<PAGE>
TERMINATION AGREEMENT
This TERMINATION AGREEMENT, dated as of December 28, 2006
(this "Agreement"), is between Alpharma Inc., a Delaware
corporation (the
"COMPANY"), and Computershare Trust Company, N.A.
("COMPUTERSHARE").
WHEREAS, the Company and Computershare entered into a Public
Shareholder Protection Plan (the "PLAN"), dated as of November 22nd
2006, a copy
of which is attached hereto as Annex A.
WHEREAS, the Parties desire to terminate the Plan, as of the
date first set forth above (the "Termination Date").
NOW, THEREFORE, in consideration of the foregoing and for good
and valuable consideration, the adequacy of which is hereby
acknowledged, the
Parties agree as follows:
Section 1. Termination. The Parties agree that the Plan, is
terminated by mutual consent as of the Termination Date, and that
from and after
the Termination Date no Party will have any liability or obligation
to any other
Party under the Plan.
Section 2. Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE.
Section 3. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but
all of which
shall constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused its
duly authorized officer to execute and deliver this Termination
Agreement as of
December 28, 2006.
Alpharma Inc.
By: /s/ Robert
F. Wrobel
---------------------------------------
Name: Robert F.
Wrobel
Title: Executive Vice President &
Chief Legal Officer
Computershare Trust Company, N.A.
By: /s/ Dennis
V. Moccia
---------------------------------------
Name: Dennis V.
Moccia
Title: Managing Director
<PAGE>
ANNEX A
PUBLIC SHAREHOLDER PROTECTION PLAN
See attached.
<PAGE>
================================================================================
ALPHARMA INC.
and
Computershare Trust Company, N.A.
as Agent
Public Shareholder Protection Plan
Dated as of November 22, 2006
================================================================================
<PAGE>
PUBLIC SHAREHOLDER PROTECTION PLAN
This
Public Shareholder Protection Plan (this "PLAN"), dated as of
November 22, 2006, between Alpharma Inc., a Delaware corporation
(the
"COMPANY"), and Computershare Trust Company, N.A. as Agent (the
"AGENT").
RECITALS
WHEREAS, the Board of Directors of the Company has appointed a
Special
Committee of the Board of Directors (the "SPECIAL COMMITTEE") to
evaluate a
possible transaction between the Company and A.L. Industrier ASA,
the holder of
all of the outstanding Shares of Class B common stock of the
Company, or a
possible transaction that results in a significant change to the
Company's
capitalization.
WHEREAS, the Board of Directors at such meeting also authorized the
Special
Committee to recommend the Board of Directors to take such steps as
the Special
Committee deemed appropriate to protect the Company's shareholders
in connection
with such possible transactions.
WHEREAS, on November 20, 2006, the Special Committee recommended to
the
Board of Directors of the Company that the Board of Directors adopt
a Public
Shareholder Protection Plan.
WHEREAS, on November 22, 2006, the Board of Directors of the
Company
adopted this Plan, and has authorized and declared a dividend of
one preferred
share purchase right (a "RIGHT") for each Class A Common Share (as
defined in
Section 1.7) and each Class B Common Share (as defined in Section
1.8)
outstanding at the close of business on December 5, 2006 (the
"RECORD DATE") and
has authorized and directed the issuance of one Right (subject to
adjustment as
provided herein) with respect to each Common Share (as defined in
Section 1.11)
that shall become outstanding between the Record Date and the
earliest of the
Distribution Date and the Expiration Date (as such terms are
defined in Sections
3.1 and 7.1), each Right initially representing the right to
purchase one
one-thousandth (subject to adjustment) of a share of Series A
Junior
Participating Preferred Stock (the "PREFERRED SHARES") of the
Company having the
rights, powers and preferences set forth in the form of Certificate
of
Designations attached hereto as Exhibit A, upon the terms and
subject to the
conditions hereinafter set forth; provided, however, that Rights
may be issued
with respect to Common Shares that shall become outstanding after
the
Distribution Date and prior to the Expiration Date in accordance
with Section
22.
NOW,
THEREFORE, in consideration of the premises and the mutual
agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Plan, the
following
terms have the meanings indicated:
1
<PAGE>
1.1. "ACQUIRING PERSON" shall mean any Class B Holder who
takes an action that results in a Trigger Event occurring.
1.2. "AFFILIATE" and "ASSOCIATE" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules
and
Regulations under the Exchange Act as in effect on the date of this
Plan.
1.3. "AFFILIATE TRANSACTION" shall mean a merger or
combination of the Company with, or sale of a material portion of
the
Company's and its Subsidiaries' assets to, or any other similar
transaction
with, a Class B Holder or an Affiliate or Associate of a Class B
Holder.
1.4. A Person shall be deemed the "BENEFICIAL OWNER" of and
shall be deemed to "BENEFICIALLY OWN" and have "BENEFICIAL
OWNERSHIP" of
any
securities:
(i) which such Person or any of such Person's Affiliates or
Associates beneficially owns, directly or indirectly (as
determined
pursuant to Rule 13d-3 of the General Rules and Regulations under
the
Exchange Act as in effect on the date of this Plan);
(ii) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has (A) the right to
acquire
(whether such right is exercisable immediately, or only after
the
passage of time, compliance with regulatory requirements,
fulfillment
of a condition or otherwise) pursuant to any agreement, arrangement
or
understanding, whether or not in writing (other than customary
agreements with and between underwriters and selling group
members
with respect to a bona fide public offering of securities), or
upon
the exercise of conversion rights, exchange rights, rights,
warrants
or options, or otherwise; provided, however, that a Person shall
not
be deemed the Beneficial Owner of, or to beneficially own
securities
which such Person or any of such Person's Affiliates or Associates
may
acquire, does or do acquire or may be deemed to acquire or may
be
deemed to have the right to acquire, pursuant to any merger or
other
acquisition agreement between the Company and such Person (or one
or
more of such Person's Affiliates or Associates) if prior to
such
Person becoming an Acquiring Person both (1) the affirmative vote
of a
majority of the members of the Board Committee, and (2) the
affirmative vote of a majority of the votes cast thereon by the
holders of Common Shares (other than the Acquiring Person or any
of
its Affiliates or Associates) at a duly held meeting of such
shareholders have approved such agreement and determined that
such
Person shall not be or be deemed to be the Beneficial Owner of
such
securities within the meaning of this Section 1.4; or (B) the right
to
vote pursuant to any agreement, arrangement or understanding
(whether
or not in writing); provided, however, that a Person shall not
be
deemed the Beneficial Owner of, or to beneficially own, any
security
under this clause (B) 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 of the Exchange Act and (2) is not also
then
2
<PAGE>
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 (or any Affiliate or Associate thereof) and
with
respect to which such Person or any of such Person's 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),
whether or not in writing, for the purpose of acquiring,
holding,
voting (except pursuant to a revocable proxy or consent as
described
in the proviso to Section 1.4(ii)(B)) or disposing of any
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
Person's
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 1.4), including,
without
limitation, in a fiduciary capacity, by an Exempt Person or by any
other
such
officer, director or employee of an Exempt Person; and
provided,
further, no Person shall be deemed to be the "Beneficial Owner" of,
to have
"Beneficial Ownership" of or to "beneficially own" any securities
that are
"beneficially owned" pursuant to the ownership or exercise of
options
issued by the Company
to acquire Class A Common Shares.
1.5. "BOARD COMMITTEE" shall mean a committee of the Board
of
Directors of the Company comprised solely of disinterested
directors
independent of the Class B Holder and any of its Affiliates and
Associates;
provided, however, that any director of such committee shall not be
deemed
interested and not independent of the Class B Holder and any of
its
Affiliates and Associates solely by virtue of the fact that that
director
was
nominated and/or elected by the Class B Holder.
1.6. "BUSINESS DAY" shall mean any day other than a
Saturday, Sunday, or a day on which banking institutions in the
State of
New
York are authorized or obligated by law or executive order to
close.
1.7. "CLASS A COMMON SHARES" shall mean the shares of Class
A
Common Stock, par value $.20 per share, of the Company.
1.8. "CLASS B COMMON SHARES" shall mean the shares of Class
B
Common Stock, par value $.20 per share, of the Company.
1.9. "CLASS B HOLDER" shall mean any Person which, together
with
such Person's Affiliates and Associates, is the Beneficial Owner
of
50%
or more of the Class B Common Shares then outstanding, but shall
not
include an Exempt Person (as such term is hereinafter defined). For
all
purposes of this Plan, any calculation of the number of Class B
Common
Shares outstanding at any particular time, including for purposes
of
determining the particular percentage of such outstanding Class B
Common
Shares 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 of this Plan.
3
<PAGE>
1.10. "CLOSE OF BUSINESS" on any given date shall mean 5:00
p.m., New York time, on such date; provided, however, that if such
date is
not
a Business Day it shall mean 5:00 p.m., New York time, on the
next
succeeding Business Day.
1.11. "COMMON SHARES" when used with reference to the
Company shall mean, collectively, the Class A Common Shares and the
Class B
Common Shares. "COMMON SHARES" when used with reference to any
Person other
than
the Company shall mean the capital stock with the greatest
voting
power, or the equity securities or other equity interest having
power to
control or direct the management, of such other Person or, if such
Person
is a
Subsidiary (as such term is hereinafter defined) of another
Person,
the
Person or Persons which ultimately control such first-mentioned
Person,
and
which has issued and outstanding such capital stock, equity
securities
or
equity interest.
1.12. "EXEMPT PERSON" shall mean the Company and 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 shares
of
capital stock of the Company for or pursuant to the terms of any
such plan,
or
for the purpose of funding other employee benefits for employees of
the
Company or any Subsidiary of the Company.
1.13. "PERSON" shall mean any individual, partnership, joint
venture, limited liability company, firm, corporation,
unincorporated
association, trust or other entity, and shall include any successor
(by
merger or otherwise) of such entity.
1.14. "SUBSIDIARY" of any Person shall mean any corporation
or
other entity of which a majority of the voting power of the
voting
equity securities or equity interests is owned, of record or
beneficially,
directly or indirectly, by such Person.
1.15. A "TRIGGER EVENT" shall be deemed to have occurred
upon
the earliest of (i) a Class B Holder acquiring Beneficial Ownership
of
more
than 1% of the outstanding Class A Common Shares (other than
through
ownership or conversion of the Class B Common Shares) on or after
the date
the
Class B Holder first becomes a Class B Holder; (ii) a Class B
Holder
publicly announcing (by press release, filing with the Securities
and
Exchange Commission or otherwise) its intent to acquire
Beneficial
Ownership of more than 1% of the outstanding Class A Common Shares
(other
than
through ownership or conversion of the Class B Common Shares),
including, without limitation, in a tender or exchange offer, on or
after
the
date the Class B Holder first becomes a Class B Holder; and (iii)
a
Class B Holder announcing its intent to cause the Company to effect
an
Affiliate Transaction.
1.16. The following terms shall have the meanings defined
for
such terms in the Sections set forth below:
<TABLE>
<CAPTION>
Term
Section
----
-------
<S>
<C>
Agent
Preamble
Adjustment Shares
11.1.2
common stock equivalent
11.1.3
Company
Preamble
current per share market price 11.4.1
</TABLE>
4
<PAGE>
<TABLE>
<S>
<C>
Current Value
11.1.3
Distribution Date
3.1
equivalent preferred stock
11.2
Exchange Act
1.9
Exchange Consideration
27.1
Expiration Date
7.1
Final Expiration Date
7.1
NYSE
9
Plan
Preamble
Preferred Shares
Recitals
Principal Party
13.2
Purchase Price
4
Record Date
Recitals
Redemption Date
7.1
Redemption Price
23.1
Right
Recitals
Right Certificate
3.1
Agent
Recitals
SEC
1.15
Security
11.4.1
Special Committee
Recitals
Spread
11.1.3
Substitution Period
11.1.3
Summary of Rights
3.2
Trading Day
11.4.1
Trigger Event Announcement Date 3.1
</TABLE>
Section 2. Appointment of Agent.
2.1. The Company hereby appoints the Agent to act as agent
for
the Company and the holders of the Rights (who, in accordance
with
Section 3, shall prior to the Distribution Date also be the holders
of the
Common Shares) in accordance with the terms and conditions hereof,
and the
Agent hereby accepts such appointment. The Company may from time to
time
appoint such co-Agents as it may deem necessary or desirable, upon
ten (10)
days' prior written notice to the Agent. The Agent shall have no
duty to
supervise, and in no event be liable for, the acts or omissions of
any such
co-Agents.
2.2. In the event the Company appoints one or more
co-Agents, the
respective duties of the Agent and any co-Agent shall be as
the
Company shall determine. Contemporaneously with such appointment,
if
any,
the Company shall notify the Agent thereof.
Section 3. Issuance of Right Certificates.
3.1. Rights Evidenced by Share Certificates. Until the
Distribution Date, (x) the Rights (unless earlier expired, redeemed
or
terminated) will be evidenced (subject to the provisions of Section
3.2) by
the
certificates for Common Shares registered in the names of the
holders
thereof (which certificates for Common Shares shall also be deemed
to be
Right
5
<PAGE>
Certificates) and not by separate certificates, and (y) the Rights
(and the
right to receive certificates therefor) will be transferable only
in
connection with the transfer of the underlying Common Shares. A
"DISTRIBUTION DATE" shall mean the earliest date on which a Trigger
Event
occurs, but shall be suspended if the Acquiring Person enters into
an
agreement with the Company not to consummate the underlying
transaction
without approval of both (i) the affirmative vote of a majority of
the
members of the Board Committee, and (ii) the affirmative vote of a
majority
of
the votes cast thereon by the holders of Common Shares (other than
the
Acquiring Person or any of its Affiliates or Associates) at a duly
held
meeting of such shareholders; provided, however, if such
transaction is not
so
approved, but the Class B Holder nevertheless continues to pursue
such
transaction, the Distribution Date shall be deemed to have occurred
on the
date
of the original announcement (such date, the "TRIGGER EVENT
ANNOUNCEMENT DATE") of such transaction. Upon the occurrence of a
Trigger
Event Announcement Date, the Company shall send notice to the Agent
that a
Trigger Event Announcement Date has occurred and the Agent will
provide to
the
Company a list of all record holders of Common Shares as of the
close
of
business on the Trigger Event Announcement Date. As soon as
practicable
after the Distribution Date, the Company will prepare and execute,
the
Agent will countersign and the Company (or, if requested, the
Agent) will
send, by first-class, postage-prepaid mail, to each record holder
of Common
Shares 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, one or
more
certificates for Rights, in substantially the form of Exhibit B
hereto (a
"RIGHT CERTIFICATE"), evidencing one Right (subject to adjustment
as
provided herein) for each Common Share so held. As of the
Distribution
Date, the Rights will be evidenced solely by such Right
Certificates.
3.2. Summary of Rights. On the Record Date or as soon as
practicable thereafter, the Company will send or cause to be sent a
copy of
a
Summary of Rights to Purchase Preferred Shares, in substantially
the form
attached hereto as Exhibit C (the "SUMMARY OF RIGHTS"), by
first-class,
postage-prepaid mail, to each record holder of Common Shares as of
the
close of business on the Record Date at the address of such holder
shown on
the
records of the Company. With respect to certificates for Common
Shares
outstanding as of the close of business on the Record Date, until
the
Distribution Date (or the earlier Expiration Date), the Rights will
be
evidenced by such certificates for Common Shares registered in the
names of
the
holders thereof together with a copy of the Summary of Rights and
the
registered holders of
the Common Shares shall also be registered holders of
the
associated Rights. Until the Distribution Date (or the earlier
Expiration Date), the surrender for transfer of any certificate for
Common
Shares outstanding at the close of business 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 Shares represented
thereby.
3.3. New Certificates After Record Date. Certificates for
Common Shares which become outstanding (whether upon issuance out
of
authorized but unissued Common Shares, disposition out of treasury
or
transfer or
6
<PAGE>
exchange of outstanding Common Shares) after the Record Date, but
prior to
the
earliest of the Distribution Date or the Expiration Date, shall
have
impressed, printed, stamped, written or otherwise affixed onto them
the
following legend:
This
certificate also evidences and entitles the holder hereof to
certain rights (the "RIGHTS") as set forth in the Public
Shareholder
Protection Plan between Alpharma Inc. (the "COMPANY") and
Computershare Trust Company, N.A. as Agent, as the same may be
amended
from time to time (the "PLAN"), 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 Plan, 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 Plan without charge after receipt of a written
request
therefor. AS DESCRIBED IN THE PLAN, RIGHTS WHICH ARE OWNED BY,
TRANSFERRED TO OR HAVE BEEN OWNED BY ACQUIRING PERSONS OR
ASSOCIATES
OR AFFILIATES THEREOF (AS DEFINED IN THE PLAN) SHALL BECOME NULL
AND
VOID AND WILL NO LONGER BE TRANSFERABLE.
With respect to such certificates containing the foregoing legend,
until the
Distribution Date (or the earlier Expiration Date), the Rights
associated with
the Common Shares represented by such certificates shall be
evidenced by such
certificates alone, and the surrender for transfer of any such
certificates,
except as otherwise provided herein, shall also constitute the
transfer of the
Rights associated with the Common Shares represented thereby. In
the event that
the Company purchases or acquires any Common Shares after the
Record Date but
prior to the Distribution Date, any Rights associated with such
Common Shares
shall be deemed canceled and retired so that the Company shall not
be entitled
to exercise any Rights associated with the Common Shares which are
no longer
outstanding.
Notwithstanding this Section 3.3, the omission of a legend shall
not affect
the enforceability of any part of this Plan 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, certification and assignment
to be printed
on the reverse thereof) shall be substantially the same as 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 Plan, or as may be
required to
comply with any applicable law or with any rule or regulation made
pursuant
thereto or with any rule or regulation of any stock exchange or
trading system
on which the Rights may from time to time be listed or quoted, or
to conform to
usage. Subject to the terms and conditions hereof, the Right
Certificates,
whenever issued, shall be dated as of the Record Date, and shall
show the date
of countersignature by the Agent, and on their face shall entitle
the holders
thereof to purchase such number of one one-thousandths of a
Preferred Share as
shall be set forth therein at the price per one one-thousandth of a
Preferred
Share set forth therein (the "PURCHASE PRICE"), but the number of
such one
one-thousandths of a Preferred Share and the Purchase Price shall
be subject to
adjustment as provided herein.
7
<PAGE>
Section 5. Countersignature and Registration. The Right
Certificates shall
be executed on behalf of the Company by any member of the Board,
its President
or any of its Vice Presidents, either manually or by facsimile
signature. The
Right Certificates shall be countersigned, either manually or by
facsimile
signature, by an authorized signatory of the Agent, but it shall
not be
necessary for the same signatory to countersign all of the Right
Certificates
hereunder. No Right Certificate shall be valid for any purpose
unless so
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 Agent and issuance and delivery by the
Company, such
Right Certificates, nevertheless, may be countersigned by the
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 Plan any such person was not such
an officer.
Following the Distribution Date, the Agent will keep or cause to be
kept,
at its principal office, 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, the certificate
number of 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. Subject
to the provisions of Section 11.1.2 and Section 14, at any time
after the close
of business on the Distribution Date, and at or prior to the close
of business
on the Expiration Date, any Right Certificate or Right Certificates
(other than
Right Certificates representing Rights that have become void
pursuant to Section
11.1.2 or that have been exchanged pursuant to Section 27) may be
transferred,
split up or 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 Preferred Share as the Right Certificate or
Right
Certificates surrendered then entitled such holder to purchase. Any
registered
holder desiring to transfer, split up or combine or exchange any
Right
Certificate shall make such request in writing delivered to the
Agent, and shall
surrender, together with any required form of assignment and
certificate duly
completed, the Right Certificate or Right Certificates to be
transferred, split
up or combined or exchanged at the office of the Agent designated
for such
purpose. Neither the Agent nor the Company shall be obligated to
take any action
whatsoever with respect to the transfer of any such surrendered
Right
Certificate or Right Certificates until the registered holder shall
have
completed and signed the certificate contained in the form of
assignment on the
reverse side of such Right Certificate or Right Certificates and
shall have
provided such additional evidence of the identity of the Beneficial
Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the
Company
shall reasonably request. Thereupon the 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 from
the holders
of Right Certificates of a sum sufficient to cover any tax or
governmental
charge that may be imposed in connection with any transfer, split
up or
combination or exchange of such Right Certificates.
8
<PAGE>
Subject to the provisions of Section 11.1.2, at any time after
the
Distribution Date and prior to the Expiration Date, upon receipt by
the Company
and the 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 Company's request, reimbursement to the Company and the Agent
of all
reasonable expenses incidental thereto, and upon surrender to the
Agent and
cancellation of the Right Certificate if mutilated, the Company
will make and
deliver a new Right Certificate of like tenor to the Agent for
countersignature
and delivery to the registered owner in lieu of the Right
Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of
Rights.
7.1. Exercise of Rights. Subject to Section 11.1.2 and
except as otherwise provided herein, the registered holder of any
Right
Certificate may exercise the Rights evidenced thereby in whole or
in part
at
any time after the Distribution Date upon surrender of the
Right
Certificate, with the form of election to purchase and
certification on the
reverse side thereof duly executed, to the Agent at the office of
the Agent
designated for such purpose, together with payment of the
aggregate
Purchase Price for the total number of one one-thousandths of a
Preferred
Share (or other securities, cash or other assets) as to which the
Rights
are
exercised, at or prior to the time (the "EXPIRATION DATE") that is
the
earliest of (i) the close of business on November 22, 2016 (the
"FINAL
EXPIRATION DATE"), (ii) the time at which the Rights are redeemed
as
provided in Section 23 (the "REDEMPTION DATE"), (iii) the closing
of any
merger or other acquisition transaction involving the Company
pursuant to
an
agreement of the type described in Section 13.3 at which time the
Rights
are
deemed terminated, or (iv) the time at which the Rights are
exchanged
as
provided in Section 27.
7.2. Purchase. The Purchase Price for each one
one-thousandth of a Preferred Share pursuant to the exercise of a
Right
shall be initially $120.00, shall be subject to adjustment from
time to
time
as provided in Sections 11, 13 and 26 and shall be payable in
lawful
money of the United States of America in accordance with Section
7.3.
7.3. Payment Procedures. Upon receipt of a Right Certificate
representing exercisable Rights, with the form of election to
purchase and
certification duly executed, accompanied by payment of the
aggregate
Purchase Price for the total number of one one-thousandths of a
Preferred
Share 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, in cash or by certified or cashier's check or money
order
payable to the order of the Company, the Agent shall thereupon
promptly
(i)(A) requisition from any transfer agent of the Preferred Shares
(or make
available, if the Agent is the transfer agent) certificates for the
number
of
Preferred Shares to be purchased and the Company hereby
irrevocably
authorizes its transfer agent to comply with all such requests, or
(B) if
the
Company shall have elected to deposit the total number of
Preferred
Shares issuable upon exercise of the Rights hereunder with a
depository
agent, requisition from the depositary agent
9
<PAGE>
depositary receipts representing interests in such number of
one
one-thousandths of a Preferred Share as are to be purchased (in
which case
certificates for the Preferred Shares represented by such receipts
shall be
deposited by the transfer agent with the depositary agent) and the
Company
hereby directs the depositary agent to comply with all such
requests, (ii)
when
appropriate, requisition from the Company the amount of cash to
be
paid
in lieu of the issuance of fractional shares in accordance with
Section 14 or otherwise in accordance with Section 11.1.3, (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. In
the
event that the Company is obligated to issue other securities of
the
Company, pay cash and/or distribute other property pursuant to
Section
11.1.3, the Company will make all arrangements necessary so that
such other
securities, cash and/or other property are available for
distribution by
the
Agent, if and when appropriate.
7.4. Partial Exercise. In case the registered holder of any
Right Certificate shall exercise less than all the Rights
evidenced
thereby, a new Right Certificate evidencing Rights equivalent to
the Rights
remaining unexercised shall be issued by the Agent and delivered to
the
registered holder of such Right Certificate or to his duly
authorized
assigns, subject to the provisions of Section 14.
7.5. Full Information Concerning Ownership. Notwithstanding
anything in this Plan to the contrary, neither the 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 exercise as
set forth
in
this Section 7 unless the certificate contained in the form of
election
to
purchase set forth on the reverse side of the Right Certificate
surrendered for such exercise shall have been duly completed and
signed by
the
registered holder thereof and the Company shall have been provided
with
such
additional evidence of the identity of the Beneficial Owner (or
former
Beneficial Owner) or Affiliates or Associates thereof as the
Company shall
reasonably request.
Section 8. Cancellation and Destruction of 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 Agent for cancellation or in canceled
form, or, if
surrendered to the 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 Plan. The Company shall deliver to the Agent for
cancellation
and retirement, and the Agent shall so cancel and retire, any other
Right
Certificate purchased or acquired by the Company otherwise than
upon the
exercise thereof. The 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.
10
<PAGE>
Section 9. Reservation and Availability of Capital Stock. The
Company
covenants and agrees that from and after the Distribution Date it
will cause to
be reserved and kept available out of its authorized and unissued
Preferred
Shares (and, following the occurrence of a Trigger Event, out of
its authorized
and unissued Class A Common Shares or other securities or out of
its shares held
in its treasury) the number of Preferred Shares (and, following the
occurrence
of a Trigger Event, Class A Common Shares and/or other securities)
that will be
sufficient to permit the exercise in full of all outstanding
Rights.
So
long as the Preferred Shares (and, following the occurrence of a
Trigger
Event, Class A Common Shares and/or other securities) issuable upon
the exercise
of Rights may be listed on any national securities exchange or
traded in the
over-the-counter market and quoted on the New York Stock Exchange,
Inc. (the
"NYSE"), 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 admitted to trading on such exchange or quoted on the
NYSE upon
official notice of issuance upon such exercise.
The
Company covenants and agrees that it will take all such action as
may
be necessary to ensure that all Preferred Shares (and, following
the occurrence
of a Trigger Event, Class A Common Shares and/or other securities)
delivered
upon exercise of Rights shall, at the time of delivery of the
certificates for
such shares (subject to payment of the Purchase Price), be duly and
validly
authorized and issued and fully paid and nonassessable shares.
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
Preferred Shares upon the exercise of Rights, to register and
qualify such
Preferred Shares 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 until the earlier of the date as of which the Rights are
no longer
exercisable for such securities and the Expiration Date. The Board
Committee may
cause the Company to temporarily suspend, for a period of time not
to exceed
ninety (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 Board Committee shall
cause the Company
to 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 Plan 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 (if required)
shall have been
declared effective.
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 Preferred Shares (or Class A Common Shares and/or other
securities, as the
case may be) upon the exercise of Rights. The Company shall not,
however, be
required to pay any transfer tax which may be payable in respect of
any transfer
or delivery of Right Certificates to a person other than, or the
issuance or
delivery of certificates for the Preferred Shares (or Class A
Common Shares
and/or other securities, as the case may be) in a name other than
that of, the
registered holder of the Right Certificate
11
<PAGE>
evidencing Rights surrendered for exercise or to issue or deliver
any
certificates for Preferred Shares (or Class A Common Shares and/or
other
securities, as the case may be) in a name other than that of the
registered
holder upon the exercise of any Rights until any such tax shall
have been paid
(any such tax being payable by the holder of such Right Certificate
at the time
of surrender) or until it has been established to the Company's
satisfaction
that no such tax is due.
Section 10. Preferred Shares Record Date. Each person in whose name
any
certificate for Preferred Shares (or Class A Common Shares and/or
other
securities, as the case may be) is issued upon the exercise of
Rights shall for
all purposes be deemed to have become the holder of record of the
Preferred
Shares (or Class A Common Shares and/or other securities, as the
case may be)
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 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 Shares (or Class A Common Shares and/or other securities,
as the case
may be) transfer books of the Company are closed, such person shall
be deemed to
have become the record holder of such shares (fractional or
otherwise) on, and
such certificate shall be dated, the next succeeding Business Day
on which the
Preferred Shares (or Class A Common Shares and/or other securities,
as the case
may be) transfer books of the Company are open. Prior to the
exercise of the
Rights evidenced thereby, the holder of a Right Certificate shall
not be
entitled to any rights of a holder of Preferred Shares 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 of Shares or
Number of
Rights. The Purchase Price, the number of Preferred Shares 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.
11.1. Post-Execution Events.
11.1.1. Corporate Dividends, Reclassifications, Etc. In the
event
the Company shall at any time after the date of this Plan (A)
declare
and pay a dividend on the Preferred Shares payable in Preferred
Shares, (B) subdivide the outstanding Preferred Shares, (C)
combine
the outstanding Preferred Shares into a smaller number of
Preferred
Shares or (D) issue any shares of its capital stock in a
reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in
which
the Company is the continuing or surviving corporation), except
as
otherwise provided in this Section 11.1, the Purchase Price in
effect
at
the time of the record date for such dividend or of the
effective
date of such subdivision, combination or reclassification, and
the
number and kind of shares of capital stock issuable on such
date,
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 Shares transfer books of the Company were open, he
would
have owned upon such exercise and been entitled to receive by
virtue
of
12
<PAGE>
such dividend,
subdivision, combination or reclassification; 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. If an event occurs which would require an adjustment under
both
Section 11.1.1 and Section 11.1.2, the adjustment provided for in
this
Section 11.1.1 shall be in addition to, and shall be made prior
to,
the adjustment required pursuant to, Section 11.1.2.
11.1.2. Acquiring Person Events; Triggering Events. Subject to
Sections 23.1 and 27, from and after the Distribution Date,
each
holder of a Right, except as provided below, shall thereafter have
a
right to receive, upon exercise thereof at a price per Right equal
to
the then current Purchase Price multiplied by the number of one
one-thousandths of a Preferred Share for which a Right is then
exercisable (without giving effect to this Section 11.1.2), in
accordance with the terms of this Plan and in lieu of Preferred
Shares, such number of Class A Common Shares as shall equal the
result
obtained by (x) multiplying the then current Purchase Price by
the
then number of one one-thousandths of a Preferred Share for which
a
Right is then exercisable (without giving effect to this
Section
11.1.2)
and (y) dividing that product by 50% of the current per share
market price of the Class A Common Shares (determined pursuant
to
Section 11.4) on the first of the date of the occurrence of, or
the
date of the first public announcement of, a Trigger Event (the
"ADJUSTMENT SHARES"); provided that the Purchase Price and the
number
of Adjustment Shares shall thereafter be subject to further
adjustment
as appropriate in accordance with Section 11.6. Notwithstanding
the
foregoing, upon the occurrence of a Trigger Event, any Rights that
are
or were acquired or beneficially owned by (1) any Acquiring Person
or
any Associate or Affiliate thereof, (2) a transferee of any
Acquiring
Person (or of any such Associate or Affiliate) who becomes a
transferee after the Acquiring Person becomes such, or (3) a
transferee of any Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or concurrently with
the
Acquiring Person becoming such and receives such Rights pursuant
to
either (A) a transfer (whether or not for consideration) from
the
Acquiring Person to holders of equity interests in such
Acquiring
Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding
the
transferred Rights or (B) a transfer which a Board Committee
has
determined
is part of a plan, arrangement or understanding which has
as a primary purpose or effect avoidance of this Section 11.1.2,
and
subsequent transferees, shall become void without any further
action,
and any holder (whether or not such holder is an Acquiring Person
or
an Associate or Affiliate of an Acquiring Person) of such Rights
shall
thereafter have no right to exercise such Rights under any
provision
of this Plan (including, without limitation, Section 7.1 or
this
Section 11.1.2) or otherwise. From and after the Trigger Event,
no
Right Certificate shall be issued pursuant to Section 3 or Section
6
that represents Rights that are or have become void pursuant to
the
provisions of this paragraph, and any Right Certificate delivered
to
the Agent that represents Rights that are or have become void
pursuant
to the provisions of this paragraph shall be canceled.
13
<PAGE>
The Company shall use all reasonable efforts to ensure that the
provisions of this Section 11.1.2 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
any
Acquiring Person or its Affiliates, Associates or transferees
hereunder.
From and after the occurrence of an event specified in Section
13.1, any Rights that theretofore have not been exercised pursuant
to
this Section 11.1.2 shall thereafter be exercisable only in
accordance
with Section 13 and not pursuant to this Section 11.1.2.
11.1.3. Insufficient Shares. The Board Committee may at its
option cause the Company to substitute for a Class A Common
Share
issuable upon the exercise of Rights in accordance with the
foregoing
Section 11.1.2 a number of Preferred Shares or fraction thereof
such
that the current per share market price of one Preferred Share
multiplied by such number or fraction is equal to the current
per
share market price of one Class A Common Share. In the event that
upon
the occurrence of a Trigger Event there shall not be sufficient
Class
A Common Shares authorized but unissued, or held by the Company
as
treasury shares, to permit the exercise in full of the Rights
in
accordance with the foregoing Section 11.1.2, the Company shall
take
all such action as may be necessary to authorize additional Class
A
Common Shares for issuance upon exercise of the Rights,
provided,
however, that if the Board Committee determines that the Company
is
unable to cause the authorization of a sufficient number of
additional
Class A Common Shares, then, in the event the Rights become
exercisable, the Board Committee, with respect to each Right and
to
the extent necessary and permitted by applicable law and any
agreements or instruments in effect on the date hereof to which it
is
a party, shall: (A) determine the excess of (1) the value of
the
Adjustment Shares issuable upon the exercise of a Right (the
"CURRENT
VALUE"), over (2) the Purchase Price (such excess, the "SPREAD")
and
(B) with respect to each Right (other than Rights which have
become
void pursuant to Section 11.1.2), cause the Company to make
adequate
provision to substitute for the Adjustment Shares, upon payment of
the
applicable Purchase Price, (1) cash, (2) a reduction in the
Purchase
Price, (3) Preferred Shares or other equity securities of the
Company
(including, without limitation, shares, or fractions of shares,
of
preferred stock which, by virtue of having dividend and
liquidation
rights substantially comparable to those of the Class A Common
Shares,
the Board Committee has deemed in good faith to have substantially
the
same value as Class A Common Shares) (each such share of
preferred
stock or fractions of shares of preferred stock constituting a
"COMMON
STOCK EQUIVALENT"), (4) debt securities of the Company, (5)
other
assets or (6) any combination of the foregoing having an
aggregate
value equal to the Current Value, where such aggregate value has
been
determined by the (Board Committee based upon the advice of a
nationally recognized investment banking firm selected in good
faith
by the Board Committee; provided, however, that if the Company
shall
not have made adequate provision to deliver value pursuant to
clause
(B) above within thirty (30) days following the
14
<PAGE>
occurrence of a Trigger Event, then the Company shall be obligated
to
deliver, to the extent necessary and permitted by applicable law
and
any agreements or instruments in effect on the date hereof to which
it
is a party, upon the surrender for exercise of a Right and
without
requiring payment of the Purchase Price, Class A Common Shares (to
the
extent available) and then, if necessary, such number or fractions
of
Preferred Shares (to the extent available) and then, if
necessary,
cash, which shares and/or cash have an aggregate value equal to
the
Spread. If
the Board Committee of the Company shall determine in good
faith that it is unlikely that sufficient additional Class A
Common
Shares could be authorized for issuance upon exercise in full of
the
Rights, the thirty (30) day period set forth above may be extended
and
re-extended to the extent necessary, but not more than ninety
(90)
days following the occurrence of a Trigger Event, in order that
the
Company may seek stockholder approval for the authorization of
such
additional shares (such period as may be extended, the
"SUBSTITUTION
PERIOD"). To the extent that the Board Committee determines that
some
action need be taken pursuant to the second and/or third sentences
of
this Section 11.1.3, the Company (x) shall provide 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 first 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 11.1.3, the value of a Class A Common Share shall be
the
current per share market price (as determined pursuant to
Section
11.4) on the date of the occurrence of a Trigger Event and the
value
of any "common stock equivalent" shall be deemed to have the
same
value as the Class A Common Shares on such date. The Board
Committee
may, but shall not be required to, establish procedures to
allocate
the right to receive Class A Common Shares upon the exercise of
the
Rights among holders of Rights pursuant to this Section 11.1.3.
11.2. Dilutive Rights Offering. In case the Company shall
fix
a record date for the issuance of rights, options or warrants to
all
holders of Preferred Shares entitling them (for a period expiring
within
forty-five (45) calendar days after such record date) to subscribe
for or
purchase Preferred Shares (or securities having the same rights,
privileges
and
preferences as the Preferred Shares ("EQUIVALENT PREFERRED STOCK"))
or
securities convertible into Preferred Shares or equivalent
preferred stock
at a
price per Preferred Share or per share of equivalent preferred
stock
(or
having a conversion or exercise price per share, if a security
convertible into or exercisable for Preferred Shares or
equivalent
preferred stock) less than the current per share market price of
the
Preferred Shares (as determined pursuant to Section 11.4) 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
Preferred Shares and shares of equivalent preferred stock
outstanding on
such
record date plus the number of Preferred Shares and shares of
equivalent preferred stock
15
<PAGE>
which the aggregate
offering price of the total number of Preferred Shares
and/or shares of equivalent preferred stock to be offered (and/or
the
aggregate initial conversion price of the convertible securities so
to be
offered) would purchase at such current per share market price and
the
denominator of which shall be the number of Preferred Shares and
shares of
equivalent preferred stock outstanding on such record date plus the
number
of
additional Preferred Shares and/or shares of equivalent preferred
stock
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 Committee of the Company,
whose
determination shall be described in a statement filed with the
Agent and
shall be binding on the Agent and the holders of the Rights.
Preferred
Shares and shares of equivalent preferred stock owned by or held
for the
account of the Company or any Subsidiary of the Company shall not
be deemed
outstanding for the purpose of any such computation. Such
adjustments shall
be
made successively whenever such a record date is fixed; and in the
event
that
such rights or warrants are not so issued, the Purchase Price shall
be
adjusted to be the Purchase Price which would then be in effect if
such
record date had not been fixed.
11.3. Distributions. In case the Company shall fix a record
date
for the making of a distribution to all holders of the
Preferred
Shares (including any such distribution made in connection with
a
consolidation or merger in which the Company is the continuing or
surviving
corporation) of evidences of indebtedness, cash, securities or
assets
(other than a regular periodic cash dividend at a rate not in
excess of
125%
of the rate of the last regular periodic cash dividend
theretofore
paid
or, in case regular periodic cash dividends have not theretofore
been
paid, at a rate not in excess of 50% of the average net income per
share of
the
Company for the four quarters ended immediately prior to the
payment of
such
dividend, or a dividend payable in Preferred Shares (which
dividend,
for
purposes of this Plan, shall be subject to the provisions of
Section
11.1.1(A))) or convertible securities, or subscription rights or
warrants
(excluding those referred to in Section 11.2), the Purchase Price
to be in
effect after such record date shall be determined by multiplying
the
Purchase Price in effect immediately prior to such record date by
a
fraction, the numerator of which shall be the current per share
market
price of the Preferred Shares (as determined pursuant to Section
11.4) on
such
record date, less the fair market value (as determined in good
faith
by
the Board Committee of the Company, whose determination shall
be
described in a statement filed with the Agent) of the portion of
the cash,
assets, securities or evidences of indebtedness so to be
distributed or of
such
subscription rights or warrants applicable to one Preferred Share
and
the
denominator of which shall be such current per share market price
of
the
Preferred Shares (as determined pursuant to Section 11.4);
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
16
<PAGE>
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.
11.4. Current Per Share Market Value.
11.4.1. General. For the purpose of any computation hereunder,
the "CURRENT PER SHARE MARKET PRICE" of any security (a "SECURITY"
for
the purpose of this Section 11.4.1) on any date shall be deemed to
be
the average of the daily closing prices per share of such Security
for
the thirty (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 any period following the announcement by the
issuer
of such Security of (i) a dividend or distribution on such
Security
payable in shares of such Security or securities convertible into
such
shares or (ii) any subdivision, combination or reclassification
of
such Security, and prior to the expiration of thirty (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 in the
principal
consolidated transaction reporting system with respect to
securities
listed or admitted to trading on the NYSE or, if the Security is
not
listed or admitted to trading on the NYSE, 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 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. If on any such date no
such
market maker is making a market in the Security, the fair value of
the
Security on such date as determined in good faith by the Board
of
Directors of the Company shall be used. 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. If
the
Security is not publicly held or not so listed or traded, or if on
any
such date the Security is not so quoted and no such market maker
is
making a market in the Security, "current per share market
price"
shall mean the fair value per share as determined in good faith by
the
Board Committee of the Company or, if at the time of such
determination there is an Acquiring Person, by a nationally
recognized
investment banking firm selected by the Board Committee, which
shall
have the
duty to make
17
<PAGE>
such determination in a reasonable and objective manner, whose
determination shall be described in a statement filed with the
Agent
and shall be conclusive for all purposes.
11.4.2. Preferred Shares. Notwithstanding Section 11.4.1, for
the
purpose of any computation hereunder, the "current per share
market
price" of the Preferred Shares shall be determined in the same
manner
as set forth above in Section 11.4.1 (other than the last
sentence
thereof). If the current per share market price of the
Preferred
Shares cannot be determined in the manner described in Section
11.4.1,
the "current per share market price" of the Preferred Shares shall
be
conclusively deemed to be an amount equal to 1,000 (as such number
may
be appropriately adjusted for such events as stock splits,
stock
dividends and recapitalizations with respect to the Common
Shares
occurring after the date of this Plan) multiplied by the current
per
share market price of the Common Shares (as determined pursuant
to
Section 11.4.1). If neither the Common Shares nor the Preferred
Shares
are publicly held or so listed or traded, or if on any such
date
neither the Common Shares nor the Preferred Shares are so quoted
and
no such market maker is making a market in either the Common Shares
or
the Preferred Shares, "current per share market price" of the
Preferred Shares shall mean the fair value per share as determined
in
good faith by the Board Committee of the Company, or, if at the
time
of such determination there is an Acquiring Person, by a
nationally
recognized investment banking firm selected by the Board Committee
of
the Company, which shall have the duty to make such determination
in a
reasonable and objective manner, which determination shall be
described in a statement filed with the Agent and shall be
conclusive
for all purposes. For purposes of this Plan, the "current per
share
market price" of one one-thousandth of a Preferred Share shall
be
equal to the "current per share market price" of one Preferred
Share
divided by 1,000.
18
<PAGE>
11.5. Insignificant Changes. 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. Any adjustments
which by
reason of this Section 11.5 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 Preferred Share or the
nearest
one-thousandth of a Common Share or other share or security, as the
case
may
be.
11.6. Shares Other Than Preferred Shares. If as a result of
an
adjustment made pursuant to Section 11.1, the holder of any
Right
thereafter exercised shall become entitled to receive any shares of
capital
stock of the Company other than Preferred Shares, thereafter the
number of
such
other shares so receivable upon exercise of any 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
Shares contained in Sections 11.1, 11.2, 11.3, 11.5, 11.8, 11.9 and
11.13,
and
the provisions of Sections 7, 9, 10, 13 and 14 with respect to
the
Preferred Shares shall apply on like terms to any such other
shares.
11.7. Rights Issued Prior to Adjustment. 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
Preferred
Share purchasable from time to time hereunder upon exercise of the
Rights,
all
subject to further adjustment as provided herein.
11.8. Effect of Adjustments. Unless the Board Committee
shall have caused the Company to have exercised its election as
provided in
Section 11.9, upon each adjustment of the Purchase Price as a
result of the
calculations made in Sections 11.2 and 11.3, 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 Preferred Share (calculated to the
nearest
one-thousand thousandth of a Preferred Share) obtained by (i)
multiplying
(x)
the number of one one-thousandths of a Preferred Share covered by
a
Right immediately prior to this adjustment by (y) the Purchase
Price in
effect immediately prior to such adjustment of the Purchase Price
and (ii)
dividing the product so obtained by the Purchase Price in
effect
immediately after such adjustment of the Purchase Price.
11.9. Adjustment in Number of Rights. The Board Committee
may
cause the Company to elect on or after the date of any adjustment
of
the
Purchase Price to adjust the number of Rights, in substitution for
any
adjustment in the number of one one-thousandths of a Preferred
Share
issuable upon the
exercise of a Right. Each of the Rights outstanding after
such
adjustment of the number of Rights shall be exercisable for the
number
of
one one-thousandths of a Preferred Share 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-thousandth) obtained by
dividing
the
Purchase
19
<PAGE>
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 the election
to
adjust the number of Rights, indicating the record date for the
adjustment,
and,
if known at the time, the amount of the adjustment to be made.
This
record date may be the date on which the Purchase Price is adjusted
or any
day
thereafter, but, if the Right Certificates have been issued, shall
be
at
least ten (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 11.9, 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, the additional Rights to which such holders shall be
entitled
as a
result of such adjustment, or, at the option of the Board
Committee,
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 may bear, at the option of the Company,
the
adjusted Purchase Price) and shall be registered in the names of
the
holders of record of Right Certificates on the record date
specified in the
public announcement.
11.10. Right Certificates Unchanged. Irrespective of any
adjustment or change in the Purchase Price or the number of one
one-thousandths of a Preferred Share issuable upon the exercise of
the
Rights, the Right Certificates theretofore and thereafter issued
may
continue to express the Purchase Price per share and the number of
one
one-thousandths of a Preferred Share which were expressed in the
initial
Right Certificates issued hereunder.
11.11. Par Value Limitations. Before taking any action that
would cause an adjustment reducing the Purchase Price below one
one-thousandth of the then par value, if any, of the Preferred
Shares or
other shares of capital stock issuable upon exercise of the Rights,
the
Company shall take any corporate action which may, in the opinion
of its
counsel, be necessary in order that the Company may validly and
legally
issue fully paid and nonassessable Preferred Shares or other such
shares at
such
adjusted Purchase Price.
11.12. Deferred Issuance. 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 Board Committee may
cause
the
Company to elect to defer until the occurrence of such event
the
issuance to the holder of any Right exercised after such record
date of
that
number of Preferred Shares and shares of other capital stock or
securities of the Company, if any, issuable upon such exercise over
and
above the Preferred Shares and shares of other capital stock or
other
securities, assets or cash of the C
