Exhibit 3.02
AMENDED AND RESTATED CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
UFP TECHNOLOGIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
UFP Technologies, Inc., a corporation organized and existing under
the General Corporation Law of the State of Delaware (the Corporation), in
accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That pursuant to the authority vested in the Board of Directors of the
Corporation (the Board of Directors) in accordance with the provisions of the
certificate of incorporation, as amended, of the Corporation (the Certificate
of Incorporation), the said Board of Directors, effective as of March 20,
2009, adopted the following resolution creating a series of 20,000 shares of
Preferred Stock designated as Series A Junior Participating Preferred
Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of the
Certificate of Incorporation, a series of Preferred Stock, par value $0.01 per
share, of the Corporation be and hereby is created, and that the designation
and number of shares thereof and the voting and other powers, preferences and
relative, participating, optional or other rights of the shares of such series
and the qualifications, limitations and restrictions thereof are as follows:
Series A
Junior Participating Preferred Stock
1.
Designation
and Amount.
There shall
be a series of Preferred Stock that shall be designated as Series A
Junior Participating Preferred Stock, and the number of shares constituting
such series shall be 20,000. Such number
of shares may be increased or decreased by resolution of the Board of
Directors; provided, however, that no decrease shall reduce the number of
shares of Series A Junior Participating
Preferred Stock to less than the number of shares then issued and
outstanding plus the number of shares issuable upon exercise of outstanding
rights, options or warrants or upon conversion of outstanding securities issued
by the Corporation.
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2.
Dividends
and Distribution.
(A)
Subject to the
prior and superior rights of the holders of any shares of any class or series
of stock of the Corporation ranking prior and superior to the shares of Series A
Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series A Junior Participating Preferred Stock outstanding at the
close of business on the business day immediately preceding each Quarterly
Dividend Payment Date (as defined below) (or on such other record date as the
Board of Directors may specify), in preference to the holders of shares of any
class or series of stock of the Corporation ranking junior to the Series A
Junior Participating Preferred Stock in respect thereof, shall be entitled to
receive, when, as and if declared (except as provided in paragraph (B) below)
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of March, June, September and
December in each year (each such date being referred to herein as a Quarterly
Dividend Payment Date), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock (the First Issuance Date), in an amount
per share (rounded to the nearest cent) equal to the greater of (a) $10.00
or (b) the sum of (x) the Adjustment Number (as defined below) times the aggregate per share amount
of all cash dividends, and (y) the Adjustment Number times the fair value
(as determined by the Board of Directors) of the aggregate per share amount of
all non-cash dividends or other distributions payable in kind as provided
herein, other than a dividend payable in shares of Common Stock, par value $0.01
per share, of the Corporation (the Common Stock) or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), in the
case of clauses (x) and (y) declared on the Common Stock since the
immediately preceding Quarterly Dividend Payment Date, or with respect to the
first Quarterly Dividend Payment Date following the First Issuance Date, from
(but not including) the Quarterly Dividend Payment Date immediately preceding
the First Issuance Date;
provided
, that to the extent the holders of
shares of Series A Junior Participating Preferred Stock are entitled to
payment of such dividend pursuant to clause (b) of this sentence in whole
or in part as a result of a non-cash dividend or distribution referred to in
clause (b)(y) above, such holders will receive per share of Series A
Junior Participating Preferred Stock, in lieu of the cash value of such
non-cash dividend or distribution, an amount of the securities or other
property equal to the Adjustment Number times the amount of such securities or
other property distributed per share of Common Stock. The Adjustment Number shall initially be
1000. In the event the Corporation shall
at any time (i) declare and 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 Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number 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.
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(B)
The Board of
Directors shall declare a dividend or distribution on the Series A Junior Participating
Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock);
provided
, that no such dividend will
be required to be declared until the aggregate amount of cash dividends and the
fair value of all non-cash dividends and distributions on the Common Stock, in
each case multiplied by the Adjustment Number, during the period following the
last Quarterly Dividend Payment Date (or, if applicable, the Quarterly Dividend
Payment Date preceding the First Issuance Date), exceeds the amount set forth
in clause (a) of paragraph (A) above.
(C)
Dividends shall
begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from (but not including) the Quarterly Dividend
Payment Date next preceding the First Issuance Date, unless such First Issuance
Date is a Quarterly Dividend Payment Date or is after the record date for such
Quarterly Dividend Payment Date and prior to such Quarterly Dividend Payment
Date, in which event such dividends shall begin to accrue and be cumulative
from (but not including) such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
3.
Voting
Rights.
The holders of shares of Series A
Junior Participating Preferred Stock shall have the following voting rights:
(A)
Each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to a
number of votes equal to the Adjustment Number on all matters submitted to a
vote of the stockholders of the Corporation.
(B)
Except as
required by law, by Section 3(C) and by Section 10 hereof,
holders of Series A Junior Participating Preferred Stock shall have no
special voting rights and their consent shall not be required (except to the
extent they are entitled to vote with holders of Common Stock as set forth
herein) for taking any corporate action.
(C)
If, at the time
of any annual meeting of stockholders for the election of directors, the
equivalent of six quarterly dividends (whether or not consecutive) payable on
any share or shares of Series A Junior Participating Preferred Stock are
in default, the number of directors constituting the Board of Directors of the
Corporation shall be increased by two.
In addition to voting together with the holders of Common Stock for the
election of other directors of the Corporation, the holders of record of the Series A
Junior Participating Preferred Stock, voting separately as a class to the
exclusion of the holders of Common Stock, shall be entitled at said meeting of
stockholders (and at each subsequent annual meeting of stockholders), unless
all dividends in arrears on the Series A Junior Participating Preferred
Stock have been paid or declared and set apart for payment prior thereto, to
vote for the election of two
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directors of the Corporation, the holders of any Series A Junior
Participating Preferred Stock being entitled to cast a number of votes per
share of Series A Junior Participating Preferred Stock as is specified in
paragraph (A) of this Section 3.
Each such additional director
shall not be a member of Class I, Class II or Class III of the
Board of Directors of the Corporation, but shall serve until the next annual
meeting of stockholders for the election of directors, or until his successor
shall be elected and shall qualify, or until his right to hold such office
terminates pursuant to the provisions of this Section 3(C). Until the default in payments of all
dividends which permitted the election of said directors shall cease to exist,
any director who shall have been so elected pursuant to the provisions of this Section 3(C) may
be removed at any time, without cause, only by the affirmative vote of the
holders of the shares of Series A Junior Participating Preferred Stock at
the time entitled to cast a majority of the votes entitled to be cast for the
election of any such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall
cease to exist, the holders of the Series A Junior Participating Preferred
Stock shall be divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default in payments of
dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who may
have been elected directors pursuant to said special voting rights shall
forthwith terminate, and the number of directors constituting the Board of
Directors shall be reduced by two. The
voting rights granted by this Section 3(C) shall be in addition to
any other voting rights granted to the holders of the Series A Junior
Participating Preferred Stock in this Section 3.
4.
Certain
Restrictions.
(A)
Whenever
quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i)
declare or pay
dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock;
(ii)
declare or pay
dividends on or make any other distributions on any shares of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled; or
(iii)
purchase or
otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on
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a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of Series A
Junior Participating Preferred Stock, or to such holders and holders of any
such shares ranking on a parity therewith, upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B)
The Corporation
shall not permit any subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the Corporation unless the
Corporation could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
5.
Reacquired
Shares.
Any shares of Series A
Junior Participating Preferred Stock purchased or otherwise acquired by the
Corporation in any manner whatsoever shall be retired promptly after the
acquisition thereof. All such shares
shall upon their retirement become authorized but unissued shares of Preferred Stock and may be reissued as part
of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to any
conditions and restrictions on issuance set forth herein.
6.
Liquidation,
Dissolution or Winding Up.
(A) Upon any
liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received an amount per share (the Series A
Liquidation Preference) equal to the greater of (i) $25,000 plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, or (ii) the Adjustment
Number times the per share amount of all cash and other property to be
distributed in respect of the Common Stock upon such liquidation, dissolution
or winding up of the Corporation.
(B)
In the event,
however, that there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation
preferences of all other classes and series of stock of the Corporation, if
any, that rank on a parity with the Series A Junior Participating
Preferred Stock in respect thereof, then the assets available for such
distribution shall be distributed ratably to the holders of the Series A
Junior Participating Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.
(C)
Neither the
merger or consolidation of the Corporation into or with another entity nor the
merger or consolidation of any other entity into or with the Corporation shall
be deemed to be a liquidation, dissolution or winding up of the Corporation
within the meaning of this Section 6.
5
7.
Consolidation,
Merger, Etc.
In case the
Corporation shall enter into any consolidation, merger, combination or other
transaction in which the outstanding shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other property, then
in any such case each share of Series A Junior Participating Preferred
Stock shall at the same time be similarly exchanged or changed in an amount per
share equal to the Adjustment Number 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.
8.
No
Redemption.
Shares of Series A
Junior Participating Preferred Stock shall not be subject to redemption by the
Corporation.
9.
Ranking.
The Series A Junior
Participating Preferred Stock shall rank junior to all other series of the
Preferred Stock as to the payment of dividends and as to the distribution of
assets upon liquidation, dissolution or winding up, unless the terms of any
such series shall provide otherwise, and shall rank senior to the Common Stock
as to such matters.
10.
Amendment.
At any time that any shares
of Series A Junior Participating Preferred Stock are outstanding, the
Certificate of Incorporation of the Corporation shall not be amended, by
merger, consolidation or otherwise, which would materially alter or change the
powers, preferences or special rights of the Series A Junior Participating
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of two-thirds of the outstanding shares of Series A Junior
Participating Preferred Stock, voting separately as a class.
11.
Fractional
Shares.
Series A Junior
Participating Preferred Stock may be issued in fractions of a share that shall
entitle the holder, in proportion to such holders fractional shares, to
exercise voting rights, receive dividends, participate in distributions and to
have the benefit of all other rights of holders of Series A Junior
Participating Preferred Stock.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this Certificate this 20
th
day of March, 2009.
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UFP TECHNOLOGIES, INC.
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By:
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s/Ronald J. Lataille
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Name: Ronald J. Lataille
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Title: Chief Financial Officer
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[
Signature Page to
Amended and Restated Certificate of Designation
2009 Rights Agreement
]
7
Exhibit 3.03
AMENDED AND RESTATED BY-LAWS
of
UFP TECHNOLOGIES, INC.
A Delaware Corporation
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As amended and restated on:
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March 18,
2008
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/s/ Richard L. Bailly
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Richard
L. Bailly,
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Secretary
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AMENDED AND RESTATED BY-LAWS
TABLE OF CONTENTS
ARTICLE I. Stockholders
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1
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Section
1.1 Annual Meeting
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1
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Section
1.2 Special Meetings
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1
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Section
1.3 Notice of Meeting
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1
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Section
1.4 Notice of Stockholder Business and Nominations
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2
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Section
1.5 Quorum
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6
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Section
1.6 Voting and Proxies
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6
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Section
1.7 Action at Meeting
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6
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Section
1.8 Action Without Meeting
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6
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Section
1.9 Voting of Shares of Certain Holders
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6
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Section
1.10 Stockholder Lists
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7
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ARTICLE II. Board of
Directors
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7
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Section
2.1 Powers
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7
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Section
2.2 Number of Directors; Qualifications
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8
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Section
2.3 Election of Directors
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8
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Section
2.4 Vacancies
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8
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Section
2.5 Change in Size of the Board
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8
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Section
2.6 Tenure and Resignation
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8
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Section
2.7 Removal
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8
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Section
2.8 Meetings
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8
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Section
2.9 Notice of Meeting
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9
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Section
2.10 Agenda
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9
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Section
2.11 Quorum
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9
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Section
2.12 Action at Meeting
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9
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Section
2.13 Action Without Meeting
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9
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Section
2.14 Committees
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9
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ARTICLE III. Officers
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10
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Section
3.1 Enumeration
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10
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Section
3.2 Election
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10
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Section
3.3 Qualification
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10
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Section
3.4 Tenure
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10
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Section
3.5 Removal
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10
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Section
3.6 Resignation
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10
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Section
3.7 Vacancies
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11
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Section
3.8 Chairman of the Board
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11
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Section
3.9 Chief Executive Officer
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11
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Section
3.10 President
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11
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Section
3.11 Vice-President(s)
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11
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Section
3.12 Treasurer and Assistant Treasurers
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11
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Section
3.13 Secretary and Assistant Secretaries
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11
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Section
3.14 Other Powers and Duties
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12
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ARTICLE IV. Capital
Stock
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12
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Section
4.1 Stock Certificates
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12
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Section
4.2 Transfer of Shares
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12
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Section
4.3 Record Holders
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13
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Section
4.4 Record Date
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13
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Section
4.5 Transfer Agent and Registrar for Shares of Corporation
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13
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Section
4.6 Loss of Certificates
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14
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Section
4.7 Restrictions on Transfer
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14
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Section
4.8 Multiple Classes of Stock
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14
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ARTICLE V. Dividends
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14
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Section
5.1 Declaration of Dividends
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14
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Section
5.2 Reserves
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15
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ARTICLE VI. Powers of
Officers to Contract with the Corporation
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15
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ARTICLE VII.
Indemnification
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15
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Section
7.1 Definitions
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15
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Section
7.2 Right to Indemnification in General
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17
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Section
7.3 Proceedings Other Than Proceedings by or in the Right of the Corporation
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17
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Section
7.4 Proceedings by or in the Right of the Corporation
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18
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Section
7.5 Indemnification of a Party Who is Wholly or Partly Successful
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18
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Section
7.6 Indemnification for Expenses of a Witness
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18
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Section
7.7 Advancement of Expenses
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18
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Section
7.8 Notification and Defense of Claim
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19
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Section
7.9 Procedures
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20
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Section
7.10 Action by the Corporation
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21
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Section
7.11 Non-Exclusivity
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21
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Section
7.12 Insurance
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21
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Section
7.13 No Duplicative Payment
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21
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Section
7.14 Expenses of Adjudication
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21
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Section
7.15 Severability
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21
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ARTICLE VIII.
Miscellaneous Provisions
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22
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Section
8.1 Certificate of Incorporation
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22
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Section
8.2 Fiscal Year
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22
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Section
8.3 Corporate Seal
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22
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Section
8.4 Execution of Instruments
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22
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Section
8.5 Voting of Securities
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22
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Section
8.6 Evidence of Authority
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22
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Section
8.7 Corporate Records
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22
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Section
8.8 Charitable Contributions
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23
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Section
8.9 Communications of Notices
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23
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Section
8.10 Electronic Transmissions
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23
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ARTICLE IX. Amendments
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23
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Section
9.1 Amendment by Stockholders
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23
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Section
9.2 Amendment by Board of Directors
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23
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AMENDED AND RESTATED BY-LAWS
OF
UFP TECHNOLOGIES, INC.
(A Delaware Corporation)
ARTICLE I.
Stockholders
Section 1.1
Annual Meeting
. The
annual meeting of the stockholders of the corporation shall be held on such
date as shall be fixed by the board of directors, at such time and place within
or without the State of Delaware as may be designated in the notice of meeting. The board of directors may, in its sole
discretion, determine that the annual meeting of stockholders shall not be held
at any place, but may instead be held solely by means of remote communication
as authorized by the General Corporation Law of the State of Delaware (the DGCL). If the day fixed for the annual meeting shall
fall on a legal holiday, the meeting shall be held on the next succeeding day
not a legal holiday.
Section 1.2
Special Meetings
. Special meetings of the stockholders may be
called at any time only by the president, the chief executive officer or the
board of directors. Special meetings of
the stockholders shall be held at such time, date and place within or outside
of the State of Delaware as may be designated in the notice of such
meeting. The board of directors may, in
its sole discretion, determine that a special meeting of stockholders shall not
be held at any place, but may instead be held solely by means of remote
communication as authorized by the DGCL.
Business transacted at any special meeting of the stockholders shall be
limited to the purpose or purposes stated in the notice of such meeting.
Section 1.3
Notice of Meeting
. A written notice stating the place, if any,
date, and hour of each meeting of the stockholders, the means of remote
communication, if any, by which stockholders and proxy holders may be deemed
present in person and vote at such meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
given to each stockholder entitled to vote at such meeting, and to each
stockholder who, under the Certificate of Incorporation or these by-laws, is
entitled to such notice, by delivering such notice to such person or leaving it
at his, her or its residence or usual place of business, or by mailing it,
postage prepaid, and addressed to such stockholder at his address as it appears
upon the books of the corporation or by giving notice by electronic
transmission as permitted by Section 8.10 of these by-laws, at least ten (10) days
and not more than sixty (60) before the meeting. Such notice shall be given by the secretary,
an assistant secretary, or any other officer or person designated either by the
secretary or by the person or persons calling the meeting.
The
requirement of notice to any stockholder may be waived (i) by a written
waiver of notice, signed by the person entitled to notice, or a waiver by
electronic transmission by the person entitled to notice, whether executed or
transmitted before or after the meeting by the stockholder or his attorney
thereunto duly authorized, and filed with the records of the
1
meeting,
(ii) if communication with such stockholder is unlawful, (iii) by
attendance at the meeting without protesting prior thereto or at its
commencement the lack of notice, or (iv) as otherwise excepted by
law. A waiver of notice or electronic
transmission of any regular or special meeting of the stockholders need not
specify the business to be transacted or the purposes of the meeting unless so
required by the Certificate of Incorporation or these by-laws.
If
a meeting is adjourned to another time or place, notice need not be given of
the adjourned meeting if the time and place, if any, thereof, and the means of
remote communications, if any, by which stockholders and proxy holders may be
deemed to be present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken, except that if the
adjournment is for more than thirty days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
meeting. At the adjourned meeting, the
corporation may transact any business which might have been transacted at the
original meeting.
Section 1.4
Notice of Stockholder Business and Nominations.
(A)
Annual Meetings
of Stockholders.
(1)
Nominations of persons for
election to the board of directors and the proposal of business to be
considered by the stockholders may be made at an annual meeting of stockholders
only (a) pursuant to the corporations notice of meeting (or any
supplement thereto), (b) by or at the direction of the nominating and
corporate governance committee of the board of directors, if any, or the board
of directors or (c) by any stockholder of the corporation who was a
stockholder of record of the corporation at the time the notice provided for in
this Section 1.4 is delivered to the secretary of the corporation, who is
entitled to vote at the meeting and who complies with the notice procedures set
forth in this Section 1.4.
(2)
For nominations or other
business to be properly brought before an annual meeting of stockholders by a
stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 1.4,
the stockholder must have given timely notice thereof in writing to the
secretary of the corporation and any such proposed business other than the
nominations of persons for election to the board of directors must constitute a
proper matter for stockholder action. To
be timely, a stockholders notice shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the ninetieth day nor earlier than the close of business on the one
hundred twentieth day prior to the first anniversary of the preceding years
annual meeting (provided, however, that in the event that the date of the
annual meeting is more than thirty days before or more than seventy days after
such anniversary date, notice by the stockholder must be so delivered not
earlier than the close of business on the one hundred twentieth day prior to
such annual meeting and not later than the close of business on the later of
the ninetieth day prior to such annual meeting or the tenth day following the
day on which public announcement of the date of such meeting is first made by
the corporation). In no event shall the
public announcement of an adjournment or postponement of an annual meeting of
stockholders commence a new time
2
period (or extend any time period) for the giving of a stockholders
notice as described above. Such
stockholders notice shall set forth: (a) as to each person whom the stockholder
proposes to nominate for election as a director (i) all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to and in accordance with Section 14(a) of
the Securities Exchange Act of 1934, as amended (the Exchange Act) and the rules and
regulations promulgated thereunder, and (ii) such persons written consent
to being named in the proxy statement as a nominee and to serving as a director
if elected; (b) as to any other business that the stockholder proposes to
bring before the meeting, a brief description of the business desired to be
brought before the meeting, the text of the proposal or business (including the
text of any resolutions proposed for consideration and in the event that such
business includes a proposal to amend the by-laws of the corporation, the
language of the proposed amendment), the reasons for conducting such business
at the meeting and any material interest in such business of such stockholder
and the beneficial owner, if any, on whose behalf the proposal is made; and (c) as
to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
stockholder, as they appear on the corporations books, and of such beneficial
owner, (ii) the class or series and number of shares of capital stock of
the corporation which are owned beneficially and of record by such stockholder
and such beneficial owner, (iii) a description of any agreement,
arrangement or understanding with respect to the nomination or proposal between
or among such stockholder and/or such beneficial owner, any of their respective
affiliates or associates, and any others acting in concert with any of the
foregoing, (iv) a description of any agreement, arrangement or
understanding (including any derivative or short positions, profit interests,
options, warrants, convertible securities, stock appreciation or similar
rights, hedging transactions, and borrowed or loaned shares) that has been
entered into as of the date of the stockholders notice by, or on behalf of
such stockholder and such beneficial owners, whether or not such instrument or
right shall be subject to settlement in underlying shares of capital stock of
the corporation, the effect or intent of which is to mitigate loss to manage
risk or benefit of share price changes for, or increase or decrease the voting
power of, such stockholder or such beneficial owner, with respect to the shares
of stock of the corporation, (v) a representation that the stockholder is
a holder of record of stock of the corporation entitled to vote at such meeting
and intends to appear in person or by proxy at the meeting to propose such
business or nomination, (vi) a representation whether the stockholder or
the beneficial owner, if any, intends or is part of a group which intends (a) to
deliver a proxy statement and/or form of proxy to holders of at least the percentage
of the corporations outstanding capital stock required to approve or adopt the
proposal or elect the nominee and/or (b) otherwise to solicit proxies from
stockholders in support of such proposal or nomination, and (vii) any
other information relating to such stockholder and beneficial owner, if any,
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for, as applicable, the
proposal and/or for the election of directors in an election contest pursuant
to and in accordance with Section 14(a) of the Exchange Act and the rules and
regulations promulgated thereunder. The
foregoing notice requirements of this Section 1.4 shall be deemed
satisfied by a stockholder with respect to business other than a nomination if
the stockholder has notified the corporation of his, her or its intention to
present a proposal at an annual meeting in compliance with applicable rules and
regulations promulgated under the Exchange Act and such stockholders proposal
has been included in a
3
proxy statement that has been prepared by the corporation to solicit
proxies for such annual meeting. The
corporation may require any proposed nominee to furnish such other information
as it may reasonably require to determine the eligibility of such proposed
nominee to serve as a director of the corporation.
(3)
Notwithstanding anything in
the second sentence of paragraph (A)(2) of this Section 1.4 to the
contrary
, in the event
that the number of directors to be elected to the board of directors of the
corporation is increased effective at the annual meeting and there is no public
announcement by the corporation naming the nominees for the additional
directorships at least one hundred days prior to the first anniversary of the
preceding years annual meeting, a stockholders notice required by this Section 1.4
shall also be considered timely, but only with respect to nominees for the
additional directorships, if it shall be delivered to the secretary at the
principal executive offices of the corporation not later than the close of
business on the tenth day following the day on which such public announcement
is first made by the corporation.
(B)
Special
Meetings of Stockholders. Only such
business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the corporations notice of
meeting. Nominations of persons for
election to the board of directors may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the corporations
notice of meeting (1) by or at the direction of the board of directors or (2) provided
that the board of directors has determined that directors shall be elected at
such meeting, by any stockholder of the corporation who is a stockholder of
record at the time the notice provided for in this Section 1.4 is
delivered to the secretary of the corporation, who is entitled to vote at the
meeting and upon such election and who complies with the notice procedures set
forth in this Section 1.4. In the
event the corporation calls a special meeting of stockholders for the purpose
of electing one or more directors to the board of directors, any such
stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as
specified in the corporations notice of meeting, if the stockholders notice
required by paragraph (A)(2) of this Section 1.4 shall be delivered
to the secretary at the principal executive offices of the corporation not
earlier than the close of business on the one hundred twentieth day prior to
such special meeting and not later than the close of business on the later of the
ninetieth day prior to such special meeting or the tenth day following the day
on which public announcement is first made of the date of the special meeting
and of the nominees proposed by the board of directors to be elected at such
meeting. In no event shall the public
announcement of an adjournment or postponement of a special meeting commence a
new time period (or extend any time period) for the giving of a stockholders
notice as described above.
(C)
General.
(1)
Only such
persons who are nominated in accordance with the procedures set forth in this Section 1.4
shall be eligible to be elected at an annual or special meeting of stockholders
of the corporation to serve as directors and only such business shall be
conducted at a meeting of stockholders as shall have been brought before the
meeting in accordance with the procedures set forth in this Section 1.4. Except as otherwise provided
4
by law, the chairman of the meeting shall
have the power and duty (a) to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as the
case may be, in accordance with the procedures set forth in this Section 1.4
(including whether the stockholder or beneficial owner, if any, on whose behalf
the nomination or proposal is made solicited (or is part of a group which
solicited) or did not so solicit, as the case may be, proxies in support of
such stockholders nominee or proposal in compliance with such stockholders
representation as required by clause (A)(2)(c)(vi) of this Section
1.4
) and (b) if
any proposed nomination or business was not made or proposed in compliance with
this Section 1.4, to declare that such nomination shall be disregarded or
that such proposed business shall not be transacted. Notwithstanding the foregoing provisions of
this Section 1.4, unless otherwise required by law, if the stockholder (or
a qualified representative of the stockholder) does not appear at the annual or
special meeting of stockholders of the corporation to present a nomination or
proposed business, such nomination shall be disregarded and such proposed
business shall not be transacted, notwithstanding that proxies in respect of
such vote may have been received by the corporation. For purposes of this Section 1.4, to be
considered a qualified representative of the stockholder, a person must be a
duly authorized officer, manager or partner of such stockholder or must be
authorized by a writing executed by such stockholder or an electronic
transmission delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such writing or
electronic transmission, or a reliable reproduction of the writing or
electronic transmission, at the meeting of stockholders.
(2)
For purposes of this Section 1.4,
public announcement shall include disclosure in a press release reported by a
national news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of
the Exchange Act and the rules and regulations promulgated thereunder.
(3)
Notwithstanding the foregoing provisions of
this Section 1.4, a stockholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations promulgated
thereunder with respect to the matters set forth in this Section 1.4;
provided however, that any references in these by-laws to the Exchange Act or
the rules and regulations promulgated thereunder are not intended to and
shall not limit any requirements applicable to nominations or proposals as to
any other business to be considered pursuant to this Section 1.4
(including paragraphs A(1)(c) and B hereof), and compliance with
paragraphs A(1)(c) and B of this Section 1.4 shall be the exclusive
means for a stockholder to make nominations or submit other business (other
than, as provided in the penultimate sentence of A(2), matters brought properly
under and in compliance with Rule 14a-8 of the Exchange Act, as may be
amended from time to time). Nothing in
this Section 1.4 shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals or nominations in the
corporations proxy statement pursuant to applicable rules and regulations
promulgated under the Exchange Act or (b) of the holders of any series of
Preferred Stock to elect directors pursuant to any applicable provisions of the
Certificate of Incorporation.
5
Section 1.5
Quorum
. The holders
of a majority in voting power of all stock issued, outstanding and entitled to
vote at a meeting shall constitute a quorum.
Any meeting may be adjourned from time to time by a majority of the
votes properly cast upon the question, whether or not a quorum is present.
Section 1.6
Voting and Proxies
. Stockholders shall have one vote for each
share of stock entitled to vote owned by them of record according to the books
of the corporation, unless otherwise provided by law or by the Certificate of
Incorporation. Stockholders may vote
either in person or by proxy. Any such
proxy may be in writing, or by means of electronic transmission (including
telephone, electronic mail, the Internet or such other electronic means as the
board of directors may determine from time to time) that sets forth or is
submitted with information from which it can be determined that such
transmission was authorized by the stockholder, or by such other means
permitted under applicable law. No proxy shall be voted or acted upon after
three years from its date, unless the proxy provides for a longer period. Proxies shall be filed with the secretary of
the meeting, or of any adjournment thereof.
Except as otherwise limited therein, proxies shall entitle the persons
authorized thereby to vote at any adjournment of such meeting. A proxy purporting to be executed by or on
behalf of a stockholder shall be deemed valid unless challenged at or prior to
its exercise and the burden of proving invalidity shall rest on the
challenger. A proxy with respect to
stock held in the name of two or more persons shall be valid if executed by one
of them unless at or prior to exercise of the proxy the corporation receives a
specific written notice to the contrary from any one of them.
Section 1.7
Action at Meeting
. When a quorum is present at any meeting of
stockholders, a plurality of the votes properly cast for election to any office
shall elect to such office, and a majority of the votes properly cast upon any
question other than election to an office shall decide such question, except
where a larger vote is required by law, the Certificate of Incorporation or
these by-laws. No ballot shall be
required for any election unless requested by a stockholder present or
represented at the meeting and entitled to vote in the election.
Section 1.8
Action Without Meeting
. All action required or permitted to be taken
by the stockholders must be taken at a meeting of the stockholders duly called
and held in accordance with law and in accordance with the Certificate of
Incorporation and these bylaws. The
stockholders cannot act by written consent.
Section 1.9
Voting of Shares of Certain Holders
. Shares of stock of the corporation standing
in the name of another corporation, domestic or foreign, may be voted by such
officer, agent, or proxy as the by-laws of such corporation may prescribe, or,
in the absence of such provision, as the board of directors of such corporation
may determine.
Shares
of stock of the corporation standing in the name of a deceased person, a minor
ward or an incompetent person, may be voted by his administrator, executor,
court-appointed guardian or conservator without a transfer of such shares into
the name of such administrator, executor, court appointed guardian or
conservator. Shares of capital stock of
the corporation standing in the name of a trustee or fiduciary may be voted by
such trustee or fiduciary.
6
Shares
of stock of the corporation standing in the name of a receiver may be voted by
such receiver, and shares held by or under the control of a receiver may be
voted by such receiver without the transfer thereof into his name if authority
so to do be contained in an appropriate order of the court by which such
receiver was appointed.
A
stockholder whose shares are pledged shall be entitled to vote such shares
unless in the transfer by the pledgor on the books of the corporation he
expressly empowered the pledgee to vote thereon, in which case only the pledgee
or its proxy shall be entitled to vote the shares so transferred.
Shares
of its own stock belonging to this corporation shall not be voted, directly or
indirectly, at any meeting and shall not be counted in determining the total
number of outstanding shares at any given time, but shares of its own stock
held by the corporation in a fiduciary capacity may be voted and shall be
counted in determining the total number of outstanding shares.
Section 1.10
Stockholder Lists
. The secretary (or the corporations transfer
agent or other person authorized by these by-laws or by law) shall prepare and
make, at least ten days before every meeting of stockholders, a complete list
of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. The
corporation shall not be required to include electronic mail addresses or other
electronic contact information on such list.
Such list shall be open to the examination of any stockholder, for any
purpose germane to the meeting, for a period of at least ten days prior to the
meeting, (i) on a reasonably accessible electronic network, provided that
the information required to gain access to such list is provided with the
notice of the meeting or (ii) during ordinary business hours, at the
corporations principal executive office.
In the event that the corporation determines to make the list available
on an electronic network, the corporation may take reasonable steps to ensure
that such information is available only to stockholders of the
corporation. If the meeting is to be
held at a place, then the list shall be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If the
meeting is to be held solely by means of remote communication, then the list
shall also be open to the examination of any stockholder during the whole time
of the meeting on a reasonably accessible network, and the information required
to access such list shall be provided with the notice of the meeting.
ARTICLE II.
Board of Directors
Section 2.1
Powers
. Except as
reserved to the stockholders by law or by the Certificate of Incorporation, the
business of the corporation shall be managed under the direction of the board
of directors, who shall have and may exercise all of the powers of the
corporation. In particular, and without
limiting the foregoing, the board of directors shall have the power to issue or
reserve for issuance from time to time the whole or any part of the capital
stock of the corporation which may be authorized from time to time to such
person, for such consideration and upon such terms and conditions as they shall
determine, including the granting of options, warrants or conversion or other
rights to stock.
7
Section 2.2
Number of Directors; Qualifications
. Subject to Section 2.5, the board of
directors shall consist of such number of directors (which shall not be less
than three) as shall be fixed initially by the incorporator(s) and
thereafter, from time to time, by resolution of the board of directors. No director need be a stockholder.
Section 2.3
Election of Directors
. The initial board of directors shall be
designated in the Certificate of Incorporation, or if not so designated,
elected by the incorporator(s) at the first meeting thereof. Thereafter, directors shall be elected by the
stockholders at their annual meeting or at any special meeting the notice of
which specifies the election of directors as an item of business for such
meeting, in accordance with the provisions of the Certificate of Incorporation.
Section 2.4
Vacancies
. In the case
of any vacancy in the board of directors from death, resignation,
disqualification or other cause, including a vacancy resulting from enlargement
of the board, the appointment or election of a director to fill such vacancy
shall be only by vote of a majority of the directors then in office, whether or
not constituting a quorum. The director
thus appointed or elected shall hold office until his successor is duly elected
and qualified or his earlier resignation or removal.
Section 2.5
Change in Size of the Board
. The number of members of the board of
directors may be changed by vote of a majority of the directors then in office
or by the stockholders by vote of eighty percent (80%) of the shares of voting
stock outstanding.
Section 2.6
Tenure and Resignation
. Except as otherwise provided by law, by the
Certificate of Incorporation or by these by-laws, directors shall hold office
until the next annual meeting of stockholders and thereafter until their
successors are duly elected and qualified.
Any director may resign by delivering or mailing postage prepaid a
written resignation, or by giving notice by electronic transmission as
permitted by Section 8.10 of these by-laws, to the corporation at its
principal office or to the chairman of the board, if any, or to the president,
secretary or assistant secretary, if any.
Such resignation shall be effective upon receipt unless it is specified
to be effective at some other time or upon the happening of some other event.
Section 2.7
Removal
. A director
may be removed from office only for cause, by vote of the holders of
eighty percent (80%) of the voting stock then outstanding, after reasonable
notice and opportunity to be heard before the body proposing to remove him.
Section 2.8
Meetings
. Regular
meetings of the board of directors may be held without call or notice at such
times and such places within or without the State of Delaware as the board of
directors may, from time to time, determine, provided that notice of the first
regular meeting following any such determination shall be given to directors
absent from such determination. A
regular meeting of the board of directors shall be held without notice immediately
after, and at the same place as, the annual meeting of the stockholders or the
special meeting of the stockholders held in place of such annual meeting,
unless a quorum of the directors is not then present. Special meetings of the board of directors
may be held at any time and at any place designated in the call of the meeting
when called by the chairman of the board, the chief executive officer, the
president (if a director) or a majority of the directors. Members of the board of directors or any
committee elected thereby may
8
participate in a meeting of
such board or committee by means of a conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other at the same time, and participation by such means
shall constitute presence in person at the meeting.
Section 2.9
Notice of Meeting
. It shall be sufficient notice to a director
to send or give notice (i) by mail at least seventy-two (72) hours before
the meeting addressed to such person at his usual or last known business or
residence address or (ii) in person, by telephone, facsimile or electronic
transmission to the extent provided in Section 8.10 of these by-laws, at
least twenty-four (24) hours before the meeting. Notice shall be given by the secretary, or in
his absence or unavailability, may be given by any of an assistant secretary,
if any, or by the officer or directors calling the meeting. The requirement of notice to any director may
be waived by a written waiver of notice signed by the person entitled to notice
or a waiver by electronic transmission by the person entitled to notice,
executed or transmitted by such person before or after the meeting or meetings,
and filed with the records of the meeting, or by attendance at the meeting
without protesting prior thereto or at its commencement the lack of
notice. A notice or waiver of notice of
a meeting of the board of directors or any committee thereof need not specify
the purposes of the meeting.
Section 2.10
Agenda
. Any lawful
business may be transacted at a meeting of the board of directors,
notwithstanding the fact that the nature of the business may not have been
specified in the notice or waiver of notice of the meeting.
Section 2.11
Quorum
. At any
meeting of the board of directors, a majority of the directors then in office
shall constitute a quorum for the transaction of business. Any meeting may be adjourned by a majority of
the votes cast upon the question, whether or not a quorum is present, and the
meeting may be held as adjourned without further notice.
Section 2.12
Action at Meeting
. Any motion adopted by vote of the majority of
the directors present at a meeting at which a quorum is present shall be the
act of the board of directors, except where a different vote is required by
law, by the Certificate of Incorporation or by these by-laws.
Section 2.13
Action Without Meeting
. Any action required or permitted to be taken
at any meeting of the board of directors, or any committee thereof, may be
taken without a meeting if all of the members of the board of directors or
committee, as the case may be, consent to the action in writing or by
electronic transmission and the writing(s) or electronic transmission(s) are
filed with the minutes of proceedings of the board of directors or
committee. Such filing shall be in paper
form if the minutes are in paper form and shall be in electronic form if the
minutes are maintained in electronic form.
Such consent shall be treated for all purposes as a vote of the board of
directors or committee, as the case may be, at a meeting.
Section 2.14
Committees
. The board
of directors may, by the affirmative vote of a majority of the directors then
in office, appoint an executive committee or other committees consisting of one
or more directors and may by vote delegate to any such committee some or all of
their powers except those which by law, the Certificate of Incorporation or
these by-laws they may not delegate. In
addition to other committees that the board of directors may
9
designate from time to time,
the board of directors shall designate a compensation committee and an audit
committee. In the absence or
disqualification of a member of a committee, the members of the committee
present and not disqualified, whether or not they constitute a quorum, may by
unanimous vote appoint another member of the board of directors to act at the
meeting in place of the absent or disqualified member. A committee may create
one or more subcommittees, each subcommittee to consist of one or more members
of the committee, and delegate to such subcommittee any or all of the powers of
the committee. Unless the board of directors shall otherwise provide, any such
committee
may make rules for the conduct of its business, but unless
otherwise provided by the board of directors or such rules, its meetings shall
be called, notice given or waived, its business conducted or its action taken
as nearly as may be in the same manner as is provided in these by-laws with
respect to meetings or for the conduct of business or the taking of actions by
the board of directors. The board of
directors shall have power at any time to fill vacancies in, change the
membership of, or discharge any such committee at any time. The board of directors shall have power to
rescind any action of any committee, but no such rescission shall have
retroactive effect.
ARTICLE III.
Officers
Section 3.1
Enumeration
. The
officers shall consist of a president, a treasurer, a secretary and such other
officers and agents (including a chairman of the board, a chief executive
officer, one or more vice-presidents, assistant treasurers and assistant
secretaries), as the board of directors may, in its discretion, determine.
Section 3.2
Election
. The
president, treasurer and secretary shall be elected annually by the directors
at their first meeting following the annual meeting of the stockholders or any
special meeting held in lieu of the annual meeting. Other officers may be chosen by the directors
at such meeting or at any other meeting.
Section 3.3
Qualification
. An
officer may, but need not, be a director or stockholder. Any two or more offices may be held by the
same person. Any officer may be required
by the directors to give bond for the faithful performance of his duties to the
corporation in such amount and with such sureties as the directors may
determine. The premiums for such bonds
may be paid by the corporation.
Section 3.4
Tenure
. Except as
otherwise provided by the Certificate of Incorporation or these by-laws, the
term of office of each officer shall be for one year or until his successor is
elected and qualified or until his earlier resignation or removal.
Section 3.5
Removal
. Any officer
may be removed from office, with or without cause, by the affirmative vote of a
majority of the directors then in office; provided, however, that an officer
may be removed for cause only after reasonable notice and opportunity to be
heard by the board of directors prior to action thereon.
Section 3.6
Resignation
. Any
officer may resign by delivering or mailing postage prepaid a written
resignation, or by giving notice by electronic transmission as permitted by Section 8.10
of these by-laws, to the corporation at its principal office or to the
president,
10
secretary, or assistant
secretary, if any, and such resignation shall be effective upon receipt unless
it is specified to be effective at some other time or upon the happening of
some event.
Section 3.7
Vacancies
. A vacancy
in any office arising from any cause may be filled for the unexpired portion of
the term by the board of directors.
Section 3.8
Chairman of the Board
. The board of directors may appoint a chairman
of the board and may designate the chairman of the board as chief executive
officer. If the board of directors
appoints a chairman of the board, he shall preside at all meetings of the stockholders
and of the board of directors at which present and shall perform such other
duties and possess such other powers as are assigned to
him by the
board of directors.
Section 3.9 Chief
Executive Officer
. The
board of directors may appoint a chief executive officer, who may be a person
other than the chairman of the board or the president.
Unless a chairman of the board is so
designated or except as otherwise voted by the board of directors, the chief
executive officer shall preside at all meetings of the stockholders and of the
board of directors at which present. The
chief executive officer shall have such duties and powers as are commonly
incident to the office and such duties and powers as the board of directors
shall from time to time designate.
Section 3.10
President
. The
president shall be the chief executive officer of the corporation, unless
another person is so designated. The
president shall have such duties and powers as are commonly incident to the
office and such duties and powers as the board of directors shall from time to
time designate.
Section 3.11
Vice-President(s)
. The vice-president(s), if any, shall have
such powers and perform such duties as the board of directors may from time to
time determine.
Section 3.12
Treasurer and Assistant Treasurers
. The treasurer, subject to the direction and
under the supervision and control of the board of directors, shall have general
charge of the financial affairs of the corporation. The treasurer shall have custody of all
funds, securities and valuable papers of the corporation, except as the board
of directors may otherwise provide. The
treasurer shall keep or cause to be kept full and accurate records of account
which shall be the property of the corporation, and which shall be always open
to the inspection of each elected officer and director of the corporation. The treasurer shall deposit or cause to be
deposited all funds of the corporation in such depository or depositories as
may be authorized by the board of directors.
The treasurer shall have the power to endorse for deposit or collection
all notes, checks, drafts, and other negotiable instruments payable to the
corporation. The treasurer shall perform
such other duties as are incidental to the office, and such other duties as may
be assigned by the board of directors.
Assistant
treasurers, if any, shall have such powers and perform such duties as the board
of directors may from time to time determine.
Section 3.13
Secretary and Assistant Secretaries
. The secretary shall record, or cause to be
recorded, all proceedings of the meetings of the stockholders and directors
(including committees thereof) in the book of records of this corporation. The record books
11
shall be open at reasonable
times to the inspection of any stockholder, director, or officer. The secretary shall notify the stockholders
and directors, when required by law or by these by-laws, of their respective
meetings, and shall perform such other duties as the directors and stockholders
may from time to time prescribe. The
secretary shall have the custody and charge of the corporate seal, and shall
affix the seal of the corporation to all instruments requiring such seal, and
shall certify under the corporate seal the proceedings of the directors and of
the stockholders, when required. In the
absence of the secretary at any such meeting, a temporary secretary shall be
chosen who shall record the proceedings of the meeting in the aforesaid books.
Assistant secretaries, if
any, shall have such powers and perform such duties as the board of directors
may from time to time designate.
Section 3.14
Other Powers and Duties
. Subject to these by-laws and to such
limitations as the board of directors may from time to time prescribe, the
officers of the corporation shall each have such powers and duties as generally
pertain to their respective offices, as well as such powers and duties as from
time to time may be conferred by the board of directors.
ARTICLE IV.
Capital Stock
Section 4.1 Stock
Certificates
. The shares
of capital stock of the corporation shall be represented by certificates in
such form as shall, in conformity to law, be prescribed from time to time by
the board of directors, provided that the board of directors may provide by
resolution or resolutions that some or all of any or all classes or series of
stock shall be uncertificated shares.
Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the corporation. Each certificate shall be signed by the
president or vice-president and treasurer or assistant treasurer or such other
officers designated by the board of directors from time to time as permitted by
law, shall bear the seal of the corporation, and shall express on its face its
number, date of issue, class, the number of shares for which, and the name of
the person to whom, it is issued. The
corporate seal and any or all of the signatures of corporation officers may be
facsimile.
If
an officer, transfer agent or registrar who has signed, or whose facsimile
signature has been placed on, a certificate shall have ceased to be such before
the certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer, transfer agent or registrar at the time of
its issue.
Section 4.2
Transfer of Shares
. Transfers of stock shall be made only on the
books of the corporation, and in the case of certificated shares of stock,
title to a certificate of stock and to the shares represented thereby shall be
transferred by delivery to the corporation or its transfer agent of the
certificate properly endorsed, or by delivery of the certificate accompanied by
a written assignment of the same, or a properly executed written power of
attorney to sell, assign or transfer the same or the shares represented
thereby. Upon surrender of a certificate
for the shares being transferred, a new certificate or certificates shall be
issued according to the interests of the parties. In the case of uncertificated shares of
stock, title to the uncertificated shares shall be transferred upon receipt by
the corporation or
12
its transfer agent of proper
transfer instructions from the registered holder of the shares or by transfer
instructions accompanied by a written assignment of the same, or a properly
executed written power of attorney to sell, assign or transfer the
uncertificated shares.
Section 4.3
Record Holders
.
Except as otherwise may be required by law, by the Certificate of
Incorporation or by these by-laws, the corporation shall be entitled to treat
the record holder of stock as shown on its books as the owner of such stock for
all purposes, including the payment of dividends and the right to vote with
respect thereto, regardless of any transfer, pledge or other disposition of
such stock, until the shares have been transferred on the books of the
corporation in accordance with the requirements of these by-laws.
It
shall be the duty of each stockholder to notify the corporation of his post
office address.
Section 4.4
Record Date
.
(a) In order that the
corporation may determine the stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournments thereof, the board of directors
may fix a record date, which record date shall not precede the date on which
the resolution fixing the record date is adopted by the board of directors and
which record date shall, unless otherwise required by law, not be more than
sixty (60) nor less than ten (10) days before the date of such
meeting. If no record date is fixed, the
record date for determining stockholders entitled to receive notice of or to
vote at a meeting of stockholders shall be at the close of business on the day
next preceding the day on which notice is given, or, if notice is waived, at
the close of business on the day next preceding the day on which the meeting is
held. A determination of stockholders of
record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the board may
fix a new record date for the adjourned meeting.
(b) In order that the corporation may determine the
stockholders entitled to receive payment of any dividend or other distribution
or allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful
action, the board of directors may fix a record date, which record date shall
not precede the date on which the resolution fixing the record date is adopted
by the board of directors, and which record date shall be not be more than
sixty (60) days prior to such action. If no record date is fixed, the record date
for determining stockholders for any such purpose shall be at the close of
business on the day on which the board of directors adopts the resolution
relating thereto.
Section 4.5
Transfer Agent and Registrar for Shares of Corporation
. The board of directors may appoint a transfer
agent and a registrar of the certificates of stock of the corporation. Any transfer agent so appointed shall
maintain, among other records, a stockholders ledger, setting forth the names
and addresses of the holders of all issued shares of stock of the corporation,
the number of shares held by each, the certificate numbers representing such
shares, and the date of issue of the certificates representing such
shares. Any registrar so appointed shall
maintain, among other records, a share register, setting forth the total number
of shares of each class of shares which the corporation is authorized to issue
13
and the total number of
shares actually issued. The stockholders
ledger and the share register are hereby identified as the stock transfer books
of the corporation; but as between the stockholders ledger and the share
register, the names and addresses of stockholders, as they appear on the
stockholders ledger maintained by the transfer agent shall be the official
list of stockholders of record of the corporation. The name and address of each stockholder of
record, as they appear upon the stockholders ledger, shall be conclusive
evidence of who are the stockholders entitled to receive notice of the meetings
of stockholders, to vote at such meetings, to examine a complete list of the
stockholders entitled to vote at meetings, and to own, enjoy and exercise any
other property or rights deriving from such shares against the corporation. Stockholders, but not the corporation, its
directors, officers, agents or attorneys, shall be responsible for notifying
the transfer agent, in writing, of any changes in their names or addresses from
time to time, and failure to do so will relieve the corporation, its other
stockholders, directors, officers, agents and attorneys, and its transfer agent
and registrar, of liability for failure to direct notices or other documents,
or pay over or transfer dividends or other property or rights, to a name or address
other than the name and address appearing in the stockholders ledger
maintained by the transfer agent.
Section 4.6 Loss
of Certificates
. In case of
the loss, destruction or mutilation of a certificate of stock, a replacement
certificate may be issued in place thereof upon such terms as the board of
directors may prescribe, including, in the discretion of the board of
directors, a requirement of bond and indemnity to the corporation.
Section 4.7
Restrictions on Transfer
. Every certificate for shares of stock which
are subject to any restriction on transfer, whether pursuant to the Certificate
of Incorporation, the by-laws or any agreement to which the corporation is a
party, shall have the fact of the restriction noted conspicuously on the certificate
and shall also set forth on the face or back either the full text of the
restriction or a statement that the corporation will furnish a copy to the
holder of such certificate upon written request and without charge.
Section 4.8
Multiple Classes of Stock
. The amount and classes of the capital stock
and the par value, if any, of the shares, shall be as fixed in the Certificate
of Incorporation. At all times when
there are two or more classes of stock, the several classes of stock shall
conform to the description and the terms and have the respective preferences,
voting powers, restrictions and qualifications set forth in the Certificate of
Incorporation and these by-laws. Every
certificate issued when the corporation is authorized to issue more than one
class or series of stock shall set forth on its face or back either (i) the
full text of the preferences, voting powers, qualifications and special and
relative rights of the shares of each class and series authorized to be issued,
or (ii) a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
ARTICLE V.
Dividends
Section 5.1 Declaration
of Dividends
. Except as
otherwise required by law or by the Certificate of Incorporation, the board of
directors may, in its discretion, declare what, if any, dividends shall be paid
from the surplus or from the net profits of the corporation for the
14
current or preceding fiscal
year, or as otherwise permitted by law.
Dividends may be paid in cash, in property, in shares of the corporations
stock, or in any combination thereof.
Dividends shall be payable upon such dates as the board of directors may
designate.
Section 5.2
Reserves
. Before the
payment of any dividend and before making any distribution of profits, the
board of directors, from time to time and in its absolute discretion, shall have
power to set aside out of the surplus or net profits of the corporation such
sum or sums as the board of directors deems proper and sufficient as a reserve
fund to meet contingencies or for such other purpose as the board of directors
shall deem to be in the best interests of the corporation, and the board of
directors may modify or abolish any such reserve.
ARTICLE VI.
Powers of Officers to Contract
with the Corporation
Any
and all of the directors and officers of the corporation, notwithstanding their
official relations to it, may enter into and perform any contract or agreement
of any nature between the corporation and themselves, or any and all of the
individuals from time to time constituting the board of directors of the
corporation, or any firm or corporation in which any such director may be
interested, directly or indirectly, whether such individual, firm or
corporation thus contracting with the corporation shall thereby derive personal
or corporate profits or benefits or otherwise; provided, that (i) the
material facts of such interest are disclosed or are known to the board of
directors or committee thereof which authorizes such contract or agreement; (ii) if
the material facts as to such persons relationship or interest are disclosed
or are known to the stockholders entitled to vote thereon, and the contract is
specifically approved in good faith by a vote of the stockholders; or (iii) the
contract or agreement is fair as to the corporation as of the time it is
authorized, approved or ratified by the board of directors, a committee
thereof, or the stockholders. Any
director of the corporation who is interested in any transaction as aforesaid
may nevertheless be counted in determining the existence of a quorum at any
meeting of the board of directors which shall authorize or ratify any such
transaction. This Article shall not
be construed to invalidate any contract or other transaction which would
otherwise be valid under the common or statutory law applicable thereto.
ARTICLE VII.
Indemnification
Section 7.1
Definitions
. For
purposes of this Article VII the following terms shall have the meanings
indicated:
Corporate
Status describes the status of a person who is or was a director, officer,
employee, agent, trustee or fiduciary of the Corporation or of any other
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise which such person is or was serving at the express written request
of the corporation.
Court
means the Court of Chancery of the State of Delaware, the court in which the
Proceeding in respect of which indemnification is sought by a Covered Person
shall have
15
been brought or is pending,
or another court having subject matter jurisdiction and personal jurisdiction
over the parties.
Covered
Person means a person who is a present or former director or Officer of the
corporation and shall include such persons legal representatives, heirs,
executors and administrators.
Disinterested
describes any individual, whether or not that individual is a director,
Officer, employee or agent of the corporation, who is not and was not and is
not threatened to be made a party to the Proceeding in respect of which
indemnification, advancement of Expenses or other action is sought by a Covered
Person.
Expenses
shall include, without limitation, all reasonable attorneys fees, retainers,
court costs, transcript costs, fees of experts, witness fees, travel expenses,
duplicating costs, printing and binding costs, telephone charges, postage,
delivery service fees, and all other disbursements or expenses of the types
customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating or being or preparing to be a witness in a
Proceeding.
Good
Faith shall mean a Covered Person having acted in good faith and in a manner
such Covered Person reasonably believed to be in or not opposed to the best
interests of the corporation or, in the case of an employee benefit plan, the
best interests of the participants or beneficiaries of said plan, as the case
may be, and, with respect to any Proceeding which is criminal in nature, having
had no reasonable cause to believe such Covered Persons conduct was unlawful.
Improper
Personal Benefit shall include, but not be limited to, the personal gain in
fact by reason of a persons Corporate Status of a financial profit, monies or
other advantage not also accruing to the benefit of the corporation or to the
stockholders generally and which is unrelated to his usual compensation
including, but not limited to, (i) in exchange for the exercise of
influence over the corporations affairs, (ii) as a result of the
diversion of corporate opportunity, or (iii) pursuant to the use or
communication of confidential or inside information for the purpose of
generating a profit from trading in the corporations securities.
Notwithstanding the foregoing, Improper Personal Benefit shall not include
any benefit, directly or indirectly, related to actions taken in order to
evaluate, discourage, resist, prevent or negotiate any transaction with or
proposal from any person or entity seeking control of, or a controlling
interest in, the corporation.
Independent
Counsel means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and may include law firms or members thereof that
are regularly retained by the corporation but not by any other party to the
Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding
the foregoing, the term Independent Counsel shall not include any person who,
under the standards of professional conduct then prevailing and applicable to
such counsel, would have a conflict of interest in representing either the
corporation or Covered Person in an action to determine the Covered Persons
rights under this Article.
16
Officer
means the chairman of the board, the president, vice presidents, treasurer,
assistant treasurer(s), secretary, assistant secretary and such other executive
officers as are appointed by the board of directors of the corporation and
explicitly entitled to indemnification hereunder.
Proceeding
includes any actual, threatened or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation (including any internal
corporate investigation), administrative hearing or any other proceeding,
whether civil, criminal, administrative or investigative, other than one
initiated by the Covered Person, but including one initiated by a Covered
Person for the purpose of enforcing such Covered Persons rights under this Article to
the extent provided in Section 7.14 of this Article. Proceeding shall
not include any counterclaim brought by any Covered Person other than one
arising out of the same transaction or occurrence that is the subject matter of
the underlying claim.
Section 7.2 Right
to Indemnification in General
.
(a)
Covered Persons
. The corporation
may indemnify, and may advance Expenses, to each Covered Person who is, was or
is threatened to be made a party or otherwise involved in any Proceeding, as
provided in this Article and to the fullest extent permitted by applicable
law in effect on the date hereof and to such greater extent as applicable law
may hereafter from time to time permit.
The
indemnification provisions in this Article shall be deemed to be a
contract between the corporation and each Covered Person who serves in any
Corporate Status at any time while these provisions as well as the relevant
provisions of the Delaware General Corporation Law are in effect, and any
repeal or modification thereof shall not affect any right or obligation then
existing with respect to any state of facts then or previously existing or any
Proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Covered Person.
(b)
Employees and Agents
. The corporation
may, to the extent authorized from time to time by the board of directors,
grant indemnification and the advancement of Expenses to any employee or agent
of the corporation to the fullest extent of the provisions of this Article with
respect to the indemnification and advancement of Expenses of Covered Persons.
Section 7.3
Proceedings Other Than Proceedings by or in the Right of the Corporation
. Each Covered Person may be entitled to the
rights of indemnification provided in this Section 7.3 if, by reason of
such Covered Persons Corporate Status, such Covered Person is, was or is
threatened to be made, a party to or is otherwise involved in any Proceeding,
other than a Proceeding by or in the right of the corporation. Each Covered
Person may be indemnified against Expenses, judgments, penalties, fines and
amounts paid in settlements, actually and reasonably incurred by such Covered
Person or on such Covered Persons behalf in connection with such Proceeding or
any claim, issue or matter therein, if such Covered Person acted in Good Faith
and such Covered Person has not been adjudged during the course of such
proceeding to have derived an Improper Personal Benefit from the transaction or
occurrence forming the basis of such Proceeding.
17
Section 7.4
Proceedings by or in the Right of the Corporation
. Each Covered Person may be entitled to the
rights of indemnification provided in this Section 7.4 if, by reason of
such Covered Persons Corporate Status, such Covered Person is, or is threatened
to be made, a party to or is otherwise involved in any Proceeding brought by or
in the right of the corporation to procure a judgment in its favor. Such
Covered Person may be indemnified against Expenses, judgments, penalties, and
amounts paid in settlement, actually and reasonably incurred by such Covered
Person or on such Covered Persons behalf in connection with such Proceeding if
such Covered Person acted in Good Faith and such Covered Person has not been
adjudged during the course of such proceeding to have derived an Improper
Personal Benefit from the transaction or occurrence forming the basis of such
Proceeding. Notwithstanding the foregoing, no such indemnification shall be
made in respect of any claim, issue or matter in such Proceeding as to which
such Covered Person shall have been adjudged to be liable to the corporation if
applicable law prohibits such indemnification; provided, however, that, if
applicable law so permits, indemnification shall nevertheless be made by the
corporation in such event if and only to the extent that the Court which is
considering the matter shall so determine.
Section 7.5
Indemnification of a Party Who is Wholly or Partly Successful
. Notwithstanding any provision of this Article to
the contrary, to the extent that a Covered Person is, by reason of such Covered
Persons Corporate Status, a party to or is otherwise involved in and is
successful, on the merits or otherwise, in any Proceeding, such Covered Person
shall be indemnified to the maximum extent permitted by law, against all
Expenses, judgments, penalties, fines, and amounts paid in settlement, actually
and reasonably incurred by such Covered Person or on such Covered Persons
behalf in connection therewith. If such Covered Person is not wholly successful
in such Proceeding but is successful, on the merits or otherwise, as to one or
more but less than all claims, issues or matters in such Proceeding, the
corporation shall indemnify such Covered Person to the maximum extent permitted
by law, against all Expenses, judgments, penalties, fines, and amounts paid in
settlement, actually and reasonably incurred by such Covered Person or on such
Covered Persons behalf in connection with each successfully resolved claim,
issue or matter. For purposes of this Section 7.5 and without limitation,
the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim, issue or matter.
Section 7.6
Indemnification for Expenses of a Witness
. Notwithstanding any provision of this Article to
the contrary, to the extent that a Covered Person is, by reason of such Covered
Persons Corporate Status, a witness in any Proceeding, such Covered Person
shall be indemnified against all Expenses actually and reasonably incurred by
such Covered Person or on such Covered Persons behalf in connection therewith.
Section 7.7
Advancement of Expenses
. Notwithstanding any provision of this Article to
the contrary, the corporation may advance all reasonable Expenses which, by
reason of a Covered Persons Corporate Status, were incurred by or on behalf of
such Covered Person in connection with any Proceeding, within thirty (30) days
after the receipt by the corporation of a statement or statements from such
Covered Person requesting such advance or advances, whether prior to or after
final disposition of such Proceeding. Such statement or statements shall
reasonably evidence the Expenses incurred by the Covered
18
Person and shall include or
be preceded or accompanied by an undertaking by or on behalf of the Covered
Person to repay any Expenses if such Covered Person shall be adjudged to be not
entitled to be indemnified against such Expenses. Any advance and undertaking
to repay pursuant to this Section 7.7 may be unsecured interest free, as
the corporation sees fit. Advancement of Expenses pursuant to this Section 7.7
shall not require approval of the board of directors or the stockholders of the
corporation, or of any other person or body. The secretary of the corporation
shall promptly advise the Board in writing of the request for advancement of
Expenses, of the amount and other details of the request and of the undertaking
to make repayment provided pursuant to this Section 7.7.
Section 7.8
Notification and Defense of Claim
. Promptly after receipt by a Covered Person of
notice of the commencement of any Proceeding, such Covered Person shall, if a
claim is to be made against the corporation under this Article, notify the
corporation of the commencement of the Proceeding. The failure to notify the
corporation will not relieve the corporation from any liability which it may
have to such Covered Person otherwise than under this Article. With respect to
any such Proceedings to which such Covered Person notifies the corporation:
(a)
The corporation will be entitled to participate in the defense at its own
expense.
(b) Except as otherwise provided below in this
subparagraph (b), the corporation (jointly with any other indemnifying party
similarly notified) will be entitled to assume the defense with counsel
reasonably satisfactory to the Covered Person. After notice from the
corporation to the Covered Person of its election to assume the defense of a
suit, the corporation will not be liable to the Covered Person under this Article for
any legal or other expenses subsequently incurred by the Covered Person in
connection with the defense of the Proceeding other than reasonable costs of
investigation or as otherwise provided below in this subparagraph (b). The
Covered Person shall have the right to employ his own counsel in such
Proceeding but the fees and expenses of such counsel incurred after notice from
the corporation of its assumption of the defense shall be at the expense of the
Covered Person except as provided in this paragraph. The fees and expenses of
counsel shall be at the expense of the corporation if (i) the employment
of counsel by the Covered Person has been authorized by the corporation, (ii) the
Covered Person shall have concluded reasonably that there may be a conflict of
interest between the corporation and the Covered Person in the conduct of the
defense of such action and such conclusion is confirmed in writing by the
corporations outside counsel regularly employed by it in connection with
corporate matters, or (iii) the corporation shall not in fact have
employed counsel to assume the defense of such Proceeding. The corporation
shall be entitled to participate in, but shall not be entitled to assume the
defense of any Proceeding brought by or in the right of the corporation or as
to which the Covered Person shall have made the conclusion provided for in (ii) above
and such conclusion shall have been so confirmed by the corporations said
outside counsel.
(c)
Notwithstanding any provision of this Article to the contrary, the
corporation shall not be obligated to indemnify the Covered Person under this Article for
any amounts paid in settlement of any Proceeding effected without its written
consent. The corporation shall not settle any Proceeding or claim in any manner
which would impose any penalty, limitation or disqualification of the Covered
Person for any purpose without such Covered
19
Persons written consent.
Neither the corporation nor the Covered Person will unreasonably withhold their
consent to any proposed settlement.
(d)
If it is determined that the Covered Person is entitled to indemnification
other than as afforded under subparagraph (b) above, payment to the Covered
Person of the additional amounts for which he is to be indemnified shall be
made within ten (10) days after such determination.
Section 7.9
Procedures
.
(a)
Method of Determination
. A
determination (as provided for by this Article or if required by
applicable law in the specific case) with respect to a Covered Persons
entitlement to indemnification shall be made either (i) by the board of
directors by a majority vote of a quorum consisting of Disinterested directors,
or (ii) in the event that a quorum of the board of directors consisting of
Disinterested directors is not obtainable or, even if obtainable, such quorum
of Disinterested directors so directs, by Independent Counsel in a written
determination to the board of directors, a copy of which shall be delivered to
the Covered Person seeking indemnification, (iii) by a special litigation
committee of the board of directors appointed by the board, or (iv) by the
vote of the holders of a majority of the corporations capital stock
outstanding at the time entitled to vote thereon.
(b)
Initiating Request
. A Covered
Person who seeks indemnification under this Article shall submit a Request
for Indemnification, including such documentation and information as is
reasonably available to such Covered Person and is reasonably necessary to
determine whether and to what extent such Covered Person is entitled to
indemnification.
(c)
Presumptions
. In making a
determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall not presume that
the Covered Person is or is not entitled to indemnification under this Article.
(d)
Burden of Proof
. Each Covered
Person shall bear the burden of going forward and demonstrating sufficient
facts to support his claim for entitlement to indemnification under this
Article. That burden shall be deemed satisfied by the submission of an initial
Request for Indemnification pursuant to Section 7.9(b) above.
(e)
Effect of Other Proceedings
. The
termination of any Proceeding or of any claim, issue or matter therein, by
judgment, order, settlement or conviction, or upon a plea of guilty or of nolo
contendere or its equivalent, shall not (except as otherwise expressly provided
in this Article) of itself adversely affect the right of a Covered Person to
indemnification or create a presumption that a Covered Person did not act in
Good Faith.
(f)
Actions of Others
. The knowledge,
actions, or failure to act, of any director, officer, employee, agent, trustee
or fiduciary of the enterprise whose daily activities the Covered Person was
actually responsible may be imputed to a Covered Person for purposes of
determining the right to indemnification under this Article.
20
Section 7.10
Action by the Corporation
. Any action, payment, advance determination
other than a determination made pursuant to Section 7.9(a) above,
authorization, requirement, grant of indemnification or other action taken by
the Corporation pursuant to this Article shall be effected exclusively
through any Disinterested person so authorized by the board of directors of the
corporation, including the president or any vice president of the corporation.
Section 7.11
Non-Exclusivity
. The rights of indemnification and to receive
advancement of Expenses as provided by this Article shall not be deemed
exclusive of any other rights to which a Covered Person may at any time be
entitled under applicable law, the Certificate of Incorporation, these By-Laws,
any agreement, a vote of stockholders or a resolution of the board of
directors, or otherwise. No amendment, alteration, rescission or replacement of
this Article or any provision hereof shall be effective as to an Covered
Person with respect to any action taken or omitted by such Covered Person in
such Covered Persons Corporate Status or with respect to any state of facts
then or previously existing or any Proceeding previously or thereafter brought
or threatened based in whole or to the extent based in part upon any such state
of facts existing prior to such amendment, alteration, rescission or
replacement.
Section 7.12
Insurance
. The
corporation may maintain, at its expense, an insurance policy or policies to
protect itself and any Covered Person, officer, employee or agent of the
corporation or another enterprise against liability arising out of this Article or
otherwise, whether or not the corporation would have the power to indemnify any
such person against such liability under the Delaware General Corporation Law.
Section 7.13 No
Duplicative Payment
. The
corporation shall not be liable under this Article to make any payment of
amounts otherwise indemnifiable hereunder if and to the extent that a Covered
Person has otherwise actually received such payment under any insurance policy,
contract, agreement or otherwise.
Section 7.14
Expenses of Adjudication.
In the event that any Covered Person seeks a
judicial adjudication, or an award in arbitration, to enforce such Covered
Persons rights under, or to recover damages for breach of, this Article, the
Covered Person shall be entitled to recover from the corporation, and shall be
indemnified by the corporation against, any and all expenses (of the types
described in the definition of Expenses in Section 7.1 of this Article)
actually and reasonably incurred by such Covered Person in seeking such
adjudication or arbitration, but only if such Covered Person prevails therein.
If it shall be determined in such adjudication or arbitration that the Covered
Person is entitled to receive part but not all of the indemnification of
expenses sought, the expenses incurred by such Covered Person in connection
with such adjudication or arbitration shall be appropriately prorated.
Section 7.15
Severability
. If
any provision or provisions of this Article shall be held to be invalid,
illegal or unenforceable for any reason whatsoever:
(a)
the validity, legality and enforceability of the remaining provisions of this Article (including
without limitation, each portion of any Section of this Article containing
any such
21
provision held to be
invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable)
shall not in any way be affected or impaired thereby; and
(b)
to the fullest extent possible, the provisions of this Article (including,
without limitation, each portion of any Section of this Article containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself invalid, illegal or unenforceable) shall be construed so as to give
effect to the intent manifested by the provision held invalid, illegal or
unenforceable.
ARTICLE VIII.
Miscellaneous Provisions
Section 8.1
Certificate of Incorporation
. All references in these by-laws to the
Certificate of Incorporation shall be deemed to refer to the Certificate of
Incorporation of the corporation, as amended and in effect from time to time.
Section 8.2
Fiscal Year
.
Except as from time to time otherwise provided by the board of
directors, the fiscal year of the corporation shall end on December 31
st
of each year.
Section 8.3
Corporate Seal
. The
board of directors shall have the power to adopt and alter the seal of the
corporation.
Section 8.4
Execution of Instruments
. All deeds, leases, transfers, contracts,
bonds, notes, and other obligations authorized to be executed by an officer of
the corporation on its behalf shall be signed by the president or the treasurer
except as the board of directors may generally or in particular cases otherwise
determine.
Section 8.5
Voting of Securities
. Unless the board of directors otherwise
provides, the president or the treasurer may waive notice of and act on behalf
of this corporation, or appoint another person or persons to act as proxy or
attorney in fact for this corporation with or without discretionary power
and/or power of substitution, at any meeting of stockholders or shareholders of
any other corporation or organization, any of whose securities are held by this
corporation.
Section 8.6
Evidence of Authority
. A certificate by the secretary or any
assistant secretary as to any action taken by the stockholders, directors or
any officer or representative of the corporation shall, as to all persons who
rely thereon in good faith, be conclusive evidence of such action. The exercise of any power which by law, by
the Certificate of Incorporation, or by these by-laws, or under any vote of the
stockholders or the board of directors, may be exercised by an officer of the
corporation only in the event of absence of another officer or any other
contingency shall bind the corporation in favor of anyone relying thereon in
good faith, whether or not such absence or contingency existed.
Section 8.7
Corporate Records
. Any books or records maintained by the
Corporation in the regular course of its business, including its stock ledger,
books of account, and minute books, may be kept on, or by means of, or be in
the form of, any information storage device or method;
provided
,
however
,
that the books and records so kept can be converted into clearly legible paper
form within a reasonable time. The
Corporation shall so
22
convert any books or records
so kept upon the request of any person entitled to inspect such records
pursuant to the Certificate of Incorporation, these by-laws, or the provisions
of the DGCL.
Section 8.8
Charitable Contributions
. The board of directors from time to time may
authorize contributions to be made by the corporation in such amounts as it may
determine to be reasonable to corporations, trusts, funds or foundations
organized and operated exclusively for charitable, scientific or educational
purposes, no part of the net earning of which inures to the private benefit of
any stockholder or individual.
Section 8.9
Communications of Notices
. Any notice required to be given under these
by-laws may be given by (i) delivery in person, (ii) mailing it,
postage prepaid, first class, (iii) mailing it by nationally or
internationally recognized second day or faster courier service, or (iv) electronic
transmission, in each case, to the addressee; provided however that facsimile
transmission or electronic transmission may only be used if the addressee has
consented to such means.
Section 8.10
Electronic Transmissions
. Notwithstanding any reference in these
by-laws to written instruments, all notices, meetings, consents and other
communications contemplated by these by-laws may be conducted by means of an
electronic transmission, to the extent permitted by law, if specifically
authorized by the board of directors of the corporation.
ARTICLE IX.
Amendments
Section 9.1
Amendment by Stockholders
. Prior to the issuance of stock, these by-laws
may be amended, altered or repealed by the incorporator(s) by majority
vote. After stock has been issued, these by-laws may be amended altered or
repealed by the stockholders at any annual or special meeting by vote of a
majority of all shares outstanding and entitled to vote, except that where the
effect of the amendment would be to reduce any voting requirement otherwise
required by law, the Certificate of Incorporation or another provision of these
by-laws, such amendment shall require the vote that would have been required by
law, the Certificate of Incorporation or these by-laws or such other provision
of these by-laws. Notice and a copy of any proposal to amend these by-laws must
be included in the notice of meeting of stockholders at which action is taken
upon such amendment.
Section 9.2
Amendment by Board of Directors
. These by-laws may be amended or altered by
the board of directors at a meeting duly called for the purpose by majority
vote of the directors then in office, except that directors shall not amend the
by-laws in a manner which:
(a) changes the stockholder voting
requirements for any action;
(b) alters or abolishes any preferential
right or right of redemption applicable to a class or series of stock with shares
already outstanding;
(c) alters the provisions of Article IX
hereof; or
23
(d) permits the board of directors to
take any action which under law, the Certificate of Incorporation, or these
by-laws is required to be taken by the stockholders.
Any
amendment of these by-laws by the board of directors may be altered or repealed
by the stockholders at any annual or special meeting of stockholders.
24
Exhibit 4.03
UFP TECHNOLOGIES, INC.
and
AMERICAN STOCK TRANSFER &
TRUST COMPANY, LLC, as Rights Agent
RIGHTS AGREEMENT
Dated as of March 20, 2009
Table of Contents
Section 1.
|
Certain Definitions
|
3
|
Section 2.
|
Appointment of Rights Agent
|
7
|
Section 3.
|
Issue of Right Certificates
|
7
|
Section 4.
|
Form of Right Certificates
|
9
|
Section 5.
|
Countersignature and Registration
|
10
|
Section 6.
|
Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or Stolen Right
Certificates
|
10
|
Section 7.
|
Exercise of Rights, Purchase Price; Expiration Date of Rights
|
11
|
Section 8.
|
Cancellation and Destruction of Right Certificates
|
12
|
Section 9.
|
Availability of Shares of Preferred Stock
|
12
|
Section 10.
|
Preferred Stock Record Date
|
13
|
Section 11.
|
Adjustment of Purchase Price, Number and Kind of Shares and Number of
Rights
|
14
|
Section 12.
|
Certificate of Adjusted Purchase Price or Number of Shares
|
21
|
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.
|
Right 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 Right Certificates
|
31
|
Section 23.
|
Redemption
|
31
|
Section 24.
|
Exchange
|
32
|
Section 25.
|
Notice of Certain Events
|
33
|
Section 26.
|
Notices
|
34
|
Section 27.
|
Supplements and Amendments
|
34
|
Section 28.
|
Successors
|
35
|
Section 29.
|
Benefits of this Agreement
|
35
|
Section 30.
|
Determinations and Actions by the Board of Directors
|
35
|
Section 31.
|
Severability
|
35
|
Section 32.
|
Governing Law
|
35
|
Section 33.
|
Counterparts
|
35
|
Section 34.
|
Descriptive Headings
|
36
|
RIGHTS AGREEMENT
Rights Agreement, dated as of March 20,
2009 (Agreement), between UFP Technologies, Inc., a Delaware corporation
(the Company), and American Stock Transfer & Trust Company, LLC, a
New York state limited liability trust company, as Rights Agent (the Rights
Agent).
The Board of Directors of the Company has
authorized and declared a dividend of one preferred share purchase right (a Right)
for each share of Common Stock (as hereinafter defined) of the Company
outstanding as of the Close of Business (as defined below) on March 20,
2009 (the Record Date), each Right representing the right to purchase one
one-thousandth (subject to adjustment) of a share of Preferred Stock (as
hereinafter defined), upon the terms and subject to the conditions herein set
forth, and has further authorized and directed the issuance of one Right
(subject to adjustment as provided herein) with respect to each share of Common
Stock that shall become outstanding between the Record Date and the earlier of
the Distribution Date and the Expiration Date (as such terms are hereinafter
defined);
provided
,
however
, that Rights may be issued with
respect to shares of Common Stock that shall become outstanding after the
Distribution Date and prior to the Expiration Date in accordance with Section 22.
Accordingly, in consideration of the premises
and the mutual agreements herein set forth, the parties hereby agree as follows:
Section 1.
Certain
Definitions
. For purposes of this
Agreement, the following terms have the meaning indicated:
(a) Acquiring
Person shall mean any Person (as such term is hereinafter defined) who or
which shall be the Beneficial Owner (as such term is hereinafter defined) of
15% or more of the shares of Common Stock then outstanding, but shall not
include an Exempt Person (as such term is hereinafter defined);
provided
,
however
, that (i) if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an Acquiring
Person became the Beneficial Owner of a number of shares of Common Stock such
that the Person would otherwise qualify as an Acquiring Person inadvertently
(including, without limitation, because (A) such Person was unaware that
it beneficially owned a percentage of Common Stock that would otherwise cause
such Person to be an Acquiring Person or (B) such Person was aware of
the extent of its Beneficial Ownership of Common Stock but had no actual knowledge
of the consequences of such Beneficial Ownership under this Agreement) and
without any intention of changing or influencing control of the Company, then
such Person shall not be deemed to be or to have become an Acquiring Person
for any purposes of this Agreement unless and until such Person shall have
failed to divest itself, as soon as practicable (as determined, in good faith,
by the Board of Directors of the Company), of Beneficial Ownership of a
sufficient number of shares of Common Stock so that such Person would no
longer otherwise qualify as an Acquiring Person; (ii) if, as of the date
hereof or prior to the first public announcement of the adoption of this
Agreement, any Person is or becomes the Beneficial Owner of 15% or more of the
shares of Common
3
Stock outstanding, such Person shall not be
deemed to be or to become an Acquiring Person unless and until such time as
such Person shall, after the first public announcement of the adoption of this
Agreement, become the Beneficial Owner of additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or made by the Company
on the outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), unless, upon becoming the Beneficial Owner of such
additional shares of Common Stock, such Person is not then the Beneficial Owner
of 15% or more of the shares of Common Stock then outstanding; and (iii) no
Person shall become an Acquiring Person as the result of an acquisition of
shares of Common Stock by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares of Common Stock
beneficially owned by such Person to 15% or more of the shares of Common Stock
then outstanding,
provided
,
however
, that if a Person shall
become the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding by reason of such share acquisitions by the Company and shall
thereafter become the Beneficial Owner of any additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or made by the Company
on the outstanding Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock), then such Person shall be deemed to be an Acquiring
Person unless upon becoming the Beneficial Owner of such additional shares of
Common Stock such Person does not beneficially own 15% or more of the shares of
Common Stock then outstanding. For all
purposes of this Agreement, any calculation of the number of shares of Common
Stock outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common Stock of which
any Person is the Beneficial Owner, shall be made in accordance with the last
sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the Exchange
Act), as in effect on the date hereof.
(b) Affiliate
and Associate shall have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
(c) A
Person shall be deemed the Beneficial Owner of, shall be deemed to have Beneficial
Ownership of and shall be deemed to beneficially own any securities:
(i) which such Person
or any of such Persons Affiliates or Associates is deemed to beneficially own,
directly or indirectly, within the meaning of Rule l3d-3 of the General Rules and
Regulations under the Exchange Act as in effect on the date hereof;
(ii) which such Person
or any of such Persons Affiliates or Associates 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 (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, warrants or options, or
otherwise;
provided
,
however
, that
4
a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or on behalf of such
Person or any of such Persons Affiliates or Associates until such tendered
securities are accepted for purchase, (y) securities which such Person has
a right to acquire upon the exercise of Rights at any time prior to the time
that any Person becomes an Acquiring Person or (z) securities issuable
upon the exercise of Rights from and after the time that any Person becomes an
Acquiring Person if such Rights were acquired by such Person or any of such
Persons Affiliates or Associates prior to the Distribution Date or pursuant to
Section 3(a) or Section 22 hereof (Original Rights) or
pursuant to Section 11(a)(i) or Section 11(n) with respect
to an adjustment to Original Rights; or (B) the right to vote pursuant to
any agreement, arrangement or understanding;
provided
,
however
,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security by reason of such agreement, arrangement or understanding if
the agreement, arrangement or understanding to vote such security (1) arises
solely from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations promulgated under the Exchange Act
and (2) is not also then reportable on Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(iii) which are
beneficially owned, directly or indirectly, by any other Person and with
respect to which such Person or any of such Persons Affiliates or Associates
has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group members with respect
to a bona fide public offering of securities) for the purpose of acquiring,
holding, voting (except to the extent contemplated by the proviso to Section 1(c)(ii)(B))
or disposing of such securities of the Company;
provided
,
however
,
that no Person who is an officer, director or employee of an Exempt Person
shall be deemed, solely by reason of such Persons status or authority as such,
to be the Beneficial Owner of, to have Beneficial Ownership of or to beneficially
own any securities that are beneficially owned (as defined in this Section l(c)),
including, without limitation, in a fiduciary capacity, by an Exempt Person or
by any other such officer, director or employee of an Exempt Person.
(d) Business
Day shall mean any day other than a Saturday, a Sunday or a day on which
banking institutions in the State of New York or the city in which the
principal office of the Rights Agent is located are authorized or obligated by
law or executive order to close.
(e) Close
of Business on any given date shall mean 5:00 P.M., New York City time,
on such date;
provided
,
however
, that if such date is not a
Business Day it shall mean 5:00 P.M., New York City time, on the next
succeeding Business Day.
(f) Common
Stock when used with reference to the Company shall mean the Common Stock,
presently par value $0.01 per share, of the Company. Common Stock when used with reference to
any Person other than the Company shall mean the common stock (or, in the case
of an unincorporated entity, the equivalent equity interest)
5
with the greatest voting power of such other
Person or, if such other Person is a Subsidiary (as such term is hereinafter
defined) of another Person, the Person or Persons which ultimately control such
first-mentioned Person.
(g) Common
Stock Equivalents shall have the meaning set forth in Section 11(a)(iii) hereof.
(h) Current
Value shall have the meaning set forth in Section 11(a)(iii) hereof.
(i) Distribution
Date shall have the meaning set forth in Section 3 hereof.
(j) Equivalent
Preferred Shares shall have the meaning set forth in Section 11(b) hereof.
(k) Exchange
Ratio shall have the meaning set forth in Section 24 hereof.
(l) Exempt
Person shall mean (i) the Company or any Subsidiary of the Company, in
each case including, without limitation, in its fiduciary capacity, or any
employee benefit plan of the Company or of any Subsidiary of the Company, or
any entity or trustee holding Common Stock for or pursuant to the terms of any
such plan or for the purpose of funding any such plan or funding other employee
benefits for employees of the Company or of any Subsidiary of the Company; (ii) Jeff
Bailly, any members of his immediate family or any of his or their Affiliates
or Associates; and (iii) an underwriter or underwriters which become the
Beneficial Owner of 15% or more of the Common Stock then outstanding in
connection with an underwritten public offering with a view to the public
distribution of such Common Stock.
(m) Expiration
Date shall have the meaning set forth in Section 7 hereof.
(n) Final
Expiration Date shall have the meaning set forth in Section 7 hereof.
(o) Flip-In
Event shall have the meaning set forth in Section 11(a)(ii) hereof.
(p) NASDAQ
shall mean The Nasdaq Stock Market.
(q) New
York Stock Exchange shall mean the New York Stock Exchange, Inc.
(r) Person
shall mean any individual, firm, corporation, partnership, limited liability
company, trust or other entity, and shall include any successor (by merger or
otherwise) to such entity.
(s) Preferred
Stock shall mean the Series A Junior Participating Preferred Stock, par
value $0.01 per share, of the Company having the rights and preferences set
forth in the Form of Certificate of Designation attached to this Agreement
as Exhibit A.
6
(t) Principal
Party shall have the meaning set forth in Section 13(b) hereof.
(u) Purchase
Price shall have the meaning set forth in Section 7(b) hereof.
(v) Redemption
Date shall have the meaning set forth in Section 7 hereof.
(w) Redemption
Price shall have the meaning set forth in Section 23 hereof.
(x) Right
Certificate shall have the meaning set forth in Section 3 hereof.
(y) Securities
Act shall mean the Securities Act of 1933, as amended.
(z) Section 11(a)(ii) Trigger
Date shall have the meaning set forth in Section 11(a)(iii) hereof.
(aa) Spread
shall have the meaning set forth in Section 11(a)(iii) hereof.
(bb) Stock
Acquisition Date shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) by the Company or an
Acquiring Person that an Acquiring Person has become such, or such earlier date
as a majority of the Board of Directors of the Company shall become aware of
the existence of an Acquiring Person.
(cc) Subsidiary
of any 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, by such Person, and
any corporation or other entity that is otherwise controlled by such Person.
(dd) Substitution
Period shall have the meaning set forth in Section 11(a)(iii) hereof.
(ee) Summary
of Rights shall have the meaning set forth in Section 3 hereof.
(ff) Trading
Day shall have the meaning set forth in Section 11(d)(i) hereof.
Section 2.
Appointment
of Rights Agent
. The Company hereby
appoints the Rights Agent to act as agent for the Company and the holders of
the Rights (who, in accordance with Section 3 hereof, shall prior to the
Distribution Date be the holders of Common Stock) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time
to time appoint such co-Rights Agents as it may deem necessary or desirable.
Section 3.
Issue
of Right Certificates
.
(a) Until
the Close of Business on the earlier of (i) the tenth day after the Stock
Acquisition Date or (ii) the tenth Business Day (or such later date as may
be determined by action of the Board of Directors of the Company prior to such
time as any
7
Person becomes an Acquiring Person) after the
date of the commencement by any Person (other than an Exempt Person) of, or of
the first public announcement of the intention of such Person (other than an
Exempt Person) to commence, a tender or exchange offer the consummation of
which would result in any Person (other than an Exempt Person) becoming the
Beneficial Owner of shares of Common Stock aggregating 15% or more of the
Common Stock then outstanding (the earlier of such dates being herein referred
to as the Distribution Date,
provided
,
however
, that if either
of such dates occurs after the date of this Agreement and on or prior to the
Record Date, then the Distribution Date shall be the Record Date), (x) the
Rights will be evidenced (subject to the provisions of Section 3(b) hereof)
by the certificates for Common Stock registered in the names of the holders
thereof and not by separate Right Certificates, and (y) the Rights will be
transferable only in connection with the transfer of Common Stock. As soon as practicable after the Distribution
Date, the Company will prepare and execute, the Rights Agent will countersign
and the Company will send or cause to be sent (and the Rights Agent will, if requested,
send) by first-class, insured, postage-prepaid mail, to each record holder of
Common Stock as of the close of business on the Distribution Date (other than
any Acquiring Person or any Associate or Affiliate of an Acquiring Person), at
the address of such holder shown on the records of the Company, a Right
Certificate, in substantially the form of Exhibit B hereto (a Right
Certificate), evidencing one Right (subject to adjustment as provided herein)
for each share of Common Stock so held.
As of the Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
(b) On
the Record Date, or as soon as practicable thereafter, the Company will send a
copy of a Summary of Rights to Purchase Shares of Preferred Stock, in
substantially the form of Exhibit C hereto (the Summary of Rights), by
first-class, postage-prepaid mail, to each record holder of Common Stock as of
the Close of Business on the Record Date (other than any Acquiring Person or
any Associate or Affiliate of any Acquiring Person), at the address of such holder
shown on the records of the Company.
With respect to certificates for Common Stock outstanding as of the
Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates registered in the names of the holders thereof together with the
Summary of Rights. Until the
Distribution Date (or, if earlier, the Expiration Date), the surrender for
transfer of any certificate for Common Stock outstanding on the Record Date,
with or without a copy of the Summary of Rights, shall also constitute the
transfer of the Rights associated with the Common Stock represented thereby.
(c) Rights
shall be issued in respect of all shares of Common Stock issued or disposed of
(including, without limitation, upon disposition of Common Stock out of treasury
stock or issuance or reissuance of Common Stock out of authorized but unissued
shares) after the Record Date but prior to the earlier of the Distribution Date
and the Expiration Date, or in certain circumstances provided in Section 22
hereof, after the Distribution Date.
Certificates issued for Common Stock (including, without limitation,
upon transfer of outstanding Common Stock, disposition of Common Stock out of
treasury stock or issuance or reissuance of Common Stock out of authorized but
unissued shares) after the Record Date but prior to the earlier of the
Distribution Date and the Expiration Date shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
8
This certificate also evidences
and entitles the holder hereof to certain Rights as set forth in a Rights
Agreement between UFP Technologies, Inc. (the Company) and American
Stock Transfer & Trust Company, LLC, as Rights Agent, dated as of March 20,
2009 and as amended from time to time (the Rights Agreement), the terms of
which are hereby incorporated herein by reference and a copy of which is on
file at the principal executive offices of the Company. Under certain circumstances, as set forth in
the Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor.
Under
certain circumstances, as set forth in the Rights Agreement, Rights owned by or
transferred to any Person who is or becomes an Acquiring Person (as defined in
the Rights Agreement) and certain transferees thereof will become null and void
and will no longer be transferable
.
With respect to such certificates containing
the foregoing legend, until the Distribution Date, the Rights associated with
the Common Stock represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate,
except as otherwise provided herein, shall also constitute the transfer of the
Rights associated with the Common Stock represented thereby. In the event that the Company purchases or
otherwise acquires any Common Stock after the Record Date but prior to the
Distribution Date, any Rights associated with such Common Stock shall be deemed
canceled and retired so that the Company shall not be entitled to exercise any
Rights associated with the Common Stock which are no longer outstanding.
Notwithstanding this paragraph (c), the
omission of a legend shall not affect the enforceability of any part of this
Agreement or the rights of any holder of the Rights.
Section 4.
Form of
Right Certificates
. The Right
Certificates (and the forms of election to purchase shares and of assignment to
be printed on the reverse thereof) shall be substantially in the form set forth
in Exhibit B hereto and may have such marks of identification or
designation and such legends, summaries or endorsements printed thereon as 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 interdealer quotation system on which the
Rights may from time to time be listed or quoted, or to conform to usage. Subject to the provisions of this Agreement,
the Right Certificates shall entitle the holders thereof to purchase such
number of one one-thousandths of a share of Preferred Stock as shall be set
forth therein at the Purchase Price, but the number of such one one-thousandths
of a share of Preferred Stock and the Purchase Price shall be subject to
adjustment as provided herein.
9
Section 5.
Countersignature
and Registration
.
(a) The
Right Certificates shall be executed on behalf of the Company by the President
of the Company, either manually or by facsimile signature, shall have affixed
thereto the Companys seal or a facsimile thereof and shall be attested by the
Secretary of the Company, either manually or by facsimile signature. The Right Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
countersigned. In case any officer of
the Company who shall have signed any of the Right Certificates shall cease to
be such officer of the Company before countersignature by the Rights Agent and
issuance and delivery by the Company, such Right Certificates, nevertheless,
may be countersigned by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the Person who signed such
Right Certificates had not ceased to be such officer of the Company; and any
Right Certificate may be signed on behalf of the Company by any Person who, at
the actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of
the execution of this 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 an
office or agency designated for such purpose, books for registration and
transfer of the Right Certificates issued hereunder. Such books shall show the names and addresses
of the respective holders of the Right Certificates, the number of Rights
evidenced on its face by each of the Right Certificates and the date of each of
the Right Certificates.
Section 6.
Transfer,
Split Up, Combination and Exchange of Right Certificates; Mutilated, Destroyed,
Lost or Stolen Right Certificates
.
(a) Subject
to the provisions of this Agreement, at any time after the Distribution Date
and prior to the Expiration Date, any Right Certificate or Right Certificates
may be transferred, split up, combined or exchanged for another Right
Certificate or Right Certificates, entitling the registered holder to purchase
a like number of one one-thousandths of a share of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring
to transfer, split up, combine or exchange any Right Certificate or Right Certificates
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred, split
up, combined or exchanged at the office or agency of the Rights Agent
designated for such purpose. Thereupon
the Rights Agent shall countersign and deliver to the Person entitled thereto a
Right Certificate or Right Certificates, as the case may be, as so
requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.
(b) Subject
to the provisions of this Agreement, at any time after the Distribution Date
and prior to the Expiration Date, upon receipt by the Company and the Rights
Agent of evidence reasonably satisfactory to them of the loss, theft,
destruction or mutilation of a Right Certificate, and, in case of loss, theft
or destruction, of indemnity or security reasonably satisfactory to them, and,
at the Companys request, reimbursement
10
to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will make
and deliver a new Right Certificate of like tenor to the Rights Agent for
delivery to the registered holder in lieu of the Right Certificate so lost,
stolen, destroyed or mutilated.
Section 7.
Exercise
of Rights, Purchase Price; Expiration Date of Rights
.
(a) Except
as otherwise provided herein, the Rights shall become exercisable on the
Distribution Date, and thereafter the registered holder of any Right
Certificate may, subject to Section 11(a)(ii) hereof and except as
otherwise provided herein, exercise the Rights evidenced thereby in whole or in
part upon surrender of the Right Certificate, with the form of election to
purchase on the reverse side thereof duly executed, to the Rights Agent at the
office or agency of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total number of one
one-thousandths of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which the Rights are exercised, at any
time which is both after the Distribution Date and prior to the time (the Expiration
Date) that is the earliest of (i) the Close of Business on March 19,
2019 (the Final Expiration Date), (ii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the Redemption Date) or (iii) the
time at which such Rights are exchanged as provided in Section 24 hereof.
(b) The
Purchase Price shall be initially $25 for each one one-thousandth of a share of
Preferred Stock purchasable upon the exercise of a Right. The Purchase Price and the number of one
one-thousandths of a share of Preferred Stock or other securities or property
to be acquired upon exercise of a Right shall be subject to adjustment from
time to time as provided in Sections 11 and 13 hereof and shall be payable in
lawful money of the United States of America in accordance with paragraph (c) of
this Section 7.
(c) Except
as otherwise provided herein, upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly executed,
accompanied by payment of the aggregate Purchase Price for the shares of
Preferred Stock to be purchased and an amount equal to any applicable transfer
tax required to be paid by the holder of such Right Certificate in accordance
with Section 9 hereof, in cash or by certified check, cashiers check or
money order payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) (A) requisition from any transfer agent of the
Preferred Stock, or make available if the Rights Agent is the transfer agent
for the Preferred Stock, certificates for the number of shares of Preferred
Stock to be purchased, and the Company hereby irrevocably authorizes its
transfer agent to comply with all such requests, or (B) requisition from a
depositary agent appointed by the Company depositary receipts representing
interests in such number of one one-thousandths of a share of Preferred Stock
as are to be purchased (in which case certificates for the Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the
depositary agent), and the Company hereby directs any such depositary agent to
comply with such request, (ii) when appropriate, requisition from the
11
Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 hereof, (iii) promptly
after receipt of such certificates or depositary receipts, cause the same to be
delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder and (iv) when appropriate, after receipt, promptly deliver such
cash to or upon the order of the registered holder of such Right Certificate.
(d) Except
as otherwise provided herein, in case the registered holder of any Right
Certificate shall exercise less than all of the Rights evidenced thereby, a new
Right Certificate evidencing rights equivalent to the exercisable Rights
remaining unexercised shall be issued by the Rights Agent to the registered
holder of such Right Certificate or to his duly authorized assigns, subject to
the provisions of Section 14 hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder of Rights upon the occurrence of any purported transfer or exercise of
Rights pursuant to Section 6 hereof or this Section 7 unless such
registered holder shall have (i) completed and signed the certificate
contained in the form of assignment or form of election to purchase set forth
on the reverse side of the Right Certificate surrendered for such transfer or
exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) thereof as the Company shall
reasonably request.
Section 8.
Cancellation
and Destruction of Right Certificates
.
All Right Certificates surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered to the Company or to
any of its agents, be delivered to the Rights Agent for cancellation or in
canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right 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 Right Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof.
The Rights Agent shall deliver all canceled Right Certificates to the
Company, or shall, at the written request of the Company, destroy such canceled
Right Certificates, and in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9.
Availability
of Shares of Preferred Stock
.
(a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock, or any
shares of Preferred Stock held in its treasury, the number of shares of
Preferred Stock that will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) So
long as the shares of Preferred Stock issuable upon the exercise of Rights may
be listed or admitted to trading on any national securities exchange, or quoted
on NASDAQ, the Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for such issuance to
be listed or
12
admitted to trading on such exchange, or
quoted on NASDAQ, upon official notice of issuance upon such exercise.
(c) From
and after such time as the Rights become exercisable, the Company shall use its
best efforts, if then necessary to permit the issuance of shares of Preferred
Stock upon the exercise of Rights, to register and qualify such shares of
Preferred Stock under the Securities Act and any applicable state securities or
Blue Sky laws (to the extent exemptions therefrom are not available), cause
such registration statement and qualifications to become effective as soon as
possible after such filing and keep such registration and qualifications effective
(with a prospectus at all times meeting the requirements of the Securities Act)
until the earlier of the date as of which the Rights are no longer exercisable
for such securities and the Expiration Date.
The Company may temporarily suspend, for a period of time not to exceed
90 days, the exercisability of the Rights in order to prepare and file a
registration statement under the Securities Act and permit it to become
effective. Upon any such suspension, the
Company shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. Notwithstanding any provision of this
Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such jurisdiction shall have
been obtained and until a registration statement under the Securities Act shall
have been declared effective, unless an exemption therefrom is available.
(d) The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all shares of Preferred Stock delivered upon exercise
of Rights shall, at the time of delivery of the certificates therefor (subject
to payment of the Purchase Price), be duly and validly authorized and issued
and fully paid and nonassessable shares.
(e) 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 Right Certificates or of any shares
of Preferred Stock 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 Right
Certificates to a Person other than, or the issuance or delivery of
certificates or depositary receipts for the Preferred Stock in a name other
than that of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any certificates or depositary
receipts for Preferred Stock upon the exercise of any Rights until any such tax
shall have been paid (any such tax being payable by that holder of such Right
Certificate at the time of surrender) or until it has been established to the
Companys reasonable satisfaction that no such tax is due.
Section 10.
Preferred
Stock Record Date
. Each Person in
whose name any certificate for Preferred Stock is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record of
the shares of Preferred Stock represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate evidencing such
Rights was duly surrendered and payment of the Purchase
13
Price (and any
applicable transfer taxes) was made;
provided
,
however
, that if
the date of such surrender and payment is a date upon which the Preferred Stock
transfer books of the Company are closed, such Person shall be deemed to have
become the record holder of such shares on, and such certificate shall be
dated, the next succeeding Business Day on which the Preferred Stock transfer
books of the Company are open. Prior to
the exercise of the Rights evidenced thereby, the holder of a Right Certificate
shall not be entitled to any rights of a holder of Preferred Stock for which
the Rights shall be exercisable, including, without limitation, the right to
vote or to receive dividends or other distributions, and shall not be entitled
to receive any notice of any proceedings of the Company, except as provided
herein.
Section 11.
Adjustment
of Purchase Price, Number and Kind of Shares and Number of Rights
. The Purchase Price, the number of shares of
Preferred Stock or other securities or property purchasable upon exercise of
each Right and the number of Rights outstanding are subject to adjustment from
time to time as provided in this Section 11.
(a) (i) In
the event the Company shall at any time after the date of this Agreement (A) declare
and pay a dividend on the Preferred Stock payable in shares of Preferred Stock,
(B) subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares of Preferred Stock
or (D) issue any shares of its capital stock in a reclassification of the
Preferred Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section 11(a), the
number and kind of shares of capital stock issuable upon exercise of a Right as
of the record date for such dividend or the effective date of such subdivision,
combination or reclassification shall be proportionately adjusted so that the
holder of any Right exercised after such time shall be entitled to receive the
aggregate number and kind of shares of capital stock which, if such Right had
been exercised immediately prior to such date and at a time when the Preferred
Stock transfer books of the Company were open, the holder would have owned upon
such exercise and been entitled to receive by virtue of such dividend,
subdivision, combination or reclassification.
(ii) Subject to Section 24
of this Agreement, in the event any Person becomes an Acquiring Person (the
first occurrence of such event being referred to hereinafter as the Flip-In
Event), then (A) the Purchase Price shall be adjusted to be the Purchase
Price in effect immediately prior to the Flip-In Event multiplied by the number
of one one-thousandths of a share of Preferred Stock for which a Right was
exercisable immediately prior to such Flip-In Event, whether or not such Right
was then exercisable, and (B) each holder of a Right, except as otherwise
provided in this Section 11(a)(ii) and Section 11(a)(iii) hereof,
shall thereafter have the right to receive, upon exercise thereof at a price
equal to the Purchase Price (as so adjusted), in accordance with the terms of
this Agreement and in lieu of shares of Preferred Stock, such number of shares
of Common Stock as shall equal the result obtained by dividing the Purchase
Price (as so adjusted) by 50% of the current per share market price of the
Common Stock (determined pursuant to Section 11(d) hereof) on the
date of such Flip-In Event;
provided
,
however
, that the Purchase
Price (as so adjusted) and the number of shares of Common Stock so receivable
upon exercise of a Right shall, following the Flip-In Event, be subject to
further
14
adjustment as
appropriate in accordance with Section 11(f) hereof. Notwithstanding anything in this Agreement to
the contrary, however, from and after the Flip-In Event, any Rights that are
beneficially owned by (x) any Acquiring Person (or any Affiliate or
Associate of any Acquiring Person), (y) a transferee of any Acquiring
Person (or any such Affiliate or Associate) who becomes a transferee after the
Flip-In Event or (z) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who became a transferee prior to or concurrently with
the Flip-In Event pursuant to either (I) a transfer from the Acquiring
Person to holders of its equity securities or to any Person with whom it has
any continuing agreement, arrangement or understanding regarding the
transferred Rights or (II) a transfer which the Board of Directors of the
Company has determined is part of a plan, arrangement or understanding which
has the purpose or effect of avoiding the provisions of this paragraph, and
subsequent transferees of such Persons, shall be void without any further
action and any holder of such Rights shall thereafter have no rights whatsoever
with respect to such Rights under any provision of this Agreement. The Company shall use all reasonable efforts
to ensure that the provisions of this Section 11(a)(ii) are complied
with, but shall have no liability to any holder of Right Certificates or other
Person as a result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates or transferees hereunder. From and after the Flip-In Event, no Right
Certificate shall be issued pursuant to Section 3 or Section 6 hereof
that represents Rights that are or have become void pursuant to the provisions
of this paragraph, and any Right Certificate delivered to the Rights Agent that
represents Rights that are or have become void pursuant to the provisions of
this paragraph shall be canceled. From
and after the occurrence of an event specified in Section 13(a) hereof,
any Rights that theretofore have not been exercised pursuant to this Section 11(a)(ii) shall
thereafter be exercisable only in accordance with Section 13 and not
pursuant to this Section 11(a)(ii).
(iii) The Company may at
its option substitute for a share of Common Stock issuable upon the exercise of
Rights in accordance with the foregoing subparagraph (ii) a number of
shares of Preferred Stock or fraction thereof such that the current per share
market price of one share of Preferred Stock multiplied by such number or
fraction is equal to the current per share market price of one share of Common
Stock. In the event that there shall not
be sufficient shares of Common Stock issued but not outstanding or authorized
but unissued to permit the exercise in full of the Rights in accordance with
the foregoing subparagraph (ii), the Board of Directors of the Company shall,
with respect to such deficiency, to the extent permitted by applicable law and
any material agreements then in effect to which the Company is a party, (A) determine
the excess (such excess, the Spread) of (1) the value of the shares of
Common Stock issuable upon the exercise of a Right in accordance with the
foregoing subparagraph (ii) (the Current Value) over (2) the
Purchase Price (as adjusted in accordance with the foregoing subparagraph
(ii)), and (B) with respect to each Right (other than Rights which have
become void pursuant to the foregoing subparagraph (ii)), make adequate
provision to substitute for the shares of Common Stock issuable in accordance
with the foregoing subparagraph (ii) upon exercise of the Right and
payment of the Purchase Price (as adjusted in accordance therewith), (1) cash,
(2) a reduction in such Purchase Price, (3) shares of Preferred Stock
or other equity securities of the Company (including, without limitation,
shares or fractions of shares of preferred stock which, by virtue of having
15
dividend,
voting and liquidation rights substantially comparable to those of the shares
of Common Stock, are deemed in good faith by the Board of Directors of the
Company to have substantially the same value as the shares of Common Stock
(such shares of Preferred Stock and shares or fractions of shares of Preferred
Stock are hereinafter referred to as Common Stock Equivalents), (4) debt
securities of the Company, (5) other assets, or (6) any combination
of the foregoing, having a value which, when added to the value of the shares
of Common Stock issued upon exercise of such Right, shall have an aggregate
value equal to the Current Value (less the amount of any reduction in such
Purchase Price), where such aggregate value has been determined by the Board of
Directors of the Company upon the advice of a nationally recognized investment
banking firm selected in good faith by the Board of Directors of the Company;
provided
,
however
, that if the Company shall not make adequate provision to
deliver value pursuant to clause (B) above within thirty (30) days
following the Flip-In Event (the date of the Flip-In Event being the Section 11(a)(ii) Trigger
Date), then the Company shall be obligated to deliver, to the extent permitted
by applicable law and any material agreements then in effect to which the
Company is a party, upon the surrender for exercise of a Right and without
requiring payment of such Purchase Price, shares of Common Stock (to the extent
available), and then, if necessary, such number or fractions of shares of
Preferred Stock (to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread. If, upon the occurrence of the Flip-In Event,
the Board of Directors of the Company shall determine in good faith that it is
likely that sufficient additional shares of Common Stock could be authorized
for issuance upon exercise in full of the Rights, then, if the Board of
Directors of the Company so elects, the thirty (30) day period set forth above
may be extended to the extent necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Trigger Date, in order that the Company
may seek stockholder approval for the authorization of such additional shares
(such thirty (30) day period, as it may be extended, is herein called the Substitution
Period). To the extent that the Company
determines that some action need be taken pursuant to the second and/or third
sentence of this Section 11(a)(iii), the Company (x) shall provide,
subject to Section 11(a)(ii) hereof and the last sentence of this Section 11(a)(iii) hereof,
that such action shall apply uniformly to all outstanding Rights and (y) may
suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant to
such second sentence and to determine the value thereof. In the event of any such suspension, the
Company shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement at
such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii),
the value of the shares of Common Stock shall be the current per share market
price (as determined pursuant to Section 11(d)(i)) on the Section 11(a)(ii) Trigger
Date and the per share or fractional value of any Common Stock Equivalent
shall be deemed to equal the current per share market price of the Common
Stock. The Board of Directors of the
Company may, but shall not be required to, establish procedures to allocate the
right to receive shares of Common Stock upon the exercise of the Rights among
holders of Rights pursuant to this Section 11(a)(iii).
(b) In
case the Company shall fix a record date for the issuance of rights,
16
options or warrants to all holders of
Preferred Stock entitling them (for a period expiring within 45 calendar days
after such record date) to subscribe for or purchase Preferred Stock (or shares
having the same rights, privileges and preferences as the Preferred Stock (Equivalent
Preferred Shares)) or securities convertible into Preferred Stock or
Equivalent Preferred Shares at a price per share of Preferred Stock or
Equivalent Preferred Shares (or having a conversion price per share, if a
security convertible into shares of Preferred Stock or Equivalent Preferred
Shares) less than the then current per share market price of the Preferred
Stock (determined pursuant to Section 11(d) hereof) on such record
date, the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to
such record date by a fraction, the numerator of which shall be the number of
shares of Preferred Stock and Equivalent Preferred Shares outstanding on such
record date plus the number of shares of Preferred Stock and Equivalent
Preferred Shares which the aggregate offering price of the total number of
shares of Preferred Stock 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 shares of Preferred Stock and Equivalent
Preferred Shares outstanding on such record date plus the number of additional
shares of Preferred Stock and/or Equivalent Preferred Shares to be offered for
subscription or purchase (or into which the convertible securities so to be offered
are initially convertible);
provided
,
however
, that in no event
shall the consideration to be paid upon the exercise of one Right be less than
the aggregate par value of the shares of capital stock of the Company issuable
upon exercise of one Right. In case such
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights
Agent. Shares of Preferred Stock and
Equivalent Preferred Shares owned by or held for the account of the Company
shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights,
options or warrants are not so issued, the Purchase Price shall be adjusted to
be the Purchase Price which would then be in effect if such record date had not
been fixed.
(c) In
case the Company shall fix a record date for the making of a distribution to
all holders of the Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation) of evidences of indebtedness or assets (other than a
regular quarterly cash dividend or a dividend payable in Preferred Stock) or
subscription rights or warrants (excluding those referred to in Section 11(b) hereof),
the Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the then current per share
market price of the Preferred Stock (determined pursuant to Section 11(d) hereof)
on such record date, less the fair market value (as determined in good faith by
the Board of Directors of the Company whose determination shall be described in
a statement filed with the Rights Agent) of the portion of the assets or
evidences of indebtedness so to be distributed or of such subscription rights
or warrants applicable to one share of Preferred Stock, and the denominator of
which shall be such
17
current per share market price (determined
pursuant to Section 11(d) hereof) of the Preferred Stock;
provided
,
however
, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company to be issued upon exercise of one Right. Such adjustments shall be made successively
whenever such a record date is fixed; and in the event that such distribution
is not so made, the Purchase Price shall again be adjusted to be the Purchase
Price which would then be in effect if such record date had not been fixed.
(d) (i) Except
as otherwise provided herein, for the purpose of any computation hereunder, the
current per share market price of any security (a Security for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be the average of
the daily closing prices per share of such Security for the 30 consecutive
Trading Days (as such term is hereinafter defined) immediately prior to such
date;
provided
,
however
, that in the event that the current per
share market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or
distribution on such Security payable in shares of such Security or securities
convertible into such shares, or (B) any subdivision, combination or
reclassification of such Security, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the
record date for such subdivision, combination or reclassification, then, and in
each such case, the current per share market price shall be appropriately
adjusted to reflect the current market price per share equivalent of such
Security. The closing price for each day
shall be the last sale price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way, in
either case as reported by the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Security is not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted to trading or,
if the Security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices on NASDAQ or in the over-the-counter market, as
reported by NASDAQ or such other system then in use, or, if on any such date
the Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a
market in the Security selected by the Board of Directors of the Company. The term Trading Day shall mean a day on
which the principal national securities exchange on which the Security is listed
or admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities
exchange, a Business Day.
(ii) For the purpose of
any computation hereunder, if the Preferred Stock is publicly traded, the current
per share market price of the Preferred Stock shall be determined in
accordance with the method set forth in Section 11(d)(i). If the Preferred Stock is not publicly traded
but the Common Stock is publicly traded, the current per share market price
of the Preferred Stock shall be conclusively deemed to be the current per share
market price of the Common Stock as determined pursuant to Section 11(d)(i) multiplied
by the then applicable Adjustment Number (as defined in and determined in
accordance with the Certificate of Designation for the Preferred Stock). If
18
neither the
Common Stock nor the Preferred Stock is publicly traded, current per share
market price shall mean the fair value per share as determined in good faith
by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent.
(e) No
adjustment in the Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Purchase Price;
provided
,
however
, that any adjustments which by reason of this Section 11(e) are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations
under this Section 11 shall be made to the nearest cent or to the nearest
one hundred-thousandth of a share of Preferred Stock or one-hundredth of a
share of Common Stock or other share or security as the case may be. Notwithstanding the first sentence of this Section 11(e),
any adjustment required by this Section 11 shall be made no later than the
earlier of (i) three years from the date of the transaction which requires
such adjustment or (ii) the Expiration Date.
(f) If
as a result of an adjustment made pursuant to Section 11(a) hereof,
the holder of any Right thereafter exercised shall become entitled to receive
any shares of capital stock of the Company other than the Preferred Stock,
thereafter the Purchase Price and the number of such other shares so receivable
upon exercise of a Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a), 11(b), 11(c),
11(e), 11(h), 11(i) and 11(m) hereof, as applicable, and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All
Rights originally issued by the Company subsequent to any adjustment made to
the Purchase Price hereunder shall evidence the right to purchase, at the
adjusted Purchase Price, the number of one one-thousandths of a share of
Preferred Stock purchasable from time to time hereunder upon exercise of the
Rights, all subject to further adjustment as provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i),
upon each adjustment of the Purchase Price as a result of the calculations made
in Sections 11(b) and 11(c), each Right outstanding immediately prior to
the making of such adjustment shall thereafter evidence the right to purchase,
at the adjusted Purchase Price, that number of one one-thousandths of a share
of Preferred Stock (calculated to the nearest one hundred-thousandth of a share
of Preferred Stock) obtained by (i) multiplying (x) the number of one
one-thousandths of a share purchasable upon the exercise of a Right immediately
prior to such adjustment by (y) the Purchase Price in effect immediately
prior to such adjustment and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such adjustment.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price
pursuant to Sections 11(b) or 11(c) hereof to adjust the number of
Rights, in substitution for any adjustment in the number of one one-thousandths
of a share of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding
19
after such adjustment of the number of Rights
shall be exercisable for the number of one one-thousandths of a share of
Preferred Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record
prior to such adjustment of the number of Rights shall become that number of
Rights (calculated to the nearest one-hundredth) 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. Such record date
may be the date on which the Purchase Price is adjusted or any day thereafter,
but, if the Right Certificates have been issued, shall be at least 10 days
later than the date of the public announcement.
If Right Certificates have been issued, upon each adjustment of the
number of Rights pursuant to this Section 11(i), the Company may, as
promptly as practicable, cause to be distributed to holders of record of Right
Certificates on such record date Right Certificates evidencing, subject to Section 14
hereof, the additional Rights to which such holders shall be entitled as a
result of such adjustment, or, at the option of the Company, shall cause to be
distributed to such holders of record in substitution and replacement for the
Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Right Certificates so to be
distributed shall be issued, executed and countersigned in the manner provided
for herein and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of one
one-thousandths of a share of Preferred Stock issuable upon the exercise of a
Right, the Right Certificates theretofore and thereafter issued may continue to
express the Purchase Price and the number of one one-thousandths of a share of
Preferred Stock which were expressed in the initial Right Certificates issued
hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then par value, if any, of the fraction of Preferred Stock or other
shares of capital stock issuable upon exercise of a Right, the Company shall
take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue fully paid
and nonassessable shares of Preferred Stock or other such shares 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 issuing to the
holder of any Right exercised after such record date the Preferred Stock and
other capital stock or securities of the Company, if any, issuable upon such
exercise over and above the Preferred Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise on the basis of
the Purchase Price in effect prior to such adjustment;
provided
,
however
,
that the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holders right to receive such additional shares
upon the occurrence of
20
the event requiring such adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such adjustments in the Purchase Price, in addition to those
adjustments expressly required by this Section 11, as and to the extent
that it in its sole discretion shall determine to be advisable in order that
any consolidation or subdivision of the Preferred Stock, issuance wholly for
cash of any shares of Preferred Stock at less than the current market price,
issuance wholly for cash of Preferred Stock or securities which by their terms
are convertible into or exchangeable for Preferred Stock, dividends on
Preferred Stock payable in shares of Preferred Stock or issuance of rights,
options or warrants referred to hereinabove in Section 11(b), hereafter
made by the Company to holders of its Preferred Stock shall not be taxable to
such holders.
(n) Anything
in this Agreement to the contrary notwithstanding, in the event that at any
time after the date of this Agreement and prior to the Distribution Date, the
Company shall (i) declare and pay any dividend on the Common Stock payable
in Common Stock or (ii) effect a subdivision, combination or consolidation
of the Common Stock (by reclassification or otherwise than by payment of a
dividend payable in Common Stock) into a greater or lesser number of shares of
Common Stock, then, in each such case, the number of Rights associated with
each share of Common Stock then outstanding, or issued or delivered thereafter,
shall be proportionately adjusted so that the number of Rights thereafter
associated with each share of Common Stock following any such event shall equal
the result obtained by multiplying the number of Rights associated with each
share of Common Stock immediately prior to such event by a fraction the
numerator of which shall be the total number of shares of Common Stock
outstanding immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
(o) The
Company agrees that, after the earlier of the Distribution Date or the Stock
Acquisition Date, it will not, except as permitted by Sections 23, 24 or 27
hereof, take (or permit any Subsidiary to take) any action if at the time such
action is taken it is reasonably foreseeable that such action will diminish
substantially or eliminate the benefits intended to be afforded by the Rights.
Section 12.
Certificate
of Adjusted Purchase Price or Number of Shares
. Whenever an adjustment is made as provided in
Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement of the facts
accounting for such adjustment, (b) file with the Rights Agent and with
each transfer agent for the Common Stock and the Preferred Stock a copy of such
certificate and (c) mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 25 hereof (if so required under Section 25
hereof). The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein
contained and shall not be deemed to have knowledge of any such adjustment
unless and until it shall have received such certificate.
21
Section 13.
Consolidation,
Merger or Sale or Transfer of Assets or Earning Power
.
(a)
In the event, directly or
indirectly, at any time after the Flip-In Event (i) the Company shall
consolidate with or shall merge into any other Person, (ii) any Person shall
merge with and into the Company and the Company shall be the continuing or
surviving corporation of such merger and, in connection with such merger, all
or part of the Common Stock 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 (iii) the Company shall sell or otherwise transfer (or one or
more of its Subsidiaries shall sell or otherwise transfer), in one or more
transactions, assets or earning power aggregating 50% or more of the assets or
earning power of the Company and its Subsidiaries (taken as a whole) to any
other Person (other than the Company or one or more wholly-owned Subsidiaries
of the Company), then upon the first occurrence of such event, proper provision
shall be made so that: (A) each holder of a Right (other than Rights which
have become void pursuant to Section 11(a)(ii) hereof) shall
thereafter have the right to receive, upon the exercise thereof at the Purchase
Price (as theretofore adjusted in accordance with Section 11(a)(ii) hereof),
in accordance with the terms of this Agreement and in lieu of shares of
Preferred Stock or Common Stock of the Company, such number of validly
authorized and issued, fully paid, non-assessable and freely tradeable shares
of Common Stock of the Principal Party (as such term is hereinafter defined),
not subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall equal the result obtained by dividing the Purchase
Price (as theretofore adjusted in accordance with Section 11(a)(ii) hereof)
by 50% of the current per share market price of the Common Stock of such
Principal Party (determined pursuant to Section 11(d) hereof) on the
date of consummation of such consolidation, merger, sale or transfer;
provided
,
however
, that the Purchase Price (as theretofore adjusted in accordance
with Section 11(a)(ii) hereof) and the number of shares of Common
Stock of such Principal Party so receivable upon exercise of a Right shall be
subject to further adjustment as appropriate in accordance with Section 11(f) hereof
to reflect any events occurring in respect of the Common Stock of such
Principal Party after the occurrence of such consolidation, merger, sale or
transfer; (B) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such consolidation, merger, sale or transfer, all
the obligations and duties of the Company pursuant to this Agreement; (C) the
term Company shall thereafter be deemed to refer to such Principal Party; and
(D) such Principal Party shall take such steps (including, but not limited
to, the reservation of a sufficient number of its shares of Common Stock in
accordance with Section 9 hereof) in connection with such 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
the shares of its Common Stock thereafter deliverable upon the exercise of the
Rights; provided that, upon the subsequent occurrence of any consolidation,
merger, sale or transfer of assets 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
as provided in this Section 13(a), such cash, shares, rights, warrants and
other property which such holder would have been entitled to receive had such
holder, at the time of such transaction, owned the Common Stock of the
Principal Party receivable upon the exercise of a Right pursuant to this Section 13(a),
and such Principal Party shall take such steps (including, but not limited to,
reservation of shares of
22
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.
(b)
Principal Party shall mean:
(i)
in
the case of any transaction described in (i) or (ii) of the first
sentence of Section 13(a) hereof: (A) the Person that is the
issuer of the securities into which the shares of Common Stock are converted in
such merger or consolidation, or, if there is more than one such issuer, the
issuer the shares of Common Stock of which have the greatest aggregate market
value of shares outstanding, or (B) if no securities are so issued, (x) the
Person that is the other party to the merger, if such Person survives said
merger, or, if there is more than one such Person, the Person the shares of
Common Stock of which have the greatest aggregate market value of shares
outstanding or (y) if the Person that is the other party to the merger
does not survive the merger, the Person that does survive the merger (including
the Company if it survives) or (z) the Person resulting from the
consolidation; and
(ii)
in
the case of any transaction described in (iii) of the first sentence of Section 13(a) hereof,
the Person that is the party receiving the greatest portion of the assets or
earning power transferred pursuant to such transaction or transactions, or, if
each Person that is a party to such transaction or transactions receives the
same portion of the assets or earning power so transferred or if the Person
receiving the greatest portion of the assets or earning power cannot be
determined, whichever of such Persons is the issuer of Common Stock having the
greatest aggregate market value of shares outstanding;
provided
,
however
,
that in any such case described in the foregoing clause (b)(i) or (b)(ii),
if the Common Stock of such Person is not at such time or has not been
continuously over the preceding 12-month period registered under Section 12
of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so
registered, the term Principal Party shall refer to such other Person, or (2) if
such Person is a Subsidiary, directly or indirectly, of more than one Person,
the Common Stock of all of which is and has been so registered, the term Principal
Party shall refer to whichever of such Persons is the issuer of Common Stock
having the greatest aggregate market value of shares outstanding, or (3) if
such Person is owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by the same Person,
the rules set forth in clauses (1) and (2) above shall apply to
each of the owners having an interest in the venture as if the Person owned by
the joint venture was a Subsidiary of both or all of such joint venturers, and
the Principal Party in each such case shall bear the obligations set forth in
this Section 13 in the same ratio as its interest in such Person bears to
the total of such interests.
(c)
The Company shall not consummate
any consolidation, merger, sale or transfer referred to in Section 13(a) hereof
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) hereof shall
23
promptly be performed in accordance with
their terms and that such consolidation, merger, sale or transfer of assets
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 providing that, as soon as practicable after executing such
agreement pursuant to this Section 13, the Principal Party will:
(i)
prepare
and file a registration statement under the 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 Expiration Date and similarly comply with applicable state securities laws;
(ii)
use
its best efforts, if the Common Stock of the Principal Party shall be listed or
admitted to trading on the New York Stock Exchange or on another national
securities exchange, to list or admit to trading (or continue the listing of)
the Rights and the securities purchasable upon exercise of the Rights on the
New York Stock Exchange or such securities exchange, or, if the Common Stock of
the Principal Party shall not be listed or admitted to trading on the New York
Stock Exchange or a national securities exchange, to cause the Rights and the
securities receivable upon exercise of the Rights to be authorized for
quotation on NASDAQ or on such other system then in use;
(iii)
deliver
to holders of the Rights historical financial statements for the Principal
Party which comply in all respects with the requirements for registration on Form 10
(or any successor form) under the Exchange Act; and
(iv)
obtain
waivers of any rights of first refusal or preemptive rights in respect of the
Common Stock of the Principal Party subject to purchase upon exercise of
outstanding Rights.
(d)
In case the Principal Party has
a provision in any of its authorized securities or in its certificate of
incorporation or by-laws or any other instrument governing its affairs, which
provision would have the effect of (i) causing such Principal Party to
issue (other than to holders of Rights pursuant to this Section 13), in
connection with, or as a consequence of, the consummation of a transaction
referred to in this Section 13, shares of Common Stock or Common Stock
Equivalents of such Principal Party at less than the then current market price
per share thereof (determined pursuant to Section 11(d) hereof) or
securities exercisable for, or convertible into, Common Stock or Common Stock
Equivalents of such Principal Party at less than such then current market
price, or (ii) providing for any special payment, tax or similar provision
in connection with the issuance of the Common Stock of such Principal Party
pursuant to the provisions of 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
24
redeemed, so that the applicable provision
will have no effect in connection with, or as a consequence of, the
consummation of the proposed transaction.
(e)
The Company covenants and agrees
that it shall not, at any time after the Flip-In Event, enter into any
transaction of the type described in clauses (i) through (iii) of Section 13(a) hereof
if (i) at the time of or immediately after such consolidation, merger,
sale, transfer or other transaction there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights, (ii) prior to, simultaneously with or immediately
after such consolidation, merger, sale, transfer or other transaction, the
stockholders of the Person who constitutes, or would constitute, the Principal
Party for purposes of Section 13(b) hereof shall have received a
distribution of Rights previously owned by such Person or any of its Affiliates
or Associates or (iii) the form or nature of organization of the Principal
Party would preclude or limit the exercisability of the Rights.
Section 14.
Fractional
Rights and Fractional Shares
.
(a)
The Company shall not be
required to issue fractions of Rights (except prior to the Distribution Date in
accordance with Section 11(n) hereof) or to distribute Right
Certificates which evidence fractional Rights.
In lieu of such fractional Rights, there shall be paid to the registered
holders of the Right Certificates with regard to which such fractional Rights
would otherwise be issuable, an amount in cash equal to the same fraction of
the current market value of a whole Right.
For the purposes of this Section 14(a), the current market value of
a whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price
for any day shall be the last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid and asked prices,
regular way, in either case as reported in the principal consolidated
transaction reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Rights are not listed or
admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the Rights are
listed or admitted to trading or, if the Rights are not listed or admitted to
trading on any national securities exchange, the last quoted price or, if not
so quoted, the average of the high bid and low asked prices on NASDAQ or in the
over-the-counter market, as reported by NASDAQ or such other system then in use
or, if on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional market
maker making a market in the Rights selected by the Board of Directors of the
Company. If on any such date no such
market maker is making a market in the Rights, the fair value of the Rights on
such date as determined in good faith by the Board of Directors of the Company
shall be used.
(b)
The Company shall not be
required to issue fractions of Preferred Stock (other than fractions which are
integral multiples of one one-thousandth of a share of Preferred Stock) or to
distribute certificates which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one one-thousandth of a
share
25
of Preferred Stock) upon the exercise or
exchange of Rights. Interests in fractions
of Preferred Stock in integral multiples of one one-thousandth of a share of
Preferred Stock may, at the election of the Company, be evidenced by depositary
receipts, pursuant to an appropriate agreement between the Company and a
depositary selected by it;
provided
that such agreement shall provide
that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as beneficial owners of
the Preferred Stock represented by such depositary receipts. In lieu of fractional shares of Preferred
Stock that are not integral multiples of one one-thousandth of a share of
Preferred Stock, the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised or exchanged as herein
provided an amount in cash equal to the same fraction of the current market
value of a whole share of Preferred Stock (as determined in accordance with Section 14(a) hereof)
for the Trading Day immediately prior to the date of such exercise or exchange.
(c)
The Company shall not be
required to issue fractions of shares of Common Stock or to distribute
certificates which evidence fractional shares of Common Stock upon the exercise
or exchange of Rights. In lieu of such fractional
shares of Common Stock, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional shares of Common Stock
would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock (as determined in
accordance with Section 14(a) hereof) for the Trading Day immediately
prior to the date of such exercise or exchange.
(d)
The holder of a Right by the
acceptance of the Right expressly waives his right to receive any fractional
Rights or any fractional shares upon exercise or exchange of a Right (except as
provided above).
Section 15.
Rights of
Action
. All rights of action in
respect of this Agreement, excepting the rights of action given to the Rights
Agent under Section 18 hereof, are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Stock), without
the consent of the Rights Agent or of the holder of any other Right Certificate
(or, prior to the Distribution Date, of the Common Stock), on his own behalf
and for his own benefit, may enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise act in
respect of, his right to exercise the Rights evidenced by such Right
Certificate (or, prior to the Distribution Date, such Common Stock) in the
manner provided therein and in this Agreement.
Without limiting the foregoing or any remedies available to the holders
of Rights, it is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of, the obligations of any
Person subject to this Agreement.
Section 16.
Agreement of
Right Holders
. Every holder of a
Right, by accepting the same, consents and agrees with the Company and the
Rights Agent and with every other holder of a Right that:
26
(a)
prior to the Distribution Date,
the Rights will be transferable only in connection with the transfer of the
Common Stock;
(b)
after the Distribution Date, the
Right Certificates are transferable only on the registry books of the Rights
Agent if surrendered at the office or agency of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of transfer;
and
(c)
the Company and the Rights Agent
may deem and treat the Person in whose name the Right Certificate (or, prior to
the Distribution Date, the Common Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the Common Stock
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent, subject to Section 7(e) hereof,
shall be affected by any notice to the contrary.
Section 17.
Right
Certificate Holder Not Deemed a Stockholder
. No holder, as such, of any Right Certificate
shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Stock or any other securities of the Company which may
at any time be issuable on the exercise or exchange of the Rights represented
thereby, nor shall anything contained herein or in any Right Certificate be
construed to confer upon the holder of any Right Certificate, as such, any of
the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in this Agreement), or to receive dividends or subscription rights, or
otherwise, until the Rights evidenced by such Right Certificate shall have been
exercised or exchanged in accordance with the provisions hereof.
Section 18.
Concerning the
Rights Agent
.
(a)
The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to
indemnify the Rights Agent for, and to hold it harmless against, any loss,
liability or expense, incurred without negligence, bad faith or willful
misconduct on the part of the Rights Agent, for anything done or omitted by the
Rights Agent in connection with the acceptance and administration of this
Agreement, including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly.
(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 Right Certificate or certificate for the
Preferred Stock or Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction,
27
consent, certificate, statement or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons, or
otherwise upon the advice of counsel as set forth in Section 20 hereof.
Section 19.
Merger or
Consolidation or Change of Name of Rights Agent
.
(a)
Any corporation into which the
Rights Agent or any successor Rights Agent may be merged or with which it may
be consolidated, or any corporation resulting from any merger or consolidation
to which the Rights Agent or any successor Rights Agent shall be a party, or
any corporation succeeding to the stock transfer or corporate trust powers of
the Rights Agent or any successor Rights Agent, shall be the successor to the
Rights Agent under this Agreement without the execution or filing of any paper
or any further act on the part of any of the parties hereto;
provided
that such corporation would be eligible for appointment as a successor Rights
Agent under the provisions of Section 21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature of the predecessor Rights
Agent and deliver such Right Certificates so countersigned; and in case at that
time any of the Right Certificates shall not have been countersigned, any
successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights
Agent; and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
(b)
In case at any time the name of
the Rights Agent shall be changed and at such time any of the Right
Certificates shall have been countersigned but not delivered, the Rights Agent
may adopt the countersignature under its prior name and deliver Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name and in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Agreement.
Section 20.
Duties of
Rights Agent
. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders of
Right Certificates, by their acceptance thereof, shall be bound:
(a)
The Rights Agent may consult
with legal counsel (who may be legal counsel for the Company), and the opinion
of such counsel shall be full and complete authorization and protection to the
Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b)
Whenever in the performance of
its duties under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the Company prior
to taking or suffering any action hereunder, such fact
28
or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by the President and the
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 to the Company and any other Person only for its own negligence, bad
faith or willful misconduct.
(d)
The Rights Agent shall not be
liable for or by reason of any of the statements of fact or recitals contained
in this Agreement or in the Right Certificates (except its countersignature
thereof) or be required to verify the same, but all such statements and
recitals are and shall be deemed to have been made by the Company only.
(e)
The Rights Agent shall not be
under any responsibility in respect of the validity of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the validity or execution of any Right Certificate
(except its countersignature thereof); nor shall it be responsible for any
breach by the Company of any covenant or condition contained in this Agreement
or in any Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming void pursuant to Section 11(a)(ii) hereof)
or any adjustment in the terms of the Rights provided for in Sections 3, 11,
13, 23 and 24, or the ascertaining of the existence of facts that would require
any such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after receipt of a certificate furnished
pursuant to Section 12, describing such change or adjustment); nor shall
it by any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Preferred Stock or other
securities to be issued pursuant to this Agreement or any Right Certificate or
as to whether any shares of Preferred Stock 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 person reasonably believed by the Rights Agent
to be one of the President or the Secretary of the Company, and to apply to
such officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered by it in good faith in
accordance with instructions of any such officer or for any delay in acting
while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company may,
at the option of the Rights Agent, set forth in writing any action proposed to
be taken or omitted by the Rights Agent under this Agreement and the date on
and/or
29
after which such action shall be taken or
such omission shall be effective. The
Rights Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in any such application on
or after the date specified in such application (which date shall not be less
than five Business Days after the date any officer of the Company actually
receives such application unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have
received written instructions in response to such application specifying the
action to be taken or omitted.
(h)
The Rights Agent and any
stockholder, director, officer or employee of the Rights Agent may buy, sell or
deal in any of the Rights or other securities of the Company or become
pecuniarily interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company or otherwise act as
fully and freely as though it were not Rights Agent under this Agreement. Nothing herein shall preclude the Rights
Agent from acting in any other capacity for the Company or for any other legal
entity.
(i)
The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it or perform any duty
hereunder either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act, default,
neglect or misconduct of any such attorneys or agents or for any loss to the
Company resulting from any such act, default, neglect or misconduct, provided
reasonable care was exercised in the selection and continued employment
thereof.
(j)
If, with respect to any Right Certificate
surrendered to the Rights Agent for exercise or transfer, the certificate
contained in the form of assignment or the form of election to purchase set
forth on the reverse thereof, as the case may be, has not been completed to
certify the holder is not an Acquiring Person (or an Affiliate or Associate
thereof) or a transferee thereof, the Rights Agent shall not take any further
action with respect to such requested exercise or transfer without first
consulting with the Company.
Section 21.
Change of
Rights Agent
. The Rights Agent or
any successor Rights Agent may resign and be discharged from its duties under
this Agreement upon 30 days notice in writing mailed to the Company and to
each transfer agent of the Common Stock or Preferred Stock by registered or
certified mail, and, following the Distribution Date, to the holders of the
Right Certificates by first-class mail.
The Company may remove the Rights Agent or any successor Rights Agent
upon 30 days notice in writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of the Common Stock or
Preferred Stock by registered or certified mail, and, following the
Distribution Date, to the holders of the Right Certificates by first-class
mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent.
If the Company shall fail to make such appointment within a period of 30
days after giving notice of such removal or after it has been notified in
writing of such resignation or incapacity by the resigning or incapacitated
Rights Agent or by the holder of a Right Certificate (who shall, with such
notice, submit his Right Certificate for inspection by the Company), then the
30
registered
holder of any Right Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor Rights Agent, whether appointed
by the Company or by such a court, shall be a corporation organized and doing
business under the laws of the United States or the laws of any state of the
United States or the District of Columbia, in good standing, having an office
in The Commonwealth of Massachusetts or the State of New York, which is
authorized under such laws to exercise corporate trust or stock transfer powers
and is subject to supervision or examination by federal or state authority and
which has at the time of its appointment as Rights Agent a combined capital and
surplus of at least $50 million. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as
Rights Agent without further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights Agent any property at the
time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock or
Preferred Stock, and, following the Distribution Date, mail a notice thereof in
writing to the registered holders of the Right Certificates. Failure to give any notice provided for in
this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
Section 22.
Issuance of
New Right Certificates
.
Notwithstanding any of the provisions of this Agreement or of the Rights
to the contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such forms as may be approved by its Board of Directors to
reflect any adjustment or change in the Purchase Price and the number or kind
or class of shares or other securities or property purchasable under the Right
Certificates made in accordance with the provisions of this Agreement. In addition, in connection with the issuance
or sale of Common Stock following the Distribution Date and prior to the
Expiration Date, the Company may with respect to shares of Common Stock so
issued or sold pursuant to (i) the exercise of stock options, (ii) under
any employee plan or arrangement, (iii) upon the exercise, conversion or
exchange of securities, notes or debentures issued by the Company or (iv) a
contractual obligation of the Company, in each case existing prior to the
Distribution Date, issue Right Certificates representing the appropriate number
of Rights in connection with such issuance or sale.
Section 23.
Redemption
.
(a)
The Board of Directors of the
Company may, at any time prior to the Flip-In Event, redeem all but not less
than all the then outstanding Rights at a redemption price of $.01 per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring in respect of the Common Stock after the date hereof (the
redemption price being hereinafter referred to as the Redemption Price). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board of
Directors of the Company in its sole discretion may establish. The Redemption Price shall be payable, at the
option of the Company, in cash,
31
shares of Common Stock, or such other form of
consideration as the Board of Directors of the Company shall determine.
(b)
Immediately upon the action of
the Board of Directors of the Company ordering the redemption of the Rights
pursuant to paragraph (a) of this Section 23 (or at such later time
as the Board of Directors of the Company may establish for the effectiveness of
such redemption), 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. The Company shall promptly give public notice
of any such redemption;
provided
,
however
, that the failure to
give, or any defect in, any such notice shall not affect the validity of such
redemption. Within 10 days after such
action of the Board of Directors of the Company ordering the redemption of the
Rights (or such later time as the Board of Directors of the Company may
establish for the effectiveness of such redemption), the Company shall mail a
notice of redemption to all the holders of the then outstanding Rights at their
last addresses as they appear upon the registry books of the Rights Agent or,
prior to the Distribution Date, on the registry books of the transfer agent for
the Common Stock. 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 shall state the method by which the payment of the
Redemption Price will be made.
Section 24.
Exchange
.
(a)
The Board of Directors of the
Company may, at its option, at any time after the Flip-In Event, exchange all
or part of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 11(a)(ii) hereof)
for Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring in respect of the Common Stock after the date hereof
(such amount per Right being hereinafter referred to as the Exchange Ratio). Notwithstanding the foregoing, the Board of
Directors of the Company shall not be empowered to effect such exchange at any
time after an Acquiring Person shall have become the Beneficial Owner of shares
of Common Stock aggregating 50% or more of the shares of Common Stock then
outstanding. From and after the
occurrence of an event specified in Section 13(a) hereof, any Rights
that theretofore have not been exchanged pursuant to this Section 24(a) shall
thereafter be exercisable only in accordance with Section 13 and may not
be exchanged pursuant to this Section 24(a). The exchange of the Rights by the Board of
Directors of the Company may be made effective at such time, on such basis and
with such conditions as the Board of Directors of the Company in its sole
discretion may establish.
(b)
Immediately upon the
effectiveness of the action of the Board of Directors of the Company ordering
the exchange of any Rights pursuant to paragraph (a) of this Section 24
and without any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock equal to the
number of such Rights held by such holder multiplied by the Exchange
Ratio. The Company shall promptly
32
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 the Rights so exchanged at their last addresses as they appear
upon the registry books of the Rights Agent.
Any notice which is mailed in the manner herein provided shall be deemed
given, whether or not the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights which
will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights
which have become void pursuant to the provisions of Section 11(a)(ii) hereof)
held by each holder of Rights.
(c)
The Company may at its option
substitute, and, in the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit an
exchange of Rights for Common Stock as contemplated in accordance with this Section 24,
the Company shall substitute to the extent of such insufficiency, for each
share of Common Stock that would otherwise be issuable upon exchange of a
Right, a number of shares of Preferred Stock or fraction thereof (or Equivalent
Preferred Shares, as such term is defined in Section 11(b)) such that the
current per share market price (determined pursuant to Section 11(d) hereof)
of one share of Preferred Stock (or Equivalent Preferred Share) multiplied by
such number or fraction is equal to the current per share market price of one
share of Common Stock (determined pursuant to Section 11(d) hereof)
as of the date of such exchange.
Section 25.
Notice of
Certain Events
.
(a)
In case the Company shall at any
time after the earlier of the Distribution Date or the Stock Acquisition Date
propose (i) to pay any dividend payable in stock of any class to the
holders of its Preferred Stock or to make any other distribution to the holders
of its Preferred Stock (other than a regular quarterly cash dividend), (ii) to
offer to the holders of its Preferred Stock rights or warrants to subscribe for
or to purchase any additional shares of Preferred Stock or shares of stock of
any class or any other securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a reclassification
involving only the subdivision or combination of outstanding Preferred Stock), (iv) to
effect the liquidation, dissolution or winding up of the Company, or (v) to
pay any dividend on the Common Stock payable in Common Stock or to effect a
subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in Common Stock),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such
proposed action, which shall specify the record date for the purposes of such
dividend or distribution or offering of rights or warrants, or the date on
which such liquidation, dissolution, winding up, reclassification, subdivision,
combination or consolidation is to take place and the date of participation
therein by the holders of the Common Stock and/or Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in the case of any
action covered by clause (i) or (ii) above at least 10 days prior to
the record date for determining holders of the Preferred Stock for purposes of
such action, and in the case of any such other action, at least 10 days prior
to
33
the date of the taking of such proposed
action or the date of participation therein by the holders of the Common Stock
and/or Preferred Stock, whichever shall be the earlier.
(b)
In case any event described in Section 11(a)(ii) or
Section 13 shall occur then the Company shall as soon as practicable
thereafter give to each holder of a Right Certificate (or if occurring prior to
the Distribution Date, the holders of the Common Stock) in accordance with Section 26
hereof, a notice of the occurrence of such event, which notice shall describe
such event and the consequences of such event to holders of Rights under Section 11(a)(ii) and
Section 13 hereof.
Section 26.
Notices
. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Right
Certificate to or on the Company shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
UFP Technologies, Inc.
172 East Main Street
Georgetown, MA 01833
Attention: Ronald J. Lataille
Subject to the provisions of Section 21
hereof, any notice or demand authorized by this Agreement to be given or made
by the Company or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed (until another address is filed in writing with the Company)
as follows:
American Stock Transfer & Trust
Company, LLC
59 Maiden Lane
New York NY 10038
Attention:
Corporate Trust Department
Notices or demands authorized by this
Agreement to be given or made by the Company or the Rights Agent to the holder
of any Right Certificate shall be sufficiently given or made if sent by
first-class mail, postage prepaid, addressed to such holder at the address of
such holder as shown on the registry books of the Company.
Section 27.
Supplements
and Amendments
. Except as provided
in the penultimate sentence of this Section 27, for so long as the Rights
are then redeemable, the Company may in its sole and absolute discretion, and
the Rights Agent shall if the Company so directs, supplement or amend any
provision of this Agreement in any respect without the approval of any holders
of the Rights. At any time when the
Rights are no longer redeemable, except as provided in the penultimate sentence
of this Section 27, the Company may, and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the approval of
any holders of Rights,
provided
that no such supplement or amendment may
(a) adversely affect the interests of the holders of Rights as such (other
than an Acquiring Person or an Affiliate or Associate of an Acquiring Person), (b) cause
this Agreement again to become amendable other than in
34
accordance
with this sentence or (c) cause the Rights again to become
redeemable. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment shall
be made which changes the Redemption Price.
Upon the delivery of a certificate from an appropriate officer of the
Company which states that the supplement or amendment is in compliance with the
terms of this Section 27, the Rights Agent shall execute such supplement
or amendment,
provided
that any supplement or amendment that does not
amend Sections 18, 19, 20 or 21 hereof or this Section 27 in a manner
adverse to the Rights Agent shall become effective immediately upon execution
by the Company, whether or not also executed by the Rights Agent.
Section 28.
Successors
. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29.
Benefits of
this Agreement
. Nothing in this
Agreement shall be construed to give to any Person other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior
to the Distribution Date, the Common Stock) any legal or equitable right,
remedy or claim under this Agreement; but this Agreement shall be for the sole
and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Right Certificates (and, prior to the Distribution Date, the
Common Stock).
Section 30.
Determinations
and Actions by the Board of Directors
.
The Board of Directors of the Company shall have the exclusive power and
authority to administer this Agreement and to exercise the rights and powers
specifically granted to the Board of Directors of the Company or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including,
without limitation, a determination to redeem or not redeem the Rights or to
amend or not amend this Agreement). All
such actions, calculations, interpretations and determinations that are done or
made by the Board of Directors of the Company in good faith shall be final,
conclusive and binding on the Company, the Rights Agent, the holders of the
Rights, as such, and all other parties.
Section 31.
Severability
. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
Section 32.
Governing Law
. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State.
Section 33.
Counterparts
. This Agreement may be executed in any number
of
35
counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
Section 34.
Descriptive
Headings
. Descriptive headings of
the several Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the
provisions hereof.
[SIGNATURE
PAGE FOLLOWS]
36
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed, all as of the day and year first
above written.
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UFP TECHNOLOGIES, INC.
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Title:
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AMERICAN STOCK TRANSFER
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& TRUST COMPANY, LLC, as Rights Agent
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By:
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Name:
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[Signature Page To Rights Agreement]
37
EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF
DESIGNATION
of
SERIES A JUNIOR PARTICIPATING
PREFERRED STOCK
of
UFP TECHNOLOGIES, INC.
Pursuant to Section 151 of the General
Corporation Law
of the State of Delaware
UFP Technologies, Inc., a corporation
organized and existing under the General Corporation Law of the State of
Delaware (the Corporation), in accordance with the provisions of Section 103
thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the
Board of Directors of the Corporation (the Board of Directors) in accordance
with the provisions of the certificate of incorporation, as amended, of the
Corporation (the Certificate of Incorporation), the said Board of Directors,
effective as of March 20, 2009, adopted the following resolution creating
a series of 20,000 shares of Preferred Stock designated as Series A
Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority
vested in the Board of Directors of this Corporation in accordance with the
provisions of the Certificate of Incorporation, a series of Preferred Stock,
par value $0.01 per share, of the Corporation be and hereby is created, and
that the designation and number of shares thereof and the voting and other
powers, preferences and relative, participating, optional or other rights of
the shares of such series and the qualifications, limitations and restrictions
thereof are as follows:
Series A
Junior Participating Preferred Stock
1.
Designation and Amount.
There shall be a series of Preferred Stock
that shall be designated as Series A Junior Participating Preferred
Stock, and the number of shares constituting such series shall be 20,000. Such number of shares may be increased or
decreased by resolution of the Board of Directors; provided, however, that no
decrease shall reduce the number of shares of Series A Junior
Participating Preferred Stock to less
than the number of shares then issued and outstanding plus the number of shares
issuable upon exercise of outstanding rights, options or warrants or upon
conversion of outstanding securities issued by the Corporation.
38
2.
Dividends and Distribution.
(A)
Subject to the prior and
superior rights of the holders of any shares of any class or series of stock of
the Corporation ranking prior and superior to the shares of Series A
Junior Participating Preferred Stock with respect to dividends, the holders of
shares of Series A Junior Participating Preferred Stock outstanding at the
close of business on the business day immediately preceding each Quarterly
Dividend Payment Date (as defined below) (or on such other record date as the
Board of Directors may specify), in preference to the holders of shares of any
class or series of stock of the Corporation ranking junior to the Series A
Junior Participating Preferred Stock in respect thereof, shall be entitled to
receive, when, as and if declared (except as provided in paragraph (B) below)
by the Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of March, June, September and
December in each year (each such date being referred to herein as a Quarterly
Dividend Payment Date), commencing on the first Quarterly Dividend Payment
Date after the first issuance of a share or fraction of a share of Series A
Junior Participating Preferred Stock (the First Issuance Date), in an amount
per share (rounded to the nearest cent) equal to the greater of (a) $10.00
or (b) the sum of (x) the Adjustment Number (as defined below) times the aggregate per share amount
of all cash dividends, and (y) the Adjustment Number times the fair value
(as determined by the Board of Directors) of the aggregate per share amount of
all non-cash dividends or other distributions payable in kind as provided
herein, other than a dividend payable in shares of Common Stock, par value
$0.01 per share, of the Corporation (the Common Stock) or a subdivision of
the outstanding shares of Common Stock (by reclassification or otherwise), in
the case of clauses (x) and (y) declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date, or with respect to
the first Quarterly Dividend Payment Date following the First Issuance Date,
from (but not including) the Quarterly Dividend Payment Date immediately
preceding the First Issuance Date;
provided
, that to the extent the
holders of shares of Series A Junior Participating Preferred Stock are
entitled to payment of such dividend pursuant to clause (b) of this
sentence in whole or in part as a result of a non-cash dividend or distribution
referred to in clause (b)(y) above, such holders will receive per share of
Series A Junior Participating Preferred Stock, in lieu of the cash value
of such non-cash dividend or distribution, an amount of the securities or other
property equal to the Adjustment Number times the amount of such securities or
other property distributed per share of Common Stock. The Adjustment Number shall initially be
1000. In the event the Corporation shall
at any time (i) declare and 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 Adjustment Number in effect immediately prior to such event shall be
adjusted by multiplying such Adjustment Number 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.
39
(B)
The Board of Directors
shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above
immediately after it declares a dividend or distribution on the Common Stock
(other than a dividend payable in shares of Common Stock);
provided
,
that no such dividend will be required to be declared until the aggregate
amount of cash dividends and the fair value of all non-cash dividends and
distributions on the Common Stock, in each case multiplied by the Adjustment Number,
during the period following the last Quarterly Dividend Payment Date (or, if
applicable, the Quarterly Dividend Payment Date preceding the First Issuance
Date), exceeds the amount set forth in clause (a) of paragraph (A) above.
(C)
Dividends shall begin
to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from (but not including) the Quarterly Dividend
Payment Date next preceding the First Issuance Date, unless such First Issuance
Date is a Quarterly Dividend Payment Date or is after the record date for such
Quarterly Dividend Payment Date and prior to such Quarterly Dividend Payment
Date, in which event such dividends shall begin to accrue and be cumulative
from (but not including) such Quarterly Dividend Payment Date. Accrued but
unpaid dividends shall not bear interest.
Dividends paid on the shares of Series A Junior Participating
Preferred Stock in an amount less than the total amount of such dividends at
the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
3.
Voting Rights.
The holders of shares of Series A Junior
Participating Preferred Stock shall have the following voting rights:
(A)
Each share of Series A
Junior Participating Preferred Stock shall entitle the holder thereof to a
number of votes equal to the Adjustment Number on all matters submitted to a
vote of the stockholders of the Corporation.
(B)
Except as required by
law, by Section 3(C) and by Section 10 hereof, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights and
their consent shall not be required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein) for taking any corporate
action.
(C)
If, at the time of any
annual meeting of stockholders for the election of directors, the equivalent of
six quarterly dividends (whether or not consecutive) payable on any share or
shares of Series A Junior Participating Preferred Stock are in default,
the number of directors constituting the Board of Directors of the Corporation
shall be increased by two. In addition
to voting together with the holders of Common Stock for the election of other
directors of the Corporation, the holders of record of the Series A Junior
Participating Preferred Stock, voting separately as a class to the exclusion of
the holders of Common Stock, shall be entitled at said meeting of stockholders
(and at each subsequent annual meeting of stockholders), unless all dividends
in arrears on the Series A Junior Participating Preferred Stock have been
paid or declared and set apart for payment prior thereto, to vote for the
election of two
40
directors of the Corporation, the holders of
any Series A Junior Participating Preferred Stock being entitled to cast a
number of votes per share of Series A Junior Participating Preferred Stock
as is specified in paragraph (A) of this Section 3. Each
such additional director shall not be a member of Class I, Class II
or Class III of the Board of Directors of the Corporation, but shall serve
until the next annual meeting of stockholders for the election of directors, or
until his successor shall be elected and shall qualify, or until his right to
hold such office terminates pursuant to the provisions of this Section 3(C). Until the default in payments of all
dividends which permitted the election of said directors shall cease to exist,
any director who shall have been so elected pursuant to the provisions of this Section 3(C) may
be removed at any time, without cause, only by the affirmative vote of the
holders of the shares of Series A Junior Participating Preferred Stock at
the time entitled to cast a majority of the votes entitled to be cast for the
election of any such director at a special meeting of such holders called for
that purpose, and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall
cease to exist, the holders of the Series A Junior Participating Preferred
Stock shall be divested of the foregoing special voting rights, subject to
revesting in the event of each and every subsequent like default in payments of
dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who may
have been elected directors pursuant to said special voting rights shall
forthwith terminate, and the number of directors constituting the Board of
Directors shall be reduced by two. The
voting rights granted by this Section 3(C) shall be in addition to
any other voting rights granted to the holders of the Series A Junior
Participating Preferred Stock in this Section 3.
4.
Certain Restrictions.
(A)
Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in
arrears, thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Junior Participating
Preferred Stock outstanding shall have been paid in full, the Corporation shall
not:
(i)
declare or pay
dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock;
(ii)
declare or pay
dividends on or make any other distributions on any shares of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Junior Participating Preferred Stock, except
dividends paid ratably on the Series A Junior Participating Preferred
Stock and all such parity stock on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all such shares are
then entitled; or
(iii)
purchase or otherwise
acquire for consideration any shares of Series A Junior Participating
Preferred Stock, or any shares of stock ranking on
41
a parity with the Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of Series A
Junior Participating Preferred Stock, or to such holders and holders of any
such shares ranking on a parity therewith, upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and classes,
shall determine in good faith will result in fair and equitable treatment among
the respective series or classes.
(B)
The Corporation shall
not permit any subsidiary of the Corporation to purchase or otherwise acquire
for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
5.
Reacquired Shares.
Any shares of Series A Junior Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof. All such shares shall upon their retirement
become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to any conditions and
restrictions on issuance set forth herein.
6.
Liquidation, Dissolution or Winding Up.
(A) Upon
any liquidation, dissolution or winding up of the Corporation, voluntary or
otherwise, no distribution shall be made to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior Participating
Preferred Stock shall have received an amount per share (the Series A
Liquidation Preference) equal to the greater of (i) $25,000 plus an
amount equal to accrued and unpaid dividends and distributions thereon, whether
or not declared, to the date of such payment, or (ii) the Adjustment
Number times the per share amount of all cash and other property to be
distributed in respect of the Common Stock upon such liquidation, dissolution
or winding up of the Corporation.
(B)
In the event, however,
that there are not sufficient assets available to permit payment in full of the
Series A Liquidation Preference and the liquidation preferences of all
other classes and series of stock of the Corporation, if any, that rank on a
parity with the Series A Junior Participating Preferred Stock in respect
thereof, then the assets available for such distribution shall be distributed
ratably to the holders of the Series A Junior Participating Preferred
Stock and the holders of such parity shares in proportion to their respective
liquidation preferences.
(C)
Neither the merger or
consolidation of the Corporation into or with another entity nor the merger or
consolidation of any other entity into or with the Corporation shall be deemed
to be a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section 6.
42
7.
Consolidation, Merger, Etc.
In case the Corporation shall
enter into any consolidation, merger, combination or other transaction in which
the outstanding shares of Common Stock are exchanged for or changed into other
stock or securities, cash and/or any other property, then in any such case each
share of Series A Junior Participating Preferred Stock shall at the same
time be similarly exchanged or changed in an amount per share equal to the
Adjustment Number 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.
8.
No Redemption.
Shares of Series A Junior Participating Preferred Stock
shall not be subject to redemption by the Corporation.
9.
Ranking.
The
Series A Junior Participating Preferred Stock shall rank junior to all
other series of the Preferred Stock as to the payment of dividends and as to
the distribution of assets upon liquidation, dissolution or winding up, unless
the terms of any such series shall provide otherwise, and shall rank senior to
the Common Stock as to such matters.
10.
Amendment.
At
any time that any shares of Series A Junior Participating Preferred Stock
are outstanding, the Certificate of Incorporation of the Corporation shall not be
amended, by merger, consolidation or otherwise, which would materially alter or
change the powers, preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of two-thirds of the outstanding shares of Series A
Junior Participating Preferred Stock, voting separately as a class.
11.
Fractional Shares.
Series A Junior Participating Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion to
such holders fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has
executed this Certificate this 20
th
day of March, 2009.
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UFP TECHNOLOGIES, INC.
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By:
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s/Ronald J. Lataille
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Name: Ronald J. Lataille
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Title: Chief Financial Officer
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[
Signature Page to
Amended and Restated Certificate of
Designation
2009 Rights Agreement
]
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EXHIBIT B
Form of Right Certificate
Certificate No. R-________
NOT EXERCISABLE AFTER MARCH 19, 2019 OR
EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT AND TO EXCHANGE
ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING
PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF
WILL BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
RIGHT CERTIFICATE
UFP TECHNOLOGIES, INC.
This certifies that ______________________________
or registered assigns, is the registered owner of the number of Rights set
forth above, each of which entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement, dated as of March 20,
2009, as the same may be amended from time to time (the Rights Agreement),
between UFP Technologies, Inc., a Delaware corporation (the Company),
and American Stock Transfer & Trust Company, LLC, as Rights Agent (the
Rights Agent), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior
to 5:00 P.M., New York City time, on March 19, 2019 at the office or
agency of the Rights Agent designated for such purpose, or of its successor as
Rights Agent, one one-thousandth of a fully paid non-assessable share of Series A
Junior Participating Preferred Stock, par value $0.01 per share (the Preferred
Stock), of the Company at a purchase price of $25 per one one-thousandth of a
share of Preferred Stock (the Purchase Price), upon presentation and
surrender of this Right Certificate with the Form of Election to Purchase
duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of one one-thousandths of
a share of Preferred Stock which may be purchased upon exercise hereof) set
forth above, and the Purchase Price set forth above, are the number and
Purchase Price as of March 20, 2009, based on the Preferred Stock as
constituted at such date. As provided in
the Rights Agreement, the Purchase Price, the number of one one-thousandths of
a share of Preferred Stock (or other securities or property) which may be
purchased upon the exercise of the Rights and the number of Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
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This Right Certificate is subject to all of
the terms, provisions and conditions of the Rights Agreement, which terms,
provisions and conditions are hereby incorporated herein by reference and made
a part hereof and to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Right Certificates. Copies of the Rights
Agreement are on file at the principal executive offices of the Company and the
above-mentioned office or agency of the Rights Agent. The Company will mail to the holder of this
Right Certificate a copy of the Rights Agreement without charge after receipt
of a written request therefor.
This Right Certificate, with or without other
Right Certificates, upon surrender at the office or agency of the Rights Agent
designated for such purpose, may be exchanged for another Right Certificate or
Right Certificates of like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of shares of Preferred Stock as the
Rights evidenced by the Right Certificate or Right Certificates surrendered
shall have entitled such holder to purchase.
If this Right Certificate shall be exercised in part, the holder shall
be entitled to receive upon surrender hereof another Right Certificate or Right
Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate (i) may be redeemed by
the Company at a redemption price of $.01 per Right or (ii) may be
exchanged in whole or in part for shares of the Companys Common Stock, par
value $0.01 per share, or shares of Preferred Stock.
No fractional shares of Preferred Stock or
Common Stock will be issued upon the exercise or exchange of any Right or
Rights evidenced hereby (other than fractions of Preferred Stock which are
integral multiples of one one-thousandth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depository receipts), but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate, as such,
shall be entitled to vote or receive dividends or be deemed for any purpose the
holder of the Preferred Stock or of any other securities of the Company which
may at any time be issuable on the exercise or exchange hereof, nor shall
anything contained in the Rights Agreement or herein be construed to confer
upon the holder hereof, as such, any of the rights of a stockholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to stockholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in the Rights Agreement) or
to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Right Certificate shall have been exercised or
exchanged as provided in the Rights Agreement.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been countersigned by the Rights
Agent.
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WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of March 20, 2009.
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UFP TECHNOLOGIES, INC.
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By:
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Title:
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ATTEST:
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Title:
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Countersigned:
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American Stock Transfer & Trust Company, LLC, as Rights
Agent
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By
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Title:
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47
Form of Reverse Side of Right
Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such
holder desires to transfer the Right
Certificate)
FOR VALUE RECEIVED
hereby sells, assigns and transfers unto
__________________________________________________________________________
___________________________________________________________________________________________________________
(Please print name and address of transferee)
Rights represented by this Right Certificate, together with all right, title
and interest therein, and does hereby irrevocably constitute and appoint
___________________________________________
Attorney, to transfer said Rights on the
books of the within-named Company, with full power of substitution.
Signature Guaranteed:
Signatures must be guaranteed by a bank,
trust company, broker, dealer or other eligible institution participating in a
recognized signature guarantee medallion program.
(To be completed)
The undersigned hereby certifies that the
Rights evidenced by this Right Certificate are not beneficially owned by, were
not acquired by the undersigned from, and are not being assigned to an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement).
48
Form of Reverse Side of Right
Certificate - continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To UFP TECHNOLOGIES, INC.:
The undersigned hereby irrevocably elects to
exercise
Rights represented by this Right Certificate to purchase the shares of
Preferred Stock (or other securities or property) issuable upon the exercise of
such Rights and requests that certificates for such shares of Preferred Stock
(or such other securities) be issued in the name of:
____________________________________________________________________________________________________________
(Please print name and address)
____________________________________________________________________________________________________________
If such number of Rights shall not be all the
Rights evidenced by this Right Certificate, a new Right Certificate for the
balance remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
____________________________________________________________________________________________________________
(Please print name and address)
____________________________________________________________________________________________________________
(Signature must conform to holder specified
on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a bank, trust
company, broker, dealer or other eligible institution participating in a
recognized signature guarantee medallion program.
49
Form of Reverse Side of Right
Certificate - continued
____________________________________________________________________________________________________________
(To be completed)
The undersigned certifies that the Rights
evidenced by this Right Certificate are not beneficially owned by, and were not
acquired by the undersigned from, an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
____________________________________________________________________________________________________________
NOTICE
The signature in the Form of Assignment
or Form of Election to Purchase, as the case may be, must conform to the
name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth
above in the Form of Assignment or the Form of Election to Purchase,
as the case may be, is not completed, such Assignment or Election to Purchase
will not be honored.
50
EXHIBIT C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN
THE RIGHTS AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR
BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN
TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF PREFERRED STOCK OF
UFP TECHNOLOGIES, INC.
On March 18, 2009, the Board of
Directors of UFP Technologies, Inc. (the Company) declared a dividend of
one preferred share purchase right (a Right) for each outstanding share of
common stock, par value $0.01 per share, of the Company (the Common
Stock). The dividend is payable on March 20,
2009 (the Record Date) to the stockholders of record on that date. Each Right entitles the registered holder to
purchase from the Company one one-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $0.01 per share, of the Company (the
Preferred Stock) at a price of $25 per one one-thousandth of a share of
Preferred Stock (the Purchase Price), subject to adjustment. The description and terms of the Rights are
set forth in a Rights Agreement dated as of March 20, 2009, as the same
may be amended from time to time (the Rights Agreement), between the Company
and American Stock Transfer & Trust Company, LLC, as Rights Agent (the
Rights Agent).
Until the earlier to occur of (i) 10
days following a public announcement that a person or group of affiliated or
associated persons (with certain exceptions, an Acquiring Person) has
acquired beneficial ownership of 15% or more of the outstanding shares of
Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such
time as any person or group of affiliated persons becomes an Acquiring Person)
following the commencement of, or announcement of an intention to make, a
tender offer or exchange offer the consummation of which would result in the
beneficial ownership by a person or group of 15% or more of the outstanding
shares of Common Stock (the earlier of such dates being called the
Distribution Date), the Rights will be evidenced, with respect to any of the
Common Stock certificates outstanding as of the Record Date, by such Common
Stock certificate together with this Summary of Rights.
The Rights Agreement provides that, until the
Distribution Date (or earlier expiration of the Rights), the Rights will be
transferred with and only with the Common Stock. Until the Distribution Date (or earlier expiration
of the Rights), new Common Stock certificates issued after the Record Date upon
transfer or new issuances of Common Stock will contain a notation incorporating
the Rights Agreement by reference.
51
Until the Distribution Date (or earlier
expiration of the Rights), the surrender for transfer of any certificates for
shares of Common Stock outstanding as of the Record Date, even without such
notation or a copy of this Summary of Rights, will also constitute the transfer
of the Rights associated with the shares of Common Stock represented by such
certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights (Right
Certificates) will be mailed to holders of record of the Common Stock as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
The Rights are not exercisable until the
Distribution Date. The Rights will
expire on March 19, 2019 (the Final Expiration Date), unless the Final
Expiration Date is advanced or extended or unless the Rights are earlier
redeemed or exchanged by the Company, in each case as described below.
The Purchase Price payable, and the number of
shares of Preferred Stock or other securities or property issuable, upon
exercise of the Rights is subject to adjustment from time to time to prevent
dilution (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) upon the
grant to holders of the Preferred Stock of certain rights or warrants to
subscribe for or purchase Preferred Stock at a price, or securities convertible
into Preferred Stock with a conversion price, less than the then-current market
price of the Preferred Stock or (iii) upon the distribution to holders of
the Preferred Stock of evidences of indebtedness or assets (excluding regular
periodic cash dividends or dividends payable in Preferred Stock) or of
subscription rights or warrants (other than those referred to above).
The number of outstanding Rights is subject
to adjustment in the event of a stock dividend on the Common Stock payable in
shares of Common Stock or subdivisions, consolidations or combinations of the
Common Stock occurring, in any such case, prior to the Distribution Date.
Shares of Preferred Stock purchasable upon
exercise of the Rights will not be redeemable.
Each share of Preferred Stock will be entitled, when, as and if
declared, to a minimum preferential quarterly dividend payment of the greater
of (a) $10 per share, and (b) an amount equal to 1000 times the
dividend declared per share of Common Stock.
In the event of liquidation, dissolution or winding up of the Company,
the holders of the Preferred Stock will be entitled to a minimum preferential
payment of the greater of (a) $25,000 per share (plus any accrued but
unpaid dividends), and (b) an amount equal to 1000 times the payment made
per share of Common Stock. Each share of
Preferred Stock will have 1000 votes, voting together with the Common
Stock. Finally, in the event of any
merger, consolidation or other transaction in which outstanding shares of
Common Stock are converted or exchanged, each share of Preferred Stock will be
entitled to receive 1000 times the amount received per share of Common
Stock. These rights are protected by
customary antidilution provisions.
Because of the nature of the Preferred Stocks
dividend, liquidation and voting rights, the value of the one one-thousandth
interest in a share of Preferred Stock
52
purchasable upon exercise of each Right
should approximate the value of one share of Common Stock.
In the event that any person or group of
affiliated or associated persons becomes an Acquiring Person, each holder of a
Right, other than Rights beneficially owned by the Acquiring Person (which will
thereupon become void), will thereafter have the right to receive upon exercise
of a Right that number of shares of Common Stock having a market value of two
times the exercise price of the Right.
In the event that, after a person or group
has become an Acquiring Person, the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power are sold, proper provisions will be made so that each holder of a
Right (other than Rights beneficially owned by an Acquiring Person which will
have become void) will thereafter have the right to receive upon the exercise
of a Right that number of shares of common stock of the person with whom the
Company has engaged in the foregoing transaction (or its parent) that at the
time of such transaction have a market value of two times the exercise price of
the Right.
At any time after any person or group becomes
an Acquiring Person and prior to the earlier of one of the events described in
the previous paragraph or the acquisition by such Acquiring Person of 50% or
more of the outstanding shares of Common Stock, the Board of Directors of the Company
may exchange the Rights (other than Rights owned by such Acquiring Person which
will have become void), in whole or in part, for shares of Common Stock or
Preferred Stock (or a series of the Companys preferred stock having equivalent
rights, preferences and privileges), at an exchange ratio of one share of
Common Stock, or a fractional share of Preferred Stock (or other preferred
stock) equivalent in value thereto, per Right.
With certain exceptions, no adjustment in the
Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price. No fractional shares of Preferred Stock or
Common Stock will be issued (other than fractions of Preferred Stock which are
integral multiples of one one-thousandth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), and
in lieu thereof an adjustment in cash will be made based on the current market
price of the Preferred Stock or the Common Stock.
At any time prior to the time an Acquiring
Person becomes such, the Board of Directors of the Company may redeem the
Rights in whole, but not in part, at a price of $0.01 per Right (the Redemption
Price) payable, at the option of the Company, in cash, shares of Common Stock
or such other form of consideration as the Board of Directors of the Company
shall determine. The redemption of the
Rights may be made effective at such time, on such basis and with such
conditions as the Board of Directors of the Company in its sole discretion may
establish. Immediately upon any
redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption
Price.
53
For so long as the Rights are then
redeemable, the Company may, except with respect to the Redemption Price, amend
the Rights Agreement in any manner.
After the Rights are no longer redeemable, the Company may, except with
respect to the Redemption Price, amend the Rights Agreement in any manner that
does not adversely affect the interests of holders of the Rights.
Until a Right is exercised or exchanged, 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.
A copy of the Rights Agreement has been filed
with the Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A dated March 24, 2009. A copy of the Rights Agreement is available
free of charge from the Company. This
summary description of the Rights does not purport to be complete and is
qualified in its entirety by reference to the Rights Agreement, as the same may
be amended from time to time, which is hereby incorporated herein by reference.
54