SHAREHOLDER PROTECTION RIGHTS AGREEMENT
BETWEEN
PARKERVISION, INC.
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY, AS RIGHTS AGENT
NOVEMBER 21, 2005
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TABLE OF CONTENTS
Page
----
ARTICLE
I....................................................................1
CERTAIN
DEFINITIONS..........................................................1
1.1 Certain
Definitions..................................................1
ARTICLE II THE
RIGHTS......................................................5
2.1 Issuance of Rights
Certificates; Legend..............................5
2.2 Exercise of Rights;
Separation of Rights.............................5
2.3 Adjustments to Exercise
Price; Number of Rights......................7
2.4 Date on Which Exercise is
Effective..................................7
2.5 Execution, Authentication,
Delivery and Dating of
Rights
Certificates..................................................8
2.6 Registration, Registration
of Transfer and Exchange..................8
2.7 Mutilated, Destroyed, Lost
and Stolen Rights Certificates............9
2.8 Persons Deemed
Owners................................................9
2.9 Delivery and Cancellation of
Certificates.
........................10
2.10 Agreement of Rights
Holders.........................................10
ARTICLE III ADJUSTMENTS TO THE RIGHTS IN
THE EVENT OF CERTAIN
TRANSACTIONS..................................................10
3.1
Flip-In.............................................................10
3.2
Flip-Over...........................................................12
ARTICLE IV THE RIGHTS
AGENT.................................................13
4.1
General.............................................................13
4.2 Merger or Consolidation or
Change of Name of Rights Agent...........13
4.3 Duties of Rights
Agent:.............................................14
4.4 Change of Rights
Agent..............................................15
ARTICLE V
MISCELLANEOUS...................................................16
5.1
Redemption..........................................................16
5.2
Expiration..........................................................16
5.3 Issuance of New Rights
Certificates.................................16
5.4 Supplements and
Amendments..........................................17
5.5 Fractional
Shares...................................................17
5.6 Rights of
Action....................................................17
5.7 Holder of Rights Not Deemed
a Stockholder...........................18
5.8 Notice of Proposed
Actions..........................................18
5.9
Notices.............................................................18
5.10 Suspension of
Exercisability........................................18
5.11 Costs of
Enforcement................................................19
5.12
Successors..........................................................19
5.13 Benefits of this
Agreement..........................................19
5.14 Determination and Actions by the
Board of Directors, Etc............19
5.15 Descriptive
Headings................................................19
5.16 Governing
Law.......................................................19
5.17
Counterparts........................................................19
5.18
Severability........................................................19
i
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SHAREHOLDER PROTECTION RIGHTS AGREEMENT
THIS
SHAREHOLDER PROTECTION RIGHTS AGREEMENT (as amended from time
to
time, this "Agreement") is made and entered
into as of November 21, 2005,
between ParkerVision, Inc., a Florida
corporation (the "Corporation"), and
American Stock Transfer & Trust
Company, as rights agent (the "Rights Agent,"
which term shall include any successor
rights agent hereunder).
W I T N E S S E T H:
WHEREAS,
on October 18, 2005, the Board of Directors of the Corporation
has authorized the issuance of one right
("Right") in respect of each share of
Common Stock which is or becomes
outstanding after the Record Time (as
hereinafter defined) and prior to the
Separation Time (as hereinafter defined);
WHEREAS,
subject to Sections 3.1, 5.1 and 5.10, each Right entitles the
holder thereof, after the Separation Time,
to purchase securities of the
Corporation (or, in certain cases, of
certain other entities) pursuant to the
terms and subject to the conditions set
forth herein; and
WHEREAS,
the Corporation desires to appoint the Rights Agent to act on
behalf of the Corporation, and the Rights
Agent is willing so to act, in
connection with the issuance, transfer,
exchange and replacement of Rights
Certificates (as hereinafter defined), the
exercise of Rights and other matters
referred to herein.
NOW
THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties
hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
-------------------
1.1
Certain
Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring
Person" shall mean any Person who, alone or together with all
Affiliates and Associates of such Person,
is a Beneficial Owner of 15% or more
of the outstanding shares of Common Stock;
provided, however, that the term
"Acquiring Person" shall not include any
Person (i) who is the Beneficial Owner
of 15% or more of the outstanding shares of
Common Stock on the date of this
Agreement or who shall become the
Beneficial Owner of 15% or more of the
outstanding shares of Common Stock solely
as a result of an acquisition by the
Corporation of shares of Common Stock,
until such time hereafter or thereafter
as any such Person shall become the
Beneficial Owner (other than by means of a
stock dividend or stock split) of any
additional shares of Common Stock, (ii)
who is the Beneficial Owner of 15% or more
of the outstanding shares of Common
Stock but who acquired Beneficial Ownership
of shares of Common Stock without
any plan or intention to seek or affect
control of the Corporation, if such
Person promptly enters into an irrevocable
commitment promptly to divest, and
thereafter promptly divests (without
exercising or retaining any power,
including voting power, with respect to
such shares), sufficient shares of
Common Stock (or securities convertible
into, exchangeable into or exercisable
for Common Stock) so that such Person
ceases to be the Beneficial Owner of 15%
or more of the outstanding shares of Common
Stock or (iii) who Beneficially Owns
shares of Common Stock consisting solely of
one or more of (A) shares of Common
Stock Beneficially Owned pursuant to the
grant or exercise of an option granted
to such Person by the Corporation in
connection with an agreement to merge with,
or acquire, the Corporation entered into
prior to a Flip-In Date, (B) shares of
Common Stock (or securities convertible
into, exchangeable into or exercisable
for Common Stock) Beneficially Owned by
such Person or its Affiliates or
Associates at the time of grant of such
option or (C) shares of Common Stock (or
securities convertible into, exchangeable
into or exercisable for Common Stock)
acquired by Affiliates or Associates of
such Person after the time of such grant
which, in the aggregate, amount to less
than 1% of the outstanding shares of
Common Stock.
1
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In
addition, the following shall not be deemed Acquiring Persons: (i)
Mr.
Jeffrey Parker (the Corporation's current
chief executive officer) and his
affiliates and family members; (ii) the
Corporation; (iii) any wholly owned
Subsidiary of the Corporation; and (iv) any
employee stock ownership or other
employee benefit plan of the Corporation or
a wholly owned Subsidiary of the
Corporation.
"Affiliate" and "Associate" shall have the respective meanings
ascribed to
such terms in Rule 12b-2 under the
Securities Exchange Act of 1934, as amended
(the "Securities Exchange Act"), as such
Rule is in effect on the date of this
Agreement.
A Person
shall be deemed the "Beneficial Owner" of, and to have
"Beneficial Ownership" of, and to
"Beneficially Own," any securities of which
such Person (or any of such Person's
Affiliates or Associates) is or may be
deemed to be the beneficial owner pursuant
to Rules 13d-3 and 13d-5 under the
Securities Exchange Act, as such Rules are
in effect on the date of this
Agreement, as well as any securities as to
which such Person (or any of such
Person's Affiliates or Associates) has the
right to become Beneficial Owner
(whether such right is exercisable
immediately or only after the passage of time
or the occurrence of conditions) pursuant
to any agreement, arrangement or
understanding, or upon the exercise of
conversion rights, exchange rights, other
rights (other than the Rights), warrants or
options, or otherwise; provided,
however, that a Person shall not be deemed
the "Beneficial Owner" of, or to have
"Beneficial Ownership" of, or to
"Beneficially Own," any security (i) solely
because such security has been tendered
pursuant to a tender or exchange offer
made by such Person or any of such Person's
Affiliates or Associates until such
tendered security is accepted for payment
or exchange or (ii) solely because
such Person or any of such Person's
Affiliates or Associates has or shares the
power to vote or direct the voting of such
security pursuant to a revocable
proxy given in response to a public proxy
or consent solicitation made to more
than ten holders of shares of a class of
stock of the Corporation registered
under Section 12 of the Securities Exchange
Act and pursuant to, and in
accordance with, the applicable rules and
regulations under the Securities
Exchange Act, except if such power (or the
arrangements relating thereto) is
then reportable by such Person on Schedule
13D under the Securities Exchange Act
(or any similar provision of a comparable
or successor report). Notwithstanding
the foregoing, no officer or director of
the Corporation shall be deemed to
Beneficially Own any securities of any
other Person by virtue of any actions
such officer or director takes in such
capacity. For purposes of this Agreement,
any calculation of the number of shares of
Common Stock outstanding at any time,
including for purposes of determining the
percentage of the outstanding shares
of Common Stock with respect to which a
Person is the Beneficial Owner, shall be
made in accordance with the provisions of
Rule 13d-3(d)(1) under the Securities
Exchange Act.
"Business
Day" shall mean any day other than a Saturday, Sunday or a day
on which banking institutions in New York,
New York are generally authorized or
obligated by law or executive order to
close.
"Close of
Business" on any given date shall mean 5:00 p.m. New York, New
York time on such date (or, if such date is
not a Business Day, 5:00 p.m.
Jacksonville, Florida time on the next
succeeding Business Day).
"Common
Stock" shall mean the shares of Common Stock, par value $0.01
per
share, of the Corporation.
2
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"Exchange
Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section
3.1(c).
"Exercise
Price" shall mean, as of any date, the price at which a holder
may purchase the securities issuable upon
exercise of one whole Right. Until
adjustment thereof in accordance with the
terms hereof, the Exercise Price shall
equal $45.00.
"Expiration Time" shall mean the earliest of (i) the Exchange Time,
(ii)
the Redemption Time, and (iii) November 21,
2015.
"Flip-In
Date" shall mean the tenth Business Day after any Stock
Acquisition Date or such earlier or later
date as the Board of Directors of the
Corporation may from time to time fix by
resolution adopted prior to the Flip-In
Date that would otherwise have
occurred.
"Flip-Over
Entity" for purposes of Section 3.2, shall mean (i) in the case
of a Flip-Over Transaction or Event
described in clause (i) of the definition
thereof, the Person issuing any securities,
cash or other property into which
shares of Common Stock are being converted
or exchanged and, if no such
securities are being issued, any other
party to such Flip-Over Transaction or
Event and (ii) in the case of a Flip-Over
Transaction or Event referred to in
clause (ii) of the definition thereof, the
Person receiving the greatest portion
of the assets or earning power being
transferred in such Flip-Over Transaction
or Event; provided in all cases if such
Person is a subsidiary of another
Person, the ultimate controlling Person
that is not an individual shall be the
Flip-Over Entity.
"Flip-Over
Stock" shall mean the capital stock (or similar equity
interest) with the greatest voting power in
respect of the election of directors
(or other Persons similarly responsible for
direction of the business and
affairs) of the Flip-Over Entity.
"Flip-Over
Transaction or Event" shall mean a transaction or series of
transactions after a Flip-In Date in which,
directly or indirectly, (i) the
Corporation shall consolidate or merge or
participate in a business combination
with any other Person and the Corporation
is not the surviving corporation, or
all or any part of the Corporation's Common
Stock is converted or exchanged for
securities, cash or property of the other
Person or (ii) the Corporation shall
sell or otherwise transfer (or one or more
of its Subsidiaries shall sell or
otherwise transfer) assets (A) aggregating
more than 50% of the assets (measured
by either book value or fair market value)
or (B) generating more than 50% of
the operating income or cash flow, of the
Corporation and its Subsidiaries
(taken as a whole) to any Person (other
than the Corporation or one or more of
its wholly owned Subsidiaries) or to two or
more such Persons which are
Affiliates or Associates or otherwise
acting in concert.
"Market
Price" per share of any securities on any date shall mean the
average of the daily closing prices per
share of such securities (determined as
described below) on each of the 20
consecutive Trading Days through and
including the Trading Day immediately
preceding such date; provided, however,
that if an event of a type analogous to any
of the events described in Section
2.3 shall have caused the closing prices
used to determine the Market Price on
any Trading Days during such period of 20
Trading Days not to be fully
comparable with the closing price on such
date, each such closing price so used
shall be appropriately adjusted in order to
make it fully comparable with the
closing price on such date. The closing
price per share of any securities on any
date shall be the last reported sale price,
regular way, or, in case no such
sale takes place or is quoted on such date,
the average of the closing bid and
asked prices, regular way, for each share
of such securities, 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, Inc.
or, if the securities are not listed or
admitted to trading on the New York
Stock Exchange, Inc., as reported in the
principal consolidated transaction
reporting system with respect to securities
listed on the principal national
securities exchange on which the securities
are listed or admitted to trading
or, if the securities are not listed or
admitted to trading on any national
securities exchange, as reported by the
Nasdaq Stock Market or the OTC Bulletin
Board; provided, however, that if on any
such date the securities are not listed
or admitted to trading on a national
securities exchange or traded in the
over-the-counter market, the closing price
per share of such securities on such
date shall mean the fair value per share of
securities on such date as
determined in good faith by the Board of
Directors of the Corporation, after
consultation with a nationally recognized
investment banking firm, and set forth
in a certificate delivered to the Rights
Agent.
3
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"Person"
shall mean any individual, firm, partnership, association,
group
(as such term is used in Rule 13d-5 under
the Securities Exchange Act, as such
Rule is in effect on the date of this
Agreement), corporation or other entity.
"Preferred
Stock" shall mean the Series E Preferred Stock, par value $0.01
per share, of the Corporation created by
the Certificate of Designations in
substantially the form set forth in Exhibit
B hereto, appropriately completed.
"Record
Time" shall mean the time immediately prior to the time when
the
transactions contemplated by the Plan
become effective.
"Redemption Price" shall mean an amount per Right equal to one
cent, $.01.
"Redemption Time" shall mean the time at which the right to
exercise the
Rights shall terminate pursuant to Section
5.1.
"Separation Time" shall mean the Close of Business on the earlier
of (i)
the tenth Business Day (or such later date
as the Board of Directors of the
Corporation may from time to time fix by
resolution adopted prior to the
Separation Time that would otherwise have
occurred) after the date on which any
Person commences a tender or exchange offer
which, if consummated, would result
in such Person's becoming an Acquiring
Person and (ii) the Flip-In Date;
provided, that if any tender or exchange
offer referred to in clause (i) of this
paragraph is canceled, terminated or
otherwise withdrawn prior to the Separation
Time without the purchase of any shares of
Common Stock pursuant thereto, such
offer shall be deemed, for purposes of this
paragraph, never to have been made.
"Stock
Acquisition Date" shall mean the first date of public
announcement
by the Corporation (by any means) that an
Acquiring Person has become such.
"Subsidiary" of any specified Person shall mean any corporation or
other
entity of which a majority of the voting
power of the equity securities or a
majority of the equity interests is
Beneficially Owned, directly or indirectly,
by such Person.
"Trading
Day," when used with respect to any securities, shall mean a
day
on which the New York Stock Exchange, Inc.
is open for the transaction of
business or, if such securities are not
listed or admitted to trading on the New
York Stock Exchange, Inc., a day on which
the principal national securities
exchange on which such securities are
listed or admitted to trading is open for
the transaction of business or, if such
securities are not listed or admitted to
trading on any national securities
exchange, a day on which the Nasdaq Stock
Market, OTC Bulletin Board or such other
system then in use is open for the
transaction of business or, if such
securities are not listed or admitted to
trading on any national securities exchange
or quoted on any such system, a
Business Day.
4
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ARTICLE II
THE RIGHTS
----------
2.1
Issuance of
Rights Certificates; Legend. Subject to Sections 2.3 and
5.3, one Right shall be issued in respect
of each share of Common Stock that is
or becomes outstanding (whether by original
issuance or out of treasury, but
other than in a transaction contemplated by
Section 2.3) after the Record Time
but prior to the Separation Time.
Certificates for the Common Stock issued after
the Record Time but prior to the Separation
Time shall evidence, in addition to
the Common Stock represented by such
certificate, one Right for each share of
Common Stock represented thereby and shall
have impressed on, printed on,
written on or otherwise affixed to them the
following legend:
"Until the
Separation Time (as defined in the Rights Agreement referred to
below),
this certificate also evidences and entitles the holder hereof
to
certain
Rights as set forth in a Stockholder Protection Rights
Agreement,
dated as
of November 21, 2005 (as such may be amended from time to time,
the
"Rights Agreement"), between ParkerVision, Inc. (the
"Corporation")
and
American Stock Transfer & Trust Company, as Rights Agent, 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 Corporation. Under
certain
circumstances, as set forth in the Rights Agreement, such
Rights
may be
redeemed, may become exercisable for securities or assets of
the
Corporation or of another entity, may be exchanged for shares of
Common
Stock or
other securities or assets of the Corporation, may expire, may
become void (if
they are "Beneficially Owned" by an "Acquiring Person" or
an
Affiliate or Associate thereof, as such terms are defined in the
Rights
Agreement,
or by any transferee of any of the foregoing) or may be
evidenced
by separate certificates and may no longer be evidenced by this
certificate. The Corporation will mail or arrange for the mailing
of a
copy of
the Rights Agreement to the holder of this certificate without
charge
promptly after the receipt of a written request therefor."
Certificates representing shares of Common
Stock that are issued and outstanding
at the Record Time shall evidence, in
addition to the Common Stock represented
by such certificate, one Right for each
share of Common Stock evidenced thereby
notwithstanding the absence of the
foregoing legend.
2.2
Exercise of
Rights; Separation of Rights.
-----------------------------------------
(a) Subject to Sections 3.1, 5.1 and 5.10 and subject to
adjustment
as herein set forth, each Right will
entitle the holder thereof, after the
Separation Time and prior to the Expiration
Time, to purchase, for the Exercise
Price, one ten-thousandth (1/10,000th) of a
share of Preferred Stock.
(b) Until the Separation Time, (i) no Right may be exercised
and
(ii) each Right will be evidenced by the
certificate that evidences the share of
Common Stock with which it is associated
and will be transferable only together
with, and will be transferred by a transfer
of, such associated share of Common
Stock, and the surrender for transfer of
any certificates representing
outstanding Common Stock will also
constitute the surrender for transfer of the
Rights associated with the Common Stock
represented by such certificate.
(c) Subject to this Section 2.2 and to Sections 3.1, 5.1 and
5.10,
after the Separation Time and prior to the
Expiration Time, the Rights (i) may
be exercised and (ii) may be transferred
independently of shares of Common
Stock. Promptly following the Separation
Time, the Rights Agent will mail to
each holder of record of Common Stock as of
the Separation Time (other than any
Person whose Rights have become void
pursuant to Section 3.1(b)), at such
holder's address as shown by the records of
the Corporation (the Corporation
hereby agreeing to furnish copies of such
records to the Rights Agent for this
purpose), (x) a certificate (a "Rights
Certificate") in substantially the form
of Exhibit A hereto appropriately
completed, representing the number of Rights
held by such holder at the Separation Time
and having such marks of
identification or designation and such
legends, summaries or endorsements
printed thereon as the Corporation may deem
appropriate and as are not
inconsistent with the provisions of this
Agreement, or as may be required to
comply with any law or with any rule or
regulation made pursuant thereto or with
any rule or regulation of any national
securities exchange or quotation system
on which the Rights may from time to time
be listed or traded, or to conform to
usage, and (y) a disclosure statement
describing the Rights.
5
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(d) Subject to Sections 3.1, 5.1 and 5.10, Rights may be
exercised
on any Business Day after the Separation
Time and prior to the Expiration Time
by submitting to the Rights Agent the
Rights Certificate evidencing such Rights
with an Election to Exercise (an "Election
to Exercise") substantially in the
form attached to the Rights Certificate,
duly completed, accompanied by payment
by certified or official bank check or
money order payable to the order of the
Corporation, of a sum equal to the Exercise
Price multiplied by the number of
Rights being exercised and a sum sufficient
to cover any transfer tax or charge
that may be payable in respect of any
transfer involved in the transfer or
delivery of Rights Certificates or the
issuance or delivery of certificates for
shares or depositary receipts (or both) in
a name other than that of the holder
of the Rights being exercised.
(e) Upon receipt of a Rights Certificate, with an Election to
Exercise accompanied by payment as set
forth in Section 2.2(d), and subject to
Sections 3.1, 5.1 and 5.10, the Rights
Agent promptly will (i)(A) requisition
from the Corporation's transfer agent(s)
stock certificates evidencing such
number of shares or other securities to be
purchased (the Corporation hereby
irrevocably authorizing its transfer agents
to comply with all such
requisitions) and (B) if the Corporation
elects pursuant to Section 5.5 not to
issue certificates representing fractional
shares, requisition from the
depositary selected by the Corporation
depositary receipts representing the
fractional shares to be purchased or
requisition from the Corporation the amount
of cash to be paid in lieu of fractional
shares in accordance with Section 5.5
and (ii) after receipt of such
certificates, depositary receipts and/or cash,
deliver the same to or upon the order of
the registered holder of such Rights
Certificate, registered (in the case of
certificates or depositary receipts) in
such name or names as may be designated by
such holder. In the event that the
Corporation elects pursuant to Section
3.1(e) to issue other securities and/or
assets of the Corporation upon exercise of
the Rights, the Corporation will make
all arrangements necessary so that such
other securities and/or assets of the
Corporation are available for distribution
by the Rights Agent, if and when
appropriate.
(f) In case the holder of any Rights shall exercise less than
all
the Rights evidenced by such holder's
Rights Certificate, a new Rights
Certificate evidencing the Rights remaining
unexercised will be issued by the
Rights Agent to such holder or to such
holder's duly authorized assigns.
(g) The Corporation covenants and agrees that it will (i) take
all
such action as may be necessary to ensure
that all shares delivered upon
exercise of Rights shall, at the time of
delivery of the certificates for such
shares (subject to payment of the Exercise
Price), be duly and validly
authorized, executed, issued and delivered
and fully paid and nonassessable;
(ii) take all such action as may be
necessary to comply with any applicable
requirements of the Securities Act of 1933,
as amended, or the Securities
Exchange Act, and the rules and regulations
thereunder, and any other applicable
law, rule or regulation, in connection with
the issuance of any shares upon
exercise of Rights; and (iii) pay when due
and payable any and all federal and
state transfer taxes and charges that may
be payable in respect of the original
issuance or delivery of the Rights
Certificates or of any shares issued upon the
exercise of Rights, provided that the
Corporation shall not be required to pay
any transfer tax or charge that may be
payable in respect of any transfer
involved in the transfer or delivery of
Rights Certificates or the issuance or
delivery of certificates for shares in a
name other than that of the holder of
the Rights being transferred or
exercised.
6
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2.3
Adjustments to
Exercise Price; Number of Rights.
------------------------------------------------
(a) In the event the Corporation shall at any time after the
Record
Time and prior to the Separation Time (i)
declare or pay a dividend on Common
Stock payable in Common Stock, (ii)
subdivide the outstanding Common Stock, or
(iii) combine the outstanding Common Stock
into a smaller number of shares of
Common Stock, (x) the Exercise Price in
effect after such adjustment will be
equal to the Exercise Price in effect
immediately prior to such adjustment
divided by the number of shares of Common
Stock (the "Expansion Factor") that a
holder of one share of Common Stock
immediately prior to such dividend,
subdivision or combination would hold
thereafter as a result thereof (assuming
for such purpose that the Corporation would
issue a fraction of a share of
Common Stock, as applicable, and without
giving effect to any requirement that
cash be paid in lieu of the issuance of any
fractional share interest) and (y)
each Right held prior to such adjustment
will become that number of Rights equal
to the Expansion Factor, and the adjusted
number of Rights will be deemed to be
distributed among the shares of Common
Stock with respect to which the original
Rights were associated (if they remain
outstanding) and the shares issued in
respect of such dividend, subdivision or
combination, so that each such share of
Common Stock will have exactly one Right
associated with it. Each adjustment
made pursuant to this paragraph shall be
made as of the payment or effective
date for the applicable dividend,
subdivision or combination.
(b) In the event the Corporation shall at any time after the
Record
Time and prior to the Separation Time issue
or distribute any securities or
assets in respect of, in lieu of or in
exchange for Common Stock (other than
pursuant to a regular periodic cash
dividend or a dividend paid solely in Common
Stock) whether by dividend, in a
reclassification or recapitalization (including
any such transaction involving a merger,
consolidation or share exchange), or
otherwise, the Corporation shall make such
adjustments, if any, in the Exercise
Price, number of Rights and/or securities
or other property purchasable upon
exercise of Rights as the Board of
Directors of the Corporation, in its sole
discretion, may deem to be appropriate
under the circumstances in order to
adequately protect the interests of the
holders of Rights generally, and the
Corporation and the Rights Agent shall
amend this Agreement as necessary to
provide for such adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this
Section 2.3 shall be calculated to the
nearest cent. Whenever an adjustment to
the Exercise Price is made pursuant to this
Section 2.3, the Corporation shall
(i) promptly prepare a certificate setting
forth such adjustment and a brief
statement of the facts accounting for such
adjustment and (ii) promptly file
with the Rights Agent and with each
transfer agent for the Common Stock a copy
of such certificate. The Rights Agent shall
be fully protected in relying on any
such certificate and on any adjustment
therein and shall not be deemed to have
knowledge of any such adjustment unless and
until it shall have received such a
certificate.
Rights
Certificates shall represent the right to purchase the
securities
purchasable under the terms of this
Agreement, including any adjustment or
change in the securities purchasable upon
exercise of the Rights, even though
such certificates may continue to express
the right to purchase the securities
purchasable at the time of issuance of the
initial Rights Certificates.
2.4
Date on Which
Exercise is Effective. Each person in whose name any
certificate for shares is issued upon the
exercise of Rights shall for all
purposes be deemed to have become the
holder of record of the shares represented
thereby on the date upon which the Rights
Certificate evidencing such Rights was
duly surrendered and payment of the
Exercise Price for such Rights (and any
applicable taxes and other governmental
charges payable by the exercising holder
hereunder) was made; provided, however,
that if the date of such surrender and
payment is a date upon which the stock
transfer books of the Corporation 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 stock transfer books of the
Corporation are open.
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2.5
Execution,
Authentication, Delivery and Dating of
-------------------------------------------------
Rights Certificates.
--------------------
(a) The Rights Certificates shall be executed on behalf of the
Corporation by its Chairman of the Board,
Chief Executive Officer, President or
one of its Vice Presidents, under its
corporate seal reproduced thereon and
attested by its Secretary or one of its
Assistant Secretaries. The signature of
any of these officers on the Rights
Certificates may be manual or facsimile.
Rights
Certificates bearing the manual or facsimile signatures of
individuals who were at the time of such
signature the proper officers of the
Corporation shall bind the Corporation,
notwithstanding that such individuals or
any of them have ceased to hold such
offices prior to the countersignature and
delivery of such Rights Certificates.
Promptly
after the Separation Time, the Corporation will notify the
Rights
Agent of such Separation Time and will
deliver Rights Certificates executed by
the Corporation to the Rights Agent for
countersignature, and, subject to
Section 3.1(b), an authorized signatory of
the Rights Agent shall manually
countersign and deliver such Rights
Certificates to the holders of the Rights
pursuant to Section 2.2(c). No Rights
Certificate shall be valid for any purpose
unless manually countersigned by an
authorized signatory of the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.6
Registration,
Registration of Transfer and Exchange.
----------------------------------------------------
(a) After the Separation Time, the Corporation will cause to be
kept
a register (the "Rights Register") in
which, subject to such reasonable
regulations as it may prescribe, the
Corporation will provide for the
registration and transfer of Rights. The
Rights Agent is hereby appointed
"Rights Registrar" for the purpose of
maintaining the Rights Register for the
Corporation and registering Rights and
transfers of Rights after the Separation
Time as herein provided. In the event that
the Rights Agent shall cease to be
the Rights Registrar, the Rights Agent will
have the right to examine the Rights
Register at all reasonable times after the
Separation Time.
After the
Separation Time and prior to the Expiration Time, upon
surrender
for registration of transfer or exchange of
any Rights Certificate, and subject
to the provisions of this Section 2.6(a)
and Sections 2.6(c) and 2.6(d), the
Corporation will execute and the Rights
Agent will countersign and deliver, in
the name of the holder or the designated
transferee or transferees, as required
pursuant to the holder's instructions, one
or more new Rights Certificates
evidencing the same aggregate number of
Rights as did the Rights Certificate so
surrendered.
(b) Except as otherwise provided in Section 3.1(b), all Rights
issued upon any registration of transfer or
exchange of Rights Certificates
shall be the valid obligations of the
Corporation, and such Rights shall be
entitled to the same benefits under this
Agreement as the Rights surrendered
upon such registration of transfer or
exchange.
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<PAGE>
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly
endorsed, or be accompanied by a written
instrument of transfer in form satisfactory
to the Corporation or the Rights
Agent, as the case may be, duly executed by
the holder thereof or such holder's
attorney duly authorized in writing.
Neither the Rights Agent nor the
Corporation shall be obligated to take any
action whatsoever with respect to the
transfer of any such surrendered Rights
Certificates until the registered holder
shall have completed and signed the
certificate contained in the form of
assignment on the reverse side of such
Rights Certificate and shall have
provided such additional evidence of the
identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or
Associates thereof as the Corporation
shall reasonably request. As a condition to
the issuance of any new Rights
Certificate under this Section 2.6, the
Corporation may require the payment of a
sum sufficient to cover any tax or other
governmental charge that may be imposed
in relation thereto.
(d) The Corporation shall not be required to register the
transfer
or exchange of any Rights after such Rights
have become void under Section
3.1(b), been exchanged under Section 3.1(c)
or been redeemed under Section 5.1.
2.7
Mutilated,
Destroyed, Lost and Stolen Rights Certificates.
----------------------------------------------------------
(a) If any mutilated Rights Certificate is surrendered to the
Rights
Agent prior to the Expiration Time, then,
subject to Sections 3.1(b), 3.1(c) and
5.1, the Corporation shall execute and the
Rights Agent shall countersign and
deliver in exchange therefor a new Rights
Certificate evidencing the same number
of Rights as did the Rights Certificate so
surrendered.
(b) If there shall be delivered to the Corporation and the
Rights
Agent prior to the Expiration Time (i)
evidence to their satisfaction of the
destruction, loss or theft of any Rights
Certificate and (ii) such security or
indemnity as may be required by them to
save each of them and any of their
agents harmless, then, subject to Sections
3.1(b), 3.1(c) and 5.1 and in the
absence of notice to the Corporation or the
Rights Agent that such Rights
Certificate has been acquired by a bona
fide purchaser, the Corporation shall
execute and upon its request the Rights
Agent shall countersign and deliver, in
lieu of any such destroyed, lost or stolen
Rights Certificate, a new Rights
Certificate evidencing the same number of
Rights as did the Rights Certificate
so destroyed, lost or stolen.
(c) As a condition to the issuance of any new Rights
Certificate
under this Section 2.7, the Corporation may
require the payment of a sum
sufficient to cover any tax or other
governmental charge that may be imposed in
relation thereto and any other expenses
(including the fees and expenses of the
Rights Agent) connected therewith.
(d) Every new Rights Certificate issued pursuant to this Section
2.7
in lieu of any destroyed, lost or stolen
Rights Certificate shall evidence an
original additional contractual obligation
of the Corporation, whether or not
the destroyed, lost or stolen Rights
Certificate shall be at any time
enforceable by anyone, and, subject to
Section 3.1(b), shall be entitled to all
the benefits of this Agreement equally and
proportionately with any and all
other Rights duly issued hereunder.
2.8
Persons
Deemed Owners. Prior to due presentment of a Rights
Certificate (or, prior to the Separation
Time, the associated Common Stock
certificate) for registration of transfer,
the Corporation, the Rights Agent and
any agent of the Corporation or the Rights
Agent may deem and treat the person
in whose name such Rights Certificate (or,
prior to the Separation Time, such
Common Stock certificate) is registered as
the absolute owner thereof and of the
Rights evidenced thereby for all purposes
whatsoever, and neither the
Corporation nor the Rights Agent shall be
affected by any notice to the
contrary. As used in this Agreement, unless
the context otherwise requires, the
term "holder" of any Rights shall mean the
registered holder of such Rights (or,
prior to the Separation Time, the
associated shares of Common Stock).
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<PAGE>
2.9
Delivery and
Cancellation of Certificates. All Rights Certificates
surrendered upon exercise or for
registration of transfer or exchange shall, if
surrendered to any Person other than the
Rights Agent, be delivered to the
Rights Agent and, in any case, shall be
promptly canceled by the Rights Agent.
The Corporation may at any time deliver to
the Rights Agent for cancellation any
Rights Certificates previously
countersigned and delivered hereunder which the
Corporation may have acquired in any
manner
