefor, the Common Stock is fully paid and non-assessable. The Common Stock may be issued in either certificated or uncertificated form. THE COMMON STOCK OF THE COMPANY REPRESENTS NONWITHDRAWABLE CAPITAL, IS NOT AN ACCOUNT OF AN INSURABLE TYPE, AND IS NOT INSURED BY THE FDIC OR ANY OTHER GOVERNMENT AGENCY.
DIVIDENDS. The Company can pay dividends if, as and when declared by its Board of Directors, subject to compliance with limitations which are imposed by law. The holders of Common Stock of the Company will be entitled to receive and share equally in such dividends as may be declared by the Board of Directors of the Company out of funds legally available therefor.
VOTING RIGHTS. The holders of Common Stock of the Company possess exclusive voting rights in the Company. Each holder of Common Stock is entitled to one vote per share. Directors are elected by a plurality of the votes cast. There is no cumulative voting in elections of directors. Under the Company's Articles of Incorporation, directors are elected to three-year terms and approximately one-third of the Board of Directors must stand for election each year. A majority of the votes cast is generally required for the approval of all other matters submitted to a vote of the stockholders except as described in " -- Certain Voting and Other Requirements."
LIQUIDATION. In the event of any liquidation, dissolution or winding up of the Company, the holders of its Common Stock would be entitled to receive, after payment or provision for payment of all its debts and liabilities, all of the assets of the Company available for distribution.
PREEMPTIVE RIGHTS. Holders of the Common Stock of the Company are not entitled to preemptive rights with respect to any additional shares which may be issued by the Company.
TRANSFER AGENT AND REGISTRAR. The Company acts as transfer agent and registrar for the Common Stock.
CERTAIN VOTING AND OTHER REQUIREMENTS
ARTICLES OF INCORPORATION AND BYLAWS. The Company's Articles of Incorporation provide that the affirmative vote of 80% of the outstanding shares of stock of the Company entitled to vote shall be required for the approval of: (a) any amendment to the Articles of Incorporation; (b) the consolidation of the Company with one or more corporations to form a new consolidated corporation; (c) the merger of the Company with another corporation or the merger of one or more corporations into the Company; (d) the sale, lease or exchange or other transfer of all or substantially all, of the property and assets of the Company, including its goodwill; (e) the participation of the Company in a share exchange, the stock of which is to be acquired; or (f) the voluntary liquidation, dissolution or winding up of the Company. The Bylaws may only be amended by the stockholders by an affirmative vote of 80% of the votes entitled to be cast on the matter.
By resolution of its Board of Directors, the Company has
elected to become subject to Sections 3-804 and 3-805 of
Subtitle 8 of Title 3 of the Maryland General Corporation Law.
Section 3-804 requires at least a two-thirds vote of the
stockholders for the removal of directors, and then only for
cause in accordance with Section 2-406(b)(3) of the Maryland
General Corporation Law, and vests in the Board of Directors the
power to fix the number of directors by resolution and to fill
any vacancies on the Board of Directors for the remainder of the
full term of the class of directors in which the vacancy
occurred. Section 3-805 specifies that stockholders may only
call a special meeting of the stockholders on the written
request of the stockholders entitled to cast at least a majority
of the votes entitled to be cast at the meeting. In the event
of any inconsistency with the Company's Articles of
Incorporation and Bylaws, the aforesaid provisions of Subtitle 8
of Title 3 of the Maryland General Corporation Law shall govern.
BUSINESS COMBINATIONS. Under the Maryland General Corporation Law, mergers, consolidations and sales of substantially all of the assets of a Maryland corporation must generally be approved by the affirmative vote of the holders of two-thirds of the outstanding shares of stock entitled to vote thereon. Maryland's Business Combination Statute, however, restricts certain transactions between a Maryland corporation (or its majority owned subsidiaries), and any person who, after the date the corporation has 100 or more beneficial owners of its stock, beneficially owns 10% or more of the corporation's outstanding voting stock, together with affiliates or associates thereof (an "Interested Stockholder"). For a period of five years following the date that a stockholder becomes an Interested Stockholder, Maryland's Business Combination Statute generally prohibits the following types of transactions between the corporation and the Interested Stockholder (unless certain conditions, described below, are met): (i) mergers, consolidations or share exchanges; (ii) sales, leases, exchanges or other dispositions other than in the ordinary course of business or pursuant to a dividend, in any twelve-month period, of assets having an aggregate book value of 10% or more of the total market value of the outstanding stock of the corporation or of its net worth; (iii) issuances or transfers by the corporation or any subsidiary thereof of any equity securities of the corporation or any subsidiary thereof having a market value of 5% or more of the total market value of the outstanding stock of the corporation; (iv) the adoption of a proposal or plan of liquidation or dissolution of the corporation in which anything other than cash will be received by the Interested Stockholder or any affiliate of any Interested Stockholder; (v) any reclassification of securities, or recapitalization of the corporation, or any merger, consolidation, or share exchange of the corporation with any of its subsidiaries which has the effect of increasing by 5% or more of the total number of shares, the proportionate amount of the outstanding shares of any class of equity securities of the corporation or any subsidiary thereof which is owned by an Interested Stockholder; and (vi) the receipt by any Interested Stockholder or any affiliate thereof of the benefit, directly or indirectly, (except proportionately as a stockholder) of any loan, advance, guarantee, pledge, or other financial assistance or any tax credit or other tax advantage provided by the corporation or any of its subsidiaries. After the five-year moratorium on business combinations has expired, a business combination must (i) be recommended by the board of directors and approved by (a) 80% of the stockholders entitled to vote, and (b) two-thirds of the disinterested stockholders, or (ii) meet the rigorous fair price requirements of the business combination statute, or (iii) qualify for one of the statutory exemptions. This restriction does not apply if before such person becomes an Interested Stockholder, the Board of Directors approves the transaction in which the Interested Stockholder becomes an Interested Stockholder or approves the business combination, or a statutory exemption applies. A Maryland corporation may exempt particular interested stockholders from the requirements of the statute by resolution adopted by its board of directors prior to the date the Interested Stockholder became an Interested Stockholder.
CONTROL SHARE ACQUISITIONS. The Maryland General
Corporation Law provides that "control shares" of a Maryland
corporation acquired in a "control share acquisition" have no
voting rights except to the extent approved by a vote of two-
thirds of the shares entitled to be voted on the matter,
excluding shares of stock owned by the acquiror or by officers
or directors who are employees of the corporation. "Control
shares" are voting shares of stock which, if aggregated with all
other such shares of stock previously acquired by the acquiror,
or in respect of which the acquiror is able to exercise or
direct the exercise of voting power except solely by virtue of a
revocable proxy, would entitle the acquiror to exercise voting
power in electing directors within one of the following ranges
of voting power: (i) one-fifth or more but less than one-third;
(ii) one-third or more but less than a majority; or (iii) a
majority of all voting power. Control shares do not include
shares the acquiring person is then entitled to vote as a result
of having previously obtained stockholder approval. A "control
share acquisition" means the acquisition of control shares,
subject to certain exceptions for shares acquired through
descent or distribution, in satisfaction of a pledge or in a
merger, consolidation or share exchange to which the corporation
is a party. The control share acquisition statute applies to
any Maryland corporation with 100 or more beneficial owners of
its stock other than a close corporation or an investment
company.
A person who has made or proposes to make a control share acquisition, upon satisfaction of certain conditions (including an undertaking to pay expenses and delivery of an "acquiring person statement"), may compel the corporation's board of directors to call a special meeting of stockholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the corporation may itself present the question at any stockholders' meeting.
Unless the charter or bylaws provide otherwise, if voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement within 10 days following a control share acquisition then, subject to certain conditions and limitations, the corporation may redeem any or all of the control shares (except
for those which voting rights have previously been approved) for fair value determined, without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition or of any meeting of stockholders at which the voting rights of such shares are considered and not approved. Moreover, unless the charter or bylaws provides otherwise, if voting rights for control shares are approved at a stockholders' meeting and the acquiror becomes entitled to exercise or direct the exercise of a majority or more of all voting power, other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of such appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition.
DESCRIPTION OF COMMON STOCK PURCHASE RIGHTS
On February 13, 1998, the Board of Directors of Glen Burnie Bancorp (the "Company") declared a dividend distribution of one Right for each outstanding share of Common Stock to stockholders of record at the close of business on February 13, 1998. Each Right entitles the registered holder to purchase from the Company one share of Common Stock on the date of exercise, at a Purchase Price of $100, subject to adjustment. The terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement") between the Company and The Bank of Glen Burnie, as Rights Agent.
Initially, the Rights will be attached to all Common Stock certificates representing shares then outstanding, and no separate Rights Certificates will be distributed. The Rights will separate from the Common Stock and a Distribution Date will occur upon the earlier of (i) 10 days following a public announcement that a person (other than an Exempt Person) or group of affiliates or associated persons (an "Acquiring Person") has acquired, or obtained the right to acquire, beneficial ownership of 10% or more of the outstanding shares of Common Stock (the "Stock Acquisition Date") or (ii) 10 business days following the commencement of a tender offer or exchange offer that would result in a person or group beneficially owning 10% or more of such outstanding shares of Common Stock.
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 February 13,
1998 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.
The Rights are not exercisable until the Distribution Date and will expire at the close of business on February 13, 2008, unless earlier redeemed by the Company as described below.
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 as otherwise determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution Date will be issued with Rights.
In the event that at any time following the Rights Dividend Declaration Date, a Person (other than an Exempt Person) becomes the beneficial owner of 10% or more of the then outstanding shares of Common Stock (except pursuant to an offer for all outstanding shares of Common Stock which at least a majority of the Continuing Outside Directors determined to be fair to and otherwise in the best interest of the Company and its stockholders) each holder of a Right (other than Rights held by the party triggering the Rights and certain transferees which are voided) will thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities of the Company, subject to certain limitations) having a value equal to two times the exercise price of the Right. However, Rights are not exercisable following the occurrence of the event set forth above until such time as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $100 per Right, each Right not owned by an Acquiring Person (or by certain related parties) following an event set forth in the preceding paragraph would entitle its holder to purchase $200 worth of Common Stock (or other consideration, as noted above) for $100. Assuming that the Common Stock had a per share value of $30 at such time, the holder of each valid Right would be entitled to purchase 6.67 shares of Common Stock for $100.
The Board may, at its option, at any time after a person becomes an Acquiring Person, exchange all or part of the outstanding Rights (other than Rights owned by an Acquiring Person, its affiliates, associates or transferees, which will become void) for shares of Common Stock at an exchange ratio of 1.5 shares of Common Stock per Right.
In the event that, at any time following the date that any
Person becomes an Acquiring Person, (i) the Company engages in
certain mergers or other business combination transactions or
(ii) 50% or more of the Company's assets or earning power is
sold or transferred, each holder of a Right (except Rights which
previously have been voided as set forth below) shall thereafter
have the right to receive, upon exercise, common stock of the
acquiring company having a value equal to two times the exercise
price of the Right.
The Purchase Price payable, and the number of shares of Common Stock (or the number and kind of other securities or property, as the case may be) 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 Common Stock, (ii) if holders of the Common Stock are granted certain rights or warrants to subscribe for Common Stock or convertible securities at less than the current market price of the Common Stock, or (iii) upon the distribution to holders of the Common Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends) or of subscription rights or warrants (other than those referred to above).
No adjustment in the Purchase Price will be required until cumulative adjustments amount to at least 1% of the Purchase Price. The Company is not required to issue fractional shares of Common Stock and in lieu thereof an adjustment in cash will be made. For fractional shares of Common Stock, the adjustment will be based on the market price of the Common Stock on the last trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in part, at any time until ten days following the Stock Acquisition Date, at a price of $.01 per Right (payable in cash, Common Stock or other consideration deemed appropriate by the Board of Directors). Under certain circumstances set forth in the Rights Agreement, the decision to redeem shall require the concurrence of a majority of the Continuing Outside Directors. Immediately upon the action of the Board of Directors ordering redemption of the Rights with, where required, the concurrence of the Continuing Directors, the Rights will terminate and the only right of the holders of Rights will be to receive the $.01 per Right redemption price.
The term "Continuing Outside Directors" means (i) members of the Board of Directors who are not Acquiring Persons, or affiliates, associates or representatives of an Acquiring Person, and who are not officers of the Company or any of its subsidiaries, and were members of the Board of Directors prior to the date of the Rights Agreement or (ii) Persons who subsequently became members of the Board of Directors, who are not Acquiring Persons or the affiliates, associates or officers of the Company or any of its subsidiaries, if such Persons' nominations for election or election to the Board of Directors are recommended or approved by a majority of the Continuing Outside Directors.
Notwithstanding the foregoing, in the event that a majority of the Board of Directors of the Company is elected by stockholder action at an annual or special meeting of stockholders then until the 180th day following the effectiveness of such election (including any postponement or adjournment thereof), the Rights shall not be redeemed if such redemption is reasonably likely to have the purpose or affect of facilitating a Transaction (defined as merger, consolidation or sale of assets or any acquisition of Common Stock which would result in a person becoming an Acquiring Person) with an Interested Person (defined as a person or group who (i) is or will become an Acquiring Person if such Transaction were to be consummated, and (ii) is, or directly or indirectly proposed, nominated or financially supported, a director of the Company in office at the time of consideration of such Transaction who was elected at an annual or special meeting of stockholders).
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 in the event that the Rights become exercisable for Common Stock (or other consideration) of the Company or for common stock of the acquiring company as set forth above.
The Rights Agreement may be amended in certain instances so long as there are Continuing Outside Directors and a majority of such Continuing Outside Directors votes in favor of the proposed amendment. Other than those provisions relating to the principal economic terms of the Rights, any of the provisions of the Rights Agreement may be amended prior to the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be amended in order to cure any ambiguity, to make changes which do not adversely affect the interest of holders of Rights (excluding the interest of holders of any Acquiring Person), or to shorten or lengthen any time period under the Rights Agreement; provided, however, that no amendment to adjust the time period governing redemption shall be made at such time as the Rights are not redeemable.
Notwithstanding the foregoing, in the event that a majority of the Board of Directors of the Company is elected by stockholder action at an annual or special meeting, then until the 180th day following the effectiveness of such election (including any postponement or adjournment thereof), the Rights Agreement shall not be supplemented or amended in any manner reasonably likely to have the purpose or effect of facilitating a Transaction with an Interested Person.
Copies of the Rights Agreement are available free of charge from the Company. 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.
The following documents are either filed or incorporated by reference as exhibits to this registration statement as indicated:
3.1 Articles of Incorporation, as amended effective December 27, 1999
3.2 By-Laws, as amended. Incorporated herein by reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
3.3 Articles Supplementary, dated November 16, 1999, to Registrant's Articles of Incorporation. Incorporated herein by reference to Exhibit 3.3 to Registrant's Current Report on Form 8-K, filed December 8, 1999.
4.1 Rights Agreement, between Glen Burnie Bancorp and The Bank of Glen Burnie, as Rights Agent as amended and restated as of December 27, 1999.
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereto duly authorized.
Date: December 27, 1999 By: /s/ F. William Kuethe, Jr.
-------------------------------
F. William Kuethe, Jr.
President and Chief Executive
Officer
|
THIS IS TO CERTIFY:
GLEN BURNIE BANCORP
(a) To engage in the business of a bank holding company, as allowed under applicable Federal Statutes and the rules and regulations of the Federal Reserve Board.
(b) To acquire, hold, own, sell, assign, exchange, transfer or otherwise dispose of or deal in and with any of the shares of capital stock and other securities and interest issued or created by any banking institution or association organized under the laws of the United States of America, any state, other political subdivision or any foreign government, or any other firm or corporation to the extent permitted by applicable laws or regulations.
(c) To do any acts necessary or advisable for their preservation, protection, improvement and enhancement in value.
(d) To do anything permitted by Section 2-103 of the Corporations and Associations Article of the Annotated Code of Maryland as amended from time to time.
101 Crain Highway, SE
Glen Burnie, MD 21061
The name and post office address of the resident agent of The Corporation in this State is:
Henry L. Hein
101 Crain Highway, SE
Glen Burnie, MD 21061
The names of the directors who shall act until the first annual meeting or until their successors are duly elected and qualify are: Theodore L. Bertier, Jr., Jan W. Clark, F. Ward DeGrange, Sr., John E. DeGrange, Sr., John E. Demyan, Louis J. Doetsch, F. Paul Dorr, Jr., Carl L. Hein, Jr., Henry L. Hein, Frederick W. Kuethe, III, Murray D. O'Malley, William A. Pumphrey, Jr., Edward M. Webster, Katherine P. Wellford.
(a) The amendment of Articles of Incorporation.
(b) The consolidation of the Corporation with one or more corporations to form a new consolidated corporation.
(c) The merger of The Corporation with another corporation or the merger of one or more corporations into The Corporation.
(d) The sale, lease, exchange or other transfer of all, or substantially all, of the property and assets of The Corporation, including its good will.
(e) The participation of The Corporation in a share-exchange (as defined in the Corporations & Associations Article of the Annotated Code of Maryland) the stock of which is to be acquired.
(f) The voluntary liquidation, dissolution or winding up of The Corporation.
(a) As used in this Article any word or words that are defined in Section 2-418 of the Corporations and Associations Article of the Annotated Code of Maryland, (the "indemnification section") as amended from time to time, shall have the same meaning as provided in the "indemnification section".
(b) The Corporation shall indemnify a present or former director or officer of the Corporation in connection with a proceeding to the fullest extent permitted by and in accordance with the indemnification section.
(c) With respect to any corporate
representative other than a present or former director or
officer, the Corporation may indemnify such corporate
representative in connection with a proceeding to the fullest
extent permitted by and in accordance with the indemnification
section; provided, however, that to the extent a corporate
representative other than a present or former director or
officer successfully defends on the merits or otherwise, any
proceeding referred to in Subsection (b) or (c) of the
indemnification section or any claim, issue or matter raised
in such proceeding, the corporation shall not indemnify such
corporation representative other than a present or former
director or officer of the indemnification section, unless until
it shall have been determined and authorized in specific case by
(a) an affirmative vote at a duly constituted meeting at a
majority of the Board of Directors who were not parties to the
proceeding or (b) an affirmative vote, at a duly constituted
meeting of a majority of all the votes cast by stockholders who
were not parties to the proceedings, an indemnification of such
corporate representative other than a present or former director
or officer is proper in the circumstances.
IN WITNESS WHEREOF, I have signed these Articles of Incorporation this 20th day of December, 1990.
/s/ Barbara Elswick /s/ Henry L. Hein (SEAL) -------------------------- -------------------- Witness HENRY L. HEIN |
GLEN BURNIE BANCORP
and
THE BANK OF GLEN BURNIE
Rights Agent
Rights Agreement
Amended and Restated as of December 27, 1999
Section Page
------- ----
1 Certain Definitions . . . . . . . . . . . . . 1
2 Appointment of Rights Agent . . . . . . . . . 9
3 Issuance of Rights Certificates . . . . . . . 9
4 Form of Rights Certificates . . . . . . . . .12
5 Countersignature and Registration . . . . . .13
6 Transfer, Split Up, Combination and Ex-
change of Rights Certificates; Mutilated,
Destroyed, Lost or Stolen Rights Certifi-
cates . . . . . . . . . . . . . . . . . . . .14
7 Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . . .15
8 Cancellation and Destruction of Rights
Certificates. . . . . . . . . . . . . . . . .19
9 Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . . .19
10 Record Date for Securities Issued Upon
Exercise. . . . . . . . . . . . . . . . . . .21
11 Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights. . . . . .22
12 Certificate of Adjusted Purchase Price or
Number of Shares. . . . . . . . . . . . . . .34
13 Consolidation, Merger or Sale or Transfer
of Assets or Earning Power. . . . . . . . . .35
14 Fractional Rights and Fractional Shares . . .40
15 Rights of Action. . . . . . . . . . . . . . .41
i
|
16 Agreement of Rights Holders . . . . . . . . .42
17 Rights Certificate Holder Not Deemed a
Stockholder . . . . . . . . . . . . . . . . .43
18 Concerning the Rights Agent . . . . . . . . .43
19 Merger or Consolidation or Change of Name
of Rights Agent. . . . . . . . . . . . . . .44
20 Duties of Rights Agent. . . . . . . . . . . .45
21 Change of Rights Agent. . . . . . . . . . . .48
22 Issuance of New Rights Certificates . . . . .49
23 Redemption and Termination . . . . . . . . .50
24 Exchange . . . . . . . . . . . . . . . . . .51
25 Notice of Certain Events. . . . . . . . . . .52
26 Notices . . . . . . . . . . . . . . . . . . .54
27 Supplements and Amendments. . . . . . . . . .55
28 Successors. . . . . . . . . . . . . . . . . .56
29 Determinations and Actions by the Board,
etc.. . . . . . . . . . . . . . . . . . . . .56
30 Benefits of this Agreement. . . . . . . . . .57
31 Severability. . . . . . . . . . . . . . . . .57
32 Governing Law . . . . . . . . . . . . . . . .57
33 Counterparts. . . . . . . . . . . . . . . . .58
34 Descriptive Headings. . . . . . . . . . . . .58
Exhibit A -- Form of Rights Certificate
---------
Exhibit B -- Summary of Rights
---------
|
RIGHTS AGREEMENT, between Glen Burnie Bancorp, a Maryland corporation (the "Company"), and The Bank of Glen Burnie (the "Rights Agent"), as amended and restated as of December 27, 1999.
W I T N E S S E T H
WHEREAS, on February 13, 1998, (the "Rights Dividend Declaration Date"), the Board of Directors of the Company (the "Board") authorized and declared a dividend distribution of one Right (as hereinafter defined) for each share of Common Stock (as hereinafter defined) of the Company outstanding at the close of business on February 13, 1998 (the "Record Date") and authorized the issuance of one Right (as such number may hereafter be adjusted pursuant to the provisions of Section 11(i) hereof) for each share of Common Stock of the Company issued between the Record Date (whether originally issued or delivered from the Company's treasury) and the Distribution Date (as hereinafter defined) and under certain circumstances thereafter, each Right initially representing the right to purchase one share of Common Stock of the Company, upon the terms and subject to the conditions hereinafter set forth (the "Rights"); and
WHEREAS, the Company and the Rights Agent desire to restate the Rights Agreement in its entirety to incorporate the amendments thereto dated December 9, 1999 and December 27, 1999;
NOW, THEREFORE, in consideration of the premises and the mutual agreements hereinafter set forth, the parties hereby agree as follows:
(a) "Acquiring Person" shall mean any Person (as hereinafter defined) who or which, together with all Affiliates and Associates (as hereinafter defined) of such Person, shall be the Beneficial Owner (as hereinafter defined) of 10% or more of the shares of Common Stock of the Company then outstanding, but
shall not include an Exempt Person (as hereinafter defined).
(b) "Act" shall mean the Securities Act of 1933, as amended.
(c) "Adjustment Shares" shall have the meaning set forth in Section 11(a)(ii) hereof.
(d) "Affiliate" and "Associate" shall have the respective meanings ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act (as hereinafter defined).
(e) "Agreement" shall mean this Rights Agreement as originally executed or as it may from time to time be supplemented, amended, renewed, restated or extended pursuant to the applicable provisions 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, owns or 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, warrants, 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 (as hereinafter defined), or (C) securities issuable upon exercise of Rights from and after the occurrence of a Triggering Event which Rights are Original Rights (as hereinafter defined) or securities issued pursuant to Section 11(i) hereof in connection
with an adjustment made with respect to any Original Rights;
(ii) which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has the right to vote or dispose of or has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the General Rules and Regulations under the Exchange Act), including pursuant to any agreement, arrangement or understanding, whether or not in writing; provided, however, that a Person shall not be deemed the "Beneficial Owner" of, or to "beneficially own," any security under this subparagraph (ii) as a result of an agreement, arrangement or understanding (whether or not in writing) to vote such security if such agreement, arrangement or understanding: (A) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation and, if the Common Stock is then registered under Section 12 of the Exchange Act, made pursuant to, and in accordance with, the applicable provisions of the General Rules and Regulations under the Exchange Act, and (B) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor statement) or, in the event the Common Stock is not then registered under Section 12 of the Exchange Act, would not then be so reportable if the Common Stock were registered under Section 12 of the Exchange Act; 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 clause (A) of the proviso to subparagraph (ii) of this paragraph (f)) or disposing of any voting securities of the Company;
(g) "Board" shall have the meaning set forth in the first "WHEREAS" clause at the beginning of this Agreement.
(h) "Business Day" shall mean any day other than a Saturday, Sunday or day on which banking institutions in the State of Maryland are authorized or obligated by law or executive order to close.
(j) "Common Stock" when used in reference to the Company shall mean the common stock, par value $1.00 per share, of the Company or any other shares of capital stock of the Company into which such stock shall be reclassified or changed. "Common Stock" when used with reference to any Person other than the Company organized in corporate form shall mean (i) the capital stock or other equity interest in such Person with the greatest voting power, (ii) the equity securities or other equity interest having power to control or direct the management of such Person or (iii) if such Person is a Subsidiary (as hereinafter defined) of another Person, the capital stock, equity securities of or other equity interest in the Person or Persons which ultimately control such first-mentioned Person and which has issued any such outstanding capital stock, equity securities or equity interest. "Common Stock" when used with reference to any Person not organized in corporate form shall mean units of beneficial interest which (x) represent the right to participate generally in the profits and losses of such Person (including without limitation any flow-through
tax benefits resulting from an ownership interest in such Person) and (y) are entitled to exercise the greatest voting power of such Person or, in the case of a limited partnership, have the power to remove the general partner or partners.
(k) "Common Stock Equivalents" shall have the meaning set forth in Section 11(a)(iii) hereof.
(l) "Company" shall have the meaning set forth in the first paragraph of this Agreement until a successor corporation or entity shall have become such or until a Principal Party (as hereinafter defined) shall assume, and thereafter be liable for, all obligations and duties of the Company hereunder pursuant to the applicable provisions of this Agreement, and thereafter, "Company" shall mean such successor or Principal Party, respectively.
(m) "Continuing Outside Directors" shall mean (i) the members of the Board, while such person are members of the Board, who are not Acquiring Persons, or Affiliates or Associates of any Acquiring Person or representatives of an Acquiring Person or of any such Affiliate or Associate and who are not officers of the Company or any of its Subsidiaries, and were members of the Board prior to the date of this Agreement, or (ii) Persons who subsequently became members of the Board, while such Persons are members of the Board, who are not Acquiring Persons or Affiliates or Associates of an Acquiring Person, or representatives of an Acquiring Person or of any such Affiliate or Associate, and who are not officers of the Company or any of its Subsidiaries, if such Persons' nominations for election or election to the Board are recommended or approved by a majority of the Continuing Outside Directors.
(n) "Current Market Price" shall have the meaning set forth in Section 11(d) hereof.
(o) "Current Value" shall have the meaning set forth in Section 11(a)(iii) hereof.
(p) "Distribution Date" shall have the meaning set forth in Section 3(a) hereof.
(q) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
(r) "Exchange Ratio" shall have the meaning set forth in Section 24(a) hereof.
(s) "Exempt Person" shall mean (i) the Company,
(ii) any Subsidiary of the Company, (iii) any employee benefit
plan or employee stock plan of the Company or of any Subsidiary
of the Company, (iv) any Person or entity organized, appointed,
established or holding Common Stock of the Company by, for or
pursuant to the terms of any employee benefit plan or employee
stock plan, (v) a Person who, together with its Affiliates and
Associates, becomes the Beneficial Owner of 10% or more of the
shares of Common Stock of the Company then outstanding solely as
a result of a reduction in the number of shares of Common Stock
of the Company outstanding due to the repurchase of shares of
Common Stock of the Company by the Company, unless and until
such time as such Person shall purchase or otherwise become (as
a result of actions taken by such Person or its Affiliates or
Associates) the Beneficial Owner of additional shares of Common
Stock of the Company constituting 1% or more of the then
outstanding shares of Common Stock of the Company, or(vi) any
Person who becomes the Beneficial Owner of 10% or more of the
shares of Common Stock then outstanding (but less than 10 1/4%)
and who(x)reported or is required or permitted to report such
ownership on Schedule 13G under the Exchange Act (or any
comparable or successor report), or on Schedule 13D under the
Exchange Act (or any comparable or successor report), which
Schedule 13D does not state any intention to or reserve the
right to control or influence the management or policies of the
Company or engage in any of the actions specified in Item 4 of
such Schedule (other than the disposition of the Common
Stock),and(y), within five Business Days of being requested by
the Company, certifies to the Company that they become the
Beneficial Owner of 10% or more of the outstanding shares of
Common Stock inadvertently or without knowledge of the terms of
the Rights and divests sufficient shares of Common Stock such
that such Person together with their Affiliates or Associates is
no longer the Beneficial Owner of 10% or more of the shares of
Common Stock then outstanding,
and (z), in the event a record date shall have been fixed for the purpose of determining the stockholders entitled to vote at an annual or special meeting of stockholders while such Person, together with its Affiliates and Associates, was the Beneficial Owner of 10% or more of the Common Stock then outstanding, such Person shall cause to be voted on each proposal presented at such annual or special meeting in the same proportion as the votes cast by all other stockholders an amount of shares of Common Stock Beneficially Owned by such Person equal to the difference between the aggregate number of shares of Common Stock Beneficially Owned by it and the number of shares equal to 10% of the shares of Common Stock outstanding on such record date; provided, however, that if the Person requested to so certify and divest as provided in clause (y) fails to do so within five Business Days of such request, then such Person shall cease to be an Exempt Person immediately after such five-Business-Day Period.
(t) "Expiration Date" shall have the meaning set forth in Section 7(a) hereof.
(u) "Final Expiration Date" shall mean the Close of business on February 13, 2008.
(u-1) "Interested Person" with respect to a Transaction shall mean any Person who (i) is or will become an Acquiring Person if such Transaction were to be consummated or an Affiliate or Associate of such a Person, and (ii) is, or directly or indirectly proposed, nominated or financially supported, a director of the Company in office at the time of consideration of such Transaction who was elected at an annual or special meeting of stockholders.
(v) "Original Rights" shall mean Rights acquired
by a Person or such Person's Affiliates or Associates prior to
the Distribution Date or issued pursuant to Section 3(a) or
Section 22 hereof.
(w) "Person" shall mean any individual, firm, corporation, partnership, trust or other entity and includes without limitation an unincorporated group of persons who, by formal or informal agreement or arrangement (whether or not in writing), have embarked on a common purpose or act.
(x) "Principal Party" shall have the meaning set forth in Section 13(b) hereof.
(y) "Purchase Price" shall have the meaning set forth in Section 4(a) hereof.
(z) "Record Date" shall have the meaning set forth in the First "WHEREAS" clause at the beginning of this Agreement.
(aa) "Redemption Price" shall have the meaning set forth in Section 23(a) hereof.
(bb) "Rights" shall have the meaning set forth in the First "WHEREAS" clause at the beginning of this Agreement.
(cc) "Rights Agent" shall mean the Person named as the "Rights Agent" in the first paragraph of this Agreement until a successor Rights Agent shall have become such pursuant to the applicable provisions hereof, and thereafter "Rights Agent" shall mean such successor Rights Agent. If at any time there is more than one Person appointed by the Company as Rights Agent pursuant to the applicable provisions of this Agreement, "Rights Agent" shall mean and include each such Person.
(dd) "Rights Certificate" shall have the meaning set forth in Section 3(a) hereof.
(ee) "Rights Dividend Declaration Date" shall have the meaning set forth in the First "WHEREAS" clause at the beginning of this Agreement.
(ff) "Section 11(a)(ii) Event" shall have the meaning set forth in Section 11(a)(ii) hereof.
(gg) "Section 11(a)(ii) Trigger Date" shall have the meaning set forth in Section 11(a)(iii) hereof.
(hh) "Section 13 Event" shall have the meaning set forth in Section 13(a) hereof.
(ii) "Spread" shall have the meaning set forth in
Section 11(a)(iii) hereof.
(jj) "Stock Acquisition Date" shall mean the first date of public announcement by the Company that an Acquiring Person has become such.
(kk) "Subsidiary" shall mean, with reference to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power sufficient to elect a majority of the board of directors or other persons performing similar functions of such corporation or other entity are at the time directly or indirectly beneficially owned or otherwise controlled by such Person and any Affiliate or Associate of such Person.
(ll) "Substitution Period" shall have the meaning set forth in Section 11(a)(iii) hereof.
(mm) "Summary of Rights" shall have the meaning set forth in Section 3(b) hereof.
(nn) "Trading Day" shall have the meaning set forth in Section 11(d) hereof.
(nn-1) "Transaction" shall mean any merger, consolidation or sale of assets described in Section 13(a) hereof or any acquisition of Common stock which would result in a Person becoming an Acquiring Person.
(oo) "Triggering Event" shall mean any Section
11(a)(ii) Event or any Section 13 Event.
duty to supervise, and in no event shall be liable for, the acts or omissions of any such Co-Rights Agent. In the event that the Company appoints one or more Co-Rights Agents, the respective duties of the Rights Agent and any Co-Rights Agents shall be as the Company shall determine, and any actions which may be taken by the Rights Agent pursuant to the terms of this Agreement may be taken by any such Co-Rights Agent.
(a) Until the earlier of (i) the Close of Business
on the tenth Business Day (or such specified or unspecified
later date as may be determined by the Board before the
occurrence of a Distribution Date) after the Stock Acquisition
Date (or, if the tenth Business Day (or such later date) 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 specified or
unspecified later date as may be determined by the Board before
the occurrence of a Distribution Date) after the date that a
tender or exchange offer by any Person is first published or
sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act if upon
consummation thereof such Person would be the Beneficial Owner
of 10% or more of the Common Stock of the Company then
outstanding (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 paragraphs (b) and (c) of this
Section 3) by the certificates for the Common Stock of the
Company registered in the names of the holders thereof (which
certificates 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 of the Company (including a
transfer to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by first-class,
insured, postage prepaid mail, to each record holder of the
Common Stock of the Company as of the Close of Business on the
Distribution Date, at the address of such holder shown on the
records of the Company, one or more rights certificates,
substantially in the form attached hereto as Exhibit A (the
"Rights
Certificates"), evidencing one Right for each share of Common Stock of the Company so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common Stock of the Company has been made pursuant to Section 11(i) hereof, at the time of distribution of the Rights Certificates, the Company shall not be required to issue Rights Certificates evidencing fractional Rights, but may, in lieu thereof, 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.
(b) The Company will send a copy of a Summary of Rights, in substantially the form attached hereto as Exhibit B (the "Summary of Rights"), by first-class, postage prepaid mail, to each record holder of the Common Stock of the Company who may so request from time to time. With respect to certificates for the Common Stock of the Company outstanding as of the Record Date, as set forth in paragraph (a) above, until the earlier of the Distribution Date or the Expiration Date, the Rights will be evidenced by such certificates for the Common Stock of the Company with or without a copy of the Summary of Rights attached and the registered holders of the Common Stock of the Company shall also be the registered 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 of the Company in respect of which Rights have been issued shall also constitute the transfer of the Rights associated with such shares of Common Stock of the Company.
(c) Rights shall be issued in respect of all shares of Common Stock of the Company 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, to the extent provided in Section 22 hereof, in respect of shares of Common Stock of the Company issued after the Distribution Date and prior to the Expiration
Date. Certificates representing such shares of Common Stock of the Company shall also be deemed to be certificates for Rights, and shall, to the extent reasonably practicable following the Record Date, bear the following legend:
This certificate also evidences and entitles the holder hereof to certain Rights as set forth in the Rights Agreement between Glen Burnie Bancorp (the "Company") and The Bank of Glen Burnie (the "Rights Agent") dated as of February 13, 1998, as the same may be amended, restated, renewed or extended from time to time (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 beneficially owned (as such term is defined in the Rights Agreement) 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. The Rights shall not be exercisable, and shall be void so long as held, by a holder in any jurisdiction where the requisite qualification to the issuance to such holder, or the exercise by such holder, of the Rights in such jurisdiction shall not have been obtained or be obtainable.
With respect to such certificates containing the foregoing legend, until the earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights associated with the Common Stock of the Company represented by such certificates shall be evidenced by such certificates alone, and registered holders of Common Stock of the Company shall also be the registered 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 of the Company represented by such certificates.
(a) The Rights Certificates (and the forms of
election to purchase, assignment and certificate contained
therein to be printed on the reverse thereof) shall each be
substantially in the form attached hereto as Exhibit A and may
have such marks of identification or designation and such
legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with
the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to time be
listed, or to conform to usage. Subject to the provisions of
Section 11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record Date and
on their face shall entitle the holders thereof to purchase such
number of shares of Common Stock of the Company as shall be set
forth therein at the exercise price set forth therein (such
exercise price per share of Common Stock of the Company, as
adjusted from time to time hereunder, the "Purchase Price"), but
the amount and 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 the Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding (whether or not in writing) regarding the transferred Rights or (B) a transfer which the Board, in its sole discretion, has determined is part of a plan, arrangement or understanding which has as a primary purpose or effect avoidance of the provisions 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 Certifi-
cate 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.
(a) The Rights Certificates shall be executed under seal on behalf of the Company by its Chairman of the Board, its President or any Vice President, either manually or by facsimile signature, and by the Treasurer or any Assistant Treasurer of the Company, either manually or by facsimile signature. The Rights Certificates shall be manually countersigned by an authorized signatory of the Rights Agent and shall not be valid for any purpose unless so countersigned. In case any officer of the Company who shall have signed any of the Rights Certificates shall cease to be such officer of the Company before countersignature by an authorized signatory of 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; and any Rights Certificate may be signed on behalf of the Company by any person who, at the actual date of the execution of such Rights Certificate, shall be a proper officer of the Company to sign such Rights Certificate, although at the date of the execution of this 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 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.
(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 Rights Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates
entitling the registered holder to purchase a like number of
shares of Common Stock of the Company (or, following the
occurrence of a Triggering Event, other securities, cash or
other assets, as the case may be) as the Rights Certificate or
Rights Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase. Any
registered holder desiring to transfer, split up, combine or
exchange any Rights Certificate or Rights Certificates shall
make such request in writing delivered to the Rights Agent and
shall surrender the Rights Certificate or Rights Certificates to
be transferred, split up, combined or exchanged, with the forms
of assignment and certificate contained therein duly executed,
at the principal 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 or Rights Certificates until the
registered holder shall have completed and signed the
certificate contained in the form of assignment on the reverse
side of such Rights Certificate or Rights Certificates 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 from the 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) Upon receipt by the Company and the Rights Agent of evidence reasonably satisfactory to them of the loss, theft, destruction or mutilation of a valid Rights Certificate and, in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them 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 registered owner in lieu of the Rights Certificate so lost, stolen, destroyed or mutilated.
(a) Subject to Section 7(e) hereof, the registered holder of any Rights Certificate may exercise the Rights evidenced thereby (except as otherwise provided herein, including without limitation, the restrictions on exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23(a) hereof) in whole or in part at any time after
the Distribution Date upon surrender of the Rights Certificate, with the form of election to purchase and the certificate contained therein duly executed, to the Rights Agent at the principal office or offices of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase Price with respect to the total number of shares of Common Stock of the Company (or, following the occurrence of a Triggering Event, 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 earliest of (i) the Final Expiration Date, (ii) the time at which the Rights are redeemed as provided in Section 23 hereof and (iii) the time at which the Rights expire pursuant to Section 13(d) hereof (the earliest of (i), (ii) and (iii) being herein referred to as the "Expiration Date").
(b) The Purchase Price for each share of Common Stock of the Company pursuant to the exercise of a Right shall initially be $100, 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 contained therein duly executed,
accompanied by payment, with respect to each Right so exercised,
of the Purchase Price, as such amount may be reduced pursuant to
Section 11(a)(iii) hereof, for each share of Common Stock of the
Company (or, following a Triggering Event, for other 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, the Rights Agent shall, subject to Sections 7(f) and 20(k)
hereof, thereupon promptly (i) (A) requisition from any transfer
agent of the shares of Common Stock of the Company (or make
available, if the Rights Agent is the transfer agent for such
shares) certificates for the total number of shares of Common
Stock of the Company 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 Common Stock of the
Company issuable upon
exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts
representing such number of shares of Common Stock of the
Company as are to be purchased (in which case certificates for
the shares of Common Stock of the Company 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)
after receipt of such certificates or depositary receipts, cause
the same to be delivered to, or upon the order of, the
registered holder of such Rights Certificate, registered in
such name or names as may be designated by such holder, and (iv)
after receipt thereof, deliver such cash, if any, to, or upon
the order of, the registered 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 check, cashier's check or bank draft payable to the
order of the Company. In the event that the Company is
obligated to issue other securities, pay cash or distribute
other property pursuant to this Section 7(c) or Section 11(a)
hereof, the Company will make all arrangements necessary so that
such other securities, cash or other property are available for
distribution by the Rights Agent, if and when appropriate. In
the event that, immediately prior to the occurrence of a
Distribution Date, the number of shares of Common Stock of the
Company which are authorized by the Company's articles of
incorporation, as amended and in effect at such time, but not
outstanding or reserved for issuance for purposes other than
upon exercise of the Rights is not sufficient to permit exercise
in full of the Rights in accordance with their terms, the
Company, acting by resolution of the Board, shall follow the
same procedures and may take any of the same actions in
connection with the exercise of Rights under this Section 7(c)
as are required or permitted to be followed or taken pursuant to
Section 11(a)(iii) hereof with respect to substitution of value
in connection with the exercise of Rights under Section
11(a)(ii) hereof. 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 Common Stock of the Company would be issued.
(d) In case the registered holder of any Rights Certificate shall exercise less than all the Rights evidenced thereby, a new Rights Certificate evidencing Rights equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to, or upon the order of, the registered holder of such Rights Certificate, registered in such name or names as may be designated by such holder, subject to the provisions of Section 14 hereof.
(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 which the Board, in its sole discretion, determines is or
was involved in or caused or facilitated, directly or indirectly
(including through any change in the Board), such Section
11(a)(ii) Event, (ii) a transferee of any such Acquiring Person
(or of any such Affiliate or Associate) who becomes a transferee
after such Acquiring Person becomes such or (iii) a transferee
of any such Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently
with such Acquiring Person becoming such and receives such
Rights pursuant to either (A) a transfer (whether or not for
consideration) from such 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 (whether or not in writing) regarding the
transferred Rights or (B) a transfer which the Board 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 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 shall have no
liability to any holder of Rights Certificates or other Person as a result of its failure to make any determinations with respect to an Acquiring Person or any of their Affiliates, Associates or transferees hereunder.
(f) Notwithstanding anything in this Agreement
to the contrary, neither the Rights Agent nor the Company shall
be obligated to undertake any action with respect to a
registered holder of any Rights Certificate upon the occurrence
of any purported assignment or exercise as set forth in this
Section 7 unless such registered holder shall have (i) completed
and signed the certificate contained in the form of assignment
or election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such assignment or 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.
(b) So long as the shares of Common Stock of the Company (and, following the occurrence of aTriggering Event, other securities) issuable and deliverable upon the exercise of the Rights may be listed on any national securities exchange, the Company shall use all reasonable efforts to cause, from and after such time as the Rights become exercisable, all shares reserved for such issuance to be listed on such exchange upon official notice of issuance upon such exercise.
(c) The Company shall use all reasonable efforts to (i) file, as soon as practicable following the earliest date after the first occurrence of a Triggering Event in which the consideration to be delivered by the Company upon exercise of the Rights has been determined in accordance with this Agreement, or as soon as required by law following the Distribution Date, as the case may be, a registration statement under the Act on an appropriate form with respect to the Common Stock or other securities purchasable upon exercise of the Rights, (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 and other jurisdictions in connection with the
exercisability of the Rights. The Company may, acting by
resolution of the Board, temporarily suspend, for a period of
time not to exceed 90 days after the date set forth in clause
(i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such
registration statement and permit it to become effective. In
the event of any such suspension, the Company shall issue a
public announcement stating that the exercisability of the
Rights has been temporarily suspended and shall issue 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 in other circumstances
following the Distribution Date, the Company may similarly
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, or the exercise thereof shall not otherwise 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 shares of Common Stock of the Company (and, following the occurrence of a Triggering Event, other securities) delivered upon exercise of Rights shall, at the time of delivery of the certificates for such shares (subject to payment of the Purchase Price), be duly and validly authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees
that, except as set forth in Section 6(a) hereof and this
Section 9(e), it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Rights
Certificates and of any certificates for a number of shares of
Common Stock
of the Company (or other securities, as the case may be) upon the exercise of Rights. The Company shall not, however, be required to pay any transfer tax 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 a number of shares of Common Stock of the Company (or other securities, as the case may be) in respect of a name other than that of, the registered holder of the Rights Certificates evidencing Rights surrendered for exercise, nor shall the Company be required to issue or deliver any certificates for a number of shares of Common Stock of the Company (or other securities, as the case may be) in a name other than that of the registered holder upon the exercise of any Rights until 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.
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 (or the Principal Party), except as provided herein.
(a) (i) In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the outstanding shares of Common Stock of the Company payable in shares of Common Stock of the Company, (B) subdivide or split the outstanding shares of Common Stock of the Company, (C) combine or consolidate the outstanding shares of Common Stock of the Company into a smaller number of shares or (D) issue any shares of its capital stock in a reclassification of the Common Stock of the Company (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, split, combination, consolidation or reclassification, and the number and kind of shares of Common Stock (or other securities, as the case may be) issuable on such date, shall be proportionately adjusted so that the 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 Common Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date, whether or not such Right was then exercisable, and at a time when the transfer books for the Common Stock (or other capital stock, as the case may be) of the Company were open, he would have owned upon such exercise and been entitled to receive by
virtue of such dividend, subdivision, split, combination, consolidation 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) In the event (a "Section 11(a)(ii) Event") that any Person (other than an Exempt Person), alone or together with its Affiliates and Associates, shall, at any time after the Rights Dividend Declaration Date, become the Beneficial Owner of 10% or more of the shares of Common Stock of the Company then outstanding, unless the event causing (A) the 10% threshold to be crossed is a transaction set forth in Section 13(a) hereof or (B) is an acquisition of shares of Common Stock of the Company pursuant to a tender offer or an exchange offer for all outstanding shares of Common Stock of the Company at a price and on terms determined by at least a majority of the Continuing Outside Directors, after receiving advice from one or more investment banking firms, to be (x) at a price that is fair to stockholders (taking into account all factors which such Continuing Outside Directors 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 (y) otherwise in the best interests of the Company and its stockholders, then promptly after the date of occurrence of a Section 11(a)(ii) Event, proper provision shall be made 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, such number of shares of Common Stock of the Company as shall equal the result obtained by (1) multiplying the then current Purchase Price by the then number of shares of Common Stock of the Company for which a Right was exercisable immediately prior to the first occurrence of a Section 11(a)(ii) Event (whether
(iii) In lieu of issuing any shares of Common Stock of the Company in accordance with Section 11(a)(ii) hereof, the Company, acting by resolution of the Board, may, and in the event that the number of shares of Common Stock of the Company which are authorized by the Company's articles of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights is not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii) of this Section 11(a), the Company, acting by resolution of the Board, shall: (A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a Right (the "Current Value") over (2) the Purchase Price attributable to each Right (such excess being referred to as the "Spread") and (B) with respect to all or a portion of each Right (subject to Section 7(e) hereof), make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) equity securities of the Company other than Common Stock of the Company (such 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 which, when added to any shares of Common Stock of the Company issued upon such exercise, has an
public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock of the Company shall be the Current Market Price per share of the Common Stock of the Company on the Section 11(a)(ii) Trigger Date, and the value of any Common Stock Equivalent shall be deemed to be equal to the value of the Common Stock of the Company on such date.
(b) In case the Company shall fix a record
date for the issuance of rights, options or warrants to all
holders of Common Stock of the Company entitling them to
subscribe for or purchase (for a period expiring within 45
calendar days after such record date) Common Stock of the
Company or securities convertible into Common Stock of the
Company or Common Stock Equivalents at a price per share of
Common Stock of the Company or per share of Common Stock
Equivalents (or having a conversion price per share, if a
security convertible into Common Stock of the Company or Common
Stock Equivalents) less than the Current Market Price per share
of Common Stock of the Company 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 sum of (i) the number of shares of Common Stock of the
Company or Common Stock Equivalents outstanding on such record
date, (ii) the number of shares of Common Stock of the Company
or Common Stock Equivalents underlying securities outstanding on
such record date which are convertible into Common Stock of the
Company or Common Stock Equivalents and (iii) the number of
shares of Common Stock of the Company which the aggregate
subscription price of the total number of shares of Common Stock
of the Company or Common Stock Equivalents so to be offered (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 sum of
(i) the number of shares of Common Stock of the Company
outstanding on such record date, (ii) the number of shares of
Common Stock of the Company or Common Stock Equivalents
underlying securities outstanding on such record date which are
convertible into Common Stock of the Company or Common Stock
Equivalents and (iii) the
number of additional shares of Common Stock of the Company or Common Stock Equivalents 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, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. Shares of Common Stock of the Company owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and in the event that such rights, options or warrants are not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for a distribution to all holders of Common Stock of the Company (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, periodic cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Common Stock of the Company, but including any dividend payable in stock other than Common Stock of the Company) 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 per share of Common Stock of the Company on such record date, less the fair market value (as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Common Stock of the Company and the denominator of which shall be such Current Market Price per share of Common Stock of the Company.
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) 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 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 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, consolidation, reverse stock split or reclassification of such Common Stock, and prior to the expiration of the requisite 30-Trading Day or 10-Trading Day period, as set forth above, after the ex-dividend date for such dividend or distribution, or the record date for such subdivision, combination, consolidation, reverse stock split or reclassification, then, and in each such case, the Current Market Price shall be properly adjusted to take into account ex-dividend trading. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the 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 or as quoted by the Nasdaq National Market with respect to securities listed or admitted to trading on another
national securities exchange or quoted by the Nasdaq National Market, respectively or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange or quoted by the Nasdaq National Market, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by The Nasdaq Stock Market or such other quotation 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. If on any such date the Common Stock is not publicly held or not so listed, admitted to trading or quoted, and no market maker is making a market in such Common Stock, Current Market Price shall mean the fair value of such shares on such date as determined in good faith by the Board, which determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. 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.
(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 Common Stock of the Company, thereafter the number of such
other shares so receivable upon exercise of any Right and the
Purchase Price thereof (or the number of Rights) 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 Common Stock of the Company contained in Sections
11(a), (b), (c), (e), (g), (h), (i), (j), (k), (l) and (m)
hereof, and the provisions of Sections 7, 9, 10, 13 and 14
hereof with respect to the Common Stock of the Company shall
apply on like terms to any such other shares; provided, however,
that the Company shall not be liable for its inability to
reserve and keep available for issuance upon exercise of the
Rights pursuant to Section 11(a)(ii) hereof a number of shares
of Common Stock of the Company greater than the number then
authorized by the Company's articles of incorporation, but not
outstanding or reserved for any other purpose.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of shares of Common Stock of the Company 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) hereof, upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c) hereof, each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of shares of Common Stock of the Company (calculated to the nearest one-thousandth of a share of Common Stock) obtained by (i) multiplying (x) the number of shares of Common Stock of the Company 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 shares of Common Stock of the Company 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 shares of Common Stock of the Company for which a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of that number of Rights shall become the number of Rights (calculated to the nearest one-thousandth of a Right) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Rights Certificates have been issued, shall be at least 10 days later than the date of the public announcement. If Rights Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Rights Certificates on such record date Rights Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Rights Certificates held by such holders prior to the date of adjustment, and upon surrender thereof, if required by the Company, new Rights Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Rights ertificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Rights Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the number of shares of Common Stock of the Company issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Purchase Price per share of Common Stock of the Company and the number of shares Common Stock of the Company 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 stated or par value, if any, of the number of shares of Common Stock of the Company issuable upon exercise of the Rights, the Company shall use all reasonable efforts to take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue, fully paid and nonassessable, such number of shares of Common Stock of the Company at such adjusted Purchase Price.
(l) In any case in which this Section 11 shall require that an adjustment in the Purchase Price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date of the number of shares of Common Stock of the Company or other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of shares of Common Stock of the Company or other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bill 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 adjustments in the Purchase Price, in addition to those adjustments expressly required by this Section 11, as and to the extent that in its good
faith judgment the Board shall determine to be advisable in order that any (i) consolidation or subdivision of the Common Stock of the Company, (ii) issuance wholly for cash of any shares of Common Stock of the Company at less than the Current Market Price, (iii) issuance wholly for cash of shares of Common Stock of the Company or securities which by their terms are convertible into or exchangeable for shares of Common Stock of the Company, (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 Common Stock shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it
shall not, at any time after the Distribution Date, (i)
consolidate with any other Person (other than a Subsidiary of
the Company in a transaction 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 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, sale or transfer there are any rights,
warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger, sale or transfer, 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 covenants and agrees that,
after the Distribution Date, it will not, except as permitted by
Section 23 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.
(a) In the event (a "Section 13 Event") that,
on or after the Stock Acquisition Date, directly or indirectly,
(x) the Company shall consolidate or otherwise combine with, or
merge with or into, any other Person or Persons (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,
combination or merger, (y) any Person or Persons (other than a
Subsidiary of the Company in a transaction which complies with
Section 11(o) hereof) shall consolidate or otherwise combine
with, or merge with or into, the Company and the Company shall
be the continuing or surviving corporation of such
consolidation, combination or merger and, in connection with
such consolidation, combination or merger, all or
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 50% of
the Current Market Price per share of the Common Stock of such
Principal Party on the date of consummation of such Section 13
Event; (ii) the shares of Common Stock of such Principal Party
received by each holder of a Right upon exercise of that Right
shall be fully paid and nonassessable; (iii) 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; (iv) 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; (v)
such Principal Party shall take such steps (including without
limitation 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 (vi)
the provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or (y) of the first sentence of Section 13(a) hereof, (A) the Person that is the issuer of any securities into which shares of Common Stock of the Company are converted, changed or exchanged in such merger, consolidation or combination (or, if there is more than one such issuer, the issuer the Common Stock of which has the greatest market value) or (B) if no securities are so issued, the Person that is the other party to such merger (and survives the merger), consolidation or combination (or, if there is more than one such Person, the Person the Common Stock of which has the greatest market value), or if the other party to the merger does
not survive the merger, the Person that does survive the merger (including the Company, if it survives); and
(ii) in the case of any transaction
described in clause (z) of the first sentence of
Section 13(a) hereof, the Person that is the party
receiving the greatest portion of the assets or
earning power transferred pursuant to such
transaction or transactions or, if each Person that
is a party to such transaction or transactions
receives the same portion of the assets or earning
power so transferred or if the Person receiving the
greatest portion of the assets or earning power
cannot be determined, whichever of such Persons is
the issuer of Common Stock having the greatest market
value;
(c) The Company shall not consummate any
Section 13 Event unless the Principal Party shall have a
sufficient number of authorized shares of its Common Stock which
have not been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this Section
13 and unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement confirming that the requirements of
Section 13(a) and Section 13(b) hereof shall promptly be
performed in accordance with their terms and that such Section
13 Event shall not result in a default by the Principal Party
under this Agreement as the same shall have been assumed by the
Principal Party pursuant to Section 13(a) and Section 13(b)
hereof and further providing that, as soon as practicable after
the date of any such Section 13 Event, 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 to similarly comply with applicable state securities laws;
(ii) use its best efforts to list or obtain quotation of (or continue the listing or quotation of) the Rights and the securities purchasable upon exercise of the Rights on a national securities exchange or by an automated quotation service;
(iii) deliver to 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 (or any successor form) under the Exchange Act; and
(iv) use its best efforts to 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, consolidations, combinations or sales or
other transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section 11(a)(ii)
Event, the Rights which have not theretofore been exercised
shall thereafter become exercisable in the manner described in
Section 13(a) hereof.
(d) Notwithstanding anything in this Agreement
to the contrary, Section 13 hereof shall not be applicable to a
transaction described in subparagraph (x) or subparagraph (y) of
Section 13(a) hereof if (i) such transaction is consummated with
a Person or Persons (or a wholly owned Subsidiary of any such
Person or Persons) who acquired shares of Common Stock of the
Company pursuant to a tender offer or exchange offer for all
outstanding shares of Common Stock of the Company which complies
with the exception provided for in Section 11(a)(ii) hereof,
(ii) the price per share of Common Stock of the Company offered
in such transaction is not less than the price per share of
Common Stock of the Company paid to all
holders of shares of Common Stock of the Company whose shares
were purchased pursuant to such tender offer or exchange offer
and (iii) the form of consideration being offered to the
remaining holders of shares of Common Stock of the Company
pursuant to such transaction is the same as the form of
consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated
by this Section 13(d), all Rights hereunder shall expire.
(a) The Company shall not be required to issue fractions of Rights, except prior to the Distribution Date as provided in Section 11(i) hereof, or to distribute Rights Certificates which evidence fractional Rights. In lieu of any such fractional Rights, there shall be paid to the
registered holders of the Rights Certificates with regard to which such fractional Rights would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of 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 Trading 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 or the Nasdaq National Market with respect to securities listed on another national securities exchange or quoted by the Nasdaq National Market, respectively, or if the Rights are not listed or admitted to trading on any national securities exchange or quoted by the Nasdaq National Market, the last quoted price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by The Nasdaq Stock Market or such other quotation system then in use or, if on any such date the Rights are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Rights selected by the Board. If on any such date no such market maker is making a market in the Rights, the fair value of the Rights on such date as determined in good faith by the Board shall be used.
(b) The Company shall not be required to issue fractions of shares of Common Stock of the Company upon exercise of the Rights or to distribute certificates which evidence fractional shares of Common Stock of the Company. In lieu of fractional shares of Common Stock of the Company, the Company may pay to the registered holders of Rights Certificates at the time such Rights are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one share of Common Stock of the
Company. For purposes of this Section 14(b), the current market value of one share of Common Stock of the Company shall be the closing price of a share of Common Stock of the Company, or if unavailable, the appropriate alternative price (in each case, as determined pursuant to Section 11(d) hereof) for the Trading Day immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of that Right expressly waives such holder's right to receive any fractional Rights or any fractional shares upon exercise of a Right, except as permitted by this Section 14.
(a) prior to the Distribution Date, the Rights will be transferable only in connection with the transfer of shares of Common Stock of the Company;
(b) after the Distribution Date, the Rights Certificates are transferable only on the registry 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 contained therein duly 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 certificate for Common Stock of the Company) is registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any notations of ownership or writing on the Rights Certificate or the associated certificate for Common Stock of the Company 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
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it hereunder and, from time to time, on demand of the Rights Agent, reimbursement for 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 for, and to hold it harmless against, any loss, liability, or expense, incurred without negligence, bad faith or willful misconduct on the part of the Rights Agent, for anything done or omitted by the Rights Agent in connection with the acceptance and administration of this Agreement, including the costs and expenses of defending against any claim of liability in the premises.
(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 good faith in connection with its administration of this Agreement in reliance upon any Rights Certificate or certificate
for Common Stock of the Company or for other securities of the Company or upon any instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper or document reasonably believed by it to be genuine and to be signed, executed and, where necessary, verified or acknowledged, by the proper Person or Persons.
(b) If 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 if 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.
(a) The Rights Agent may consult with legal counsel, 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 suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a certificate signed by the Chairman of the Board, the President and Chief Executive Officer, 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 suffered in good faith by it under the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own 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, nor shall it 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
thereon); 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 receipt of a certificate describing
any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock of
the Company to be issued pursuant to this Agreement or any
Rights Certificate or as to whether any shares of Common Stock
of the Company 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 and Chief Executive Officer, or any Executive Vice President of the Company and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to
be taken by it in good faith in accordance with instructions of any such officer. Any application by the Rights Agent for written instructions from the Company may, at the option of the Rights Agent, set forth in writing any action proposed to be taken by, or omission of, the Rights Agent under this Agreement and the date on or after which such action shall be taken or such omission shall be effective. The Rights Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance with a proposal included in any such application on or after the date specified in such application (which date shall not be less than five Business Days after the date the Company actually receives such application, unless the Company shall have consented in writing to an earlier date) unless, prior to taking any such action (or prior to the effective date in the case of an omission), the Rights Agent shall have received written instructions in response to such application specifying the action to be taken or omitted.
(h) 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, become pecuniarily interested in any transaction in which the Company may be interested, contract with or lend money to the Company or otherwise act as fully and freely as though the Rights Agent 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, however, 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 (other than internal costs incurred by the Rights Agent in providing services to the Company in the ordinary course of its business as Rights Agent) 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 contained in 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 or clause 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.
from the effectiveness of such removal, resignation or
incapacity and no registered holder of any Rights Certificate
has applied pursuant to this Agreement for the appointment of a
new Rights Agent, the Company automatically shall be designated
as successor Rights Agent. Any successor Rights Agent appointed
by the Company or by such a court shall be (a) a corporation
organized and doing business under the laws of the United States
or of any state of the United States, in good standing, which is
authorized to do business as a banking institution in such
state, is authorized under such laws to exercise corporate trust
powers, is subject to supervision or examination by federal or
state authority and has at the time of its appointment as Rights
Agent a combined capital and surplus of at least $100,000,000 or
(b) an Affiliate of a corporation described in clause (a) of
this sentence. After appointment, the successor Rights Agent
shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent
any property at the time held by it hereunder and shall execute
and deliver, if applicable, any further assurance, conveyance,
act or deed necessary for that 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 of the Company, and
shall mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided
for in this Section 21, however, or any defect therein, shall
not affect the legality or validity of the resignation or
removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
authorization shall require the concurrence of a majority of
such Continuing Outside Directors: (i) such authorization occurs
on or after the time a Person becomes an Acquiring Person, or
(ii) such authorization occurs on or after the date of a change
(resulting from a proxy or consent solicitation) in a majority
of the directors in office at the commencement of such
solicitation, if any Person who is a participant in such
solicitation has stated (or, if upon the commencement of such
solicitation, a majority of the Board has determined in good
faith) that such Person (or any of its Affiliates or Associates)
intends to take, or may consider taking, any action which would
result in such Person becoming an Acquiring Person or which
would cause the occurrence of a Triggering Event unless,
concurrent with such solicitation, such Person (or one or more
of its Affiliates or Associates) is making a tender offer or
exchange offer in compliance with Section 11(a)(ii)(B).
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.
(b) Immediately upon the action of the Board directing the Company to make the redemption of the Rights, evidence of which shall have been filed with the Rights Agent, and without any further action and without any notice, the right to exercise the Rights 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 of the Board directing the Company to make the redemption of the Rights, the Company shall give notice of such redemption to the Rights Agent and the holders of the then outstanding Rights by mailing such notice to each record holder of the Common Stock of the Company at the address of such holder shown on the records of the Company. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of redemption will state the method by which the payment of the Redemption Price will be made.
(c) Notwithstanding the provision of Section
23(a), in the event that a majority of the Board of Directors of
the Company is elected by
stockholder action at an annual or special meeting of stockholders, then until the 180th day following the effectiveness of such election (including any postponement or adjournment thereof), the Rights shall not be redeemed if such redemption is reasonably likely to have the purpose or effect of facilitating a Transaction with an Interested Person.
(a) The Board may at its option, at any time on or after a Section 11(a)(ii) Event, 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 1.5 shares 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").
provisions of Section 7(e) hereof) held by each holder of Rights.
(c) In the event that the number of shares of Common Stock which are authorized by the Company's Articles of Incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit any exchange of the 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 Common Stock for issuance upon exchange of the Rights.
(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 Rights 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
value of a whole share of Common Stock. For purposes of this
subsection (d), the value of a whole share of Common Stock shall
be the closing price (as determined pursuant to the second
sentence of Section 11(d) hereof) for the Trading Day
immediately prior to the date of exchange pursuant to this
Section 24.
(e) Notwithstanding the provision of Section
24(a), in the event that a majority of the Board of Directors of
the Company is elected by stockholder action at an annual or
special meeting of stockholders, then until the 180th day
following the effectiveness of such election (including any
postponement or adjournment thereof), the Rights shall not be
exchanged pursuant to Section 24(a) if such exchange is
reasonably likely to have the purpose or effect of facilitating
a Transaction with an Interested Person.
(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 Common Stock of the Company or to make any other
distribution to the holders of Common Stock of the Company (other than a regular periodic cash dividend out of earnings or retained earnings of the Company), (ii) to offer to the holders of Common Stock of the Company rights or warrants to subscribe for or to purchase any additional shares of Common Stock of the Company or shares of stock of any class or any other securities, rights or options, (iii) to effect any reclassification of the Common Stock of the Company (other than a reclassification involving only the subdivision or split of outstanding shares of Common Stock of the Company), (iv) to effect any consolidation, combination or merger into or with any other Person or Persons (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 affect 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 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, 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, combination, 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 Common Stock of the Company, 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 20 days prior to the record date for determining holders of the shares of Common Stock of the Company for purposes of such action, and in the case of any such other action, at least 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 Common Stock of the Company, whichever shall be the earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then, in any such case, (i) the Company shall as soon as practicable thereafter give to each holder of a Rights Certificate, to the extent feasible 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 Common Stock of the Company shall be deemed thereafter to refer to, if appropriate, other securities.
Glen Burnie Bancorp 101 Crain Highway, S.E.
Glen Burnie, Maryland 21061
Attention: President
Subject to the provisions of Section 21 hereof, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of any Rights Certificate to or on the Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows:
The Bank of Glen Burnie 101 Crain Highway, S.E.
Glen Burnie, Maryland 21061
Attention: President
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 any certificate representing shares of Common Stock of the Company) shall be sufficiently given or made if sent by first-class mail, insured, postage prepaid, addressed to such holder at the address of such holder as shown on the registry books of the Company.
proposed supplement or amendment is in compliance with the terms of this Section 27(a), the Rights Agent shall execute such supplement or amendment. 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 of the Company.
(b) Notwithstanding the provision of Section
27(a), in the event that a majority of the Board of Directors of
the Company is elected by stockholder action at an annual or
special meeting of stockholders, then until the 180th day
following the effectiveness of such election (including any
postponement or adjournment thereof), the Rights shall not be
supplemented or amended in any manner reasonably likely to have
the purpose or effect of facilitating a Transaction with an
Interested Person.
to redeem or not redeem the Rights or to amend this Agreement). All such actions, calculations, interpretations and determinations (including without limitation for purposes of clause (y) below, all omissions with respect to the foregoing) which are done or made by the Board (with, where specifically provided for herein, the concurrence of the Continuing Outside Directors) or the Company in good faith, shall (x) be final, conclusive and binding on the Company, the Rights Agent, the holders of the Rights and all other parties and (y) not subject the Board or the Continuing Outside Directors to any liability to the holders of the Rights.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated 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.
ATTEST: GLEN BURNIE BANCORP
By:/s/John E. Demyan By: /s/F. William Kuethe, Jr.
--------------------------- --------------------------
Name: John E. Demyan Name: F. William Kuethe, Jr.
Title: Chairman of the Board Title: President and Chief
of Glen Burnie Executive Officer
Bancorp
ATTEST: THE BANK OF GLEN BURNIE,
as Rights Agent
By:/s/John E. Demyan By: /s/F. William Kuethe, Jr.
--------------------------- --------------------------
Name: John E. Demyan Name: F. William Kuethe, Jr.
Title: Chairman of the Board Title: President and Chief
of Glen Burnie Executive Officer
Bancorp
62
|
Exhibit A
---------
|
[Form of Rights Certificate]
Certificate No. R- ______ Rights
NOT EXERCISABLE AFTER FEBRUARY 13, 2008, SUBJECT TO EARLIER REDEMPTION OR EXPIRATION PURSUANT TO THE RIGHTS AGREEMENT. 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. THE RIGHTS EVIDENCED BY THIS CERTIFICATE SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD, BY A HOLDER IN ANY JURISDICTION WHERE THE REQUISITE QUALIFICATION FOR THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF ANY SUCH PERSON (AS SUCH TERMS ARE 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.]*
Rights Certificate
GLEN BURNIE BANCORP
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of the
Rights Agreement dated as of February 13, 1998, as amended,
restated, renewed or extended from time to time (the "Rights
Agreement"), between Glen Burnie Bancorp, a Maryland corporation
(the "Company"), and The Bank of Glen Burnie (the "Rights
Agent"), to purchase from the Company at any time prior to 5:00
P.M. (New York City time) on February 13, 2008, at the office or
offices of the Rights Agent, or its successors as Rights Agent,
designated for such purpose, one fully paid, nonassessable share
of common stock, par value $1.00 per share, of the Company (the
"Common Stock"), at a purchase price of $100 per share (the
"Purchase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to Purchase and
included Certificate duly completed and executed. The number of
Rights evidenced by this Rights Certificate (and the number of
shares of Common Stock which may be
purchased upon exercise thereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase
Price as of February 13, 1998, based on the Common Stock as
constituted at such date. The Company reserves the right to
require prior to the occurrence of a Triggering Event (as such
term is defined in the Rights Agreement) that a number of Rights
be exercised so that only whole shares of Common Stock will be
issued.
As more fully set forth in the Rights Agreement, from
and after the first 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 Associate or Affiliate of an
Acquiring Person (as such terms are defined in the Rights
Agreement), which is determined to have been involved in or
caused or facilitated, directly or indirectly, such Section
11(a)(ii) Event, (ii) a transferee of such Acquiring Person (or
of any such Associate or Affiliate) or (iii) under certain
circumstances specified in the Rights Agreement, a transferee of
such Acquiring Person (or of any such Associate or Affiliate who
becomes a transferee prior
to or concurrently with such Acquiring Person becoming such),
such Rights shall become null and void without any further
action, and no holder hereof shall have any right with respect
to such Rights whether under the Rights Agreement or otherwise.
As provided in the Rights Agreement, the Purchase Price and
the number and kind of shares of Common Stock or other
securities, which may be purchased upon the exercise of the
Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain
events, including Triggering Events (as defined in the Rights
Agreement).
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. Reference is
also made to the Rights Agreement for definitions of capitalized
terms used and not defined herein. Copies of the Rights
Agreement are on file at the above-mentioned 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 shares of Common 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 (i) the Close of Business on 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 (as defined in the Rights Agreement).
If the Company so determines, no fractional shares of
Common Stock will be issued upon the exercise of any Right or
Rights evidenced hereby (other than fractions which are integral
multiples of one share of Common Stock (which may, at the
election of the Company, be evidenced by depository receipts)),
but in lieu thereof, a cash payment will be made, as provided in
the Rights Agreement.
No holder of this Rights Certificate, as such, shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Common Stock or of any other
securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder
hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or
upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, to receive notice of
meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividend 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 ___________________, ____
ATTEST: GLEN BURNIE BANCORP
By: ___________________ By:____________________
Secretary Title:
Countersigned:
THE BANK OF GLEN BURNIE
By: ____________________
Authorized Signature
|
[Form of Reverse Side of Rights Certificate]
(To be executed by the registered holder if such holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest herein, and does hereby irrevocably constitute and appoint Attorney, to transfer the within Rights Certificate on the books of the within-named Company, with full power of substitution.
Dated: ___________________, ____
Signature
Signature Guaranteed:
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is, was or subsequently became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:_________________, ____
Signature
Signature Guaranteed:
The signatures to the foregoing Assignment and Certificate must correspond to the name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.
(To be executed if holder desires to exercise Rights represented by the Rights Certificate.)
To: GLEN BURNIE BANCORP
The undersigned hereby irrevocably elects to exercise _______ Rights represented by this Rights Certificate to purchase the shares of Common Stock issuable upon the exercise of the Rights (or such other securities of the Company or of any other Person which may be issuable or such other assets which may be deliverable upon the exercise of the Rights) and requests that certificates for any such shares or securities be issued in the name of and delivered to:
(Please print name and address)
Please insert social security
or other identifying number:
If such number of Rights shall not be all the Rights evidenced by this Rights Certificate, a new Rights Certificate for the balance of such Rights shall be registered in the name of and delivered to:
(Please print name and address)
Please insert social security
or other identifying number:
Dated:__________________, ____
Signature
Signature Guaranteed:
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not being exercised by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined in the Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, the undersigned [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is, was or became an Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:_________________, ____
Signature
Signature Guaranteed:
The signature to the foregoing Election to Purchase and Certificate must correspond to the name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.
SUMMARY OF RIGHTS TO PURCHASE
COMMON STOCK
On February 13, 1998, the Board of Directors of Glen Burnie Bancorp (the "Company") declared a dividend distribution of one Right for each outstanding share of Company Common Stock to stockholders of record at the close of business on February 13, 1998. Each Right entitles the registered holder to purchase from the Company one share of Common Stock on the date of exercise, at a Purchase Price of $100, subject to adjustment. The terms of the Rights are set forth in a Rights Agreement (the "Rights Agreement") between the Company and The Bank of Glen Burnie, as Rights Agent.
Initially, the Rights will be attached to all Common Stock certificates representing shares then outstanding, and no separate Rights Certificates will be distributed. The Rights will separate from the Common Stock and a Distribution Date will occur upon the earlier of (i) 10 days following a public announcement by the Company that a person (other than an Exempt Person) or group of affiliated or associated persons (an "Acquiring Person") has acquired, or obtained the right to acquire, beneficial ownership of 10% or more of the outstanding shares of Common Stock (the "Stock Acquisition Date") or (ii) 10 business days following the commencement of a tender offer or exchange offer that would result in a person or group beneficially owning 10% or more of such outstanding shares of Common Stock.
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 February 13,
1998 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.
The Rights are not exercisable until the Distribution Date and will expire at the close of business on February 13, 2008, unless earlier redeemed by the Company as described below.
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 as otherwise determined by the Board of Directors, only shares of Common Stock issued prior to the Distribution Date will be issued with Rights.
In the event that at any time following the Rights Dividend Declaration Date, a Person (other than an Exempt Person) becomes the beneficial owner of 10% or more of the then outstanding shares of Common Stock (except pursuant to an offer for all outstanding shares of Common Stock which at least a majority of the Continuing Outside Directors determined to be fair to and otherwise in the best interests of the Company and its stockholders) each holder of a Right (other than Rights held by the party triggering the Rights and certain transferees which are voided) will thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property or other securities of the Company, subject to certain limitations) having a value equal to two times the exercise price of the Right. However, Rights are not exercisable following the occurrence of the event set forth above until such time as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $100 per Right, each Right not owned by an Acquiring Person (or by certain related parties) following an event set forth in the preceding paragraph would entitle its holder to purchase $200 worth of Common Stock (or other consideration, as noted above) for $100. Assuming that the Common Stock had a per share value of $30 at such time, the holder of each valid Right would be entitled to purchase 6.67 shares of Common Stock for $100.
The Board may, at its option, at any time after a person becomes an Acquiring Person, exchange all or part of the outstanding Rights (other than
Rights owned by an Acquiring Person, its affiliates, associates or transferees, which will become void) for shares of Common Stock at an exchange ratio of 1.5 shares of Common Stock per Right.
In the event that, at any time following the date that any
Person becomes an Acquiring Person, (i) the Company engages in
certain mergers or other business combination transactions or
(ii) 50% or more of the Company's assets or earning power is
sold or transferred, 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, common stock of the
acquiring company having a value equal to two times the exercise
price of the Right.
The Purchase Price payable, and the number of shares of Common Stock (or the number and kind of other securities or property, as the case may be) 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 Common Stock, (ii) if holders of the Common Stock are granted certain rights or warrants to subscribe for Common Stock or convertible securities at less than the current market price of the Common Stock, or (iii) upon the distribution to holders of the Common Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends) or of subscription rights or warrants (other than those referred to above).
No adjustment in the Purchase Price will be required until cumulative adjustments amount to at least 1% of the Purchase Price. The Company is not required to issue fractional shares of Common Stock and in lieu thereof an adjustment in cash will be made. For fractional shares of Common Stock, the adjustment will be based on the market price of the Common Stock on the last trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in part, at any time until ten days following the Stock Acquisition Date, at a price of $.01 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors). Under certain circumstances set forth in the Rights Agreement, the decision to redeem shall require the concurrence of a majority of the Continuing Outside Directors. Immediately upon the action of the Board of Directors ordering redemption of the Rights with, where required, the concurrence of the Continuing Directors, the Rights will terminate and the only right of the holders of Rights will be to receive the $.01 per Right redemption price.
The term "Continuing Outside Directors" means (i) members of the Board of Directors who are not Acquiring Persons, or affiliates, associates or representatives of an Acquiring Person, and who are not officers of the Company or any of its subsidiaries, and were members of the Board of Directors prior to the date of the Rights Agreement or (ii) Persons who subsequently became members of the Board of Directors, who are not Acquiring Persons or the affiliates, associates or representatives of an Acquiring Person and who are not officers of the Company or any of its subsidiaries, if such Persons' nominations for election or election to the Board of Directors are recommended or approved by a majority of the Continuing Outside Directors.
Notwithstanding the foregoing, in the event that a majority of the Board of Directors of the Company is elected by stockholder action at an annual or special meeting of stockholders then until the 180th day following the effectiveness os such election (including any postponement or adjournment thereof), the Rights shall not be redeemed if such redemption is reasonably likely to have the purpose or effect of facilitating a Transaction (defined as merger, consolidation or sale of assets or any acquisition of Common Stock which would result in a person becoming an Acquiring Person) with an Interested Person (defined as a person or group who (i) is or will become an Acquiring Person if such Transaction were to be consummated, and (ii) is, or directly or indirectly proposed, nominated or financially supported, a director of the Company in office at the time of consideration of such Transaction who was elected at an annual or special meeting of stockholders.
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 in the event that the Rights become exercisable for Common Stock (or other consideration) of the Company or for common stock of the acquiring company as set forth above.
The Rights Agreement may be amended in certain instances so long as there are Continuing Outside Directors and a majority of such Continuing Outside Directors votes in favor of the proposed amendment. Other than those provisions relating to the principal economic terms of the Rights, any of the provisions of the Rights Agreement may be amended prior to the Distribution Date. After the Distribution Date, the provisions of the Rights Agreement may be amended in order to cure any ambiguity, to make changes which do not adversely affect the interest of holders of Rights (excluding the interest of any Acquiring Person), or to shorten or lengthen any time period under the Rights Agreement; provided, however, that no amendment to adjust the time period governing redemption shall be made at such time as the Rights are not redeemable.
Notwithstanding the foregoing, in the event that a majority of the Board of Directors of the Company is elected by stockholder action at an annual or special meeting of stockholders, then until the 180th day following the effectiveness of such election (including any postponement or adjournment thereof), the Rights shall not be supplemented or amended in any manner reasonably likely to have the purpose or effect of facilitating a Transaction with an Interested Person.
Copies of the Rights Agreement are available free of charge from the Company. 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.