As filed with the Securities and Exchange Commission on August 9, 2002
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 (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
Delaware 04-2735766 -------- ---------- (State of Incorporation or Organization) (I.R.S. Employer Identification No.) 4375 River Green Parkway, Duluth, Georgia 30096 ---------------------------------------- ----- (Address of Principal Executive Offices) (Zip Code) If this form relates to the If this form relates to the registration of a class registration of a class of securities pursuant to of securities pursuant to Section 12(b) of the Section 12(g) of the Exchange Act and is effective Exchange Act and is effective pursuant to General Instruction pursuant to General Instruction A.(c), please check the A.(d), please check the following box. [ ] following box. [X] |
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT
Name of each exchange on Title of each class to be registered which each class is to be registered ------------------------------------ ------------------------------------ None Not applicable |
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT
Preferred Stock Purchase Rights
(Title of Class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
Item 1 of the Registration Statement is deleted in its entirety and the
following is substituted therefore:
Description of Rights.
Each of the following Persons (as defined in the Rights Agreement) will not be deemed to be an Acquiring Person even if they have acquired, or obtained the right to acquire, beneficial ownership of 15% or more of the voting power of the outstanding Common Shares of the Company: (i) the Company, (ii) any subsidiary of the Company, (iii) any employee benefit plan of the Company or any subsidiary of the Company, and (iv) any Person who would otherwise have become an Acquiring Person solely by virtue of a reduction in the number of shares of outstanding Common Stock unless and until such Person shall become the beneficial owner of any additional shares of Common Stock.
Flip-Over Right, then only the Flip-Over Right will be exercisable. If a transaction results in a holder's having a Flip-Over Right subsequent to a transaction resulting in a holder's having a Flip-In Right, a holder will have Flip-Over Rights only to the extent such holder's Flip-In Rights have not been exercised.
The Purchase Price payable, and the number of shares of Junior Preferred Stock, or other securities or property issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent dilution (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Junior Preferred Stock, (ii) upon the grant to holders of the Junior Preferred Stock of certain rights or warrants to subscribe for Junior Preferred Stock or convertible securities at less than the current market price of the Junior Preferred Stock, or (iii) upon the distribution to holders of the Junior Preferred Stock of evidences of indebtedness or assets (excluding dividends payable in Junior Preferred Stock) or of subscription rights or warrants (other than those referred to above). However, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1%.
The number of outstanding Rights and the number of one one-hundredths of a share of a Junior Preferred Stock issuable upon exercise of each Right are also subject to adjustment in the event of a stock split of the Common Stock or a stock dividend on the Common Stock payable in Common Stock or subdivisions, consolidations or combinations of the Common Shares occurring, in any such case, prior to the Distribution Date.
Junior Preferred Stock purchasable upon exercise of the Rights will not be redeemable. Each share of Junior Preferred Stock will be entitled to an aggregate quarterly dividend of 100 times the dividend declared per share of Common Stock. In the event of liquidation, the holders of shares of Junior Preferred Stock will be entitled to an aggregate payment of 100 times the payment made per share of Common Stock. Each share of Junior Preferred Stock will have 100 votes, in each case voting together with each class or series of stock entitled to vote thereon. Finally, in the event of any merger, consolidation or other transaction in which the shares of Common Stock are exchanged, each share of Junior Preferred Stock will be entitled to receive 100 times the amount received per share of Common Stock. These rights are protected by customary dilution provisions.
Because of the nature of the dividend, liquidation and voting rights of the Junior Preferred Stock, the value of the one one-hundredth interest in a share of Junior Preferred Stock purchasable upon exercise of each Right should approximate the value of one share of Common Stock.
If, after the triggering of Flip-In Rights, insufficient shares of Common Stock are available for the exercise in full of the Rights, the Company shall take all such action as may be necessary to authorize additional shares of Common Stock for issuance upon exercise in full of the Rights. If, after the expiration of 120 days after the triggering of Flip-In Rights, insufficient shares of Common Stock are available for the exercise in full of the Rights, holders of Rights will receive upon exercise Common Stock or to the extent available cash, property or other securities of the Company, in proportions determined by the Company, so that the aggregate value received is equal to twice the Purchase Price.
The Company is not required to issue fractional shares of Junior Preferred Stock (other than fractions which are integral multiples of one one-hundredth of a share of Junior Preferred Stock, which may, at the election of the Company be evidenced by depositary receipts), and in lieu thereof, a payment in cash will be made to the holder of such Rights equal to the same fraction of the current value of one one-hundredth of a share of Junior Preferred Stock. Following the triggering of the Flip-In Rights, the Company will not be required to issue fractional shares of Common Stock upon exercise of the Rights and, in lieu thereof, a payment in cash will be made to the holder of such Rights equal to the same fraction of the current market value of a share of Common Stock.
In general, the Company may redeem the Rights at a price of $0.0025 per Right (subject to adjustment), at any time prior to the existence of an Acquiring Person.
At any time after any Person becomes an Acquiring Person and prior to the acquisition by any Person of 50% or more of the outstanding shares of Common Stock, the Board of Directors of the Company may exchange the then outstanding and exercisable Rights (other than Rights owned by an Acquiring Person, which will have become null and void), in whole or in part, for shares of Common Stock, each Right being exchangeable for one share of Common Stock or common share equivalents equal to one share of Common Stock, subject to adjustment.
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.
The issuance of the Rights is not taxable to the Company or to stockholders under presently existing federal income tax law, and will not change the way in which stockholders can presently trade the Company's Common Stock. If the Rights should become exercisable, stockholders, depending on then existing circumstances, may recognize taxable income.
Prior to the existence of an Acquiring Person, the Rights Agreement generally may be amended by the Board of Directors of the Company. From and after the existence of an Acquiring Person, the Company may amend the Rights Agreement only to (i) cure any ambiguity, (ii) correct or supplement any provision which may be defective or inconsistent with the other provisions of the Rights Agreement, or (iii) change or supplement the Rights Agreement in any other manner which the Company may deem necessary or desirable, provided that no amendment shall adversely affect the interests of the holders of Rights (other than any interest of an Acquiring Person or an affiliate or associate of an Acquiring Person). However, no amendment may be made at any time when the Rights are not redeemable.
The Rights have certain anti-takeover effects. The Rights will cause substantial dilution to a Person or group that attempts to acquire the Company without conditioning the offer on a substantial number of Rights being acquired. Accordingly, the existence of the Rights may deter certain acquirors from making takeover proposals or tender offers. However, the rights plan helps ensure that the Company's stockholders receive fair and equal treatment in the event of any proposed takeover of the Company. The amendment and restatement of the plan is not in response to any specific takeover threat or proposal.
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as an Exhibit to this Registration Statement on Form 8-A with respect to the Rights filed with the Securities and Exchange Commission (Commission File No.0-13150). A copy of the Rights Agreement is available free of charge from the Company, 4375 River Green Parkway, Duluth, Georgia 30096, Attention: General Counsel. 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.
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
Certain matters discussed herein may constitute Forward-looking Statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended, each as amended
by the Private Securities Litigation Reform Act of 1995, 15 U.S.C.A. Sections
77z-2 and 78u-5 (Supp. 1996). Those statements include statements regarding the
intent, belief or current expectations of the Company and members of its
management team as well as the assumptions on which such statements are based.
Any such Forward-looking Statements are not guarantees of future performance and
the Company's actual result could differ materially from those set forth in such
Forward-looking Statements. The risks and uncertainties which could affect the
Company's financial condition or results of operations include, without
limitation: availability of video-on-demand content; delays or cancellations of
customer orders; changes in product demand; economic conditions; various
inventory risks due to changes in market conditions; uncertainties relating to
the development and ownership of intellectual property; uncertainties relating
to the Company's ability and the ability of other companies to enforce
intellectual property rights; the pricing and availability of equipment,
materials and inventories; the limited operating history of the Company's
video-on-demand segment; the concentration of its customers; failure to
effectively manage growth; delays in testing and introductions of new products;
rapid technology changes; demand shifts from high-priced, proprietary real-time
systems to low-priced, open server systems; system errors or failures; reliance
on a limited number of suppliers; uncertainties associated with international
business activities, including foreign regulations, trade controls, taxes, and
currency fluctuations; the highly competitive environment in which the Company
operates; and the entry of new well-capitalized competitors into the Company's
markets. Other important factors are detailed from time to time in the Company's
filings with the Securities and Exchange Commission, including Quarterly Reports
on Form 10-Q, Current Reports on Form 8-K (including specifically the Current
Report on Form 8-K dated October 22, 2001, incorporated herein by reference) and
Annual Reports on Form 10-K. The Company undertakes no obligation to update or
revise Forward-Looking Statements to reflect changed assumptions, the occurrence
of unanticipated events or changes to future operating results over time.
ITEM 2. EXHIBITS
Exhibit No. Description of Exhibit ------- ------------------------------------------------------- 4.1 Amended and Restated Rights Agreement dated as of August 7, 2002 between Concurrent Computer Corporation and American Stock Transfer & Trust Company, as Rights Agent, which includes the Form of Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock as Exhibit A, Form of Amendment to Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock as Exhibit B, and the Form of Rights Certificate as Exhibit C 4.2 Form of Rights Certificate |
SIGNATURE
Pursuant to the requirements to 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: August 9, 2002
CONCURRENT COMPUTER CORPORATION
By: /s/ Jack A. Bryant ------------------------------------ Name: Jack A. Bryant Title: President and Chief Executive Officer |
EXHIBIT INDEX
Exhibit No. Exhibit Description ------- ------------------------------------------------------- 4.1 Amended and Restated Rights Agreement dated as of August 7, 2002 between Concurrent Computer Corporation and American Stock Transfer & Trust Company, as Rights Agent, which includes the Form of Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock as Exhibit A, Form of Amendment to Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock as Exhibit B, and the Form of Rights Certificate as Exhibit C 4.2 Form of Rights Certificate |
Exhibit 4.1
EXECUTED COPY
CONCURRENT COMPUTER CORPORATION
a Delaware corporation
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY
a New York banking organization
RIGHTS AGENT
AMENDED AND RESTATED RIGHTS AGREEMENT
DATED AS OF AUGUST 7, 2002
TABLE OF CONTENTS Section 1. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . 2 Section 2. Appointment of Rights Agent. . . . . . . . . . . . . . . . . . . . . 6 Section 3. Issuance of Rights Certificates. . . . . . . . . . . . . . . . . . . 6 Section 4. Form of Rights Certificates. . . . . . . . . . . . . . . . . . . . . 8 Section 5. Countersignature and Registration. . . . . . . . . . . . . . . . . . 9 Section 6. Transfer, Split-Up, Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates . . . . . . 10 Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights. . . . 11 Section 8. Cancellation and Destruction of Rights Certificates. . . . . . . . . 12 Section 9. Reservation and Availability of Capital Stock. . . . . . . . . . . . 13 Section 10. Preferred Shares Record Date . . . . . . . . . . . . . . . . . . . . 14 Section 11. Adjustments to Number and Kind of Shares; Number of Rights or Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Section 12. Certification of Adjustments . . . . . . . . . . . . . . . . . . . . 22 Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Section 14. Fractional Rights and Fractional Shares. . . . . . . . . . . . . . . 25 Section 15. Rights of Action . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Section 16. Agreement of Right Holders . . . . . . . . . . . . . . . . . . . . . 26 Section 17. Rights Certificate Holder Not Deemed a Stockholder . . . . . . . . . 27 Section 18. Concerning the Rights Agent. . . . . . . . . . . . . . . . . . . . . 27 Section 19. Merger or Consolidation or Change of Name of Rights Agent. . . . . . 28 Section 20. Duties of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 28 Section 21. Change of Rights Agent . . . . . . . . . . . . . . . . . . . . . . . 30 Section 22. Issuance of New Rights Certificates. . . . . . . . . . . . . . . . . 31 Section 23. Redemption and Termination . . . . . . . . . . . . . . . . . . . . . 32 Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Section 25. Notice of Proposed Actions . . . . . . . . . . . . . . . . . . . . . 34 Section 26. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Section 27. Supplements and Amendments . . . . . . . . . . . . . . . . . . . . . 35 Section 28. Determinations and Actions by the Board. . . . . . . . . . . . . . . 36 Section 29. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 30. Benefits of this Agreement . . . . . . . . . . . . . . . . . . . . . 36 |
Section 31. Governing Law .. . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 32. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 33. Descriptive Headings . . . . . . . . . . . . . . . . . . . . . . . . 36 Section 34. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 |
EXHIBITS
Exhibit A Form of Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock of Concurrent Computer Corporation filed with the Secretary of the State of Delaware on August 13, 1992 Exhibit B Form of Amendment to Amended Certificate of Designations of Series A Participating Cumulative Preferred Stock of Concurrent Computer Corporation Exhibit C Form of Rights Certificate |
WHEREAS, pursuant to Section 26 of the Original Rights Agreement, the Company and BankBoston entered into that certain Amendment to Rights Agreement dated June 27, 1996 to amend the definition of an Acquiring Person; and
WHEREAS, pursuant to Sections 21 and 26 of the Original Rights Agreement BankBoston and the Company entered into that certain Second Amendment to Rights Agreement dated August 7, 2002 to amend certain provisions of Section 21 of the Original Rights Agreement, to waive certain provisions of Section 21 of the Original Rights Agreement and remove BankBoston as the Rights Agent; and
WHEREAS, the Company desires to amend and restate the Original Rights Agreement to reflect the appointment, pursuant to Section 2 herein, of American Stock Transfer & Trust Company as the successor Rights Agent and to extend the Final Expiration Date (as defined herein) to August 14, 2012 and in other respects set forth in this Agreement; and
WHEREAS, effective as of the date of this Agreement, the company desires and directs the Rights Agent to amend and restate the Original Rights Agreement in its entirety pursuant to Section 26 of the Original Rights Agreement and in the manner set forth in this Agreement;
WHEREAS, as of the date of this Agreement, no Person (as such term is hereinafter defined) had become an Acquiring Person (as such term is hereinafter defined);
WHEREAS, the Board of Directors of the Company has considered whether approval of this Agreement and the distribution of the Rights is in the best interests of the Company and all other pertinent factors;
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereby agree as follows:
(a) "Acquiring Person" shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of 15% or more of the Voting Power of the Common Shares of the Company then outstanding; provided, however, that:
(i) the term "Acquiring Person" shall not include an Exempt Person (so long as such Person remains an Exempt Person);
(ii) a Person shall not be deemed to have become an "Acquiring Person" solely as a result of the acquisition by the Company of shares of capital stock of the Company which, by reducing the number or Voting Power of shares outstanding, increases the Voting Power of the shares beneficially owned by such Person to 15% or more of the Voting Power of the Common Shares; provided, however, that if a Person shall so become the Beneficial Owner of Common Shares of the Company representing 15% or more of the Voting Power of the Common Shares of the Company then outstanding by reason of the acquisition by the Company of shares of capital stock of the Company and shall, after such share purchases by the Company, purchase or otherwise take action to cause it to become the Beneficial Owner of any additional Common Shares of the Company, then such Person shall be an Acquiring Person;
(iii) a Person shall not be deemed to have become an "Acquiring Person" if (a) the Board of Directors of the Company in its good faith judgment determines that a Person has inadvertently become the Beneficial Owner of Common Shares of the Company that would otherwise cause such Person to become an Acquiring Person; (b) the Board of Directors in its sole discretion provides such Person with a designated period to divest a sufficient number of shares so that such Person no longer is the Beneficial Owner of Common Shares of the Company that would otherwise cause such Person to be an Acquiring Person, and (c) such Person has so divested such shares at the end of any such designated period and has not acquired any additional shares of capital stock of the Company prior to the end of such designated period; and
(iv) Common Shares of the Company Beneficially Owned by the Company or any Subsidiary of the Company shall not be considered outstanding for purposes of
calculating any Person's percentage ownership of the Voting Power of the outstanding Common Shares of the Company.
(b) "Adjustment Shares" shall have the meaning set forth in
Section 11(a)(ii).
(c) "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 in effect on the date of this Agreement.
(d) 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 beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or Associates, directly or indirectly, has (A) 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 (other than customary agreements with and between underwriters and selling group members with respect to a bona fide public offering of securities), or upon the exercise of conversion rights, exchange rights, rights (other than the Rights), warrants or options, or otherwise; provided, however, that a Person shall not be deemed the "Beneficial Owner" of or to "Beneficially Own" 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 pursuant to, and in accordance with the General Rules and Regulations promulgated under the Exchange Act, until such tendered securities are accepted for purchase or exchange; or (B) pursuant to any agreement, arrangement or understanding whether or not in writing, the right to vote or dispose of such securities or "beneficial ownership" (as defined in Rule 13d-3 of the General Rules and Regulations under the Exchange Act as in effect on the date of this Agreement) of such securities; provided, however, that a Person shall not be deemed the "Beneficial Owner" of or to "Beneficially Own" any securities if the agreement, arrangement or understanding to vote such security (1) arises solely from a revocable proxy or consent given to such Person in response to a public proxy or consent solicitation made to more than ten holders of shares of a class of stock of the Company registered under Section 12 of the Exchange Act and pursuant to, and in accordance with, the General Rules and Regulations under the Exchange Act and, (2) is not also required to be reported by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any other Person (or any Affiliates or Associates 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 as described in the proviso to clause (B) of subparagraph (ii) of this Section 1(d)) or disposing of any securities of the Company.
Notwithstanding anything in this definition of Beneficial Ownership to the contrary, the phrase "then outstanding," when used with reference to a Person's Beneficial Ownership of securities of
the Company, shall mean the number of such securities then issued and outstanding together with the number of such securities not then actually issued and outstanding which such Person would be deemed to Beneficially Own under this Agreement.
(e) "Business Day" shall mean any day other than a Saturday, Sunday, or a day on which banking institutions in the State of Delaware are authorized or obligated by law or executive order to close.
(f) "Close of Business" on any given date shall mean 5:00 P.M., central time, on such date; provided, however, that if such date is not a Business Day it shall mean 5:00 P.M., central time, on the next succeeding Business Day.
(g) "Common Shares," when used with reference to the Company, shall mean shares of the common stock, par value $0.01 per share, of the Company. "Common Shares," when used with reference to any Person other than the Company, shall mean the capital stock or other equity interests with the greatest per share or per unit voting power of such other Person or, if such other Person is a Subsidiary of or is controlled by another Person, the Person or Persons which ultimately control such first-mentioned Person.
(h) "Common Share Equivalents" shall have the meaning set forth in
Section 11(a)(iii).
(i) "Current Market Price" shall have the meaning set forth in
Section 11(d).
(j) "Current Value" shall have the meaning set forth in Section
11(a)(iii).
(k) "Distribution Date" shall have the meaning set forth in
Section 3(a).
(l) "Equivalent Preferred Shares" shall have the meaning set forth in Section 11(b).
(m) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
(n) "Exchange Ratio" shall have the meaning set forth in Section 24(a).
(o) "Exempt Person" shall mean:
(i) the Company,
(ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or of any Subsidiary of the Company, or
(iv) any Person or entity organized, appointed, established or holding Common Shares of the Company for or pursuant to the terms of any such employee benefit plan.
(p) "Expiration Date" shall have the meaning set forth in Section 7(a).
(q) "Final Expiration Date" shall have the meaning set forth in
Section 7(a).
(r) "Flip-In Event" shall have the meaning set forth in Section 11(a)(ii).
(s) "Flip-In Trigger Date" shall have the meaning set forth in
Section 11(a)(iii).
(t) "Flip-Over Event" shall mean any event described in clause
(x), (y) or (z) of Section 13(a).
(u) "Junior Preferred Shares" shall mean shares of Junior Preferred Stock
(v) "Junior Preferred Stock" shall mean the Series A Participating Cumulative Preferred Stock, par value $0.01 per share, of the Company, and, to the extent there are not a sufficient number of shares of Series A Participating Cumulative Preferred Stock authorized to permit the full exercise of the then outstanding Rights, any other series of preferred stock of the Company designated for such purpose by the Board of Directors of the Company containing terms substantially similar to the terms of the Series A Participating Cumulative Preferred Stock.
(w) "Nasdaq National Market" shall have the meaning set forth in
Section 9(b).
(x) "Person" shall mean any individual, firm, corporation, partnership or other entity, and shall include any successor (by merger or otherwise) of such entity.
(y) "Principal Party" shall have the meaning set forth in Section 13(b).
(z) "Purchase Price" shall mean the price (subject to adjustment as provided herein) at which a holder of a Right may purchase one one-hundredth (1/100th) of a share of Junior Preferred Stock (subject to adjustment as provided herein) upon an exercise of a Right, which price shall initially be $30.00.
(aa) "Record Date" shall have the meaning set forth in the recitals clause at the beginning of this Agreement.
(bb) "Redemption Date" shall mean the date on which the Rights are redeemed as provided in Section 23.
(cc) "Redemption Period" shall have the meaning set forth in
Section 23(a)
(dd) "Redemption Price" shall have the meaning set forth in
Section 23(a).
(ee) "Rights" shall have the meaning set forth in the recitals clause at the beginning of this Agreement.
(ff) "Rights Certificates" shall have the meaning set forth in
Section 3(a).
(gg) "Securities Act" shall mean the Securities Act of 1933, as amended.
(hh) "Shares Acquisition Date" shall mean the earlier of (i) the
first public announcement (which for this purpose shall include, without
limitation, a report filed pursuant to Section 13(d) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such (or, if
such announcement occurs before the Record Date, the Close of Business on the
Record Date) or (ii) the public disclosure of facts by the Company or an
Acquiring Person indicating that an Acquiring Person has become such; provided,
however, that in the case of clause (i) or clause (ii) of this Section 1(hh), if
such Person is determined not to have become an Acquiring Person pursuant to
Section 1(a), then no such Shares Acquisition Date shall be deemed to have
occurred.
(ii) "Subsidiary" of a Person shall mean 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 are Beneficially Owned, directly or indirectly, or otherwise controlled by such Person.
(jj) "Substitution Period" shall have the meaning set forth in
Section 11(a)(iii).
(kk) "Trading Day" shall have the meaning set forth in Section 11(d)(i).
(ll) "Triggering Event" shall mean any Flip-In Event or Flip-Over Event.
(mm) "Voting Power" shall mean the total number of votes entitled to be cast generally by the holders of the Common Shares of the Company then outstanding.
(b) The Rights Agent will mail to any holder of the Rights Certificate a copy of this Agreement without charge to the holder but at the expense of the Company after receipt of a written request therefor.
(c) With respect to Common Shares of the Company outstanding as of the Close of Business on the Record Date, until the Distribution Date (or, if earlier, the Expiration Date or the Final Expiration Date), the Rights will be evidenced by certificates for Common Shares of the Company registered in the names of the holders thereof. Until the Distribution Date (or, if earlier, the Expiration Date or Final Expiration Date), the surrender for transfer of any certificate for Common Shares of the Company outstanding on the Record Date, with or without a copy of the Summary Rights, also shall constitute the surrender for transfer of the Rights associated with the Common Shares of the Company.
(d) Rights shall be issued in respect of all Common Shares of the Company that are issued (whether originally issued or from the Company's treasury) after the Record Date but prior to the earliest of the Distribution Date, the Expiration Date or the Final Expiration Date. Until the Distribution Date, certificates representing Common Shares also shall be deemed to be certificates for the associated Rights, and shall have impressed on, printed on, written on or otherwise affixed to them substantially the following legend:
This certificate also evidences and entitles the holder hereof to certain Rights as set forth in a n Amended and Restated Rights Agreement between Concurrent Computer Corporation and American Stock Transfer & Trust Company, as Rights Agent, dated as of August 7, 2002 (the "Amended and Restated Rights Agreement"), as may be amended from time to time, the terms of which are incorporated herein by reference and a copy of which is on file at the principal executive offices of Concurrent Computer
Corporation. Under certain circumstances, as set forth in the Amended and Restated Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. Concurrent Computer Corporation will mail to the holder of this certificate a copy of the Amended and Restated Rights Agreement, as in effect on the date of mailing, without charge, after receipt by it of a written request therefor. Under certain circumstances as provided in the Amended and Restated Rights Agreement, Rights issued to, held by or Beneficially Owned by Acquiring Persons, their Associates or Affiliates (as such terms are defined in the Amended and Restated Rights Agreement), or any subsequent holder of such Rights will become null and void.
With respect to such certificates containing the foregoing legends, the Rights associated with the Common Shares of the Company shall, until the earliest of the Expiration Date, the Final Expiration Date or the Distribution Date, be evidenced by such certificates alone and holders of record of Common Shares of the Company also shall be the holders of record of the associated Rights, and the surrender for transfer of any such certificate shall also constitute the surrender for transfer of the Rights associated with the Common Shares of the Company represented thereby.
(e) If the Company purchases or acquires any Common Shares of the Company after the Record Date but prior to the Distribution Date, any Rights associated with such Common Shares shall be deemed canceled and retired so that the Company shall not be entitled to exercise any Rights associated with the Common Shares of the Company that are no longer outstanding.
(a) Rights Certificates (and the forms of election to purchase shares and of assignment to be printed on the reverse thereof), when, as and if issued, shall be substantially in the form set forth in Exhibit C hereto, and may have such marks of identification or designation and such legends, summaries or endorsements printed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange or trading system on which the Rights may from time to time be listed or traded, or to conform to usage. Subject to the provisions of Sections 7(e), 11, 22, and 23, the Rights Certificates, whenever distributed, shall be dated as of the distribution date and shall entitle the holders thereof to purchase such number of one one-hundredths of a Junior Preferred Share, as shall be set forth therein at the price per one one-hundredth of a Junior Preferred Share set forth therein, 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 therein and in this Agreement.
(b) Notwithstanding any other provision of this Agreement, any Rights Certificate that represents Rights that are or were at any time on or after the Distribution Date Beneficially Owned by an Acquiring Person or any Affiliate or Associate thereof (or any
transferee of such Rights) shall have impressed on, printed on, written on or otherwise affixed to it (if the Company or the Rights Agent has knowledge that such Person is an Acquiring Person or an Associate or Affiliate thereof or transferee of such Person or a nominee of any of the foregoing) the following legend:
The Beneficial Owner of the Rights represented by this Rights Certificate is an Acquiring Person or an Affiliate or Associate (as such terms are defined in the Amended and Restated Rights Agreement) of an Acquiring Person or a subsequent holder of such Rights Certificate Beneficially Owned by such Persons. Accordingly, under circumstances specified in the Amended and Restated Rights Agreement, this Rights Certificate and the Rights represented hereby will become null and void.
Notwithstanding the above provision, failure to place such legend on any Rights Certificate representing Rights which are otherwise null and void pursuant to the terms of this Agreement shall not affect the null and void status of such Rights.
(a) The Rights Certificates shall be executed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, President or any Vice President, either manually or by facsimile signature, shall have affixed thereto the Company's seal or a facsimile thereof, and shall be attested by the Secretary or an Assistant Secretary of the Company, either manually or by facsimile signature. The Rights Certificates shall be countersigned by the Rights Agent and shall not be valid for any purpose unless so countersigned. If any officer of the Company who shall have signed any of the Rights Certificates shall cease to be such officer of the Company before countersignature by the Rights Agent or issuance and delivery by the Company, such Rights Certificates, nevertheless, may be countersigned by the Rights Agent, and issued and delivered by the Company with the same force and effect as though the person who signed such Rights Certificates had not ceased to be such officer of the Company; and any 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 office designated for such purposes, books for registration and transfer of the Rights Certificates issued under this Agreement. 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, the date of each of the Rights Certificates, and the certificate numbers for each of the Rights Certificates.
(a) Subject to the provisions of Section 4(b), Section 7(e) and
Section 14, at any time after the Close of Business on the Distribution Date and
at or prior to the Close of Business on the earlier of the Expiration Date or
the Final Expiration Date, any Rights Certificate or Rights Certificates (other
than such Rights Certificates representing Rights that have become null and void
pursuant to this Agreement or that have been exchanged pursuant to Section 24)
may be transferred, split up, combined or exchanged for another Rights
Certificate or Rights Certificates, entitling the holder of record to purchase a
like number of one one-hundredths of a Junior Preferred Share (or, following a
Triggering Event, Common Shares of the Company, other securities, cash or other
assets, as the case may be) as the Rights Certificate or Rights Certificates
surrendered then entitles such holder (or former holder in the case of a
transfer) to purchase. Any holder of record desiring to transfer any Rights
Certificate or Rights Certificates shall surrender the Rights Certificate or
Rights Certificates at the office of the Rights Agent designated for such
purposes with the form of assignment on the reverse side thereof (or enclose
with such Rights Certificate or Rights Certificates a written instrument of
transfer in a form satisfactory to the Company and the Rights Agent), duly
executed by the holder of record thereof or his attorney duly authorized in
writing, and with such signature duly guaranteed. Any holder of record desiring
to 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 split up, combined
or exchanged at the office of the Rights Agent designated for such purposes.
Neither the Rights Agent nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such surrendered Rights
Certificate until the holder of record shall have completed and signed the
certificate contained in the form of assignment on the reverse side of such
Rights Certificate and shall have provided such additional evidence of the
identity of the Beneficial Owner (or former Beneficial Owner) or Affiliates or
Associates thereof as the Company shall request. Thereupon the Rights Agent
(subject to Section 4(b), Section 7(e), Section 14 and Section 23) shall
countersign and deliver to the person entitled thereto a Rights Certificate or
Rights Certificates, as the case may be, as so requested. The Company may
require payment 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 Rights Certificate, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to them, and, if requested by the Company,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Rights Certificate if mutilated, the Company (subject to the provisions of
Section 4(b), Section 7(e), Section 14 and Section 23) will execute and deliver
a new Rights Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Rights Certificate so lost, stolen, destroyed
or mutilated.
(b) The Purchase Price with respect to each Right shall initially be $30.00 for each one one-hundredth of a Junior Preferred Share issued pursuant to the exercise of a Right. The Purchase Price and the number of one one-hundredths of a Junior Preferred Share or other securities or consideration to be acquired upon exercise of a Right shall be subject to adjustment from time to time as provided in Sections 11 and 13. The Purchase Price shall be payable in lawful money of the United States of America in accordance with Section 7(c).
(c) Except as provided in Section 7(e), upon receipt of a Rights
Certificate representing exercisable Rights, with the form of election to
purchase and the certificate contained in the form of election to purchase duly
executed, accompanied by payment of the Purchase Price for the shares or other
securities or assets to be purchased and an amount equal to any applicable
transfer tax, by cash, certified check or official bank check payable to the
order of the Company, the Rights Agent, subject to Section 20(j), shall
thereupon promptly (i) (A) requisition from any transfer agent of the Junior
Preferred Shares (or make available, if the Rights Agent is the transfer agent
for such shares) certificates for the total number of Junior Preferred Shares so
elected to be purchased and the Company will comply and hereby authorizes and
directs such transfer agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number of Junior Preferred
Shares issuable upon exercise of the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary receipts representing such
number of one one-hundredths of a Junior Preferred Share as are to be purchased
(in which case certificates for the Junior Preferred Shares represented by such
receipts shall be deposited by the transfer agent with the depositary agent) and
the Company hereby directs the depositary agent to comply with such request,
(ii) when appropriate, requisition from the Company the amount of cash, if any,
to be paid in lieu of issuance of fractional shares in accordance with Section
14, (iii) promptly after receipt of such certificates or depositary receipts,
cause the same to be delivered to or upon the order of the holder of record of
such Rights Certificate, registered in such name or names as may be designated
by such holder, and (iv) when appropriate, after receipt promptly deliver such
cash to or upon the order of the holder of record of such Rights Certificate;
provided, however, that in the case of a purchase of securities,
other than Junior Preferred Shares, pursuant to Section 13, the Rights Agent shall promptly take the appropriate actions corresponding to the foregoing clauses (i) through (iv). If the Company is obligated to issue other securities (including Common Shares) of the Company, pay cash and/or distribute other property pursuant to Section 11(a), the Company will make all arrangements necessary so that such other securities, cash and/or other property are available for distribution by the Rights Agent, if and when appropriate. The Company reserves the right to require prior to the occurrence of a Triggering Event that, upon an exercise of Rights, a number of Rights be exercised so that only whole Junior Preferred Shares would be issued.
(d) If the holder of record 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 to the registered holder of such Rights Certificate or to his duly authorized assigns, subject to the provisions of Section 14.
(e) Notwithstanding anything in this Agreement to the contrary, from and after the occurrence of a Triggering Event, any Rights Beneficially Owned by (i) an Acquiring Person or an Associate or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring Person (or a transferee of any such Associate or Affiliate of the Acquiring Person) who becomes a transferee after the Acquiring Person becomes such (and any subsequent transferees of such transferee), or (iii) a transferee of an Acquiring Person (or a transferee of any Associate or Affiliate of the Acquiring Person) who becomes a transferee prior to or concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either (A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity interests in such Acquiring Person or to any Person with whom the Acquiring Person has any continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a transfer which the Board of Directors of the Company has determined is part of a plan, arrangement or understanding which has a primary purpose or the effect of avoiding this Section 7(e), shall become null and void without any further action, and any holder (including any subsequent holder) of such Rights shall thereupon have no rights whatsoever with respect to such Rights, whether under any provision of this Agreement or otherwise. The Company shall use all reasonable efforts to insure that the provisions of this Section 7(e) are complied with, but shall have no liability to any holder of Right Certificates or other Person as a result of its failure or inability to make any determinations with respect to an Acquiring Person or its 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 holder of record upon the occurrence of any purported
exercise as set forth in this Section 7 unless such holder of record shall have
(i) completed and signed the certificate contained in the form of election to
purchase set forth on the reverse side of the Rights Certificate surrendered for
such exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall request.
and no Rights Certificates shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Agreement. The Company shall deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel and retire, any other Rights Certificate purchased or acquired by the Company otherwise than upon the exercise thereof. The Rights Agent shall deliver all canceled Rights Certificates to the Company, or shall, at the written request of the Company, destroy or cause to be destroyed such canceled Rights Certificates, and in such case shall deliver a certificate of destruction thereof to the Company.
(a) The Company covenants and agrees that it will cause to be reserved and kept available, out of and to the extent of its authorized and unissued Junior Preferred Shares not reserved for another purpose (and, following the occurrence of a Triggering Event, out of its authorized and unissued Common Shares or other securities) or shares held in its treasury, the number of Junior Preferred Shares (and, following the occurrence of a Triggering Event, Common Shares or other securities) that, as provided in this Agreement, including Section 11(a)(iii), will be sufficient to permit the exercise in full of all outstanding Rights. Prior to the occurrence of a Triggering Event, the Company shall not be obligated to cause to be reserved and kept available, out of its authorized and unissued Common Shares or shares of preferred stock (other than Junior Preferred Shares), any such Common Shares or any shares of preferred stock (other than Junior Preferred Shares) to permit exercise of outstanding Rights.
(c) The Company covenants and agrees that it will take all such action as may be necessary to insure that all Junior Preferred Shares (and following the occurrence of a Triggering Event, Common Shares or 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 in respect thereof), be duly and validly authorized and issued and fully paid and nonassessable shares in accordance with applicable law.
(d) The Company further covenants and agrees that 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 or of any Junior Preferred Shares (or Common Shares, other securities or assets, 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 certificates for Junior Preferred Shares (or Common Shares, other securities or assets, as the case may be) upon exercise of Rights in a name other than that of, the holder of record of the Rights Certificate, and the Company shall not be required to issue or deliver a Rights Certificate or certificate for Junior Preferred Shares (or Common Shares or other securities, as the case may be) to a Person other than such holder of record, until any 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.
(a) (i) If the Company shall at any time after the date of this Agreement (A) declare or pay any dividend on Junior Preferred Shares payable in Junior Preferred Shares, (B) subdivide or split the outstanding Junior Preferred Shares into a greater number of shares, (C) combine or consolidate the outstanding Junior Preferred Shares into a smaller number of shares or effect a reverse split of the outstanding Junior Preferred Shares or (D) issue any shares of its capital stock in a reclassification of the Junior Preferred Shares (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 subject to Section 7(e), the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the
number and kind of Junior Preferred Shares or capital stock, 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 Junior
Preferred Shares or capital stock, as the case may be, which, if such Right had
been exercised immediately prior to such date and at a time when the Junior
Preferred Shares transfer books of the Company were open, the holder thereof
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination or reclassification; provided, however,
that in no event shall the consideration to be paid upon the exercise of one
such Right be less than the per share par value of the shares of capital stock
of the Company issuable upon exercise of the Right. If an event occurs which
would require an adjustment under both this Section 11(a)(i) and Section
11(a)(ii), 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).
Junior Preferred Shares and/or Equivalent Preferred Shares so to be offered (and/or the aggregate initial conversion price of the convertible securities so to be offered) would purchase at such Current Market Price, and the denominator of which shall be the number of Junior Preferred Shares outstanding on such record date, plus the number of additional Junior Preferred Shares and/or Equivalent Preferred Shares to be offered for subscription or purchase (or into which the convertible securities so to be offered are initially convertible). If such subscription price may be paid by delivery of consideration, part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights. Junior Preferred Shares owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed, and if such rights or warrants are not so issued, the Purchase Price then in effect shall be adjusted to be the Purchase Price which would then be in effect if such record date had not been fixed.
(c) If the Company shall fix a record date for a distribution to all holders of Junior Preferred Shares (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing or surviving corporation) of evidences of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Junior Preferred Shares, but including any dividend payable in stock other than Junior Preferred Shares) or subscription rights or warrants (excluding those referred to in Section 11(b)), the Purchase Price to be in effect after such record date shall be determined by multiplying the Purchase Price in effect immediately prior to such record date by a fraction, the numerator of which shall be the Current Market Price (as determined pursuant to Section 11(d)) per Junior Preferred Share on such record date, less the fair market value (as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent and the holders of the Rights) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to one Junior Preferred Share and the denominator of which shall be such Current Market Price (as determined pursuant to Section 11(d)) per Junior Preferred Share. Such adjustments shall be made successively whenever such a record date is fixed; and if 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.
(ii) For the purpose of any computation under this Agreement, the "Current Market Price" of the Junior Preferred Shares shall be determined in the same manner as set forth above for the Common Shares in Section 11(d)(i) (other than the last 2 sentences thereof). If the Current Market Price per Junior Preferred Share cannot be determined in the manner provided above, the "Current Market Price" per Junior Preferred Share shall be conclusively deemed to be an amount equal to 100 (as such number may be appropriately adjusted for such events as stock splits, stock dividends and recapitalizations with respect to the Common Shares of the Company occurring after the date of this Agreement) multiplied by the Current Market Price per Common Share. If neither the Common Shares nor the Junior Preferred Shares are publicly held or so listed or traded, "Current Market Price" per share of the Junior Preferred Shares shall mean the fair value per share as determined in good faith by the Board of Directors of the Company, whose determination shall be described in a statement filed with the Rights Agent and shall be conclusive for all purposes. For all purposes of this Agreement, the "Current Market Price" of one one-hundredth of a Junior Preferred Share shall be equal to the "Current Market Price" of one Junior Preferred Share divided by 100.
(e) Anything in this Agreement to the contrary notwithstanding, no adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least one percent in the Purchase Price; provided, however, that any adjustments which by reason of this Section 11(e) are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Section 11 shall be made to the nearest cent or to the nearest ten-thousandth of a Common Share or other security or one ten-thousandth of a Junior Preferred Share, as the case may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this Section 11 shall be made no later than the earlier of (i) three years from the date of the transaction which mandates such adjustment, or (ii) immediately prior to the Expiration Date or the Final Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a) or Section 13(a), the holder of any Right thereafter exercised shall become entitled to receive any property or shares of capital stock other than Junior Preferred Shares, thereafter the amount of such property and the number of such other shares so receivable upon exercise of any Right and the Purchase Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Junior Preferred Shares contained in this Section 11, and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the Junior Preferred Shares shall apply on like terms to any such other property or shares.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the Purchase Price, the number of one one-hundredths of a Junior Preferred Share purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the Purchase Price, that number of one one-hundredths of a Junior Preferred Share (calculated to the nearest one one-hundred thousandth) obtained by (i) multiplying (x) the number of one one-hundredths of a share covered by a Right immediately prior to this adjustment, by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase Price, and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the Purchase Price or any adjustment to the number of one one-hundredths of a Junior Preferred Share for which a Right may be exercised, to adjust the number of Rights, in lieu of any adjustment in the number of one one-hundredths of a Junior Preferred Share purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of one one-hundredths of a Junior Preferred Share for which such Right was exercisable immediately prior to such adjustment. Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one one-hundred thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Purchase
Price is adjusted or any day thereafter, but, if the 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, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Rights Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued, executed
and countersigned in the manner provided for herein (and may bear, at the option
of the Company, the adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the number of one one-hundredths of a Junior Preferred Share issuable upon the exercise of the Rights, the Rights Certificates theretofore and thereafter issued may continue to express the Purchase Price per one one-hundredth of a Junior Preferred Share and the number of one one-hundredths of a share which were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value, if any, of the number of one one-hundredths of a Junior Preferred Share issuable upon exercise of the Rights, the Company shall take any corporate action, including using its best efforts to obtain any required stockholder approvals, which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable one one-hundredths of a Junior Preferred Share 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 one one-hundredths of a Junior Preferred Share and other capital stock or securities of the Company, if any, issuable upon such exercise over and above the number of one one-hundredths of a Junior Preferred Share and other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect immediately 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 reductions 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 of Directors of the Company shall determine to be advisable in order that any (i) consolidation or subdivision of the Junior Preferred Shares, (ii) issuance wholly for cash of any Junior Preferred Shares at less than the Current Market Price, (iii) issuance wholly for cash of Junior Preferred Shares or securities which by their terms are convertible into or exchangeable for Junior Preferred Shares, (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 Junior Preferred Shares 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)), (ii) merge with or into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)), or (iii) sell or
transfer (or permit any Subsidiary to sell or transfer), in one transaction or a
series of related transactions not in the ordinary course of the Company's
business, assets, cash flow or earning power aggregating more than 50% of the
assets, cash flow or earning power, as the case may be, of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons (other than the
Company and/or any of its Subsidiaries in one or more transactions each of which
complies with Section 11(o)), if (x) at the time of or immediately after such
consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect that would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately after
such consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) 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, take (or permit any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable that such action will diminish substantially or otherwise eliminate the benefits intended to be afforded by the Rights.
(p) Anything in this Agreement to the contrary notwithstanding, if the Company shall at any time after the date of this Agreement and prior to the Distribution Date (i) declare a dividend on the outstanding Common Shares payable in Common Shares, (ii) subdivide the outstanding Common Shares, or (iii) combine the outstanding Common Shares into a smaller number of shares, the number of Rights associated with each Common Share then outstanding, or issued or delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each Common Share following any such event shall equal the result obtained by multiplying the number of Rights associated with each Common Share immediately prior to such event by a fraction the numerator which shall be the aggregate number of Common Shares outstanding immediately prior to the occurrence of the event and the denominator of which shall be the aggregate number of Common Shares outstanding immediately following the occurrence of such event.
Preferred Shares a copy of such certificate and (c) if a Distribution Date has occurred, mail a brief summary thereof to each holder of a Rights Certificate (or, if prior to the Distribution Date, to each holder of a certificate representing Common Shares) in accordance with Section 26. Notwithstanding the foregoing sentence, the failure of the Company to give such notice shall not affect the validity of or the force or effect of or the requirement for such adjustment. The Rights Agent shall be fully protected in relying on any certificate prepared by the Company pursuant to Sections 11 and 13 and on any adjustment therein contained. Any adjustment to be made pursuant to Sections 11 and 13 shall be effective as of the date of the event giving rise to such adjustment.
(a) If at any time following the time an Acquiring Person becomes
such, directly or indirectly, (x) the Company shall consolidate with, or merge
with and into, any other Person or Persons (other than a Subsidiary of the
Company in a transaction which complies with Section 11(o)), and the Company
shall not be the surviving or continuing corporation of such consolidation or
merger, (y) any Person or Persons (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o)), shall consolidate with, or merge
with and into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding Common Shares shall be
changed into or exchanged for stock or other securities of any other Person or
of the Company or cash or any other property, or (z) the Company or one or more
of its Subsidiaries shall sell or otherwise transfer to any other Person or any
Affiliate or Associate of such Person (other than the Company or any Subsidiary
of the Company in one or more transactions each of which complies with Section
11(o)), in one transaction or a series of related transactions not in the
ordinary course of the Company's business, assets, cash flow, or earning power
aggregating more than 50% of the assets, cash flow or earning power, as the case
may be, of the Company and its Subsidiaries (taken as a whole), then, on the
first occurrence of any such event, proper provision shall be made so that (i)
each holder of record of a Right, except as provided in Section 7(e), shall
thereafter have the right to receive, upon the exercise thereof at the then
Purchase Price in accordance with the terms of this Agreement, such number of
shares of validly issued, fully paid and nonassessable and freely tradable
Common Shares of the Principal Party (as hereinafter defined) not subject to any
liens, encumbrances, rights of first refusal or other adverse claims, as shall
be equal to the result obtained by (1) multiplying the then current Purchase
Price by the number of one one-hundredths of a Junior Preferred Share for which
a Right was exercisable immediately prior to the first occurrence of a Flip-Over
Event (or, if a Flip-In Event has occurred prior to the first occurrence of a
Flip-Over Event, multiplying the Purchase Price in effect immediately prior to
the first occurrence of a Flip-In Event by the number of one one-hundredths of a
Junior Preferred Share for which a Right was exercisable immediately prior to
such first occurrence of a Flip-In Event) and (2) dividing that product (such
product, following the first occurrence of a Flip-Over 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 (determined as provided in Section
11(d)) per Common Share of such Principal Party on the date of consummation of
such Flip-Over Event (or the fair market value on such date of other securities
or property of the Principal Party, as provided for herein); provided that the
Purchase Price and the number of Common Shares of such Principal Party issuable
upon exercise of each Right shall be further adjusted as provided in this
Agreement to reflect any events occurring after
the date of the first occurrence of a Flip-Over Event; (ii) such Principal Party
shall thereafter be liable for, and shall assume, by virtue of such Flip-Over
Event, all the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" for all purposes of this Agreement shall thereafter be
deemed to refer to such Principal Party, it being specifically intended that the
provisions of Section 11 shall only apply to such Principal Party following the
first occurrence of a Flip-Over Event; and (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9) 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 Common Shares thereafter deliverable upon the exercise of
the Rights; provided, however, that, upon the subsequent occurrence of any
merger, consolidation, sale of all or substantially all assets,
recapitalization, reclassification of shares, reorganization or other
extraordinary transaction in respect of such Principal Party, each holder of a
Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price, such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive had he, at the
time of such transaction, owned the Common Shares of the Principal Party
purchasable upon the exercise of a Right, and such Principal Party shall take
such steps (including, but not limited to, reservation of shares of stock) as
may be necessary to permit the subsequent exercise of the Rights in accordance
with the terms hereof for such cash, shares, rights, warrants and other
property. The provisions of Section 11(a)(ii) shall be of no effect following
the first occurrence of any Flip-Over Event.
(1) in the case of any transaction described in clause (x) or
(y) of the first sentence of Section 13(a): (A) the Person that is the issuer
of any securities into which Common Shares of the Company are converted in such
merger or consolidation, or, if there is more than one such issuer, the issuer
the Common Shares of which has the greatest market value or (B) if no securities
are so issued, (x) the Person that is the other party to the merger or
consolidation and that survives said merger or consolidation, or, if there is
more than one such Person, the Person the Common Shares of which has the
greatest market value or (y) if the Person that is the other party to the merger
or consolidation does not survive the merger or consolidation, the Person that
does survive the merger or consolidation (including the Company if it survives);
and
(2) in the case of any transaction described in clause (z) of the first sentence in Section 13(a), the Person that is the party receiving the greatest portion of the assets or earning power transferred pursuant to such transaction or transactions, or, if each Person that is a party to such transaction or transactions receives the same portion of the assets or earning power so transferred or if the Person receiving the greatest portion of the assets or earning power cannot be determined, whichever of such Persons is the issuer of Common Shares having the greatest market value of shares outstanding;
provided, however, that in any such case described in Section 13(b)(1) or this
Section 13(b)(2), if the Common Shares of such Person are not at such time and
have not been continuously over the preceding 12-month period registered under
Section 12 of the Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which are and have been
so registered, the term "Principal Party" shall refer to such other Person, or if such Person is a Subsidiary, directly or indirectly, of more than one Person, the Common Shares of which are and have been so registered, the term "Principal Party" shall refer to whichever of such Persons is the issuer of the Common Shares having the greatest market value of shares outstanding.
(c) The Company shall not consummate any consolidation, merger,
sale or transfer referred to in Section 13(a) unless the Principal Party shall
have a sufficient number of authorized Common Shares which have not been issued
or reserved for issuance to permit the exercise in full of the Rights in
accordance with this Section 13 and unless prior thereto the Company and the
Principal Party involved therein shall have executed and delivered to the Rights
Agent an agreement confirming that the requirements of Sections 13(a) and (b)
shall promptly be performed in accordance with their terms and that such
consolidation, merger, sale or transfer 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 Sections 13(a) and (b) hereof and further providing
that, as soon as practicable after executing such agreement pursuant to this
Section 13, the Principal Party will:
(1) prepare and file a registration statement under the Securities Act, if necessary, with respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate form, use its best efforts to cause such registration statement to become effective as soon as practicable after such filing and use its best efforts to cause such registration statement to remain effective (with a prospectus at all times meeting the requirements of the Securities Act) until the date of expiration of the Rights, and similarly comply with applicable state securities laws;
(2) use its best efforts, if the Common Shares of the Principal Party shall become listed on a national securities exchange, to list (or continue the listing of) the Rights and the securities purchasable upon exercise of the Rights on such securities exchange and, if the Common Shares of the Principal Party shall not be listed on a national securities exchange, to cause the Rights and the securities purchasable upon exercise of the Rights to be listed by a national securities exchange or admitted for trading on the Nasdaq National Market;
(3) 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
(4) obtain waivers of any rights of first refusal or preemptive rights in respect of the Common Shares of the Principal Party subject to purchase upon exercise of outstanding Rights.
If any of the transactions described in Section 13(a) shall occur at any time after the occurrence of a transaction described in Section 11(a)(ii), the Rights which have not theretofore been exercised shall thereafter be exercisable in the manner described in Section 13(a). The provisions of this Section 13 shall similarly apply to all successive mergers, consolidations, sales, transfers or other Flip-Over Events.
(d) Furthermore, if the Principal Party which is to be a party to
a transaction referred to in this Section 13 has a provision in any of its
authorized securities or in its certificate of incorporation, articles of
incorporation, bylaws or other instrument governing its corporate affairs, which
provision would have the effect of (i) causing such Principal Party to issue, in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, Common Shares of such Principal Party at less
than the then Current Market Price per share (determined pursuant to Section
11(d)(i)) or securities exercisable for, or convertible into, Common Shares of
such Principal Party at less than such then Current Market Price (other than to
holders of Rights pursuant to this Section 13) or (ii) providing for any special
payment, tax or similar provisions in connection with the issuance of Common
Shares of such Principal Party pursuant to the provisions of this Section 13;
then, in such event, the Company hereby agrees with each holder of Rights that
it shall not consummate any such transaction unless prior thereto the Company
and such Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been canceled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
(a) The Company shall not be required to issue fractions of Rights or to distribute Rights Certificates which evidence fractional Rights. In lieu of such fractional Rights, there shall be paid to the holders of record 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 then current market value of a whole Right. For the purposes of this Section 14(a), the then current market value of a whole Right shall be the closing price of the Rights for the Trading Day immediately prior to the date on which such fractional Rights would have been otherwise issuable.
(b) The Company shall not be required to issue fractions of Junior Preferred Shares (other than fractions which are integral multiples of one one-hundredths of a Junior Preferred Share) upon exercise of the Rights, or to exchange the Rights pursuant to Section 24 for fractions of Common Shares. Fractions of Junior Preferred Shares in integral multiples of one one-hundredth of a Junior Preferred Share may, at the election of the Company, be evidenced by depositary receipts, pursuant to an appropriate agreement between the Company and a depositary selected by it, provided that such agreement shall provide that the holders of such depositary receipts shall have all the rights, privileges and preferences to which they are entitled as beneficial owners of the Junior Preferred Shares. With respect to fractional Junior Preferred Shares that are not integral multiples of one one-hundredth of a Junior Preferred Share, if the Company does not issue fractional shares or depositary receipts in lieu thereof, the Company shall pay to the registered holders of Rights Certificates at the time such Rights Certificates are exercised as herein provided an amount in cash equal to the same fraction of the current market value of one one-hundredth of a Junior Preferred Share. For purposes of this Section 14(b), the current market value of one one-hundredth of a Junior Preferred Share shall be the Current Market Price of one one-hundredth of a Junior Preferred Share (as determined pursuant to Section 11(d)(ii)).
(c) Following the occurrence of a Triggering Event, the Company shall not be required to issue fractions of Common Shares upon exercise of the Rights or to distribute certificates which evidence fractional Common Shares. In lieu of fractional Common Shares, 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 per share market value of one Common Share for which a Right is exercisable. For the purposes of this Section 14(c), the current per share market value of one Common Share for which a Right is exercisable shall be the closing price of one Common Share (as determined pursuant to Section 11(d)(i) hereof) for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of a Right expressly waives his right to receive any fractional Right or any fractional shares (other than fractions which are integral multiples of one one-hundredths of a Junior Preferred Share) upon exercise of a Right.
(a) prior to the Distribution Date, the Rights will not be evidenced by a Rights Certificate and will be transferable only in connection with the transfer of Common Shares;
(b) after the Distribution Date, the Rights Certificates will be transferable only on the registry books of the Rights Agent if surrendered at the principal office of the Rights Agent, duly endorsed or accompanied by a proper instrument of transfer and with the appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f), the Company and the
Rights Agent may deem and treat the Person in whose name the Rights Certificate
(or, prior to the Distribution Date, the associated Common Shares certificates)
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 Common Shares certificate made by anyone
other than the Company or the Rights Agent or the transfer agent of the Common
Shares of the Company) for all purposes whatsoever, and, subject to Section
7(e), neither the Company nor the Rights Agent shall be affected by any notice
to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither the Company nor the Rights Agent shall have any liability to any holder of a Right or a beneficial interest in a Right or other Person as a result of its inability to perform any of its obligations under this Agreement by reason of any preliminary or permanent injunction or other order, decree or ruling issued by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission, or any statute, rule, regulation or executive order promulgated or enacted by any governmental authority, prohibiting or otherwise restraining performance of such obligation; provided, however, that the Company must use its best efforts to have any such order, decree or ruling lifted or otherwise overturned as soon as possible.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services rendered by it under this Agreement and, from time to time, on demand of the Rights Agent, its reasonable expenses and counsel fees and other disbursements incurred in the administration and execution of this Agreement and the exercise and performance of its duties under this Agreement. The Company also agrees to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability or expense incurred without negligence, bad faith or willful misconduct on the part of the Rights Agent for anything done or omitted to be done by the Rights Agent in connection with the acceptance and administration of this 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 connection with its administration of this Agreement in reliance upon any Rights Certificate, certificate for Common Shares or other securities of the Company, instrument of assignment or transfer, power of attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or other paper or document believed by it to be genuine and to be signed, executed and, where necessary, guaranteed, verified or acknowledged, by the proper Person or Persons.
(a) Any corporation into which the Rights Agent or any successor Rights Agent may be merged or with which it may be consolidated, or any corporation resulting from any merger or consolidation to which the Rights Agent or any successor Rights Agent shall be a party, or any corporation succeeding to the corporate trust or stock transfer business of the Rights Agent or any successor Rights Agent, shall be the successor to the Rights Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties to this Agreement; provided that such corporation would be eligible for appointment as a successor Rights Agent under the provisions of Section 21. If at the time such successor Rights Agent shall succeed to the agency created by this Agreement, any of the Rights Certificates shall have been countersigned but not delivered, any such successor Rights Agent may adopt the countersignature of a predecessor Rights Agent and deliver such Rights Certificates so countersigned; and if at that time any of the Rights Certificates shall not have been countersigned, any successor Rights Agent may countersign such Rights Certificates either in the name of a predecessor Rights Agent or in the name of the successor Rights Agent; and in all such cases such Rights Certificates shall have the full force provided in the Rights Certificates and in this Agreement.
(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 such 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 (who may be legal counsel for the Company), and the opinion of such counsel shall be full and complete authorization and protection to the Rights Agent as to any action taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the Rights Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action under this Agreement, such fact or matter (unless other evidence in respect thereof be specifically prescribed in this Agreement) may be deemed to be conclusively proved and established by a certificate signed by any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company and delivered to the Rights Agent; and such certificate shall be full authorization to the Rights Agent for any action taken or 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 (except its countersignature thereof) or be required to verify the same, but all such statements and recitals are and shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect of the validity of this Agreement or the execution and delivery of this Agreement (except the due execution of this Agreement by the Rights Agent) or in respect of the validity or execution of any Rights Certificate (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Rights Certificate; nor shall it be responsible for any change in the exercisability of the Rights or any adjustment required under the provisions of this Agreement or responsible for the manner, method or amount of any such change or adjustment or the ascertaining of the existence of facts that would require any such change in the exercisability of the Rights or any change or adjustment (except with respect to the exercise of Rights evidenced by Rights Certificates after actual notice of any such change or adjustment); nor shall it by any act under this Agreement be deemed to make any representation or warranty as to the authorization or reservation of any Common Shares or Junior Preferred Shares or other securities to be issued pursuant to this Agreement or any Rights Certificate or as to whether any Common Shares or Junior Preferred Shares or other securities will, when issued, be validly authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be performed, executed, acknowledged and delivered all such further and other acts, instruments and assurances as may reasonably be required by the Rights Agent for the carrying out or performing by the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to the performance of its duties hereunder from any one of the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of the Company, and to apply to such officers for advice or instructions in connection with its duties, and it shall not be liable for any action taken or suffered to be taken by it in good faith in accordance with the instructions of any such officer or for any delay in acting while waiting for those instructions.
(h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily interested in any transaction in which the Company may be interested, or contract with or lend money to the Company or otherwise act as fully and freely as though it were not the Rights Agent under this Agreement. Nothing in this Agreement 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 under this Agreement either itself or by or through its
attorneys or agents, and the Rights Agent shall not be answerable or accountable for any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the Company resulting from any such act, default, neglect or misconduct, provided reasonable care was exercised in the selection and continued employment thereof.
(j) If, with respect to any Rights Certificate surrendered to the Rights Agent for exercise or transfer, split up, combination or exchange, the certificate contained in the form of assignment or the form of election to purchase set forth on the reverse thereof, as the case may be, has either not been completed or indicates an affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall not take any further action with respect to such requested exercise or transfer without first consulting with the Company.
(a) The Rights Agent or any successor Rights Agent may resign and be discharged from its duties under this Agreement upon 30 days' notice in writing mailed to the Company and to each transfer agent of the Common Shares and the Junior Preferred Shares by registered or certified mail, and to the holders of the Rights Certificates by first-class mail. The Company may remove the Rights Agent or any successor Rights Agent (with or without cause) upon 30 days' notice in writing, mailed to the Rights Agent or any successor Rights Agent, as the case may be, and to each transfer agent of the Common Shares and the Junior Preferred Shares by registered or certified mail, and to the holders of the Rights Certificates by first-class mail. If the Rights Agent shall resign or be removed or shall otherwise become incapable of acting, the Company shall appoint a successor to the Rights Agent.
(b) Notwithstanding the foregoing provisions of this Section 21, in no event shall the resignation or removal of a Rights Agent be effective until a successor Rights Agent shall have been appointed and have accepted such appointment. If the Company shall fail to make such appointment within a period of 30 days after giving notice of such removal or after it has been notified in writing of such resignation or incapacity by the resigning or incapacitated Rights Agent or by the holder of a Rights Certificate (who shall, with such notice, submit his Rights Certificate for inspection by the Company), then the incumbent Rights Agent or the holder of record of any Rights Certificate may apply to any court of competent jurisdiction for the appointment of a new Rights Agent.
(c) Any successor Rights Agent, whether appointed by the Company or by such a court, shall be a corporation organized and doing business under the laws of the United States or any State thereof, in good standing, which is authorized under such laws to exercise corporate trust or stock transfer powers and is subject to supervision or examination by federal or state authority and which has, or together with its parent entity has, at the time of its appointment as Rights Agent a combined capital and surplus of at least $10 million.
(d) 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 under this Agreement, and execute and deliver any further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company shall file notice thereof in writing with the predecessor Rights Agent and each transfer agent of the Common Shares and the Junior Preferred Shares, and mail a notice thereof in writing to the holders of record of the Rights Certificates or, if prior to the Distribution Date, the holders of record of the Common Shares.
(e) 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.
basis and with such conditions as the Board of Directors of the Company may establish in good faith.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to Section 23(a), 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. Promptly after such action of the
Board of Directors ordering 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 all such holders at each holder's
last address as it appears upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent of the
Common Shares. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each such
notice of redemption will state the method by which the payment of the
Redemption Price will be made. The failure to give notice required by this
Section 23 or any defect therein shall not affect the legality or validity of
any redemption hereunder. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23 or in
Section 24, and other than in connection with the purchase of Common Shares
prior to the Distribution Date.
(b) Immediately upon the action of the Board of Directors of the Company ordering the exchange of any Rights pursuant to Section 24(a) and without any further action and without any notice, the right to exercise such Rights shall terminate and the only right thereafter of a holder of such Rights shall be to receive that number of Common Shares equal to the number of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly give public notice of any such exchange; provided, however, that the failure to give, or any defect in, such notice shall not affect the validity of such exchange. The Company shall promptly mail a notice of any such exchange to all of the holders of such Rights at the last addresses of the holders as they appear upon the registry books of the Rights Agent. Any notice which is mailed in the manner herein provided shall be deemed given, whether or not the holder receives the notice. Each such notice of exchange will state the method by which the exchange of the Common Shares for Rights will be effected and, in the event of any partial exchange, the number and kind of Rights which will be exchanged. The failure to give notice required by this
Section 24 or any defect therein shall not affect the legality or validity of any exchange hereunder.
(c) Any partial exchange shall be effected pro rata based on the number of Rights being exchanged (other than Rights which have become null and void pursuant to the provisions of Section 7(e)) held by each holder of Rights.
(d) If there shall not be sufficient Common Shares issued but not outstanding or authorized but unissued to permit any exchange of Rights as contemplated in accordance with this Section 24, the Company shall take all such action as may be necessary to authorize additional Common Shares for issuance upon exchange of the Rights.
(e) The Company shall not be required to issue fractions of Common Shares or to distribute certificates which evidence fractional Common Shares. In lieu of such fractional Common Shares, the Company shall pay to the registered holders of the Rights Certificates with regard to which such fractional Common Shares would otherwise be issuable, an amount in cash equal to the same fraction of the current market value of such whole Common Shares. For purposes of this Section 24(e), the current market value of a whole Common Share shall be the closing price of a Common Share (as determined pursuant to the second sentence of Section 11(d)(i)) for the Trading Day immediately prior to the date of exchange pursuant to this Section 24.
(a) If the Company, at any time after the Distribution Date, shall propose to (i) effect any of the transactions referred to in Section 11(a)(i) or to pay any dividend to the holders of record of its Junior Preferred Shares payable in stock of any class or to make any other distribution to the holders of record of its Junior Preferred Shares (other than a regular quarterly cash dividend out of earnings or retained earnings of the Company), (ii) offer to the holders of record of its Junior Preferred Shares options, warrants or other rights to subscribe for or to purchase Junior Preferred Shares (including any security convertible into or exchangeable for Junior Preferred Shares) or shares of stock of any class or any other securities, options, warrants, convertible or exchangeable securities or other rights, (iii) effect any reclassification of its Junior Preferred Shares or any recapitalization or reorganization of the Company, (iv) effect any consolidation or merger with or into, or to effect any sale or other transfer (or to permit one or more of its Subsidiaries to effect any sale or other transfer), in one transaction or a series of related transactions not in the ordinary course of the Company's business, 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, or (v) effect the liquidation, dissolution or winding up of the Company, then, in each such case, the Company shall give to each holder of record of Rights, in accordance with Section 26, notice of such proposed action, which shall specify the record date for the purposes of such transaction referred to in Section 11(a)(i), or such dividend or distribution, or the date on which such reclassification, recapitalization, reorganization, consolidation, merger, sale or transfer of assets, liquidation, dissolution, or winding up is to take place and the record date for determining participation therein by the holders of record of Junior Preferred Shares, if any such date is to be fixed, and such notice shall be so given in the case of any action covered by clause (i) or (ii) above at least 10 days prior to the record date for determining holders of record
of the Junior Preferred Shares for purposes of such action, and in the case of any such other action, at least 10 days prior to the date of the taking of such proposed action or the date of participation therein by the holders of record of Junior Preferred Shares, whichever shall be the earlier.
(b) If any of the transactions referred to in Section 11(a)(ii) or
Section 13 are proposed, then, in any such case, the Company shall give to each
holder of Rights, in accordance with Section 26, notice of the proposal of such
transaction at least 10 days prior to consummating such transaction, which
notice shall specify the proposed event and the consequences of the event to
holders of Rights under Section 11(a)(ii) or Section 13, as the case may be,
and, upon consummating such transaction, shall similarly give notice thereof to
each holder of Rights.
(c) If any Flip-In Event shall occur, then all references in this
Section 25 to Junior Preferred Shares shall be deemed thereafter to refer to the
class of Common Shares or other securities for which the Rights are then
exercisable.
Concurrent Computer Corporation
4375 River Green Parkway
Duluth, GA 30096
Attention: Kirk L. Somers, General Counsel
Subject to the provisions of Section 21, any notice or demand authorized by this Agreement to be given or made by the Company or by the holder of record of any Rights Certificate or Right to or on the Rights Agent shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed (until another address is filed in writing with the Company) as follows:
American Stock Transfer & Trust Company
59 Maiden Lane
New York, NY 10038
Attention: Herbert J. Lemmer, General Counsel
Notices or demands authorized by this Agreement to be given or made by the Company or the Rights Agent to the holder of record of any Rights Certificate or Right (or, if prior to the Distribution Date, to the holder of certificates representing Common Shares) shall be sufficiently given or made if sent by first-class mail, postage prepaid, addressed to such holder at the address of such holder as it appears upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as of the day and year first above written.
Attest: Concurrent Computer Corporation By: /s/ Kirk L. Somers By: /s/ Jack A. Bryant --------------------- ---------------------------------- Name: Kirk L. Somers Name: Jack A. Bryant Title: General Counsel Title: President and Chief Executive Officer Attest: American Stock Transfer & Trust Company By: /s/ Susan Silber By: /s/ Herbert J. Lemmer ----------------------- ------------------------------------ Name: Susan Silber Name: Herbert J. Lemmer Title: Assistant Secretary Title: Vice President |
FORM OF AMENDED CERTIFICATE OF DESIGNATIONS,
PREFERENCE AND RIGHTS OF SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
of
CONCURRENT COMPUTER CORPORATION
Pursuant to Section 151 of
the General Corporation Law
of the State of Delaware
We, Denis R. Brown, Chairman of the Board and Chief Executive Officer, and C. Michael Carter, Secretary of Concurrent Computer Corporation, a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation of the said Corporation, the said Board of Directors on July 31, 1992, adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provision of its Certificate of Incorporation, the Certificate of Designations, Preferences and Rights of Series A Participating Cumulative Preferred Stock previously adopted by the Board of Directors and filed with the Secretary o State of the State of Delaware be, and it hereby is, amended by deleting the previously filed Certificate of Designations, Preferences and Rights in its entirety and substituting in lieu thereof the following:
1. 300,000 shares of Preferred Stock of the Corporation, par value $.01 per share, are hereby constituted as a series of Preferred Stock designated as "Series A Participating Cumulative Preferred Stock" (hereinafter called "this series"). The Board of Directors is authorized to decrease and to increase the number of shares of this series.
2(a). Before any dividend or distribution in cash or other property (other than dividends payable in stock ranking junior to the shares of this series as to dividends and upon liquidation) on any class or series of stock of the Corporation ranking junior to the shares of this series as to dividends and upon liquidation shall be declared or paid or set apart for payment, the holders of shares of this series shall be entitled to receive cash dividends, when and as declared by the Board of Directors, payable quarterly on the fifth day of March, June, September and December (each such date being referred to herein as a "Quarterly Dividend Payment Date") commencing on the first Quarterly Dividend Payment Date after the first issuance of a share or fraction of a share of this series, in an amount per share (rounded to the nearest cent), subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate per share
amount of all cash dividends and 100 times the aggregate per share amount (payable in kind) of all non-cash dividends or other distributions other than a dividend payable in shares of Common Stock or a subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date, or, with respect to the first Quarterly Dividend payment Date, since the first issuance of any share or fraction of a share of this series. In the event the Corporation shall at any time after August 14, 1992 (the "Rights Declaration Date") (i) declare or pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount to which holders of shares of this series were entitled immediately prior to such event under the preceding sentence shall be adjusted by multiplying such amount by a fraction the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
2 (b). The Corporation shall declare a dividend or distribution on this series as provided herein immediately after it declares a dividend or distribution on the Common Stock (other than a dividend payable in shares of Common Stock). If the funds available for the payment of such dividend are insufficient to pay in full the dividends payable on all outstanding shares of this series and shares of any other class or series of the Corporation ranking on a parity herewith, the total available funds shall be paid in partial dividends on the shares of such other class or series and the shares of this series ratably in proportion to the respective annual dividend rates per share fixed therefor (such rates being expressed as percentages calculated in each case by dividing the annual dividend payments per share by the amount of the voluntary liquidation preference per share). Accrued but unpaid dividends shall not bear interest.
2 (c). Dividends shall begin to accrue and be cumulative on outstanding Shares of this series from the Quarterly Dividend Payment Date next preceding the date of issue of such shares of this series, unless the date of issue of such shares is prior to the record date for the first Quarterly Dividend Payment Date, in which case dividends on such shares shall begin to accrue from the date of issue of such shares or unless the date of such issue is a Quarterly Dividend Payment Date or is a date after the record date for the determination of holders of shares of this series entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend Payment Date. The Board of Directors may fix a record date for the determination of holders of shares of this series entitled to receive payment of a dividend or distribution declared thereon, which record date shall be no more than 60 days prior to the date fixed for the payment thereof.
3. Each share of this series shall entitle the holder thereof to 100 votes upon all matters upon which holders of Common Stock of the Corporation have the right to vote, such votes to be counted together with those for any other shares of capital stock having the right to vote on such mattes and not separately as a class or group.
4. This series shall rank junior with respect to payment of dividends and on liquidation to all other classes or series of the Corporation's Preferred Stock outstanding on July 31, 1992 and to all such other series that may be issued after such date except to the extent
that any such series specifically provides that it shall rank junior to this series.
5. Upon any liquidation, dissolution or winding up of the Corporation, no distribution shall be made (i) to the holders of shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding up) to this series unless, prior thereto, the holders of shares of this series shall have received an amount per share, subject to the provision for adjustment hereinafter set forth, equal to 100 times the aggregate per share amount to be distributed per share to holders of Common Stock, or (ii) to the holders of stock ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with this series, except distributions made ratably on this series and all other such parity stock in proportion to the total amounts to which the holders of all such shares are entitled upon such liquidation, dissolution or winding up. In the event the Corporation shall at any time after the Rights Declaration Date (i) declare or pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the aggregate amount to which holders of shares of this series were entitled immediately prior to such event under the preceding sentence shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
In case the Corporation shall enter into any consolidation, merger, combination or other transaction in which the shares of Common Stock are exchanged for or changed into other stock or securities, cash and/or any other property, then in any such case the shares of this series shall at the same time be similarly exchanged or changed in an amount per share (subject to the provision for adjustment hereinafter set forth) equal to 100 times the aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the case may be, into which or for which each share of Common Stock is changed or exchanged. In the event the Corporation shall at any time after the Rights Declarations Date (i) declare or pay any dividend on Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the outstanding Common Stock into a smaller number of shares, then in each such case the amount set forth in the preceding sentence with respect to the exchange or change of shares of this series shall be adjusted by multiplying such amount by a fraction, the numerator of which is the number of shares of Common Stock outstanding immediately after such event and the denominator of which is the number of shares of Common Stock that were outstanding immediately prior to such event.
7. The shares of this series shall not be redeemable nor shall the shares of this series be convertible into or exchangeable for shares of stock of any other class or classes of stock of the Corporation.
8. Shares of this series which have been issued and acquired in any manner by the Corporation (excluding, until the Corporation elects to retire them, shares which are held as treasury shares but including shares purchased and retired, whether through the operation of a sinking fund or otherwise) shall, upon compliance with any applicable provisions of the laws of the state of Delaware, have the status of authorized and unissued shares of Preferred Stock and may be reclassified and reissued as part of a new series of Preferred Stock to be created by
resolution or resolutions of the Board of Directors or as part of any series of Preferred Stock other than this series, all subject to the conditions and restrictions on issuance set forth in any resolution or resolutions adopted by the Board of Directors providing for the issue of any series of Preferred Stock.
9. So long as any shares of this series are outstanding the corporation will not:
(a) Declare or pay, or set apart for payment any dividends (other than dividends payable in stock ranking junior to the shares of this series as to dividends and upon liquidation) or make any distribution, on any other class or series of stock of the Corporation ranking junior to the shares of this series either as to dividends or upon liquidation and will not redeem, purchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of any such junior class or series if at the time of making such declaration, payment, distribution, redemption, purchase or acquisition, the Corporation shall be in default with respect to any dividend payable on shares of this series provided that, notwithstanding the forgoing, the Corporation may at any time redeem, purchase or otherwise acquire shares of stock of any such junior class or series in exchange for, or out of the net cash proceeds from the sale of, other shares of stock of any junior class or series.
(b) Declare or pay, or set apart for payment any dividends (other than dividends payable in stock ranking junior to the shares of this series as to dividends and upon liquidation) or make any distribution, on any other class or series of stock of the Corporation ranking on a parity with the shares of this series either as to dividends or upon liquidation, except dividends paid ratably on shares of this series and all such parity stock on which dividends are payable or in arrears in proportion to the total to which the holders of all such shares are then entitled and will not redeem, purchase or otherwise acquire, or permit any subsidiary to purchase or otherwise acquire, any shares of stock ranking on a parity with this series if at the time of making such declaration, payment, distribution, redemption, purchase or acquisition, the Corporation shall be in default with respect to any dividend payable on shares of this series, provided that notwithstanding the foregoing, the Corporation may at any time redeem, purchase or otherwise acquire shares of any such parity stock in exchange for, or out of the net cash proceeds from the sale of, other shares of stock of any junior class or series.
(c) Without the affirmative vote of at least a majority of the shares of this series at the time outstanding, given in person or by proxy either in writing or by resolution adopted at an annual or special meeting called for the purpose, at which the holders of the shares of this series shall vote separately as a class, merge into or consolidate with any other corporation if the shares of the surviving or resulting corporation into or for which shares of this series are converted or exchanged shall be junior as to dividends or upon liquidation to shares of any other class or series of stock of the surviving or resulting corporation, except as provided in paragraph 4 hereof.
10. This series may be issued in fractions of a share which shall entitle the holder, in proportion to such holder's fractional shares, to exercise voting rights, receive dividends, participate in distributions and to have the benefit of all other rights of holders of this series.
11. For the purposes hereof:
(a) The term "outstanding" when used in reference to shares of stock, shall mean issued shares, excluding shares held by the Corporation or a subsidiary
(b) The amount of dividends "accrued" on any share of this series as of any dividend date shall be deemed to be the amount of any unpaid dividends accumulated thereon to and including such dividend date, whether or not earned or declared, and the amount of dividends accrued on any share of this series as of any date other then a dividend date shall be calculated as the amount of any unpaid dividends accumulated thereon to and including the last preceding dividend date, whether or not earned or declared, but such amount shall not include any interest or per share equivalent of interest.
(c) Any class or series of stock of the Corporation shall be deemed to rank:
(i) prior to the shares of this series either as to dividends or upon liquidation, if the holders of such class or classes shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in preference or priority to the holders of the shares of this series;
(ii) on a parity with the shares of this series either as to dividends or upon liquidation, whether or not the dividend rate, dividend payment dates, or redemptions or liquidation prices per share thereof be different from those of the shares of this series, if the holders of such class or classes of stock shall be entitled to the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority one over the other with respect to the holders of the shares of this series;
(iii) junior to the shares of this series either as to dividends or upon liquidation of the rights of holders of such class or classes shall be subject or subordinate to the rights of the holders of the shares of this series in respect of the receipt of dividends or of amounts distributable upon liquidation, dissolution or winding up, as the case may be.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate and do affirm the foregoing as true under the penalties or perjury this 31st day of July, 1992.
FORM OF
CERTIFICATE OF AMENDMENT
TO
AMENDED CERTIFICATE OF DESIGNATIONS,
PREFERENCE AND RIGHTS OF SERIES A
PARTICIPATING CUMULATIVE PREFERRED STOCK
of
CONCURRENT COMPUTER CORPORATION
Pursuant to Section 151 of
the General Corporation Law
of the State of Delaware
We, Jack A. Bryant, President and Chief Executive Officer, and Kirk L. Somers, General Counsel of Concurrent Computer Corporation, a corporation organized and existing under the General Corporation Law of the State of Delaware, in accordance with the provisions of Section 103 thereof, DO HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation of the said Corporation, the said Board of Directors on August 5, 2002, adopted the following resolution:
RESOLVED, that pursuant to the authority vested in the Board of Directors of this Corporation in accordance with the provision of its Certificate of Incorporation, the Certificate of Designations, Preferences and Rights of Series A Participating Cumulative Preferred Stock previously adopted by the Board of Directors and filed with the Secretary of State of the State of Delaware on August 13, 1992 be, and it hereby is, amended by deleting paragraph 1 in its entirety and substituting in lieu thereof the following:
1. 1,000,000 shares of Preferred Stock of the Corporation, par value $.01 per share, are hereby constituted as a series of Preferred Stock designated as "Series A Participating Cumulative Preferred Stock" (hereinafter called "this series"). The Board of Directors is authorized to decrease and to increase the number of shares of this series.
IN WITNESS WHEREOF, Concurrent Computer Corporation has caused this certificate to signed and attested to by its duly authorized officers on this 7th day of August, 2002.
Attest:
[Form of Rights Certificate]
NOT EXERCISABLE AFTER AUGUST 14, 2012 OR UNDER CERTAIN CIRCUMSTANCES EARLIER. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.0025 PER RIGHT ON THE TERMS SET FORTH IN THE AMENDED AND RESTATED RIGHTS AGREEMENT. IF THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE ISSUED TO A PERSON WHO IS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON OR A TRANSFEREE OF THE RIGHTS PREVIOUSLY OWNED BY SUCH PERSONS, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY WILL BECOME NULL AND VOID.
Rights Certificate
Concurrent Computer Corporation
modification and adjustment upon the happening of certain events and, upon the happening of certain events, securities other than Junior Preferred Shares, or other property, may be acquired upon exercise of the Rights evidenced by this Rights Certificate, as provided by the Amended and Restated Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and conditions of the Amended and Restated Rights Agreement, which terms, provisions and conditions are incorporated herein by reference and made a part hereof and to which such Amended and Restated Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities of the Rights Agent, the Company and the holders of record of the Rights Certificates. Copies of the Amended and Restated Rights Agreement are on file at the principal executive office of the Company and the above-mentioned offices of the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon surrender at the principal office of the Rights Agent, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder of record to purchase a like aggregate number of one one-hundredths of a Junior Preferred Share 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 Amended and Restated Rights Agreement, the Rights evidenced by this Certificate (i) may be redeemed by the Company at its option at a redemption price of $0.0025 per Right or (ii) may be exchanged in whole or in part for Common Shares of the Company or common stock equivalents.
No fractional Junior Preferred Shares will be issued upon the exercise of any Rights evidenced hereby (other than, except as set forth above, fractions that are integral multiples of one one-hundredth of a Junior Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof, cash payment will be made, as provided in the Amended and Restated Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Junior Preferred Shares or of any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Amended and Restated 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 of the Company 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 of the Company (except as provided in the Amended and Restated Rights Agreement) or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been exercised as provided in the Amended and Restated 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 ______________ _20__.
ATTEST: CONCURRENT COMPUTER
CORPORATION
By: ------------------------------- ------------------------------- Secretary Name: Title: Countersigned: ------------------------------- |
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the Rights Certificate.)
transfers unto
(Please print name and address of transferee)
Dated: , ----------- ---- ---------------------------------- Signature |
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined pursuant to the Amended and Restated Rights Agreement); and (2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring Person or any transferee of such Persons.
Dated: , ------------ ---- ---------------------------------- Signature |
NOTICE
The signature to the foregoing Assignment must correspond to the name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder desires to Exercise the Rights Certificate.)
To: Concurrent Computer Corporation
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 remaining of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
Dated:
--------------, ----
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) 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 pursuant to the Amended and Restated Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring Person or any transferee of such Persons.
Dated:
--------------, -----
Exhibit 4.2
[Form of Rights Certificate]
Certificate No. R-__ _______ Rights
NOT EXERCISABLE AFTER AUGUST 14, 2012 OR UNDER CERTAIN CIRCUMSTANCES EARLIER. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.0025 PER RIGHT ON THE TERMS SET FORTH IN THE AMENDED AND RESTATED RIGHTS AGREEMENT. IF THE RIGHTS REPRESENTED BY THIS CERTIFICATE ARE ISSUED TO A PERSON WHO IS AN ACQUIRING PERSON OR AN ASSOCIATE OR AFFILIATE OF AN ACQUIRING PERSON OR A TRANSFEREE OF THE RIGHTS PREVIOUSLY OWNED BY SUCH PERSONS, THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY WILL BECOME NULL AND VOID.
Rights Certificate
Concurrent Computer Corporation
adjustment upon the happening of certain events and, upon the happening of certain events, securities other than Junior Preferred Shares, or other property, may be acquired upon exercise of the Rights evidenced by this Rights Certificate, as provided by the Amended and Restated Rights Agreement.
This Rights Certificate is subject to all of the terms, provisions and conditions of the Amended and Restated Rights Agreement, which terms, provisions and conditions are incorporated herein by reference and made a part hereof and to which such Amended and Restated Rights Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities of the Rights Agent, the Company and the holders of record of the Rights Certificates. Copies of the Amended and Restated Rights Agreement are on file at the principal executive office of the Company and the above-mentioned offices of the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon surrender at the principal office of the Rights Agent, may be exchanged for another Rights Certificate or Rights Certificates of like tenor and date evidencing Rights entitling the holder of record to purchase a like aggregate number of one one-hundredths of a Junior Preferred Share 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 Amended and Restated Rights Agreement, the Rights evidenced by this Certificate (i) may be redeemed by the Company at its option at a redemption price of $0.0025 per Right or (ii) may be exchanged in whole or in part for Common Shares of the Company or common stock equivalents. No fractional Junior Preferred Shares will be issued upon the exercise of any Rights evidenced hereby (other than, except as set forth above, fractions that are integral multiples of one one-hundredth of a Junior Preferred Share, which may, at the election of the Company, be evidenced by depositary receipts), but in lieu thereof, cash payment will be made, as provided in the Amended and Restated Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive dividends or be deemed for any purpose the holder of Junior Preferred Shares or of any other securities of the Company which may at any time be issuable on the exercise hereof, nor shall anything contained in the Amended and Restated 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 of the Company 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 of the Company (except as provided in the Amended and Restated Rights Agreement) or to receive dividends or subscription rights, or otherwise, until the Right or Rights evidenced by this Rights Certificate shall have been exercised as provided in the Amended and Restated 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 20 . -------------- - -- ATTEST: CONCURRENT COMPUTER CORPORATION By: -------------------------------- ------------------------------- Secretary Name: Title: Countersigned: -------------------------------- |
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the Rights Certificate.)
Dated:
----------- , ----
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not being sold, assigned and transferred by or on behalf of a Person who is or was an Acquiring Person or an Affiliate or Associate of any such Acquiring Person (as such terms are defined pursuant to the Amended and Restated Rights Agreement); and (2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring Person or any transferee of such Persons.
Dated:
------------, ----
NOTICE
The signature to the foregoing Assignment must correspond to the name as written upon the face of this Rights Certificate in every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if registered holder desires to Exercise the Rights Certificate.)
To: Concurrent Computer Corporation
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 remaining of such Rights shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
Dated:
------------------, ----
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national securities exchange, a member of the National Association of Securities Dealers, Inc., or a commercial bank or trust company having an office or correspondent in the United States.
The undersigned hereby certifies by checking the appropriate boxes that:
(1) 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 pursuant to the Amended and Restated Rights Agreement); and
(2) after due inquiry and to the best knowledge of the undersigned, it [ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from any Person who is or was an Acquiring Person or an Affiliate or Associate of an Acquiring Person or any transferee of such Persons.
Dated:
--------------, -----