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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
REGENERON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
New York 13-3444607
(State of Incorporation or Organization) (IRS Employer
Identification No.)
777 Old Saw Mill River Road, Tarrytown, New York 10591-6707
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be so registered to be registered
None N/A
Securities to be registered pursuant to Section 12(g) of the Act:
Preferred Stock Purchase Rights
(Title of Class)
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
On September 20, 1996, the Board of Directors of
Regeneron Pharmaceuticals, Inc. (the Company) adopted a
Shareholder Rights Plan, providing that one Right shall be
attached to each share of Common Stock, par value $0.001 per
share (the Common Shares) and Class A Stock, par value
$0.001 per share (the Class A Stock and, together with the
Common Shares, the Common Stock) of the Company. Each Right
entitles the registered holder to purchase from the Company
a unit (a Unit) consisting of one one-thousandth of a share
of Series A Junior Participating Preferred Stock, par value
$0.01 per share (the Preferred Stock), at a purchase price
(the Purchase Price) of $120.00 per one one-thousandth of a
share of Preferred Stock (a Unit), subject to adjustment.
The description and terms of the Rights are set forth in the
Rights Agreement (the Rights Agreement), dated as of
September 20, 1996, between the Company and ChaseMellon
Shareholder Services L.L.C., a New Jersey limited liability
company, as Rights Agent (the Rights Agent).
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights Certificate will be
distributed. The Rights will separate from the Common
Stock upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or
associated persons (an Acquiring Person) has acquired, or
has obtained the right to acquire, beneficial ownership of
20% or more of the outstanding shares of Common Stock (the
Stock Acquisition Date) or (ii) ten business days
following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially
owning 20% or more of such outstanding shares of Common
Stock (the earlier of (i) and (ii), the Distribution
Date). The definition of Acquiring Person, subject to
certain limitations set forth in the Rights Agreement,
excludes Amgen Inc., which currently holds Common Stock,
Class A Stock, and a Warrant to purchase Common Stock and
Leonard S. Schleifer, who currently holds Class A Stock
and certain permitted transferees of Dr. Schleifer,
subject to certain limitations. Until the Distribution
Date, (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with
such Common Stock certificates, (ii) new Common Stock
certificates will contain a notation incorporating the
Rights Agreement by reference, and (iii) the surrender for
transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the
Distribution Date and will expire at the close of business
on October 18, 2006 unless earlier redeemed by the Company
as described below. At no time will the Rights have any
voting power.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, only
shares of Common Stock issued prior to the Distribution
Date will be issued with Rights.
In the event that an Acquiring Person becomes
the beneficial owner of 20% or more of the then
outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer
for all outstanding shares of the Company, at a price
determined by a majority of the independent directors of
the Company who are not representatives, nominees,
Affiliates, or Associates of an Acquiring Person to be
fair and otherwise in the best interest of the Company and
its shareholders after receiving advice from one or more
investment banking firms (a Qualifying Offer)), each
holder of a Right will thereafter have the right to
receive, upon exercise, Common Shares (or, in certain
circumstances, cash, property, or other securities of the
Company), having a value equal to two times the Exercise
Price of the Right. The Exercise Price is the Purchase
Price times the number of shares of Common Shares
associated with each Right (initially, one).
Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this
paragraph (the Flip-in Events), all Rights that are, or
(under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the Flip-in
Events set forth above until such time as the Rights are
no longer redeemable by the Company as set forth below.
In the event that following the Stock
Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is
not the surviving corporation (other than a merger
consummated pursuant to a Qualifying Offer), (ii) the
Company engages in a merger or business combination
transaction in which the Company is the surviving
corporation and the Common Stock of the Company is changed
or exchanged, or (iii) more than 50% of the Company's
assets or earning power is sold or transferred, each
holder of a Right (except Rights which have previously
been voided as set forth above) shall thereafter have the
right to receive, upon exercise of the Right, common stock
of the acquiring company having a value equal to two times
the Exercise Price of the Right.
The Purchase Price payable, and the number of
Units of Preferred Stock or other securities or property
issuable upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision,
combination, or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market
price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustments in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $0.01 per Right.
Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will
be to receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a shareholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the
Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Shares (or other
consideration) of the Company as set forth above or in the
event that the Rights are redeemed.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes
which do not adversely affect the interests of holders of
Rights (excluding the interest of any Acquiring Person),
or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust
the time period governing redemption shall be made at such
time as the Rights are not redeemable.
The Rights may have certain anti-takeover
effects. The Rights will cause substantial dilution to a
person or group that attempts to acquire the Company in a
manner which causes the Rights to become discount Rights
unless the offer is conditional on a substantial number of
Rights being acquired. The Rights, however, should not
affect any prospective offeror willing to make an offer at
a fair price and otherwise in the best interests of the
Company and its shareholders as determined by a majority
of the Directors who are not affiliated with the person
making the offer, or willing to negotiate with the Board.
The Rights should not interfere with any merger or other
business combination approved by the Board since the Board
may, at its option, at any time until ten days following
the Stock Acquisition Date redeem all but not less than
all the then outstanding Rights at the Redemption Price.
The Rights Agreement, dated as of September 20,
1996, between the Company and ChaseMellon Shareholder
Services L.L.C., as Rights Agent, specifying the terms of
the Rights is attached hereto as Exhibit 1 and is
incorporated herein by reference. The foregoing
description of the Rights is qualified in its entirety by
reference to such exhibit.
ITEM 2. EXHIBITS.
1. Rights Agreement, dated as of September 20,
1996, between Regeneron Pharmaceuticals, Inc.
and ChaseMellon Shareholder Services L.L.C., as
Rights Agent, including the form of Rights
Certificate as Exhibit B thereto.
2. Press Release, dated September 20, 1996.
SIGNATURE
Pursuant to the requirements of Section 12 of
the Securities Exchange Act of 1934, the Registrant has
duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized.
Dated: October 15, 1996 Regeneron Pharmaceuticals, Inc.
By:/s/ Paul Lubetkin
___________________________
Paul Lubetkin
Vice President, General
Counsel and Secretary
EXHIBIT INDEX
Exhibit Description Page
1. Rights Agreement, dated as of September 20, 1996,
between Regeneron Pharmaceuticals, Inc. and
ChaseMellon Shareholder Services L.L.C., as Rights
Agent, including the form of Rights Certificate as
Exhibit B thereto.
2. Press Release, dated September 20, 1996.
REGENERON PHARMACEUTICALS, INC.
and
CHASEMELLON SHAREHOLDER SERVICES L.L.C.
Rights Agent
Rights Agreement
Dated as of September 20, 1996
Table of Contents
Section Page
1. Certain Definitions . . . . . . . . . . . . 2
2. Appointment of Rights Agent . . . . . . . . 11
3. Issue of Rights Certificates . . . . . . . 12
4. Form of Rights Certificates . . . . . . . . 16
5. Countersignature and Registration . . . . . 18
6. Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or Stolen
Rights Certificates . . . . . . . . . . . 20
7. Exercise of Rights; Purchase Price;
Expiration Date of Rights . . . . . . . . 22
8. Cancellation and Destruction of Rights
Certificates . . . . . . . . . . . . . . . 27
9. Reservation and Availability of Capital
Stock . . . . . . . . . . . . . . . . . . 28
10. Preferred Stock Record Date . . . . . . . 32
11. Adjustment of Purchase Price, Number and
Kind of Shares or Number of Rights . . . . 33
12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . 57
13. Consolidation, Merger or Sale or Transfer
of Assets or Earning Power . . . . . . . . 58
14. Fractional Rights and Fractional Shares . 64
15. Rights of Action . . . . . . . . . . . . . 68
16. Agreement of Rights Holders . . . . . . . 69
17. Rights Certificate Holder Not Deemed a
Shareholder . . . . . . . . . . . . . . . 70
18. Concerning the Rights Agent . . . . . . . 71
19. Merger or Consolidation or Change of Name
of Rights Agent . . . . . . . . . . . . . 73
20. Duties of Rights Agent . . . . . . . . . . 74
21. Change of Rights Agent . . . . . . . . . . 79
22. Issuance of New Rights Certificates . . . 82
23. Redemption and Termination . . . . . . . . 83
24. Notice of Certain Events . . . . . . . . . 85
25. Notices . . . . . . . . . . . . . . . . . 87
26. Supplements and Amendments . . . . . . . . 88
27. Successors . . . . . . . . . . . . . . . . 90
28. Determinations and Actions by the Board of
Directors, etc. . . . . . . . . . . . . . 90
29. Benefits of this Agreement . . . . . . . . 92
30. Severability . . . . . . . . . . . . . . . 92
31. Governing Law . . . . . . . . . . . . . . 93
32. Counterparts . . . . . . . . . . . . . . . 93
33. Descriptive Headings . . . . . . . . . . . 93
Exhibit A -- Certificate of Amendment
Exhibit B -- Form of Rights Certificate
Exhibit C -- Form of Summary of Rights
RIGHTS AGREEMENT
RIGHTS AGREEMENT, dated as of September 20,
1996 (the "Agreement"), between Regeneron
Pharmaceuticals, Inc., a New York corporation (the
"Company"), and ChaseMellon Shareholder Services L.L.C.,
a New Jersey limited liability company, as Rights Agent
(the "Rights Agent").
W I T N E S S E T H
WHEREAS, on September 20, 1996 (the "Rights
Dividend Declaration Date"), the Board of Directors of
the Company authorized and declared a dividend
distribution of one Right for each share of common stock,
par value $0.001 per share, of the Company (the "Common
Shares") and for each share of Class A Stock, par value
$0.001 per share, of the Company (the "Class A Stock"
and, together with the Common Shares, the "Common Stock")
outstanding at the close of business on October 18, 1996
(the "Record Date"), and has authorized the issuance of
one Right (as such number may hereinafter be adjusted
pursuant to the provisions of Section 11(p) hereof) for
each share of Common Stock of the Company issued between
the Record Date (whether originally issued or delivered
from the Company's treasury) and the Distribution Date,
each Right initially representing the right to purchase
one one-thousandth of a share of Series A Junior
Participating Preferred Stock (the "Preferred Stock") of
the Company having the rights, powers and preferences set
forth in the form of Certificate of Amendment attached
hereto as Exhibit A, upon the terms and subject to the
conditions hereinafter set forth (the "Rights");
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 Agreement, the following terms have the meanings
indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner
of 20% or more of the shares of Common Stock then
outstanding, but shall not include (i) the Company, (ii)
any Subsidiary of the Company, (iii) any employee benefit
plan of the Company or of any Subsidiary of the Company,
(iv) any Person or entity organized, appointed or
established by the Company for or pursuant to the terms
of any such plan, (v) any such Person who has reported or
is required to report such ownership (but less than 25%)
on Schedule 13G under the Securities Exchange Act of
1934, as amended (the "Exchange Act") (or any comparable
or successor report) or on Schedule 13D under the
Exchange Act (or any comparable or successor report)
which Schedule 13D does not state any intention to or
reserve the right to control or influence the management
or policies of the Company or engage in any of the
actions specified in Item 4 of such Schedule (other than
the disposition of the Common Stock) and, within 10
Business Days of being requested by the Company to advise
it regarding the same, certifies to the Company that such
Person acquired shares of Common Stock in excess of 19.9%
inadvertently or without knowledge of the terms of the
Rights and who, together with all Affiliates and
Associates, thereafter does not acquire additional shares
of Common Stock while the Beneficial Owner of 20% or more
of the shares of Common Stock then outstanding; provided,
however, that if the Person requested to so certify fails
to do so within 10 Business Days, then such Person shall
become an Acquiring Person immediately after such 10
Business Day Period or (vi) an Exempted Person; provided,
however, that if an Exempted Person shall cease to be an
Exempted Person, then such Person shall become an
Acquiring Person if, 10 Business Days following notice by
the Company to such Person that such Person is no longer
an Exempted Person, such Person is the Beneficial Owner
of 20% or more of the shares of Common Stock then
outstanding.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Section 912 of the New York Business Corporation Law, as
amended and in effect on the date of this Agreement.
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to
acquire (whether such right is exercisable
immediately or only after the passage of time)
pursuant to any agreement, arrangement or
understanding (whether or not in writing) or
upon the exercise of conversion rights,
exchange rights, warrants or options, or
otherwise; provided, however, that a Person
shall not be deemed the "Beneficial Owner" of,
or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's
Affiliates or Associates until such tendered
securities are accepted for purchase or
exchange, or (B) securities issuable upon
exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C)
securities issuable upon exercise of Rights
from and after the occurrence of a Triggering
Event which Rights were acquired by such Person
or any of such Person's Affiliates or
Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof
(the "Original Rights") or pursuant to Section
11(i) hereof in connection with an adjustment
made with respect to any Original Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates,
directly or indirectly, has the right to vote
pursuant to any agreement, arrangement or
understanding, whether or not in writing;
provided, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this
subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such
security if such agreement, arrangement or
understanding: (A) arises solely from a
revocable proxy or consent given in response to
a proxy or consent solicitation made in
accordance with the applicable provisions of
the General Rules and Regulations under the
Exchange Act, and (B) is not then reportable by
such Person on Schedule 13D under the Exchange
Act (or any comparable or successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or
any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates
or Associates) has any agreement, arrangement
or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy or
consent as described in the proviso to
subparagraph (ii) of this paragraph (c)) or
disposing of any voting securities of the
Company; provided, however, that nothing in
this paragraph (c) shall cause a Person engaged
in business as an underwriter of securities to
be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired
through such person's participation in good
faith in a firm commitment underwriting until
the expiration of forty days after the date of
such acquisition; and provided further,
however, that any shareholder of the Company,
with Affiliates, Associates or other person(s)
who may be deemed representatives of it serving
as director(s) or officer(s) of the Company,
shall not be deemed to beneficially own
securities held by other Persons as a result of
(i) persons affiliated or otherwise associated
with such shareholder serving as director(s) or
officer(s) or taking any action in connection
therewith, (ii) discussing the status of its
shares with the Company or other shareholders
of the Company similarly situated or (iii)
voting or acting in a manner similar to other
shareholder(s) similarly situated, absent a
specific finding by the Board of Directors of
an express agreement among such shareholders to
act in concert with one another as shareholders
so as to cause, in the good faith judgment of
the Board of Directors, each such shareholder
to be the Beneficial Owner of the shares held
by the other shareholder(s).
(d)"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.
(e) "Class A Stock" shall mean the Class
A Stock, par value $0.001 per share, of the Company.
(f) "Close of business" on any given date
shall mean 5:00 P.M., New York City time, on such date;
provided, however, that if such date is not a Business
Day it shall mean 5:00 P.M., New York City time, on the
next succeeding Business Day.
(g) "Common Shares" shall mean the common
stock, par value $0.001 per share, of the Company.
(h) "Common Stock" shall mean the Common
Shares and the Class A Stock, except that "Common Stock"
when used with reference to any Person other than the
Company shall mean the capital stock of such Person with
the greatest voting power, or the equity securities or
other equity interest having power to control or direct
the management, of such Person.
(i) "Exempted Person" shall mean (A)
Amgen Inc., a Delaware corporation ("Amgen"), unless and
until such time as (i) Amgen, together with its
Affiliates, directly or indirectly, acquire or own
beneficially and/or of record more than 20% of the "Then
Outstanding Common Stock" of the Company. "Then
Outstanding Common Stock" means all of the then issued
and outstanding shares of Common Stock and all shares of
Common Stock into which the then outstanding shares of
preferred stock and any other convertible securities
(other than the Class A Stock) or any options or warrants
issued by the Company are convertible, as well as all
capital stock issued as a result of stock split, stock
dividend or reclassifications of Common Stock
distributable, on a pro rata basis, to all holders of
Common Stock or securities (other than the Class A Stock)
convertible into capital stock; or (ii) Amgen takes any
action which at least a majority of the Board of
Directors determines not to be in accordance with Section
9 of the Class D Convertible Preferred Stock Purchase
Agreement dated as of August 31, 1990, between the
Company and Amgen, in either of which events, Amgen
immediately shall cease to be an Exempted Person and (B)
Dr. Leonard S. Schleifer ("Dr. Schleifer") or any
Permitted Transferee.
(j) "Permitted Transferee" shall mean any
Person who is a "Permitted Transferee" as defined in the
Company's Restated Certificate of Incorporation of Dr.
Schleifer and any direct or indirect Permitted Transferee
of a Permitted Transferee of Dr. Schleifer; provided, if
there shall be a change in control of, or any other event
shall occur with respect to, a Permitted Transferee which
would require the conversion of such Permitted
Transferee's shares of Class A Stock into Common Shares,
such Permitted Transferee will immediately cease to be a
Permitted Transferee.
(k) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(l) "Preferred Stock" shall mean shares
of Series A Junior Participating Preferred Stock, par
value $0.01 per share, of the Company, and, to the extent
that there are not a sufficient number of shares of
Series A Junior Participating Preferred Stock authorized
to permit the full exercise of the Rights, any other
series of Preferred Stock, par value $0.01 per share, of
the Company designated for such purpose containing terms
substantially similar to the terms of the Series A Junior
Participating Preferred Stock.
(m) "Section 11(a)(ii) Event" shall mean
any event described in Section 11(a)(ii) hereof.
(n) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(o) "Stock Acquisition Date" shall mean
the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(p) "Subsidiary" shall mean, with
reference to any Person, any corporation of which an
amount of voting securities sufficient to elect at least
a majority of the directors of such corporation is
beneficially owned, directly or indirectly, by such
Person, or otherwise controlled by such Person.
(q) "Triggering Event" shall mean any
Section 11(a)(ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
Company hereby appoints the Rights Agent to act as agent
for the Company and the holders of the Rights (who, in
accordance with Section 3 hereof, shall prior to the
Distribution Date also be the holders of the Common
Stock) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint
such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issue of Rights Certificates.
(a) Until the earlier of (i) the close of
business on the tenth day after the Stock Acquisition
Date (or, if the tenth day after the Stock Acquisition
Date occurs before the Record Date, the close of business
on the Record Date), or (ii) the close of business on the
tenth business day (or such later date as the Board shall
determine) after the date that a tender or exchange offer
by any Person (other than the Company, any Subsidiary of
the Company, any employee benefit plan of the Company or
of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or
pursuant to the terms of any such plan) is first
published or sent or given within the meaning of Rule
14d-2(a) of the General Rules and Regulations under the
Exchange Act, if upon consummation thereof, such Person
would be the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding (the earlier of
(i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this
Section 3) by the certificates for the Common Stock
registered in the names of the holders of the Common
Stock (which certificates for Common Stock shall be
deemed also to be certificates for Rights) and not by
separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the
underlying shares of Common Stock (including a transfer
to the Company). As soon as practicable after the
Distribution Date, the Rights Agent will send by
first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
right certificates, in substantially the form of Exhibit
B hereto (the "Rights Certificates"), evidencing one
Right for each share of Common Stock so held, subject to
adjustment as provided herein. In the event that an
adjustment in the number of Rights per share of Common
Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding
adjustments (in accordance with Section 14(a) hereof) so
that Rights Certificates representing only whole numbers
of Rights are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such Rights
Certificates.
(b) As promptly as practicable following
the Record Date, the Company will send a copy of a
Summary of Rights, in substantially the form attached
hereto as Exhibit C (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder
of the Common Stock 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
the Common Stock outstanding as of the Record Date, until
the Distribution Date, the Rights will be evidenced by
such certificates for the Common Stock and the registered
holders of the Common Stock shall also be the registered
holders of the associated Rights. Until the earlier of
the Distribution Date or the Expiration Date (as such
term is defined in Section 7 hereof), the transfer of any
certificates representing shares of Common Stock in
respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with
such shares of Common Stock.
(c) Rights shall be issued in respect of
all shares of Common Stock which are issued (whether
originally issued or from the Company's treasury) after
the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date. Certificates
representing such shares of Common Stock shall also be
deemed to be certificates for Rights, and shall bear the
following legend:
This certificate also evidences and
entitles the holder hereof to certain Rights as
set forth in the Rights Agreement between
Regeneron Pharmaceuticals, Inc. (the "Company")
and ChaseMellon Shareholder Services L.L.C.
(the "Rights Agent") dated as of September 20,
1996 (the "Rights Agreement"), the terms of
which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of Regeneron Pharmaceuticals,
Inc. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no
longer be evidenced by this certificate.
Regeneron Pharmaceuticals, Inc. will mail to
the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt
of a written request therefor. Under certain
circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any
Person who is, was or becomes an Acquiring
Person or any Affiliate or Associate thereof
(as such terms are defined in the Rights
Agreement), whether currently held by or on
behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such
certificates shall be evidenced by such certificates
alone and registered holders of Common Stock shall also
be the registered holders of the associated Rights, and
the transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the
Common Stock represented by such certificates.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto
and may have such marks of identification or designation
and such legends, summaries or endorsements printed
thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement,
or as may be required to comply with any applicable law
or with any rule or regulation made pursuant thereto or
with any rule or regulation of any stock exchange on
which the Rights may from time to time be listed, or to
conform to usage. Subject to the provisions of Section
11 and Section 22 hereof, the Rights Certificates,
whenever distributed, shall be dated as of the Record
Date and on their face shall entitle the holders thereof
to purchase such number of one one-thousandths of a share
of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per one
one-thousandth of a share, the "Purchase Price"), but the
amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof
shall be subject to adjustment as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who
becomes a transferee after the Acquiring Person becomes
such, or (iii) a transferee of an Acquiring Person (or of
any such Associate or Affiliate) who becomes a transferee
prior to or concurrently with the Acquiring Person
becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from
the Acquiring Person to holders of equity interests in
such Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of
the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or Section 11
hereof upon transfer, exchange, replacement or adjustment
of any other Rights Certificate referred to in this
sentence, shall contain (to the extent feasible) the
following legend:
The Rights represented by this Rights
Certificate are or were beneficially owned by a
Person who was or became an Acquiring Person or
an Affiliate or Associate of an Acquiring
Person (as such terms are defined in the Rights
Agreement). Accordingly, this Rights
Certificate and the Rights represented hereby
may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be
executed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or any Vice
President, either manually or by facsimile signature, and
shall have affixed thereto the Company's seal or a
facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent,
either manually or by facsimile signature and shall not
be valid for any purpose unless so countersigned. In
case any officer of the Company who shall have signed any
of the Rights Certificates shall cease to be such officer
of the Company before countersignature by the Rights
Agent and issuance and delivery by the Company, such
Rights Certificates, nevertheless, may be countersigned
by the Rights Agent and issued and delivered by the
Company with the same force and effect as though the
person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights
Certificates may be signed on behalf of the Company by
any person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the
Company to sign such Rights Certificate, although at the
date of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date, the
Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate
place for surrender of Rights Certificates upon exercise
or transfer, books for registration and transfer of the
Rights Certificates issued hereunder. Such books shall
show the names and addresses of the respective holders of
the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates and the
date of each of the Rights Certificates.
Section 6. Transfer, Split Up, Combination and
Exchange of Rights Certificates; Mutilated, Destroyed,
Lost or Stolen Rights Certificates. (a) Subject to the
provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the close of business on the
Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate
or Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Certificates,
entitling the registered holder to purchase a like number
of one one-thousandths of a share of Preferred Stock (or,
following a Triggering Event, Common Shares, other
securities, cash or other assets, as the case may be) as
the Rights Certificate or Certificates surrendered then
entitled such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights Agent
nor the Company shall be obligated to take any action
whatsoever with respect to the transfer of any such
surrendered Rights Certificate 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 Company shall reasonably
request. Thereupon the Rights Agent shall, subject to
Section 4(b), Section 7(e) and Section 14 hereof,
countersign and deliver to the Person entitled thereto a
Rights Certificate or Rights Certificates, as the case
may be, as so requested. The Company may require payment
of a sum sufficient to cover any tax or governmental
charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to them
of the loss, theft, destruction or mutilation of a Rights
Certificate, and, in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them,
and reimbursement to the Company and the Rights Agent of
all reasonable expenses incidental thereto, and upon
surrender to the Rights Agent and cancellation of the
Rights Certificate if mutilated, the Company will execute
and deliver a new Rights Certificate of like tenor to the
Rights Agent for countersignature and delivery to the
registered owner in lieu of the Rights Certificate so
lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
Expiration Date of Rights. (a) Subject to Section 7(e)
hereof, the registered holder of any Rights Certificate
may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation,
the restrictions on exercisability set forth in Section
9(c), Section 11(a)(iii) and Section 23(a) hereof) in
whole or in part at any time after the Distribution Date
upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the
reverse side thereof duly executed, to the Rights Agent
at the principal office or offices of the Rights Agent
designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number
of one one-thousandths of a share (or other securities,
cash or other assets, as the case may be) as to which
such surrendered Rights are then exercisable, at or prior
to the earlier of (i) the close of business on October
18, 2006, (the "Final Expiration Date"), or (ii) the time
at which the Rights are redeemed as provided in Section
23 hereof (the earlier of (i) and (ii) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each one
one-thousandth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $120.00, and
shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be
payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per one one-thousandth
of a share of Preferred Stock (or other shares,
securities, cash or other assets, as the case may be) to
be purchased as set forth below and an amount equal to
any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i)
(A) requisition from any transfer agent of the shares of
Preferred Stock (or make available, if the Rights Agent
is the transfer agent for such shares) certificates for
the total number of one one-thousandths of a share of
Preferred Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with
all such requests, or (B) if the Company shall have
elected to deposit the total number of shares of
Preferred Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the
depositary agent depositary receipts representing such
number of one one-thousandths of a share of Preferred
Stock as are to be purchased (in which case certificates
for the shares of Preferred Stock represented by such
receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii)
requisition from the Company the amount of cash, if any,
to be paid in lieu of fractional shares in accordance
with Section 14 hereof, (iii) after receipt of such
certificates or depositary receipts, cause the same to be
delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or
names as may be designated by such holder, and (iv) after
receipt thereof, deliver such cash, if any, to, or upon
the order of, the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such
amount may be reduced pursuant to Section 11(a)(iii)
hereof) shall be made in cash or by certified bank check
or bank draft payable to the order of the Company. In
the event that the Company is obligated to issue other
securities (including Common Shares) of the Company, pay
cash and/or distribute other property pursuant to Section
11(a) hereof, the Company will make all arrangements
necessary so that such other securities, cash and/or
other property are available for distribution by the
Rights Agent, if and when appropriate. The Company
reserves the right to require prior to the occurrence of
a Triggering Event that, upon any exercise of Rights, a
number of Rights be exercised so that only whole shares
of Preferred Stock would be issued.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered holder
of such Rights Certificate, registered in such name or
names as may be designated by such holder, subject to the
provisions of Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first
occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a transferee
of an Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and
receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring
Person to holders of equity interests in 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 majority of the Board of Directors of
the Company has determined is part of a plan, arrangement
or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and
void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of this
Section 7(e) and Section 4(b) hereof are complied with,
but shall have no liability to any holder of Rights
Certificates or other Person as a result of its failure
to make any determinations with respect to an Acquiring
Person or its Affiliates, Associates or transferees
hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section 7
unless such registered holder shall have (i) completed
and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the
Rights Certificate surrendered for such exercise, and
(ii) provided such additional evidence of the identity of
the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall
reasonably request.
Section 8. Cancellation and Destruction of
Rights Certificates. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the
Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if
surrendered to the Rights Agent, shall be cancelled by
it, and no Rights Certificates shall be issued in lieu
thereof except as expressly permitted by any of the
provisions of this Agreement. The Company shall deliver
to the Rights Agent for cancellation and retirement, and
the Rights Agent shall so cancel and retire, any other
Rights Certificate purchased or acquired by the Company
otherwise than upon the exercise thereof. The Rights
Agent shall deliver all cancelled Rights Certificates to
the Company, or shall, at the written request of the
Company, destroy such cancelled Rights Certificates, and
in such case shall deliver a certificate of destruction
thereof to the Company.
Section 9. Reservation and Availability of
Capital Stock. (a) The Company covenants and agrees
that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock
(and, following the occurrence of a Triggering Event, out
of its authorized and unissued Common Shares and/or other
securities or out of its authorized and issued shares
held in its treasury), the number of shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Shares and/or other securities) that, as
provided in this Agreement including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full
of all outstanding Rights.
(b) So long as the shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Shares and/or other securities) issuable
and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, 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 on such exchange
upon official notice of issuance upon such exercise.
(c) The Company shall use its best
efforts to (i) file, as soon as practicable following the
earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be
delivered by the Company upon exercise of the Rights has
been determined in accordance with Section 11(a)(iii)
hereof, a registration statement under the Securities Act
of 1933 (the "Act"), with respect to the securities
purchasable upon exercise of the Rights on an appropriate
form, (ii) cause such registration statement to become
effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable for
such securities, and (B) the date of the expiration of
the Rights. The Company will also take such action as
may be appropriate under, or to ensure compliance with,
the securities or "blue sky" laws of the various states
in connection with the exercisability of the Rights. The
Company may temporarily suspend, for a period of time not
to exceed ninety (90) days after the date set forth in
clause (i) of the first sentence of this Section 9(c),
the exercisability of the Rights in order to prepare and
file such registration statement and permit it to become
effective. Upon any such suspension, the Company shall
issue a public announcement stating that the
exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time
as the suspension is no longer in effect. In addition,
if the Company shall determine that a registration
statement is required following the Distribution Date,
the Company may temporarily suspend the exercisability of
the Rights until such time as a registration statement
has been declared effective. Notwithstanding any
provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not
have been obtained, the exercise thereof shall not be
permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The Company covenants and agrees that
it will take all such action as may be necessary to
ensure that all one one-thousandths of a share of
Preferred Stock (and, following the occurrence of a
Triggering Event, 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.
(e) The Company further covenants and
agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the
Rights Certificates and of any certificates for a number
of one one-thousandths of a share of Preferred Stock (or
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 Rights
Certificates to a Person other than, or the issuance or
delivery of a number of one one-thousandths of a share of
Preferred Stock (or Common Shares and/or other
securities, as the case may be) in respect of a name
other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise
or to issue or deliver any certificates for a number of
one one-thousandths of a share of Preferred Stock (or
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 such tax shall have
been paid (any such tax being payable by the holder of
such Rights Certificate at the time of surrender) or
until it has been established to the Company's
satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each
person in whose name any certificate for a number of one
one-thousandths of a share of Preferred Stock (or 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 such
fractional shares of Preferred Stock (or 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 Rights Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price
(and all applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment
is a date upon which the Preferred Stock (or 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 Stock (or 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 Rights Certificate
shall not be entitled to any rights of a shareholder of
the Company with respect to shares for which the Rights
shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other
distributions or to exercise any preemptive rights, and
shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price,
Number and Kind of Shares or Number of Rights. The
Purchase Price, the number and kind of shares covered by
each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event the Company
shall at any time after the date of this
Agreement (A) declare a dividend on the
Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred
Stock, (C) combine the outstanding Preferred
Stock into a smaller number of shares, or (D)
issue any shares of its capital stock in a
reclassification of the Preferred Stock
(including any such reclassification in
connection with a consolidation or merger in
which the Company is the continuing or
surviving corporation), except as otherwise
provided in this Section 11(a) and Section 7(e)
hereof, the Purchase Price in effect at the
time of the record date for such dividend or of
the effective date of such subdivision,
combination or reclassification, and the number
and kind of shares of Preferred Stock or
capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted so
that the holder of any Right exercised after
such time shall be entitled to receive, upon
payment of the Purchase Price then in effect,
the aggregate number and kind of shares of
Preferred Stock or capital stock, as the case
may be, which, if such Right had been exercised
immediately prior to such date and at a time
when the Preferred Stock transfer books of the
Company were open, he or she would have owned
upon such exercise and been entitled to receive
by virtue of such dividend, subdivision,
combination or reclassification. If an event
occurs which would require an adjustment under
both this Section 11(a)(i) and Section
11(a)(ii) hereof, the adjustment provided for
in this Section 11(a)(i) shall be in addition
to, and shall be made prior to, any adjustment
required pursuant to Section 11(a)(ii) hereof.
(ii) In the event that any Person
(other than the Company, any Subsidiary of the
Company, any employee benefit plan of the
Company or of any Subsidiary of the Company,
any Person or entity organized, appointed or
established by the Company for or pursuant to
the terms of any such plan, or an Exempted
Person), alone or together with its Affiliates
and Associates, shall, at any time after the
Rights Dividend Declaration Date, become the
Beneficial Owner of 20% or more of the shares
of Common Stock then outstanding, unless the
event causing the 20% threshold to be crossed
is a transaction set forth in Section 13(a)
hereof, or is an acquisition of shares of
Common Stock pursuant to a tender offer or an
exchange offer for all outstanding shares of
Common Stock at a price and on terms determined
by at least a majority of the members of the
Board of Directors who are not officers of the
Company and who are not representatives,
nominees, Affiliates or Associates of an
Acquiring Person, after receiving advice from
one or more investment banking firms, to be (a)
at a price which is fair to shareholders
(taking into account all factors which such
members of the Board deem relevant including,
without limitation, prices which could
reasonably be achieved if the Company or its
assets were sold on an orderly basis designed
to realize maximum value) and (b) otherwise in
the best interests of the Company and its
shareholders (hereinafter, a "Qualifying
Offer"), then, promptly following the
occurrence of any such event, proper provision
shall be made so that each holder of a Right
(except as provided below and in Section 7(e)
hereof) shall thereafter have the right to
receive, upon exercise thereof at the then
current Purchase Price in accordance with the
terms of this Agreement, in lieu of a number of
one one-thousandths of a share of Preferred
Stock, such number of Common Shares of the
Company as shall equal the result obtained by
(x) multiplying the then current Purchase Price
by the then number of one one-thousandths of a
share of Preferred Stock for which a Right was
exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event, and
(y) dividing that product (which, following
such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement)
by 50% of the current market price (determined
pursuant to Section 11(d) hereof) per Common
Share on the date of such first occurrence
(such number of shares, the "Adjustment
Shares").
(iii) In the event that the number
of Common Shares which are authorized by the
Company's Restated Certificate of
Incorporation, as amended, but not outstanding
or reserved for issuance for purposes other
than upon exercise of the Rights are not
sufficient to permit the exercise in full of
the Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the
Company shall (A) determine the value of the
Adjustment Shares issuable upon the exercise of
a Right (the "Current Value"), and (B) with
respect to each Right (subject to Section 7(e)
hereof), make adequate provision to substitute
for the Adjustment Shares, upon the exercise of
a Right and payment of the applicable Purchase
Price, (1) cash, (2) a reduction in the
Purchase Price, (3) Common Shares or other
equity securities of the Company (including,
without limitation, shares, or units of shares,
of preferred stock, such as the Preferred
Stock, which the Board has deemed to have
essentially the same value or economic rights
as Common Shares (such shares of preferred
stock being referred to as "Common Share
Equivalents")), (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
(less the amount of any reduction in the
Purchase Price), where such aggregate value has
been determined by the Board based upon the
advice of a nationally recognized investment
banking firm selected by the Board; 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 later of (x) the first
occurrence of a Section 11(a)(ii) Event and (y)
the date on which the Company's right of
redemption pursuant to Section 23(a) expires
(the later of (x) and (y) being referred to
herein as the "Section 11(a)(ii) Trigger
Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a
Right and without requiring payment of the
Purchase Price, Common Shares (to the extent
available) and then, if necessary, cash, which
shares and/or cash have an aggregate value
equal to the Spread. For purposes of the
preceding sentence, the term "Spread" shall
mean the excess of (i) the Current Value over
(ii) the Purchase Price. If the Board
determines in good faith that it is likely that
sufficient additional 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 to the extent
necessary, but not more than ninety (90) days
after the Section 11(a)(ii) Trigger Date, in
order that the Company may seek shareholder
approval for the authorization of such
additional shares (such thirty (30) day period,
as it may be extended, is herein called the
"Substitution Period"). To the extent that
action is to be taken pursuant to the first
and/or third sentences of this Section
11(a)(iii), the Company (1) shall provide,
subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding
Rights, and (2) may suspend the exercisability
of the Rights until the expiration of the
Substitution Period in order to seek such
shareholder approval for such 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(a)(iii), the value of each
Adjustment Share shall be the Current Market
Price per Common Share on the Section 11(a)(ii)
Trigger Date and the per share or per unit
value of any Common Share Equivalent shall be
deemed to equal the Current Market Price per
Common Share on such date.
(b) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them
to subscribe for or purchase (for a period expiring
within forty-five (45) calendar days after such record
date) Preferred Stock (or shares having the same rights,
privileges and preferences as the shares of Preferred
Stock ("equivalent preferred stock")) or securities
convertible into Preferred Stock or equivalent preferred
stock at a price per share of Preferred Stock or per
share of equivalent preferred stock (or having a
conversion price per share, if a security convertible
into Preferred Stock or equivalent preferred stock) less
than the current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on
such record date, the Purchase Price to be in effect
after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall
be the number of shares of Preferred Stock outstanding on
such record date, plus the number of shares of Preferred
Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or equivalent
preferred stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so
to be offered) would purchase at such current market
price, and the denominator of which shall be the number
of shares of Preferred Stock outstanding on such record
date, plus the number of additional shares of Preferred
Stock and/or equivalent preferred stock to be offered for
subscription or purchase (or into which the convertible
securities so to be offered are initially convertible).
In case such subscription price may be paid by delivery
of consideration part or all of which may be in a form
other than cash, the value of such consideration shall be
as determined in good faith by the Board of Directors of
the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be
binding on the Rights Agent and the holders of the
Rights. Shares of Preferred Stock owned by or held for
the account of the Company shall not be deemed
outstanding for the purpose of any such computation.
Such adjustment shall be made successively whenever such
a record date is fixed, and in the event that such rights
or warrants are not so issued, the Purchase Price shall
be adjusted to be the Purchase Price which would then be
in effect if such record date had not been fixed.
(c) In case the Company shall fix a
record date for a distribution to all holders of
Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the
Company is the continuing corporation) of evidences of
indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the
Company), assets (other than a dividend payable in
Preferred Stock, but including any dividend payable in
stock other than Preferred Stock) or subscription rights
or warrants (excluding those referred to in Section 11(b)
hereof), the Purchase Price to be in effect after such
record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such record
date by a fraction, the numerator of which shall be the
current market price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock on such record
date, less the fair market value (as determined in good
faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed
with the Rights Agent) of the portion of the cash, assets
or evidences of indebtedness so to be distributed or of
such subscription rights or warrants applicable to a
share of Preferred Stock and the denominator of which
shall be such current market price (as determined
pursuant to Section 11(d) hereof) per share of Preferred
Stock. Such adjustments shall be made successively
whenever such a record date is fixed, and in the event
that such distribution is not so made, the Purchase Price
shall be adjusted to be the Purchase Price which would
have been in effect if such record date had not been
fixed.
(d) (i) For the purpose of any
computation hereunder, other than computations made
pursuant to Section 11(a)(iii) hereof, the Current Market
Price per Common Share on any date shall be deemed to be
the average of the daily closing prices per such Common
Share for the thirty (30) consecutive Trading Days
immediately prior to such date, and for purposes of
computations made pursuant to Section 11(a)(iii) hereof,
the Current Market Price per Common Share on any date
shall be deemed to be the average of the daily closing
prices per such Common Share for the ten (10) consecutive
Trading Days immediately following such date; provided,
however, that in the event that the Current Market Price
per Common Share is determined during a period following
the announcement by the issuer of such Common Share of
(A) a dividend or distribution on such Common Share
payable in such Common Shares or securities convertible
into shares of such Common Shares (other than the
Rights), or (B) any subdivision, combination or
reclassification of such Common Shares, and the
ex-dividend date for such dividend or distribution, or
the record date for such subdivision, combination or
reclassification shall not have occurred prior to the
commencement of the requisite thirty (30) Trading Day or
ten (10) Trading Day period, as set forth above, then,
and in each such case, the Current Market Price shall be
properly adjusted to take into account ex-dividend
trading. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale
takes place on such day, the average of the closing bid
and asked prices, regular way, in either case as reported
in the principal consolidated transaction reporting
system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the Common
Shares are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to
securities listed on the principal national securities
exchange on which the Common Shares are listed or
admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated
Quotation System (the "NASDAQ") or such other system then
in use, or, if on any such date the Common Shares are not
quoted by any such organization, the average of the
closing bid and asked prices as furnished by a
professional market maker making a market in the Common
Shares selected by the Board. If on any such date no
market maker is making a market in the Common Shares, the
fair value of such shares on such date as determined in
good faith by the Board shall be used. The term "Trading
Day" shall mean a day on which the principal national
securities exchange on which the Common Shares are listed
or admitted to trading is open for the transaction of
business or, if the Common Shares are not listed or
admitted to trading on any national securities exchange,
a Business Day. If the Common Shares are not publicly
held or not so listed or traded, Current Market Price per
share shall mean the fair value per share as determined
in good faith by the Board, whose determination shall be
described in a statement filed with the Rights Agent and
shall be conclusive for all purposes.
(ii) For the purpose of any computation
hereunder, the Current Market Price per share of
Preferred Stock shall be determined in the same manner as
set forth above for the Common Shares in clause (i) of
this Section 11(d) (other than the last sentence
thereof). If the Current Market Price per share of
Preferred Stock cannot be determined in the manner
provided above or if the Preferred Stock is not publicly
held or listed or traded in a manner described in clause
(i) of this Section 11(d), the Current Market Price per
share of Preferred Stock 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 Agreement)
multiplied by the Current Market Price per Common Share.
If neither the Common Share nor the Preferred Stock is
publicly held or so listed or traded, Current Market
Price per share of the Preferred Stock shall mean the
fair value per share as determined in good faith by the
Board, whose determination shall be described in a
statement filed with the Rights Agent and shall be
conclusive for all purposes.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an
increase or decrease of at least one percent (1%) in the
Purchase Price; provided, however, that any adjustments
which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account
in any subsequent adjustment. All calculations under
this Section 11 shall be made to the nearest cent or to
the nearest ten-thousandth of a Common Share or other
share or one-ten millionth of a share of Preferred Stock,
as the case may be. Notwithstanding the first sentence
of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i)
three (3) years from the date of the transaction which
mandates such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof,
the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock other
than Preferred Stock, thereafter the number of such other
shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect
to the Preferred Stock contained in Sections 11(a), (b),
(c), (e), (g), (h), (i), (j), (k) and (m), and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with
respect to the Preferred Stock shall apply on like terms
to any such other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the Purchase
Price hereunder shall evidence the right to purchase, at
the adjusted Purchase Price, the number of one
one-thousandths of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights,
all subject to further adjustment as provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of
one one-thousandths of a share of Preferred Stock
(calculated to the nearest one-ten millionth) obtained by
(i) multiplying (x) the number of one one-thousandths of
a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
Purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after the
date of any adjustment of the Purchase Price to adjust
the number of Rights, in lieu of any adjustment in the
number of one one-thousandths of a share of Preferred
Stock purchasable upon the exercise of a Right. Each of
the Rights outstanding after the adjustment in the number
of Rights shall be exercisable for the number of one
one-thousandths of a share of Preferred Stock for which a
Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such
adjustment of the number of Rights shall become that
number of Rights (calculated to the nearest
one-ten-thousandth) obtained by dividing the Purchase
Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election
to adjust the number of Rights, indicating the record
date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date
may be the date on which the Purchase Price is adjusted
or any day thereafter, but, if the Rights Certificates
have been issued, shall be at least ten (10) days later
than the date of the public announcement. If Rights
Certificates have been issued, upon each adjustment of
the number of Rights pursuant to this Section 11(i), the
Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates
on such record date Rights Certificates evidencing,
subject to Section 14 hereof, the additional Rights to
which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause
to be distributed to such holders of record in
substitution and replacement for the Rights Certificates
held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new
Rights Certificates evidencing all the Rights to which
such holders shall be entitled after such adjustment.
Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for
herein (and may bear, at the option of the Company, the
adjusted Purchase Price) and shall be registered in the
names of the holders of record of Rights Certificates on
the record date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of one one-
thousandth of a share of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express
the Purchase Price per one one-thousandth of a share and
the number of one one-thousandth of a share which were
expressed in the initial Rights Certificates issued
hereunder.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below the
then stated value, if any, of the number of one
one-thousandths of a share of Preferred 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
such number of one one-thousandth of a share of Preferred
Stock at such adjusted Purchase Price.
(l) In any case in which this Section 11
shall require that an adjustment in the Purchase Price be
made effective as of a record date for a specified event,
the Company may elect to defer until the occurrence of
such event the issuance to the holder of any Right
exercised after such record date the number of one
one-thousandths of a share of Preferred Stock and other
capital stock or securities of the Company, if any,
issuable upon such exercise over and above the number of
one one-thousandths of a share of Preferred Stock and
other capital stock or securities of the Company, if any,
issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided,
however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares
(fractional or otherwise) or securities upon the
occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this
Section 11, as and to the extent that in their good faith
judgment the Board of Directors of the Company shall
determine to be advisable in order that any (i)
consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock
at less than the current market price, (iii) issuance
wholly for cash of shares of Preferred Stock or
securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants
referred to in this Section 11, hereafter made by the
Company to holders of its Preferred Stock shall not be
taxable to such shareholders.
(n) The Company covenants and agrees that
it shall not, at any time after the Distribution Date,
(i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), (ii) merge with or into any
other Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) hereof), or
(iii) sell or transfer (or permit any Subsidiary to sell
or transfer), in one transaction, or a series of related
transactions, assets or earning power aggregating more
than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other
Person or Persons (other than the Company and/or any of
its Subsidiaries in one or more transactions each of
which complies with Section 11(o) hereof), if (x) at the
time of or immediately after such consolidation, merger
or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in
effect which would substantially diminish or otherwise
eliminate the benefits intended to be afforded by the
Rights or (y) prior to, simultaneously with or
immediately after such consolidation, merger or sale, the
shareholders of the Person who constitutes, or would
constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights
previously owned by such Person or any of its Affiliates
and Associates.
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except as
permitted by Section 23 or Section 26 hereof, take (or
permit any Subsidiary to take) any action if at the time
such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the
Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine the
outstanding shares of Common Stock into a smaller number
of shares, the number of Rights associated with each
share of Common Stock then outstanding, or issued or
delivered thereafter but prior to the Distribution Date,
shall be proportionately adjusted so that the number of
Rights thereafter associated with each share of Common
Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated
with each share of Common Stock immediately prior to such
event by a fraction the numerator of which shall be the
total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of shares
of Common Stock outstanding immediately following the
occurrence of such event.
Section 12. Certificate of Adjusted Purchase
Price or Number of Shares. Whenever an adjustment is
made as provided in Section 11 and Section 13 hereof, the
Company shall (a) promptly prepare a certificate setting
forth such adjustment and a brief statement of the facts
accounting for such adjustment, (b) promptly file with
the Rights Agent, and with each transfer agent for the
Preferred Stock and the Common Stock, a copy of such
certificate, and (c) mail or cause the Rights Agent to
mail a brief summary thereof to each holder of a Rights
Certificate (or, if prior to the Distribution Date, to
each holder of a certificate representing shares of
Common Stock) in accordance with Section 25 hereof. The
Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or
Transfer of Assets or Earning Power.
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company
in a transaction which complies with Section 11(o)
hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o) hereof)
shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or
surviving corporation of such consolidation or merger
and, in connection with such consolidation or merger, all
or part of the outstanding shares of Common Stock shall
be changed into or exchanged for stock or other
securities of any other Person or cash or any other
property, or (z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one transaction or a series of
related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions
each of which complies with Section 11(o) hereof), then,
and in each such case (except as may be contemplated by
Section 13(d) hereof), proper provision shall be made so
that: (i) each holder of a Right, except as provided in
Section 7(e) hereof, shall thereafter have the right to
receive, upon the exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, such number of validly authorized and issued,
fully paid, non-assessable and freely tradeable shares of
Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the number
of one one-thousandths of a share of Preferred Stock for
which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first
occurrence of a Section 13 Event, multiplying the number
of such one one-thousandths of a share for which a Right
was exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event by the Purchase Price in
effect immediately prior to such first occurrence), and
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to as
the "Purchase Price" for each Right and for all purposes
of this Agreement) by (2) 50% of the Current Market Price
per share of the Common Stock of such Principal Party on
the date of consummation of such Section 13 Event; (ii)
such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such Principal Party, it being
specifically intended that the provisions of Section 11
hereof shall apply only to such Principal Party following
the first occurrence of a Section 13 Event; (iv) such
Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of
shares of its Common Stock) in connection with the
consummation of any such transaction as may be necessary
to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation
to its shares of Common Stock thereafter deliverable upon
the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect following
the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any
transaction described in clause (x) or (y) of
the first sentence of Section 13(a), the Person
that is the issuer of any securities into which
shares of Common Stock of the Company are
converted in such merger or consolidation, and
if no securities are so issued, the Person that
is the other party to such merger or
consolidation; and
(ii) in the case of any
transaction described in clause (z) of the
first sentence of Section 13(a), the Person
that is the party receiving the greatest
portion of the assets or earning power
transferred pursuant to such transaction or
transactions;
provided, however, that in any such case, (1) if the
Common Stock of such Person is not at such time and has
not been continuously over the preceding twelve (12)
month period registered under Section 12 of the Exchange
Act, and such Person is a direct or indirect Subsidiary
of another Person the Common Stock of which is and has
been so registered, "Principal Party" shall refer to such
other Person; and (2) in case such Person is a
Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and
have been so registered, "Principal Party" shall refer to
whichever of such Persons is the issuer of the Common
Stock having the greatest aggregate market value.
(c) The Company shall not consummate any
such consolidation, merger, sale or transfer unless the
Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been
issued or reserved for issuance to permit the exercise in
full of the Rights in accordance with this Section 13 and
unless prior thereto the Company and such Principal Party
shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth
in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of
any consolidation, merger or sale of assets mentioned in
paragraph (a) of this Section 13, the Principal Party
will
(i) prepare and file a
registration statement under the Act, with
respect to the Rights and the securities
purchasable upon exercise of the Rights on an
appropriate form, and will use its best efforts
to cause such registration statement to (A)
become effective as soon as practicable after
such filing and (B) remain effective (with a
prospectus at all times meeting the
requirements of the Act) until the Expiration
Date; and
(ii) will deliver to holders of
the Rights historical financial statements for
the Principal Party and each of its Affiliates
which comply in all respects with the
requirements for registration on Form 10 under
the Exchange Act.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or other
transfers. In the event that a Section 13 Event shall
occur at any time after the occurrence of a Section
11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in the
manner described in Section 13(a).
(d) Notwithstanding anything in this
Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in subparagraphs
(x) and (y) of Section 13(a) if (i) such transaction is
consummated with a Person or Persons who acquired shares
of Common Stock pursuant to a Qualifying Offer (or a
wholly owned subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in such
transaction is not less than the price per share of
Common Stock paid to all holders of shares of Common
Stock whose shares were purchased pursuant to such tender
offer or exchange offer and (iii) the form of
consideration being offered to the remaining holders of
shares of Common Stock pursuant to such transaction is
the same as the form of consideration paid pursuant to
such tender offer or exchange offer. Upon consummation
of any such transaction contemplated by this Section
13(d), all Rights hereunder shall expire.
Section 14. Fractional Rights and Fractional
Shares.
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof, or
to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such fractional
Rights would otherwise be issuable, an amount in cash
equal to the same fraction of the current market value of
a whole Right. For purposes of this Section 14(a), the
current market value of a whole Right shall be the
closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing
price of the Rights for any day shall be the last sale
price, regular way, or, in case no such sale takes place
on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on
the New York Stock Exchange or, if the Rights are not
listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated
transaction reporting system with respect to securities
listed on the principal national securities exchange on
which the Rights are listed or admitted to trading, or if
the Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported
by NASDAQ or such other system then in use or, if on any
such date the Rights are not quoted by any such
organization, the average of the closing bid and asked
prices as furnished by a professional market maker making
a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker
is making a market in the Rights the fair value of the
Rights on such date as determined in good faith by the
Board of Directors of the Company shall be used.
(b) The Company shall not be required to
issue fractions of shares of Preferred Stock (other than
fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of one
one-thousandth of a share of Preferred Stock). In lieu
of fractional shares of Preferred Stock that are not
integral multiples of one one-thousandth of a share of
Preferred Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights
are exercised as herein provided an amount in cash equal
to the same fraction of the current market value of one
one-thousandth of a share of Preferred Stock. For
purposes of this Section 14(b), the current market value
of one one-thousandth of a share of Preferred Stock shall
be one one-thousandth of the closing price of a share of
Preferred Stock (as determined pursuant to Section
11(d)(ii) hereof) for the Trading Day immediately prior
to the date of such exercise.
(c) Following the occurrence of a
Triggering Event, the Company shall not be required to
issue fractions of Common Shares upon exercise of the
Rights or to distribute certificates which evidence
fractional Common Shares. In lieu of fractional Common
Shares, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised
as herein provided an amount in cash equal to the same
fraction of the current market value of one (1) Common
Share. For purposes of this Section 14(c), the current
market value of one Common Share shall be the closing
price of one Common Share (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately
prior to the date of such exercise.
(d) The holder of a Right by the
acceptance of the Rights expressly waives his or her
right to receive any fractional Rights or any fractional
shares upon exercise of a Right, except as permitted by
this Section 14.
Section 15. Rights of Action. All rights of
action in respect of this Agreement are vested in the
respective registered holders of the Rights Certificates
(and, prior to the Distribution Date, the registered
holders of the Common Stock); and any registered holder
of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his or her own behalf and for his
or her own benefit, enforce, and may institute and
maintain any suit, action or proceeding against the
Company to enforce, or otherwise act in respect of, his
or her right to exercise the Rights evidenced by such
Rights Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders
of Rights would not have an adequate remedy at law for
any breach of this Agreement and shall be entitled to
specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations
of the obligations hereunder of any Person subject to
this Agreement.
Section 16. Agreement of Rights Holders.
Every holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common Stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal
office or offices of the Rights Agent designated for such
purposes, duly endorsed or accompanied by a proper
instrument of transfer and with the appropriate forms and
certificates fully executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on
the Rights Certificates or the associated Common Stock
certificate made by anyone other than the Company or the
Rights Agent) for all purposes whatsoever, and neither
the Company nor the Rights Agent, subject to the last
sentence of Section 7(e) hereof, shall be required to be
affected by any notice to the contrary; and
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts
to have any such order, decree or ruling lifted or
otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
Deemed a Shareholder. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends
or be deemed for any purpose the holder of the number of
one one-thousandths of a share of Preferred Stock or any
other securities of the Company which may at any time be
issuable on the exercise of the Rights represented
thereby, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder
of any Rights Certificate, as such, any of the rights of
a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting
shareholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the
Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on
demand of the Rights Agent, its reasonable expenses and
counsel fees and disbursements and other disbursements
incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
loss, liability, or expense, incurred without negligence,
bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent
in connection with the acceptance and administration of
this Agreement, including reasonable attorneys' fees and
expenses and the costs and expenses of defending against
any claim of liability in the premises. In no case will
the Rights Agent be liable for special, indirect,
incidental or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits),
even if the Rights Agent has been advised of the
possibility of such damages. Any liability of the Rights
Agent will be limited to the amount of fees paid by the
Company hereunder. This Section 18(a) shall survive the
termination of this Agreement.
(b) The Rights Agent shall be protected
and shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company, instrument
of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction,
consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed,
executed and, where necessary, verified or acknowledged,
by the proper Person or Persons.
Section 19. Merger or Consolidation or Change
of Name of Rights Agent.
(a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a
party, or any corporation succeeding to the corporate
trust or shareholder services business of the Rights
Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement
without the execution or filing of any paper or any
further act on the part of any of the parties hereto;
provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent
under the provisions of Section 21 hereof. In case at
the time such successor Rights Agent shall succeed to the
agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not
delivered, any such successor Rights Agent may adopt the
countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and in
case at that time any of the Rights Certificates shall
not have been countersigned, any successor Rights Agent
may countersign such Rights Certificates either in the
name of the predecessor or in the name of the successor
Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
(b) In case at any time the name of the
Rights Agent shall be changed and at such time any of the
Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, the Rights Agent may countersign such
Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The
Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with
legal counsel (who may be legal counsel for the Company),
and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent
as to any action taken or omitted by it in good faith and
in accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person and the determination of "current market
price") be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or
matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate
signed by the Chairman of the Board, the President, any
Vice President, the Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Company
and delivered to the Rights Agent; and such certificate
shall be full authorization to the Rights Agent for any
action taken or suffered in good faith by it under the
provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except as
to its countersignature on such Rights Certificates), but
all such statements and recitals are and shall be deemed
to have been made by the Company only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of
any covenant or condition contained in this Agreement or
in any Rights Certificate; nor shall it be responsible
for any adjustment required under the provisions of
Section 11 or Section 13 hereof or responsible for the
manner, method or amount of any such adjustment or the
ascertaining of the existence of facts that would require
any such adjustment (except with respect to the exercise
of Rights evidenced by Rights Certificates after actual
notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or
warranty as to the authorization or reservation of any
shares of Common Stock or Preferred Stock to be issued
pursuant to this Agreement or any Rights Certificate or
as to whether any shares of Common Stock or Preferred
Stock will, when so issued, be validly authorized and
issued, fully paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the
carrying out or performing by the Rights Agent of the
provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman of
the Board, the President, any Vice President, the
Secretary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with
its duties, and it shall not be liable for any action
taken or suffered to be taken by it in good faith in
accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may be
interested, or contract with or lend money to the Company
or otherwise act as fully and freely as though it were
not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent from acting in any other
capacity for the Company or for any other legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act,
default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any
such act, default, neglect or misconduct; provided,
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own funds
or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Right
Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of
assignment or form of election to purchase, as the case
may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the
Rights Agent shall not take any further action with
respect to such requested exercise of transfer without
first consulting with the Company.
Section 21. Change of Rights Agent. The
Rights Agent or any successor Rights Agent may resign and
be discharged from its duties under this Agreement upon
thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail, and
to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any
successor Rights Agent upon thirty (30) days' notice in
writing, mailed to the Rights Agent or successor Rights
Agent, as the case may be, and to each transfer agent of
the Common Stock and Preferred Stock, by registered or
certified mail, and to the holders of the Rights
Certificates by first-class mail. If the Rights Agent
shall resign or be removed or shall otherwise become
incapable of acting, the Company shall appoint a
successor to the Rights Agent. If the Company shall fail
to make such appointment within a period of thirty (30)
days after giving notice of such removal or after it has
been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent
or by the holder of a Rights Certificate (who shall, with
such notice, submit his Rights Certificate for inspection
by the Company), then any registered holder of any Rights
Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent.
Any successor Rights Agent, whether appointed by the
Company or by such a court, shall be a corporation or any
affiliate of such a corporation organized and doing
business under the laws of the United States or of the
State of New York (or of any other state of the United
States so long as such corporation is authorized to do
business as a banking institution in the State of New
York), in good standing, which is authorized under such
laws to exercise corporate trust powers and is subject to
supervision or examination by federal or state authority
and which has at the time of its appointment as Rights
Agent a combined capital and surplus of at least
$100,000,000. After appointment, the successor Rights
Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but
the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time
held by it hereunder, and execute and deliver any further
assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such
appointment, the Company shall file notice thereof in
writing with the predecessor Rights Agent and each
transfer agent of the Common Stock and the Preferred
Stock, and mail a notice thereof in writing to the
registered holders of the Rights Certificates. Failure
to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights
Agent, as the case may be.
Section 22. Issuance of New Rights
Certificates. Notwithstanding any of the provisions of
this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates
evidencing Rights in such form as may be approved by its
Board of Directors to reflect any adjustment or change in
the Purchase Price and the number or kind or class of
shares or other securities or property purchasable under
the Rights Certificates made in accordance with the
provisions of this Agreement. In addition, in connection
with the issuance or sale of shares of Common Stock
following the Distribution Date and prior to the
redemption or expiration of the Rights, the Company (a)
shall, with respect to shares of Common Stock so issued
or sold pursuant to the exercise of stock options or
under any employee plan or arrangement, granted or
awarded as of the Distribution Date, or upon the
exercise, conversion or exchange of securities
hereinafter issued by the Company, and (b) may, in any
other case, if deemed necessary or appropriate by the
Board of Directors of the Company, issue Rights
Certificates representing the appropriate number of
Rights in connection with such issuance or sale;
provided, however, that (i) no such Rights Certificate
shall be issued if, and to the extent that, the Company
shall be advised by counsel that such issuance would
create a significant risk of material adverse tax
consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such
Rights Certificate shall be issued if, and to the extent
that, appropriate adjustment shall otherwise have been
made in lieu of the issuance thereof.
Section 23. Redemption and Termination.
(a) The Board of Directors of the Company
may, at its option, at any time prior to the earlier of
(i) the close of business on the tenth day following the
Stock Acquisition Date (or, if the Stock Acquisition Date
shall have occurred prior to the Record Date, the close
of business on the tenth day following the Record Date),
or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption
price of $0.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred
to as the "Redemption Price"). Notwithstanding anything
contained in this Agreement to the contrary, the Rights
shall not be exercisable after the first occurrence of a
Section 11(a)(ii) Event until such time as the Company's
right of redemption hereunder has expired. The Company
may, at its option, pay the Redemption Price in cash,
shares of Common Stock (based on the "current market
price", as defined in Section 11(d)(i) hereof, of the
Common Stock at the time of redemption) or any other form
of consideration deemed appropriate by the Board of
Directors.
(b) Immediately upon the action of the
Board of Directors of the Company ordering the redemption
of the Rights, evidence of which shall have been filed
with the Rights Agent and without any further action and
without any notice, the right to exercise the Rights will
terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price for each
Right so held. Promptly after the action of the Board of
Directors ordering the redemption of the Rights, the
Company shall give notice of such redemption to the
Rights Agent and the holders of the then outstanding
Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry
books of the Rights Agent or, prior to the Distribution
Date, on the registry books of the transfer agent for the
Common Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of
redemption will state the method by which the payment of
the Redemption Price will be made.
Section 24. Notice of Certain Events.
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the
holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders
of Preferred Stock rights or warrants to subscribe for or
to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities,
rights or options, or (iii) to effect any
reclassification of its Preferred Stock (other than a
reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect
any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction
which complies with Section 11(o) hereof), or to effect
any sale or other transfer (or to permit one or more of
its Subsidiaries to effect any sale or other transfer),
in one transaction or a series of related transactions,
of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any
other Person or Persons (other than the Company and/or
any of its Subsidiaries in one or more transactions each
of which complies with Section 11(o) hereof), or (v) to
effect the liquidation, dissolution or winding up of the
Company, then, in each such case, the Company shall give
to each holder of a Rights Certificate, to the extent
feasible and in accordance with Section 25 hereof, a
notice of such proposed action, which shall specify the
record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale,
transfer, liquidation, dissolution, or winding up is to
take place and the date of participation therein by the
holders of the shares of Preferred Stock, if any such
date is to be fixed, and such notice shall be so given in
the case of any action covered by clause (i) or (ii)
above at least twenty (20) days prior to the record date
for determining holders of the shares of Preferred Stock
for purposes of such action, and in the case of any such
other action, at least twenty (20) days prior to the date
of the taking of such proposed action or the date of
participation therein by the holders of the shares of
Preferred Stock whichever shall be the earlier.
(b) In case any of the events set forth
in Section 11(a)(ii) hereof shall occur, then, in any
such case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate,
to the extent feasible and in accordance with Section 25
hereof, a notice of the occurrence of such event, which
shall specify the event and the consequences of the event
to holders of Rights under Section 11(a)(ii) hereof, and
(ii) all references in the preceding paragraph to
Preferred Stock shall be deemed thereafter to refer to
Common Stock and/or, if appropriate, other securities.
Section 25. Notices. Notices or demands
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or made
if sent by first-class mail, postage prepaid,
addressed(until another address is filed in writing with
the Rights Agent) as follows:
Regeneron Pharmaceuticals, Inc.
777 Old Saw Mill River Road
Tarrytown, New York 10591
Attention: General Counsel
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with
the Company) as follows:
ChaseMellon Shareholder Services L.L.C.
450 West 33rd Street - 15th Floor
New York, New York 10001-2697
Attention: Stock Transfer Administration
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the address
of such holder as shown on the registry books of the
Company.
Section 26. Supplements and Amendments. Prior
to the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company and the Rights
Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the
approval of any holders of certificates representing
shares of Common Stock. From and after the Distribution
Date and subject to the penultimate sentence of this
Section 26, the Company and the Rights Agent shall, if
the Company so directs, supplement or amend this
Agreement without the approval of any holders of Rights
Certificates in order (i) to cure any ambiguity, (ii) to
correct or supplement any provision contained herein
which may be defective or inconsistent with any other
provisions herein, (iii) to shorten or lengthen any time
period hereunder, or (iv) to change or supplement the
provisions hereunder in any manner which the Company may
deem necessary or desirable and which shall not adversely
affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person); provided,
this Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence, (A)
a time period relating to when the Rights may be redeemed
at such time as the Rights are not then redeemable, or
(B) any other time period unless such lengthening is for
the purpose of protecting, enhancing or clarifying the
rights of, and/or the benefits to, the holders of Rights.
Upon the delivery of a certificate from an appropriate
officer of the Company which states that the proposed
supplement or amendment is in compliance with the terms
of this Section 26, the Rights Agent shall execute such
supplement or amendment. Notwithstanding anything
contained in this Agreement to the contrary, no
supplement or amendment shall be made which changes the
Redemption Price, the Final Expiration Date, the Purchase
Price or the number of one one-thousandths of a share of
Preferred Stock for which a Right is exercisable. Prior
to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of
the holders of Common Stock.
Section 27. Successors. All the covenants and
provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns
hereunder.
Section 28. Determinations and Actions by the
Board of Directors, etc. For all purposes of this
Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made
in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act. The Board of Directors of the Company
shall have the exclusive power and authority to
administer this Agreement and to exercise all rights and
powers specifically granted to the Board or to the
Company, or as may be necessary or advisable in the
administration of this Agreement, including, without
limitation, the right and power to (i) interpret the
provisions of this Agreement, and (ii) make all
determinations deemed necessary or advisable for the
administration of this Agreement (including a
determination to redeem or not redeem the Rights or to
amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect
to the foregoing) which are done or made by the Board in
good faith, shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights
and all other parties, and (y) not subject the Board to
any liability to the holders of the Rights.
Section 29. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of the
Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be
for the sole and exclusive benefit of the Company, the
Rights Agent and the registered holders of the Rights
Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section 30. Severability. If any term,
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated; provided, however, that notwithstanding
anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such
court or authority to be invalid, void or unenforceable
and the Board of Directors of the Company determines in
its good faith judgment that severing the invalid
language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of
redemption set forth in Section 23 hereof shall be
reinstated and shall not expire until the close of
business on the tenth day following the date of such
determination by the Board of Directors.
Section 31. Governing Law. This Agreement,
each Right and each Rights Certificate issued hereunder
shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be
governed by and construed in accordance with the laws of
such State applicable to contracts made and to be
performed entirely within such State.
Section 32. Counterparts. This Agreement may
be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be
an original, and all such counterparts shall together
constitute but one and the same instrument.
Section 33. Descriptive Headings. Descriptive
headings of the several Sections of this Agreement are
inserted for convenience only and shall not control or
affect the meaning or construction of any of the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
Attest: REGENERON PHARMACEUTICALS, INC.
By /s/ Gail Kempler By /s/ Paul Lubetkin
Name: Gail Kempler Name: Paul Lubetkin
Title: Vice President, Title: Vice President
Intellectual Property & Secretary
& Associate General
Counsel
Attest: CHASEMELLON SHAREHOLDER SERVIC
ES L.L.C.
By /s/ Nathan Hill By /s/Leslie A DeLuca
Name: Nathan Hill Name: Leslie A. DeLuca
Title: Assistant Title: Vice President
Vice President
Exhibit A
CERTIFICATE OF AMENDMENT OF THE
RESTATED CERTIFICATE OF INCORPORATION
of
REGENERON PHARMACEUTICALS, INC.
Under Section 805 of the Business Corporation Law
of the State of New York
We the undersigned, Leonard S. Schleifer,
President, and Paul Lubetkin, Secretary of Regeneron
Pharmaceuticals, Inc., a corporation organized and
existing under the laws of the State of New York, in
accordance with the provisions of Section 104 of the
Business Corporation Law of the State of New York, DO
HEREBY CERTIFY:
1. The name of the corporation is Regeneron
Pharmaceuticals, Inc. (hereinafter called the
"Corporation").
2. The Certificate of Incorporation was filed
with the Department of State of the State of New York on
January 11, 1988.
3. The Certificate of Incorporation of the
Company, as amended heretofore (the "Restated Certificate
of Incorporation"), is further amended by the addition of
the following provisions stating the number, designation,
relative rights, preferences and limitations of a series
of Preferred Shares of the Company designated as "Series
A Junior Participating Preferred Stock."
4. To accomplish the foregoing amendment, a
new Article IX is added to the Restated Certificate of
Incorporation, which Article IX reads in its entirety as
follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series A Junior
Participating Preferred Stock" and the number of shares
constituting such series shall be 25,000.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series A Junior
Participating Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the last day of
March, June, September and December in each year (each
such date being referred to herein as a "Quarterly
Dividend Payment Date"), commencing on the first
Quarterly Dividend Payment Date after the first issuance
of a share or fraction of a share of Series A Junior
Participating Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a)
$0.01 or (b) subject to the provision for adjustment
hereinafter set forth, 1,000 times the aggregate per
share amount of all cash dividends, and 1,000 times the
aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions other than a
dividend payable in Common Shares or a subdivision of the
outstanding Common Shares (by reclassification or
otherwise), declared on the Common Shares since the
immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment
Date, since the first issuance of any share or fraction
of a share of Series A Junior Participating Preferred
Stock. In the event the Corporation shall at any time
after October 18, 1996 (the "Rights Declaration Date")
(i) declare any dividend on Common Shares payable in
Common Shares, (ii) subdivide the outstanding Common
Shares, or (iii) combine the outstanding Common Shares
into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately
prior to such event under clause (b) of the preceding
sentence shall be adjusted by multiplying such amount by
a fraction the numerator of which is the number of Common
Shares outstanding immediately after such event and the
denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend
or distribution on the Series A Junior Participating
Preferred Stock as provided in Paragraph (A) above
immediately after it declares a dividend or distribution
on the Common Shares (other than a dividend payable in
Common Shares); provided that, in the event no dividend
or distribution shall have been declared on the Common
Shares during the period between any Quarterly Dividend
Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $0.01 per share on the Series
A Junior Participating Preferred Stock shall nevertheless
be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend
Payment Date next preceding the date of issue of such
shares of Series A Junior Participating Preferred Stock,
unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin
to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment
Date or is a date after the record date for the
determination of holders of shares of Series A Junior
Participating Preferred Stock entitled to receive a
quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends
shall begin to accrue and be cumulative from such
Quarterly Dividend Payment Date. Accrued but unpaid
dividends shall not bear interest. Dividends paid on the
shares of Series A Junior Participating Preferred Stock
in an amount less than the total amount of such dividends
at the time accrued and payable on such shares shall be
allocated pro rata on a share-by-share basis among all
such shares at the time outstanding. The Board of
Directors may fix a record date for the determination of
holders of shares of Series A Junior Participating
Preferred Stock entitled to receive payment of a dividend
or distribution declared thereon, which record date shall
be no more than 30 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of
shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Junior
Participating Preferred Stock shall entitle the holder
thereof to 1,000 votes on all matters submitted to a vote
of the shareholders of the Corporation. In the event the
Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common
Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares, or (iii) combine the
outstanding Common Shares into a smaller number of
shares, then in each such case the number of votes per
share to which holders of shares of Series A Junior
Participating Preferred Stock were entitled immediately
prior to such event shall be adjusted by multiplying such
number by a fraction the numerator of which is the number
of Common Shares outstanding immediately after such event
and the denominator of which is the number of Common
Shares that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series A Junior
Participating Preferred Stock and the holders of Common
Shares shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(C) (i) If at any time dividends on
any Series A Junior Participating Preferred
Stock shall be in arrears in an amount equal to
six (6) quarterly dividends thereon, the
occurrence of such contingency shall mark the
beginning of a period (herein called a "default
period") which shall extend until such time
when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the
current quarterly dividend period on all shares
of Series A Junior Participating Preferred
Stock then outstanding shall have been declared
and paid or set apart for payment. During each
default period, all holders of Preferred Stock
(including holders of the Series A Junior
Participating Preferred Stock) with dividends
in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to
elect two (2) directors.
(ii) During any default period, such
voting right of the holders of Series A Junior
Participating Preferred Stock may be exercised
initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(C) or
at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders,
provided that such voting right shall not be
exercised unless the holders of ten percent
(10%) in number of shares of Preferred Stock
outstanding shall be present in person or by
proxy. The absence of a quorum of the holders
of Common Shares shall not affect the exercise
by the holders of Preferred Stock of such
voting right. At any meeting at which the
holders of Preferred Stock shall exercise such
voting right initially during an existing
default period, they shall have the right,
voting as a class, to elect directors to fill
such vacancies, if any, in the Board of
Directors as may then exist up to two (2)
directors or, if such right is exercised at an
annual meeting, to elect two (2) directors. If
the number which may be so elected at any
special meeting does not amount to the required
number, the holders of the Preferred Stock
shall have the right to make such increase in
the number of directors as shall be necessary
to permit the election by them of the required
number. After the holders of the Preferred
Stock shall have exercised their right to elect
directors in any default period and during the
continuance of such period, the number of
directors shall not be increased or decreased
except by vote of the holders of Preferred
Stock as herein provided or pursuant to the
rights of any equity securities ranking senior
to or pari passu with the Series A Junior
Participating Preferred Stock.
(iii) Unless the holders of
Preferred Stock shall, during an existing
default period, have previously exercised their
right to elect directors, the Board of
Directors may order, or, subject to the
provisions of the Restated Certificate of
Incorporation, as amended, any stockholder or
shareholders owning in the aggregate not less
than ten percent (10%) of the total number of
shares of Preferred Stock outstanding,
irrespective of series, may request, the
calling of special meeting of the holders of
Preferred Stock, which meeting shall thereupon
be called by the President, a Vice-President or
the Secretary of the Corporation. Notice of
such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote
pursuant to this Paragraph (C)(iii) shall be
given to each holder of record of Preferred
Stock by mailing a copy of such notice to him
or her at his or her last address as the same
appears on the books of the Corporation. Such
meeting shall be called for a time not earlier
than 20 days and not later than 60 days after
such order or request or in default of the
calling of such meeting within 60 days after
such order or request, such meeting may be
called on similar notice by any shareholder or
shareholders owning in the aggregate not less
than ten percent (10%) of the total number of
shares of Preferred Stock outstanding.
Notwithstanding the provisions of this
Paragraph (C)(iii), no such special meeting
shall be called during the period within 60
days immediately preceding the date fixed for
the next annual meeting of the shareholders.
(iv) In any default period, the
holders of Common Shares, and other classes of
stock of the Corporation if applicable, shall
continue to be entitled to elect the whole
number of directors until the holders of
Preferred Stock shall have exercised their
right to elect two (2) directors voting as a
class, after the exercise of which right (x)
the directors so elected by the holders of
Preferred Stock shall continue in office until
their successors shall have been elected by
such holders or until the expiration of the
default period, and (y) any vacancy in the
Board of Directors may (except as provided in
Paragraph (C)(ii) of this Section 3) be filled
by vote of a majority of the remaining
directors theretofore elected by the holders of
the class of stock which elected the Director
whose office shall have become vacant.
References in this Paragraph (C) to directors
elected by the holders of particular class of
stock shall include directors elected by such
directors to fill vacancies as provided in
clause (y) of the foregoing sentence.
(v) Immediately upon the expiration
of a default period, (x) the right of the
holders of Preferred Stock as a class to elect
directors shall cease, (y) the term of any
directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the
number of directors shall be such number as may
be provided for in the Restated Certificate of
Incorporation or By-laws irrespective of any
increase made pursuant to the provisions of
Paragraph (C)(ii) of this Section 3 (such
number being subject, however, to change
thereafter in any manner provided by law or in
the Restated Certificate of Incorporation or
By-Laws). Any vacancies in the Board of
Directors effected by the provisions of clauses
(y) and (z) in the preceding sentence may be
filled by a majority of the remaining
directors.
(D) Except as set forth herein, holders of
Series A Junior Participating Preferred Stock shall have
no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote
with holders of Common Shares as set forth herein) for
taking any corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series A Junior
Participating Preferred Stock as provided in Section 2
are in arrears, thereafter and until all accrued and
unpaid dividends and distributions, whether or not
declared, on shares of Series A Junior Participating
Preferred Stock outstanding shall have been paid in full,
the Corporation shall not
(i) declare or pay dividends
on, make any other distributions on, or redeem
or purchase or otherwise acquire for
consideration any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to the
Series A Junior Participating Preferred Stock;
(ii) declare or pay dividends
on or make any other distributions on any
shares of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution
or winding up) with the Series A Junior
Participating Preferred Stock, except dividends
paid ratably on the Series A Junior
Participating Preferred Stock and all such
parity stock on which dividends are payable or
in arrears in proportion to the total amounts
to which the holders of all such shares are
then entitled;
(iii) redeem or purchase or
otherwise acquire for consideration shares of
any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
winding up) with the Series A Junior
Participating Preferred Stock, provided that
the Corporation may at any time redeem,
purchase or otherwise acquire shares of any
such parity stock in exchange for shares of any
stock of the Corporation ranking junior (either
as to dividends or upon dissolution,
liquidation or winding up) to the Series A
Junior Participating Preferred Stock; or
(iv) purchase or otherwise
acquire for consideration any shares of Series
A Junior Participating Preferred Stock, or any
shares of stock ranking on a parity with the
Series A Junior Participating Preferred Stock,
except in accordance with a purchase offer made
in writing or by publication (as determined by
the Board of Directors) to all holders of such
shares upon such terms as the Board of
Directors, after consideration of the
respective annual dividend rates and other
relative rights and preferences of the
respective series and classes, shall determine
in good faith will result in fair and equitable
treatment among the respective series or
classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under Paragraph
(A) of this Section 4, purchase or otherwise acquire such
shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner
whatsoever shall be retired and cancelled promptly after
the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued shares
of Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution or
resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding
Up. (A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no
distribution shall be made to the holders of shares of
stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Junior Participating Preferred Stock unless, prior
thereto, the holders of shares of Series A Junior
Participating Preferred Stock shall have received an
amount equal to 1,000 times the Exercise Price, plus an
amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the
date of such payment (the "Series A Liquidation
Preference"). Following the payment of the full amount
of the Series A Liquidation Preference, no additional
distributions shall be made to the holders of shares of
Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of Common Shares shall have
received an amount per share (the "Common Adjustment")
equal to the quotient obtained by dividing (i) the Series
A Liquidation Preference by (ii) 1,000 (as appropriately
adjusted as set forth in subparagraph (C) below to
reflect such events as stock splits, stock dividends and
recapitalizations with respect to the Common Shares)
(such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series A
Liquidation Preference and the Common Adjustment in
respect of all outstanding shares of Series A Junior
Participating Preferred Stock and Common Shares,
respectively, holders of Series A Junior Participating
Preferred Stock and holders of Common Shares shall
receive their ratable and proportionate share of the
remaining assets to be distributed in the ratio of the
Adjustment Number to 1 with respect to such Preferred
Stock and Common Shares, on a per share basis,
respectively.
(B) In the event, however, that there are not
sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation
preferences of all other series of preferred stock, if
any, which rank on a parity with the Series A Junior
Participating Preferred Stock, then such remaining assets
shall be distributed ratably to the holders of such
parity shares in proportion to their respective
liquidation preferences. In the event, however, that
there are not sufficient assets available to permit
payment in full of the Common Adjustment, then such
remaining assets shall be distributed ratably to the
holders of Common Shares.
(C) In the event the Corporation shall at any
time after the Rights Declaration Date (i) declare any
dividend on Common Shares payable in Common Shares, (ii)
subdivide the outstanding Common Shares, or (iii) combine
the outstanding Common Shares into a smaller number of
shares, then in each such case the Adjustment Number in
effect immediately prior to such event shall be adjusted
by multiplying such Adjustment Number by a fraction the
numerator of which is the number of Common Shares
outstanding immediately after such event and the
denominator of which is the number of Common Shares that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the
Common Shares are exchanged for or changed into other
stock or securities, cash and/or any other property, then
in any such case the shares of Series A Junior
Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share
(subject to the provision for adjustment hereinafter set
forth) equal to 1,000 times the aggregate amount of
stock, securities, cash and/or any other property
(payable in kind), as the case may be, into which or for
which each Common Shares is changed or exchanged. In the
event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common
Shares payable in shares of Common Shares, (ii) subdivide
the outstanding Common Shares, or (iii) combine the
outstanding Common Shares into a smaller number of
shares, then in each such case the amount set forth in
the preceding sentence with respect to the exchange or
change of shares of Series A Junior Participating
Preferred Stock shall be adjusted by multiplying such
amount by a fraction the numerator of which is the number
of Common Shares outstanding immediately after such event
and the denominator of which is the number of shares of
Common Shares that were outstanding immediately prior to
such event.
Section 8. No Redemption. The shares of
Series A Junior Participating Preferred Stock shall not
be redeemable.
Section 9. Ranking. The Series A Junior
Preferred Stock shall rank junior to all other series of
the Corporation's Preferred Stock as to the payment of
dividends and the distribution of assets, unless the
terms of any such series shall provide otherwise.
Section 10. Amendment. The Restated
Certificate of Incorporation, as amended, of the
Corporation shall not be further amended in any manner
which would materially alter or change the powers,
preferences or special rights of the Series A Junior
Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of
a majority or more of the outstanding shares of Series A
Junior Participating Preferred Stock, voting separately
as a class.
Section 11. Fractional Shares. Series A
Junior Participating Preferred Stock may be issued in
fractions of a share which shall entitle the holder, in
proportion to such holders fractional shares, to exercise
voting rights, receive dividends, participate in
distributions and to have the benefit of all other rights
of holders of Series A Junior Participating Preferred
Stock.
5. The manner in which the foregoing amendment
of the Restated Certificate of Incorporation was
authorized is a follows: The Board of Directors of the
Corporation authorized the amendment under the authority
vested in said Board under the provisions of the
Certificate of Incorporation and of Section 502 of the
Business Corporation Law.
IN WITNESS WHEREOF, we have subscribed this
document on the date set opposite each of our names below
and do hereby affirm, under the penalties of perjury,
that the statements contained therein have been examined
by us and are true and correct.
Date: October , 1996
Name: Leonard S. Schleifer
Title: President
Name: Paul Lubetkin
Title: Secretary
Exhibit B
[Form of Rights Certificate]
Certificate No. R- ________ Rights
NOT EXERCISABLE AFTER OCTOBER, 2006 OR EARLIER IF REDEEMED BY
THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH
TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON
(AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT).
ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.](1)
Rights Certificate
REGENERON PHARMACEUTICALS, INC.
This certifies that , or
registered assigns, is the registered owner of the number of
Rights set forth above, each of which entitles the owner
thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of September 20, 1996 (the
"Rights Agreement"), between Regeneron Pharmaceuticals, Inc.,
a New York corporation (the "Company"), and ChaseMellon
Shareholder Services L.L.C., a New Jersey limited liability
company (the "Rights Agent"), to purchase from the Company at
any time prior to 5:00 P.M. (New York City time) on October
18, 2006 at the office or offices of the Rights Agent
designated for such purpose, or its successors as Rights
Agent, one one-thousandth of a fully paid, non-assessable
share of Series A Junior Participating Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price of
$120.00 per one one-thousandth of a share (the "Purchase
Price"), upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and related
Certificate duly executed. The number of Rights evidenced by
this Rights Certificate (and the number of shares which may
be purchased upon exercise thereof) set forth above, and the
Purchase Price per share set forth above, are the number and
Purchase Price as of October 18, 1996 based on the Preferred
Stock as constituted at such date. The Company reserves the
right to require prior to the occurrence of a Triggering
Event (as such term is defined in the Rights Agreement) that
_____________________
1 The portion of the legend in brackets shall be
inserted only if applicable and shall replace the
preceding sentence.
a number of Rights be exercised so that only whole shares of
Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event
(as such term is defined in the Rights Agreement), if the
Rights evidenced by this Rights Certificate are beneficially
owned by (i) an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as such terms are defined in
the Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii) under
certain circumstances specified in the Rights Agreement, a
transferee of a person who, after such transfer, became an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, such Rights shall become null and void and
no holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section
11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase
Price and the number and kind of shares of Preferred Stock or
other securities, which may be purchased upon the exercise of
the Rights evidenced by this Rights Certificate are subject
to modification and adjustment upon the happening of certain
events, including Triggering Events.
This Rights Certificate is subject to all of the
terms, provisions and conditions of the Rights Agreement,
which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and
to which Rights Agreement reference is hereby made for a full
description of the rights, limitations of rights,
obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the
temporary suspension of the exercisability of such Rights
under the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal office
or offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights
entitling the holder to purchase a like aggregate number of
one one-thousandths of a share of Preferred Stock as the
Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to
purchase. If this Rights Certificate shall be exercised in
part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for
the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement,
the Rights evidenced by this Certificate may be redeemed by
the Company at its option at a redemption price of $0.01 per
Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition
Date (as such time period may be extended pursuant to the
Rights Agreement), and (ii) the Final Expiration Date. In
addition, the Rights may be exchanged, in whole or in part,
for Common Shares, or shares of preferred stock of the
Company having essentially the same value or economic rights
as such shares. Immediately upon the action of the Board of
Directors of the Company authorizing any such exchange, and
without any further action or any notice, the Rights (other
than Rights which are not subject to such exchange) will
terminate and the Rights will only enable holders to receive
the shares issuable upon such exchange.
No fractional shares of Preferred Stock will be
issued upon the exercise of any Right or Rights evidenced
hereby (other than fractions which are integral multiples of
one one-thousandth of a share of Preferred Stock, which may,
at the election of the Company, be evidenced by depositary
receipts), but in lieu thereof a cash payment will be made,
as provided in the Rights Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for any
purpose the holder of shares of Preferred Stock or of any
other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained
in the Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or, to receive notice of
meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights
evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of ,
ATTEST: REGENERON PHARMACEUTICALS, INC.
____________________ By___________________________
Secretary Title:
Countersigned:
CHASEMELLON SHAREHOLDER
SERVICES L.L.C.
By______________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED
hereby sells, assigns and transfer unto
(Please print name and address of transferee)
this Rights Certificate, together with all right, title
and interest therein, and does hereby irrevocably
constitute and appoint _________________ Attorney, to
transfer the within Rights Certificate on the books of
the within-named Company, with full power of
substitution.
Dated: ___________________, 19__
___________________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is
not being sold, assigned and transferred by or on behalf
of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as
such terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated: __________________, 19__ ______________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon
the face of this Rights Certificate in every particular,
without alteration or enlargement or any change
whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires
to exercise Rights represented
by the Rights Certificate.)
To: REGENERON PHARMACEUTICALS, INC.:
The undersigned hereby irrevocably elects to
exercise __________ Rights represented by this Rights
Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person which
may be issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued in
the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
If such number of Rights shall not be all the
Rights evidenced by this Rights Certificate, a new Rights
Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated: _______________, 19__
______________________
Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking
the appropriate boxes that:
(1) the Rights evidenced by this Rights
Certificate [ ] are [ ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person
(as such terms are defined pursuant to the Rights
Agreement);
(2) after due inquiry and to the best
knowledge of the undersigned, it [ ] did [ ] did not
acquire the Rights evidenced by this Rights Certificate
from any Person who is, was or became an Acquiring Person
or an Affiliate or Associate of an Acquiring Person.
Dated: ___________, 19__ ___________________________
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to
Purchase and Certificate must correspond to the name as
written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any
change whatsoever.
Exhibit C
DETAILED SUMMARY OF RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
On September 20, 1996, the Board of Directors
of Regeneron Pharmaceuticals, Inc. (the "Company")
adopted a Shareholder Rights Plan, providing that one
Right shall be attached to each share of Common Stock,
par value $0.001 per share (the "Common Shares") and
Class A Common Stock, par value $0.001 per share (the
"Class A Stock" and, together with the Common Shares, the
"Common Stock") of the Company. Each Right entitles the
registered holder to purchase from the Company a unit (a
"Unit") consisting of one one-thousandth of a share of
Series A Junior Participating Preferred Stock, par value
$0.01 per share (the "Preferred Stock"), at a purchase
price (the "Purchase Price") of $120.00 per one one-
thousandth of a share of Preferred Stock (a "Unit"),
subject to adjustment. The description and terms of the
Rights are set forth in the Rights Agreement (the "Rights
Agreement"), dated as of September 20, 1996, between the
Company and ChaseMellon Shareholder Services L.L.C., a
New Jersey limited liability company, as Rights Agent
(the "Rights Agent").
Initially, the Rights will be attached to all
Common Stock certificates representing shares then
outstanding, and no separate Rights Certificate will be
distributed. The Rights will separate from the Common
Stock upon the earlier of (i) 10 days following a public
announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired,
or has obtained the right to acquire, beneficial ownership
of 20% or more of the outstanding shares of Common Stock
(the "Stock Acquisition Date") or (ii) ten business days
following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially
owning 20% or more of such outstanding shares of Common
Stock (the earlier of (i) and (ii), the "Distribution
Date"). The definition of Acquiring Person, subject to
certain limitations set forth in the Rights Agreement,
excludes Amgen Inc., which currently holds Common Stock,
Series A Stock and a Warrant to purchase Common Stock and
Leonard S. Schleifer, who currently holds Class A Stock
and certain permitted transferees of Dr. Schleifer,
subject to certain limitations. Until the Distribution
Date, (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with
such Common Stock certificates, (ii) new Common Stock
certificates will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for
transfer of any certificates for Common Stock outstanding
will also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate.
The Rights are not exercisable until the
Distribution Date and will expire at the close of business
on October 18, 2006 unless earlier redeemed by the Company
as described below. At no time will the Rights have any
voting power.
As soon as practicable after the Distribution
Date, Rights Certificates will be mailed to holders of
record of the Common Stock as of the close of business on
the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, only
shares of Common Stock issued prior to the Distribution
Date will be issued with Rights.
In the event that an Acquiring Person becomes
the beneficial owner of 20% or more of the then
outstanding shares of Common Stock (unless such
acquisition is made pursuant to a tender or exchange offer
for all outstanding shares of the Company, at a price
determined by a majority of the independent directors of
the Company who are not representatives, nominees,
Affiliates or Associates of an Acquiring Person to be fair
and otherwise in the best interest of the Company and its
shareholders after receiving advice from one or more
investment banking firms (a "Qualifying Offer")), each
holder of a Right will thereafter have the right to
receive, upon exercise, Common Shares (or, in certain
circumstances, cash, property or other securities of the
Company), having a value equal to two times the Exercise
Price of the Right. The Exercise Price is the Purchase
Price times the number of shares of Common Shares
associated with each Right (initially, one).
Notwithstanding any of the foregoing, following the
occurrence of any of the events set forth in this
paragraph (the "Flip-in Events"), all Rights that are, or
(under certain circumstances specified in the Rights
Agreement) were, beneficially owned by any Acquiring
Person will be null and void. However, Rights are not
exercisable following the occurrence of any of the Flip-in
Events set forth above until such time as the Rights are
no longer redeemable by the Company as set forth below.
In the event that following the Stock
Acquisition Date, (i) the Company engages in a merger or
business combination transaction in which the Company is
not the surviving corporation (other than a merger
consummated pursuant to a Qualifying Offer); (ii) the
Company engages in a merger or business combination
transaction in which the Company is the surviving
corporation and the Common Stock of the Company is changed
or exchanged; or (iii) more than 50% of the Company's
assets or earning power is sold or transferred, each
holder of a Right (except Rights which have previously
been voided as set forth above) shall thereafter have the
right to receive, upon exercise of the Right, common stock
of the acquiring company having a value equal to two times
the Exercise Price of the Right.
The Purchase Price payable, and the number of
Units of Preferred Stock or other securities or property
issuable upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in
the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock,
(ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or
convertible securities at less than the current market
price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock of
evidences of indebtedness or assets (excluding regular
quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustments in the
Purchase Price will be required until cumulative
adjustments amount to at least 1% of the Purchase Price.
No fractional Units will be issued and, in lieu thereof,
an adjustment in cash will be made based on the market
price of the Preferred Stock on the last trading date
prior to the date of exercise.
At any time until ten days following the Stock
Acquisition Date, the Company may redeem the Rights in
whole, but not in part, at a price of $0.01 per Right.
Immediately upon the action of the Board of Directors
ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will
be to receive the $0.01 redemption price.
Until a Right is exercised, the holder thereof,
as such, will have no rights as a shareholder of the
Company, including, without limitation, the right to vote
or to receive dividends. While the distribution of the
Rights will not be taxable to shareholders or to the
Company, shareholders may, depending upon the
circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Shares (or other
consideration) of the Company as set forth above or in the
event that the Rights are redeemed.
Other than those provisions relating to the
principal economic terms of the Rights, any of the
provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the
Distribution Date. After the Distribution Date, the
provisions of the Rights Agreement may be amended by the
Board in order to cure any ambiguity, to make changes
which do not adversely affect the interests of holders of
Rights (excluding the interest of any Acquiring Person),
or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust
the time period governing redemption shall be made at such
time as the Rights are not redeemable.
A copy of the Rights Agreement is being filed
with the Securities and Exchange Commission as an Exhibit
to a Registration Statement on Form 8-A. A copy of the
Rights Agreement is available free of charge from the
Company. This Summary Description of the Rights does not
purport to be complete and is qualified in its entirety by
reference to the Rights Agreement, which is incorporated
herein by reference.
FOR IMMEDIATE RELEASE
REGENERON ADOPTS SHAREHOLDER RIGHTS PLAN
Tarrytown, New York (September 20, 1996) --
Regeneron Pharmaceuticals, Inc. (NASDAQ: REGN), announced
today that on September 20, 1996 its Board of Directors
adopted a Shareholder Rights Plan in which rights will be
distributed as a dividend at the rate of one Right for
each share of Common Stock, par value $0.001 per share
(the "Common Shares"), and for each share of Class A
Stock, par value $0.001 per share (the "Class A Stock"
and, together with the Common Shares, the "Common Stock")
of the Company held by shareholders of record as of the
close of business on October 18, 1996. The Rights will
expire on October 18, 2006.
Regeneron's Rights Plan is designed to protect
Regeneron's shareholders' rights to retain their equity
investment in the Company and receive full value for
their investment, while not foreclosing a fair
acquisition bid for the Company. It aims to deter
coercive takeover tactics including the accumulation of
shares in the open market or through private transactions
and to prevent an acquirer from gaining control of the
Company without offering a fair price to all of the
Company's shareholders. The Rights Plan was not adopted
in response to any takeover attempt.
Each Right initially will entitle shareholders
to buy one unit of a share of preferred stock for $120.
The Rights will be exercisable only if a person or group
acquires beneficial ownership of 20% or more of the
Company's Common Stock or commences a tender or exchange
offer upon consummation of which such person or group
would beneficially own 20% or more of the outstanding
voting power of the Company.
Subject to certain exemptions, if any person
becomes the beneficial owner of 20% or more of the
Company's Common Stock, other than pursuant to a tender
or exchange offer for all outstanding shares of the
Company approved by a majority of the independent
directors not affiliated with the 20%-or-more
shareholder, then each right not owned by the 20%-or-more
shareholder or related parties will entitle its holder to
purchase, at the Right's then current exercise price,
shares of the Company's Common Shares (or, in certain
circumstances as determined by the Board, cash, other
property, or other securities) having a value of twice
the Right's then current exercise price. In addition, if
after any person has become a 20%-or-more shareholder,
Regeneron is involved in a merger or other business
combination transaction with another person in which the
Company does not survive or in which its Common Stock is
changed or exchanged, or sells 50% or more of its assets
or earning power to another person, each Right will
entitle each holder other than any person who has become
a 20%-or-more shareholder, to purchase, at the Right's
then current exercise price, shares of common stock of
such other person having a value of twice the Right's
then current exercise price.
The Company will generally be entitled to
redeem the Rights for one cent per Right at any time
until ten days (subject to extension) following a public
announcement that a 20% position in the Company's Common
Stock has been acquired.
Details of the Shareholder Rights Plan are
outlined in a letter which will be mailed to all
shareholders after October 18, 1996.
Regeneron is a leader in the application of
molecular and cell biology to discover novel potential
therapeutics for human medical conditions. The Company
is applying its technological expertise in protein growth
factors, their receptors, and their mechanisms of action
to the discovery and development of neurotrophic factors
for the potential treatment of neurodegenerative
diseases, peripheral neuropathies, and nerve injury.
Regeneron is collaborating with Amgen Inc. in the
development of two neurotrophic factors, brain-derived
neurotrophic factor and neurotrophin-3, each of which is
in human clinical studies. More recently, Regeneron has
used its technological expertise to attempt to identify
treatments for diseases and conditions outside of the
nervous system, such as inflammatory and muscle diseases,
angiogenesis, hematopoiesis, and cancer.
###
CONTACT: Murray A. Goldberg
Vice President Finance and Administration and CFO
Regeneron Pharmaceuticals, Inc.
(914) 345-7492
Michael Gross
Principal
Robinson Lerer Sawyer Miller
(212) 484-7721
Regeneron's recent news releases can be obtained by
dialing (800) 311-0841 for fax copies or by accessing the
Internet at www.businesswire.com