\nSection 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT…………………………………….29<\/p>\nSection 20. DUTIES OF RIGHTS AGENT……………………………………………………………………30<\/p>\n
Section 21. CHANGE OF RIGHTS AGENT……………………………………………………………………32<\/p>\n
Section 22. ISSUANCE OF NEW RIGHTS CERTIFICATES………………………………………………………..33<\/p>\n
Section 23. REDEMPTION AND TERMINATION………………………………………………………………..33<\/p>\n
Section 24. EXCHANGE………………………………………………………………………………..34<\/p>\n
Section 25. NOTICE OF PROPOSED ACTIONS………………………………………………………………..35<\/p>\n
Section 26. NOTICES…………………………………………………………………………………36<\/p>\n
Section 27. SUPPLEMENTS AND AMENDMENTS………………………………………………………………..37<\/p>\n
Section 28. SUCCESSORS………………………………………………………………………………37<\/p>\n
Section 29. DETERMINATIONS AND ACTIONS BY THE BOARD; ETC………………………………………………..38<\/p>\n
Section 30. BENEFITS OF THIS AGREEMENT………………………………………………………………..38<\/p>\n
Section 31. SEVERABILITY…………………………………………………………………………….38<\/p>\n
Section 32. GOVERNING LAW……………………………………………………………………………39<\/p>\n
Section 33. COUNTERPARTS…………………………………………………………………………….39<\/p>\n
Section 34. DESCRIPTIVE HEADINGS……………………………………………………………………..39
\n<\/c><\/s><\/table>\n
-ii-<\/p>\n
3<\/p>\n
RIGHTS AGREEMENT<\/p>\n
This Agreement dated as of March 28, 2000 is between Summit Technology,
\nInc., a Massachusetts corporation (the “Company”), and Fleet National Bank
\n(f\/k\/a BankBoston, N.A.), as rights agent (the “Rights Agent”).<\/p>\n
W I T N E S S E T H:<\/p>\n
WHEREAS, on March 28, 2000 the Board of Directors of the Company (the
\n“Board”) authorized the issuance of rights (collectively, the “Rights,” and
\nindividually a “Right”), each Right being a right to purchase, on the terms and
\nsubject to the provisions of this Agreement, one one-thousandth of a share of
\nthe Company’s Preferred Stock; and<\/p>\n
WHEREAS, on March 28, 2000 (the “Declaration Date”) the Board (a)
\nauthorized and declared a dividend distribution of one Right for every share of
\nCommon Stock, $.01 par value per share, of the Company outstanding at the Close
\nof Business (as hereinafter defined) on March 29, 2000 (the “Dividend Record
\nDate”), and (b) authorized the issuance of, and agreed to issue, one Right (as
\nsuch number may be adjusted in accordance with Section 11(i) or 11(p) hereof)
\nfor every share of Common Stock of the Company issued between the Dividend
\nRecord Date and the Distribution Date (as hereinafter defined).<\/p>\n
NOW, THEREFORE, in consideration of the premises and the mutual agreements
\nherein set forth, the parties hereto hereby agree as follows:<\/p>\n
Section 1. CERTAIN DEFINITIONS.<\/p>\n
For purposes of this Agreement, the following terms have the meanings
\nindicated:<\/p>\n
(a) “Acquiring Person” shall mean any Person who or which, together with
\nall Affiliates of such Person, shall be the Beneficial Owner of 15.0% or more of
\nthe shares of Common Stock then outstanding, but shall not include (i) the
\nCompany, (ii) any Subsidiary of the Company, (iii) any employee benefit plan of
\nthe Company or of any Subsidiary of the Company, (iv) any Person organized,
\nappointed, or established by the Company or a Subsidiary of the Company pursuant
\nto the terms of any plan described in clause (iii) above, or (v) any such Person
\nwho has reported or is required to report such ownership on Schedule 13G under
\nthe Exchange Act (or any comparable or successor report) or on Schedule 13D
\nunder the Exchange Act (or any comparable or successor report) which Schedule
\n13D does not state any intention to or reserve the right to control or influence
\nthe management or policies of the Company or engage in any of the actions
\nspecified in Item 4 of such Schedule (other than the disposition of the Common
\nStock) and, within 10 Business Days of being requested by the Company to advise
\nit regarding the same, certifies to the Company that such Person acquired shares
\nof Common Stock in excess of 14.9% inadvertently or without knowledge of the
\nterms <\/p>\n
4<\/p>\n
of the Rights and who, together with all of such Person’s Affiliates, thereafter
\ndoes not acquire additional shares of Common Stock while the Beneficial Owner of
\n15.0% or more of the shares of Common Stock then outstanding, PROVIDED, HOWEVER,
\nthat if the Person requested to so certify fails to do so within 10 Business
\nDays, then such Person shall become an Acquiring Person immediately after such
\n10 Business Day Period.<\/p>\n
(b) “Act” shall mean the Securities Act of 1933 (or any successor act), as
\namended and as may from time to time be in effect.<\/p>\n
(c) “Affiliate,” with respect to any Person, shall mean any other Person
\nwho is, or who would be deemed to be, an “affiliate” or an “associate” of such
\nPerson within the respective meanings ascribed to such terms in Rule 12b-2 of
\nthe General Rules and Regulations under the Exchange Act, as such Rule is in
\neffect on the Declaration Date.<\/p>\n
(d) A Person shall be deemed the “Beneficial Owner” of, and shall be
\ndeemed to “beneficially own” or have “Beneficial Ownership” of, any securities:<\/p>\n
(i) which such Person or any of such Person’s Affiliates has
\n “beneficial ownership” of within the meaning of Rule 13d-3 of the General
\n Rules and Regulations under the Exchange Act, as such Rule is in effect on
\n the Declaration Date;<\/p>\n
(ii) which such Person or any of such Person’s Affiliates has,
\n directly or indirectly, the right to acquire (whether such right is
\n exercisable immediately or after the passage of time) pursuant to any
\n agreement, arrangement or understanding (whether or not in writing) or upon
\n the exercise of conversion, exchange or other rights, warrants or options,
\n or otherwise;<\/p>\n
(iii) which such Person or any of such Person’s Affiliates has,
\n directly or indirectly, the right to vote or dispose of, including pursuant
\n to any agreement, arrangement or understanding (whether or not in writing);
\n PROVIDED, HOWEVER, that a Person shall not be deemed the “Beneficial Owner”
\n of, or to “beneficially own,” any security for purposes of this Section
\n 1(d)(iii) as a result of an agreement, arrangement or understanding to vote
\n such security if such agreement, arrangement or understanding: (A) arises
\n solely from a revocable proxy given in response to a public proxy or
\n consent solicitation made pursuant to, and in accordance with, the
\n applicable proxy solicitation rules and regulations promulgated under the
\n Exchange Act or (B) is made in connection with, or is to otherwise
\n participate in, a proxy or consent solicitation made, or to be made,
\n pursuant to, and in accordance with, the applicable proxy solicitation
\n rules and regulations promulgated under the Exchange Act, in either case
\n described in clause (A) or (B) above, whether or not such agreement,
\n arrangement or understanding is also then reportable by such Person on
\n Schedule 13D under the Exchange Act (or any comparable or successor
\n report); or<\/p>\n
-2-<\/p>\n
5<\/p>\n
(iv) which are beneficially owned, directly or indirectly, by any
\n other Person or any Affiliate thereof with which such Person or any of such
\n Person’s Affiliates has any agreement, arrangement or understanding
\n (whether or not in writing), for the purpose of acquiring, holding, voting
\n (except pursuant to a revocable proxy or in connection with a proxy or
\n consent solicitation described in clause (A) or (B) of the proviso to
\n Section 1(d)(iii) hereof) or disposing of any securities of the Company;<\/p>\n
PROVIDED, HOWEVER, that for purposes of this Section 1(d) a Person shall not be
\ndeemed the “Beneficial Owner” of, or to “beneficially own,” (A) securities
\ntendered pursuant to a tender or exchange offer made by such Person or any of
\nsuch Person’s Affiliates until such tendered securities are accepted for
\npurchase or exchange, (B) securities issuable upon exercise of Rights at any
\ntime prior to the occurrence of a Common Stock Event, or (C) securities issuable
\nupon exercise of Rights which were held by a Person or its Affiliates prior to
\nthe Distribution Date as long as such Person is not responsible for the
\noccurrence of the Common Stock Event giving rise to the Distribution Date; and
\nPROVIDED, FURTHER, HOWEVER, that nothing in this Section 1(d) shall cause a
\nPerson engaged in business as an underwriter of securities to be the “Beneficial
\nOwner” of, or to “beneficially own,” any securities acquired through such
\nPerson’s participation in good faith in a firm commitment underwriting until the
\nexpiration of 40 days after the date of such acquisition.<\/p>\n
(e) “Board” shall have the meaning set forth in the preamble to this
\nAgreement.<\/p>\n
(f) “Business Day” shall mean any day other than a Saturday, Sunday or a
\nday on which banking institutions in The Commonwealth of Massachusetts or the
\ncity in which the principal office of the Rights Agent is located are authorized
\nor obligated by law or executive order to close.<\/p>\n
(g) “Close of Business” on any given date shall mean 5:00 p.m., Boston,
\nMassachusetts time, on such date; PROVIDED, HOWEVER, that if such date is not a
\nBusiness Day it shall mean 5:00 p.m., Boston, Massachusetts time, on the next
\nsucceeding Business Day.<\/p>\n
(h) “Closing Price” shall have the meaning set forth in Section 11(d)
\nhereof.<\/p>\n
(i) “Common Stock” shall mean the Common Stock, $.01 par value per share,
\nof the Company, except that “Common Stock” when used with respect to any Person
\nother than the Company shall mean either (i) the common stock (or other capital
\nstock or shares of beneficial interest) of such Person with the greatest voting
\npower, or (ii) the equity securities or other equity interests having power to
\ncontrol or direct the management and affairs of such Person, or if such Person
\nis a Subsidiary of another Person, the Person (A) who ultimately controls such
\nPerson that is the Subsidiary and (B) which has outstanding such common stock
\n(or such other capital stock, equity securities or interests).<\/p>\n
-3-
\n 6<\/p>\n
(j) “Common Stock Equivalents” shall have the meaning set forth in Section
\n11(a)(iii) hereof.<\/p>\n
(k) “Common Stock Event” shall mean the occurrence of any event described
\nin (i) Section 11(a)(ii) hereof or (ii) clause (a), (b) or (c) of the first
\nsentence of Section 13 hereof.<\/p>\n
(l) “Company” shall have the meaning set forth in the preamble to this
\nAgreement.<\/p>\n
(m) “Current Market Price” shall have the meaning set forth in Section
\n11(d) hereof.<\/p>\n
(n) “Current Value” shall have the meaning set forth in Section 11(a)(iii)
\nhereof.<\/p>\n
(o) “Declaration Date” shall have the meaning set forth in the preamble to
\nthis Agreement.<\/p>\n
(p) “Directors” shall mean the members of the Board.<\/p>\n
(q) “Disqualified Transferee” shall mean any Person who is a direct or
\nindirect transferee of any Right from an Acquiring Person or an Affiliate of an
\nAcquiring Person and became such a transferee (x) after the occurrence of a
\nCommon Stock Event or (y) prior to or concurrently with the Acquiring Person
\nbecoming such and received such Right pursuant to a transfer (whether or not for
\nvalue) (A) from the Acquiring Person to holders of its Common Stock or other
\nequity securities or to any Person with whom the Acquiring Person has any
\ncontinuing agreement, arrangement, or understanding (whether or not in writing)
\nregarding the transferred Right, or (B) which a majority of the Board reasonably
\ndetermines is part of a plan, arrangement, or understanding (whether or not in
\nwriting) which has as a primary purpose or effect, the avoidance of Section 7(e)
\nhereof.<\/p>\n
(r) “Distribution Date” shall mean the date which is the later of (A) the
\nearlier of (x) the 10th Business Day following the Stock Acquisition Date or (y)
\nthe 10th Business Day following the Offer Commencement Date or (B) such
\nspecified or unspecified date thereafter which is on or after the Dividend
\nRecord Date, as may be determined by a majority of the Board.<\/p>\n
(s) “Dividend Record Date” shall have the meaning set forth in the
\npreamble to this Agreement.<\/p>\n
(t) “Equivalent Preferred Stock” shall have the meaning set forth in
\nSection 11(b) hereof.<\/p>\n
(u) “Excess Amount” shall have the meaning set forth in Section 11(a)(iii)
\nhereof.<\/p>\n
-4-
\n 7<\/p>\n
(v) “Exchange Act” shall mean the Securities Exchange Act of 1934 (or any
\nsuccessor act), as in effect on the Declaration Date.<\/p>\n
(w) “Exchange Ratio” shall have the meaning set forth in Section 24(a)
\nhereof.<\/p>\n
(x) “Expiration Date” shall have the meaning set forth in Section 7(a)
\nhereof.<\/p>\n
(y) “Offer Commencement Date” shall mean the date of the commencement by
\nany Person, other than (i) the Company, (ii) a Subsidiary of the Company, (iii)
\nany employee benefit plan of the Company or of any Subsidiary of the Company or
\n(iv) any Person organized, appointed, or established by the Company or such
\nSubsidiary pursuant to the terms of any such plan, of a tender or exchange offer
\n(including when such offer is first published or sent or given within the
\nmeaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
\nAct) if upon consummation thereof such Person and Affiliates thereof would be
\nthe Beneficial Owner of 15.0% or more of the then outstanding shares of Common
\nStock (including any such date which is after the date of this Agreement and
\nprior to the issuance of the Rights on the Dividend Record Date or thereafter).<\/p>\n
(z) “Officers’ Certificate” has the meaning set forth in Section 20(b)
\nhereof.<\/p>\n
(aa) “Other Consideration” has the meaning set forth in Section 6(a)
\nhereof.<\/p>\n
(bb) “Person” shall mean a company, corporation, association, partnership,
\njoint venture, limited liability company, trust, estate, organization, business,
\nentity or individual.<\/p>\n
(cc) “Preferred Stock” shall mean the Series A Preferred Stock, par value
\n$.01 per share, of the Company, having the rights and preferences set forth in
\nthe form of Certificate of Designation attached hereto as Exhibit A.<\/p>\n
(dd) “Purchase Price” shall have the meaning set forth in Section 7(b)
\nhereof.<\/p>\n
(ee) “Redemption Price” shall have the meaning set forth in Section 23
\nhereof.<\/p>\n
(ff) “Rights” shall have the meaning set forth in the preamble to this
\nAgreement.<\/p>\n
(gg) “Rights Agent” shall have the meaning set forth in the preamble of
\nthis Agreement subject to the appointment of a successor Rights Agent pursuant
\nto Section 21 hereof.<\/p>\n
(hh) “Rights Certificates” shall have the meaning set forth in Section 3(a)
\nhereof.<\/p>\n
(ii) “Stock Acquisition Date” shall mean the later of (i) the date of the
\nfirst public announcement by an Acquiring Person or the Company that an
\nAcquiring Person has become <\/p>\n
-5-<\/p>\n
8<\/p>\n
such (including the first date on which any filing with any governmental
\nauthority disclosing that an Acquiring Person has become such becomes available
\nto the public), or (ii) the date on which an executive officer of the Company
\nhas actual knowledge that an Acquiring Person has become such.<\/p>\n
(jj) “Subsidiary” shall mean, as of any date, any Person of which the
\nCompany (or other specified Person) owns directly, or indirectly through a
\nSubsidiary or Subsidiaries, at least a majority of the outstanding capital stock
\n(or other shares of beneficial interest) entitled to vote generally, or holds
\ndirectly, or indirectly through a Subsidiary or Subsidiaries, at least a
\nmajority of partnership or similar interests, or is a general partner, or of
\nwhich the Company (or other specified Person) owns voting securities sufficient
\nto elect at least a majority of the directors of such Person.<\/p>\n
(kk) “Substitution Period” shall have the meaning set forth in Section
\n11(a)(iii) hereof.<\/p>\n
(ll) “Summary of Rights” shall have the meaning set forth in Section 3(b)
\nhereof.<\/p>\n
(mm) “Trading Day” shall mean a day on which the principal national
\nsecurities exchange on which such security is listed or admitted to trading is
\nopen for the transaction of business or, if such security is not listed or
\nadmitted to trading on any national securities exchange, a day which is a
\nBusiness Day.<\/p>\n
Section 2. APPOINTMENT OF RIGHTS AGENT.<\/p>\n
The Company hereby appoints the Rights Agent to act as agent for the
\nCompany and the holders of the Rights (who, in accordance with Section 3 hereof,
\nshall prior to the Distribution Date also be the holders of the Common Stock) in
\naccordance with the terms and conditions hereof, and the Rights Agent hereby
\naccepts such appointment. The Company may from time to time, upon prior written
\nnotice to the Rights Agent, appoint such Co-Rights Agents as it may deem
\nnecessary or desirable, upon ten (10) days’ prior written notice to the Rights
\nAgent. The Rights Agent shall have no duty to supervise, and in no event be
\nliable for, the acts or omissions of any such Co-Rights Agent.<\/p>\n
Section 3. ISSUE OF RIGHTS CERTIFICATES.<\/p>\n
(a) Until the Distribution Date, (i) the Rights will be evidenced (subject
\nto the provisions of Section 3(b) hereof) by the certificates representing
\nshares of Common Stock registered in the names of the holders of the Common
\nStock (which certificates shall be deemed also to be certificates for the
\nassociated Rights) and not by separate rights certificates, and (ii) the Rights
\nwill be transferable only in connection with the transfer of the associated
\nshares of Common Stock. As soon as practicable after the Distribution Date, the
\nRights Agent will send by first-class, insured, postage prepaid mail, to each
\nrecord holder of the Common <\/p>\n
-6-<\/p>\n
9<\/p>\n
Stock as of the Close of Business on the Distribution Date, at the address of
\nsuch holder shown on the stock transfer records of the Company, one or more
\nrights certificates, in substantially the form of Exhibit B hereto (the “Rights
\nCertificates”), evidencing in the aggregate that number of Rights to which such
\nholder is entitled in accordance with the provisions of this Agreement. As of
\nand after the Distribution Date, the Rights will be evidenced solely by such
\nRights Certificates. The Rights are exercisable only in accordance with the
\nprovisions of Section 7 hereof and are redeemable only in accordance with
\nSection 23 hereof.<\/p>\n
(b) As soon as practicable after the Dividend Record Date, the Company
\nwill cause a copy of a Summary of Rights, in substantially the form attached
\nhereto as Exhibit C (the “Summary of Rights”), to be sent by first-class,
\npostage prepaid mail, to each record holder of the Common Stock as of the Close
\nof Business on the Dividend Record Date, at the address of such holder shown on
\nthe stock transfer records of the Company. With respect to certificates for the
\nCommon Stock outstanding as of the Dividend Record Date, until the Distribution
\nDate, the Rights associated with the shares of Common Stock represented by such
\ncertificates will be evidenced by such certificates for the Common Stock and the
\nregistered holders of the Common Stock shall also be the registered holders of
\nthe associated Rights. Until the Distribution Date (or the earlier redemption,
\nexpiration or termination of the Rights), the surrender for transfer of any of
\nthe certificates representing shares of the Common Stock outstanding on the
\nDividend Record Date, with or without a copy of the Summary of Rights, shall
\nalso constitute the transfer of the Rights associated with the Common Stock
\nrepresented by such certificate.<\/p>\n
(c) Rights shall be issued in respect of all shares of Common Stock issued
\n(whether originally issued or delivered from the Company’s treasury) after the
\nDividend Record Date but prior to the earliest of (i) the Distribution Date,
\n(ii) the Expiration Date, or (iii) the redemption of the Rights. Certificates
\nrepresenting such shares of Common Stock and certificates issued on transfer of
\nsuch shares of Common Stock, with or without a copy of the Summary of Rights,
\nprior to the Distribution Date (or earlier expiration or redemption of the
\nRights) shall be deemed also to be certificates for the associated Rights, and
\ncommencing as soon as reasonably practicable following the Dividend Record Date
\nshall bear the following legend (or a legend substantially in the form thereof):<\/p>\n
This certificate also evidences and entitles the holder to Rights set forth
\n in a Rights Agreement between the issuer and Fleet National Bank, as Rights
\n Agent (the “Rights Agent”), dated as of March 28, 2000 (the “Rights
\n Agreement”), the terms of which are incorporated herein by reference and a
\n copy of which is on file at the principal offices of both the issuer and
\n the Rights Agent. The Rights Agent will mail to the registered holder of
\n this certificate a copy of the Rights Agreement, as in effect on the date
\n of mailing, without charge upon written request. Under certain
\n circumstances set forth in the Rights Agreement, such Rights will be
\n evidenced by separate certificates and will no longer be evidenced by this
\n certificate. Under certain circumstances set forth in the Rights Agreement,
\n Rights issued to, or held by any Person who is, was or becomes, or <\/p>\n
-7-
\n 10<\/p>\n
acquires shares from, an Acquiring Person or any Affiliate of an Acquiring
\n Person (as each such term is defined in the Rights Agreement and generally
\n relating to the ownership or purchase of large shareholdings), whether
\n currently held by or on behalf of such Person or Affiliate or by certain
\n subsequent holders, may become null and void.<\/p>\n
Until the Distribution Date or the earlier redemption, expiration or termination
\nof the Rights, the Rights associated with the Common Stock shall be evidenced by
\nthe Common Stock certificates alone and the registered holders of Common Stock
\nshall also be the registered holders of the associated Rights, and the surrender
\nfor transfer of any of such certificates shall also constitute the transfer of
\nthe Rights associated with the Common Stock represented by such certificate.<\/p>\n
Section 4. FORM OF RIGHTS CERTIFICATES.<\/p>\n
(a) The Rights Certificates (and the form of assignment and the form of
\nexercise notice and certificate to be printed on the reverse thereof) shall each
\nbe substantially in the form set forth in Exhibit B hereto and may have such
\nmarks of identification or designation and such legends, summaries or
\nendorsements printed thereon as the Company may deem appropriate and as are not
\ninconsistent with the provisions of this Agreement, or as may be required to
\ncomply with any applicable law or with any rule or regulation made pursuant
\nthereto or with any rule or regulation of any stock exchange on which the Rights
\nmay from time to time be listed or traded, or to conform to usage. Subject to
\nthe provisions of Sections 11 and 22 hereof, the Rights Certificates, whenever
\ndistributed, shall be dated as of the Dividend Record Date (or, if the shares
\npursuant to which the Rights are attached are issued thereafter, such date of
\nissuance), shall include the date of countersignature and on their face shall
\nentitle the holders thereof to purchase such number of one one-thousandths of a
\nshare of Preferred Stock as shall be set forth therein at the Purchase Price (as
\nhereinafter defined), but the amount and type of securities issuable upon the
\nexercise of each Right and the Purchase Price shall be subject to adjustment as
\nprovided herein.<\/p>\n
(b) Any Rights Certificate issued pursuant to Section 3(a) or 22 hereof
\nthat represents Rights beneficially owned by (i) any Acquiring Person or any
\nAffiliate of an Acquiring Person, or (ii) any Disqualified Transferee, and any
\nother Rights Certificate issued pursuant to Section 6 or 11 hereof upon the
\ntransfer, exchange, replacement, or adjustment of any such Rights Certificate,
\nshall contain (to the extent feasible) the following legend:<\/p>\n
The Rights represented by this Rights Certificate are or were beneficially
\n owned by a Person who was or became an Acquiring Person or an Affiliate
\n (which includes both affiliates and associates) of an Acquiring Person (as
\n each such term is defined in the Rights Agreement between the issuer and
\n Fleet National Bank, as Rights Agent, dated as of March 28, 2000 (the
\n “Rights Agreement”)). Accordingly, this Rights Certificate and the Rights
\n represented hereby may become null and void in the circumstances <\/p>\n
-8-<\/p>\n
11<\/p>\n
specified in Section 7(e) of the Rights Agreement. The Rights Agent will
\n mail to the registered holder of this certificate a copy of the Rights
\n Agreement, as in effect on the date of such mailing, without charge upon
\n written request.<\/p>\n
Section 5. COUNTERSIGNATURE AND REGISTRATION.<\/p>\n
The Rights Certificates shall be executed on behalf of the Company by its
\nChairman of the Board, President, or any Vice President, either manually or by
\nfacsimile signature, and shall have affixed thereto the Company’s seal or
\nfacsimile thereof which shall be attested by the Treasurer or an Assistant
\nTreasurer of the Company, either manually or by facsimile signature. The Rights
\nCertificates shall be countersigned, either manually or by facsimile signature,
\nby the Rights Agent and shall not be valid for any purpose unless so
\ncountersigned. In case any officer of the Company who shall have signed any of
\nthe Rights Certificates shall cease to be such officer of the Company before
\ncountersignature by the Rights Agent and issuance and delivery by the Company,
\nsuch Rights Certificates, nevertheless, may be countersigned by the Rights
\nAgent, issued, and delivered with the same force and effect as though the person
\nwho signed such Rights Certificates had not ceased to be such officer of the
\nCompany. Any Rights Certificate may be signed on behalf of the Company by any
\nperson who, at the actual date of the execution of such Rights Certificate,
\nshall be a proper officer of the Company to sign such Rights Certificate,
\nalthough at the date of the execution of this Agreement any such person was not
\nsuch an officer.<\/p>\n
Following the Distribution Date, the Rights Agent shall keep or cause to be
\nkept, at the office of the Rights Agent designated for such purpose, books for
\nregistration and transfer of the Rights Certificates issued hereunder. Such
\nbooks shall show the names and addresses of the respective holders of the Rights
\nCertificates, the number of Rights evidenced on its face by each of the Rights
\nCertificates, and the date of countersignature thereof by the Rights Agent.<\/p>\n
Section 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHTS CERTIFICATES;
\n MUTILATED, DESTROYED, LOST OR STOLEN RIGHTS CERTIFICATES.<\/p>\n
(a) Subject to the provisions of Sections 4(b), 7(e), and 14 hereof, at
\nany time after the Close of Business on the Distribution Date, and at or prior
\nto the earlier of the Close of Business on the Expiration Date or the redemption
\nof the Rights, any Rights Certificate may be transferred, split up, combined or
\nexchanged for another Rights Certificate or Rights Certificates, entitling the
\nregistered holder to purchase a like number of one one-thousandths of a share of
\nPreferred Stock (or, following a Common Stock Event, Common Stock and\/or such
\nother securities, cash, or other assets as shall be issuable in respect of the
\nRights in accordance with the terms of this Agreement (such other securities,
\ncash or other assets being referred to herein as “Other Consideration”)) as the
\nRights Certificate surrendered then entitled such holder (or former holder in
\nthe case of a transfer) to purchase. Any registered holder desiring to transfer,
\nsplit up, combine or exchange any Rights Certificate shall make such request in
\nwriting delivered to the Rights Agent, and shall surrender the Rights
\nCertificate to <\/p>\n
-9-<\/p>\n
12<\/p>\n
be transferred, split up, combined, or exchanged at the office of the Rights
\nAgent designated for such purpose, accompanied by a signature guarantee and such
\nother documentation as the Rights Agent may reasonably request. Neither the
\nRights Agent nor the Company shall be obligated to take any action whatsoever
\nwith respect to the transfer of any such surrendered Rights Certificate until
\nthe registered holder shall have completed and signed the certificate contained
\nin the form of assignment on the reverse side of such Rights Certificate and
\nshall have provided such additional evidence of the identity of the Beneficial
\nOwner from whom the Rights evidenced by such Rights Certificate are to be
\ntransferred (or the Beneficial Owner to whom such Rights are to be transferred)
\nor Affiliates thereof as the Company shall reasonably request. Thereupon,
\nsubject to Sections 4(b), 7(e) and 14 hereof, the Company shall execute and the
\nRights Agent shall countersign and deliver to the Person entitled thereto a
\nRights Certificate or Rights Certificates, as the case may be, as so requested.
\nThe Company may require payment by the holders of Rights of a sum sufficient to
\ncover any tax or governmental charge that may be imposed in connection with any
\ntransfer, split up, combination or exchange of Rights Certificates which the
\nCompany is not required to pay in accordance with Section 9(d) hereof.<\/p>\n
(b) Upon receipt by the Company and the Rights Agent of evidence
\nreasonably satisfactory to them of the loss, theft, destruction or mutilation of
\na Rights Certificate, and, in case of loss, theft or destruction, the receipt of
\nindemnity or security satisfactory to them, and upon reimbursement to the
\nCompany and the Rights Agent of all reasonable expenses incidental thereto, and
\nupon surrender to the Rights Agent and cancellation of the Rights Certificate,
\nif mutilated, accompanied by a signature guarantee and such other documentation
\nas the Rights Agent may reasonably request, the Company will execute and deliver
\na new Rights Certificate of like tenor to the Rights Agent for countersignature
\nand delivery to the registered owner in lieu of the Rights Certificate so lost,
\nstolen, destroyed, or mutilated.<\/p>\n
Section 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF RIGHTS.<\/p>\n
(a) Except as otherwise provided herein, the registered holder of any
\nRights Certificate may exercise the Rights evidenced thereby in whole or in part
\nat any time from and after the Distribution Date and at or prior to the Close of
\nBusiness on March 28, 2010 (the “Expiration Date”) or the earlier redemption of
\nthe Rights. Immediately after the Close of Business on the Expiration Date (or
\nthe earlier redemption of the Rights), all Rights shall be extinguished and all
\nRights Certificates shall become null and void. To exercise Rights, the
\nregistered holder of the Rights Certificate evidencing such Rights shall
\nsurrender such Rights Certificate, with the form of election to purchase on the
\nreverse side thereof and the certificate contained therein duly executed, to the
\nRights Agent at the office of the Rights Agent designated for such purpose,
\naccompanied by a signature guarantee and such other documentation as the Rights
\nAgent may reasonably request, together with payment in cash, only if by
\nelectronic or wire transfer, or by certified check or bank check, of the
\nPurchase Price with respect to the total number of one one-thousandths of a
\nshare of Preferred Stock (or, after a Common Stock Event, shares and\/or similar
\nunits of Common Stock or Other <\/p>\n
-10-<\/p>\n
13<\/p>\n
Consideration) as to which the Rights are exercised (which payment shall include
\nany additional amount payable by such Person in accordance with Section 9(d)
\nhereof). The Rights Agent shall promptly deliver to the Company all payments of
\nthe Purchase Price received in respect of Rights Certificates accepted for
\nexercise.<\/p>\n
(b) The purchase price for each one one-thousandth of a share of Preferred
\nStock issuable pursuant to the exercise of a Right (the “Purchase Price”) shall
\ninitially be $90.00, shall be subject to adjustment as provided in Section 11
\nhereof, and shall be payable in lawful money of the United States of America.<\/p>\n
(c) Upon receipt of a Rights Certificate representing the Rights, with the
\nform of election to purchase set forth on the reverse side thereof and the
\ncertificate contained therein duly executed, accompanied by payment of the
\nPurchase Price, with respect to each Right so exercised, the Rights Agent,
\nsubject to Sections 7(e), 11(a)(iii) and 20(k) hereof, shall thereupon promptly
\n(i) requisition from any transfer agent of the Preferred Stock (or Common Stock,
\nas the case may be) (or from the Company if there shall be no such transfer
\nagent, or make available if the Rights Agent is such transfer agent)
\ncertificates for the total number of one one-thousandths of a share of Preferred
\nStock (or Common Stock, as the case may be) to be purchased and the Company
\nhereby irrevocably authorizes such transfer agent to comply with any such
\nrequest, (ii) after receipt of such certificates, cause the same to be delivered
\nto or upon the order of the registered holder of such Rights Certificate,
\nregistered in such name or names as may be designated in writing by such holder,
\nand (iii) when appropriate, requisition from the Company the amount of cash to
\nbe paid in lieu of issuance of a fractional share in accordance with Section 14
\nhereof and after receipt promptly deliver such cash to or upon the order of the
\nregistered holder of such Rights Certificate. After the occurrence of a Common
\nStock Event, the Company shall make all necessary arrangements so that any Other
\nConsideration then deliverable in respect of the Rights is available for
\ndistribution by the Rights Agent. For purposes of this Section 7, the Rights
\nAgent shall be entitled to rely, and shall be protected in relying, on an
\nOfficers’ Certificate from the Company to the effect that the Distribution Date
\nhas occurred.<\/p>\n
(d) Subject to Sections 4(b), 7(e) and 14 hereof, in case the registered
\nholder of any Rights Certificate shall exercise less than all the Rights
\nevidenced thereby, a new Rights Certificate evidencing Rights equivalent to the
\nRights remaining unexercised shall be executed and delivered by the Company to
\nthe Rights Agent and countersigned and delivered by the Rights Agent to the
\nregistered holder of such Rights Certificate or to such holder’s duly authorized
\nassigns.<\/p>\n
(e) Notwithstanding anything in this Agreement to the contrary, from and
\nafter the first occurrence of a Common Stock Event, any Rights beneficially
\nowned by (i) an Acquiring Person or an Affiliate of an Acquiring Person, or (ii)
\na Disqualified Transferee shall become null and void without any further action,
\nand no holder of such Rights shall have any rights whatsoever with respect to
\nsuch Rights, whether under any provision of this Agreement or <\/p>\n
-11-<\/p>\n
14<\/p>\n
otherwise. The Company shall use all reasonable efforts to ensure that the
\nprovisions of this Section 7(e) and Section 4(b) hereof are complied with, but
\nthe Company shall have no liability to any holder of Rights Certificates or
\nother Person and none of the terms of this Agreement or the Rights shall be
\ndeemed to be waived with respect to such holder or other Person as a result of
\nany failure by the Company to make any determinations with respect to an
\nAcquiring Person or any Affiliate of an Acquiring Person or Disqualified
\nTransferees hereunder or any failure to have a legend placed on any Rights
\nCertificate in accordance with Section 4(b) hereof or on any Common Stock
\ncertificate in accordance with Section 3(c) hereof.<\/p>\n
(f) Notwithstanding anything in this Agreement to the contrary, neither
\nthe Rights Agent nor the Company shall be obligated to undertake any action with
\nrespect to a holder of any Rights Certificate upon the occurrence of any
\npurported exercise thereof unless such holder shall have (i) completed and
\nsigned the certificate contained in the form of election to purchase set forth
\non the reverse side of the Rights Certificate surrendered for such exercise, and
\n(ii) provided such additional evidence of the identity of the Beneficial Owner
\nfrom whom the Rights evidenced by such Rights Certificate are to be transferred
\n(or the Beneficial Owner to whom such Rights are to be transferred) or
\nAffiliates thereof as the Company shall reasonably request.<\/p>\n
Section 8. CANCELLATION AND DESTRUCTION OF RIGHTS CERTIFICATES.<\/p>\n
All Rights Certificates surrendered for the purpose of and accepted for
\nexercise, or surrendered for the purpose of redemption, transfer, split up,
\ncombination or exchange shall, if surrendered to the Company or to any of its
\nagents (other than the Rights Agent), be delivered to the Rights Agent for
\ncancellation or in canceled form, or, if surrendered to the Rights Agent, shall
\nbe canceled by it, and no Rights Certificates shall be issued in lieu thereof
\nexcept as expressly permitted by any of the provisions of this Agreement. The
\nCompany shall deliver to the Rights Agent for cancellation and retirement, and
\nthe Rights Agent shall so cancel and retire, any other Rights Certificates
\npurchased or retired by the Company otherwise than upon the exercise thereof.
\nThe Rights Agent shall deliver all canceled Rights Certificates to the Company,
\nor may, at the written request of the Company, but shall not be required to,
\ndestroy such canceled Rights Certificates, and in such case shall deliver a
\ncertificate of destruction thereof to the Company.<\/p>\n
Section 9. RESERVATION AND AVAILABILITY OF SHARES OF PREFERRED STOCK; OTHER
\n COVENANTS.<\/p>\n
(a) The Company covenants and agrees that on and after the Distribution
\nDate, it shall use reasonable efforts to cause to be reserved and kept available
\nout of its authorized and unissued shares of Preferred Stock (or, following the
\noccurrence of a Common Stock Event, out of its authorized and unissued shares of
\nCommon Stock and\/or Other Consideration, or out of its authorized and issued
\nshares held in its treasury), the number of shares of Preferred Stock (or,
\nfollowing a Common Stock Event, shares of Common Stock and\/or Other<\/p>\n
-12-<\/p>\n
15<\/p>\n
Consideration) that, except as provided in Section 11(a)(iii) hereof, would then
\nbe sufficient to permit the exercise in full of all outstanding Rights;
\nPROVIDED, HOWEVER, that the reservation of such shares shall be subject and
\nsubordinate to any other reservation of such shares made by the Company at any
\ntime for any lawful purpose; PROVIDED, FURTHER, HOWEVER, that in no event shall
\nsuch failure to so reserve shares affect the rights of any holder of Rights
\nhereunder.<\/p>\n
(b) The Company covenants and agrees that on and after the Distribution
\nDate so long as the Preferred Stock (or, following a Common Stock Event, shares
\nand\/or similar units of Common Stock and\/or Other Consideration) issuable upon
\nthe exercise of Rights may be listed on any national securities exchange, the
\nCompany shall use its best efforts to cause all shares (or similar units)
\nreserved for such issuance to be listed on such exchange upon official notice of
\nissuance upon such exercise.<\/p>\n
(c) The Company covenants and agrees that it shall take all such action as
\nmay be necessary to ensure that each one one-thousandth of a share of Preferred
\nStock (or, following a Common Stock Event, each share and\/or similar unit of
\nCommon Stock or Other Consideration) delivered upon exercise of Rights shall, at
\nthe time of delivery of the certificates for such shares (or units), subject to
\npayment in full of the Purchase Price, be duly and validly authorized and issued
\nand fully paid and nonassessable.<\/p>\n
(d) The Company covenants and agrees that it shall pay when due and
\npayable any and all federal and state transfer taxes and similar charges which
\nmay be payable in respect of the issuance or delivery of the Rights Certificates
\nor of any shares of Preferred Stock (or, following the occurrence of a Common
\nStock Event, each share and\/or similar unit of Common Stock or Other
\nConsideration) upon the exercise of Rights; PROVIDED, HOWEVER, that the Company
\nshall not be required to pay any transfer tax which may be payable in respect of
\nany transfer involved in the transfer or delivery of Rights Certificates or in
\nthe issuance or delivery of certificates for any shares of Preferred Stock (or,
\nfollowing the occurrence of a Common Stock Event, each share and\/or similar unit
\nof Common Stock or Other Consideration) in a name other than that of the
\nregistered holder of the Rights Certificate evidencing Rights surrendered for
\nexercise or to issue or deliver any certificates for any shares of Preferred
\nStock (and, following the occurrence of a Common Stock Event, any shares and\/or
\nsimilar units of Common Stock or Other Consideration) upon the exercise of any
\nRights until any such tax shall have been paid (any such tax being payable by
\nthe holder of such Rights Certificate at the time of surrender thereof) or until
\nit has been established to the Company’s satisfaction that no such tax is due.<\/p>\n
(e) The Company shall use its best efforts (i) to file, as soon as
\npracticable following the earliest date after the first occurrence of a Common
\nStock Event on which the consideration to be delivered by the Company upon
\nexercise of the Rights has been determined in accordance with this Agreement, or
\nas soon as is required by law following the Distribution Date, as the case may
\nbe, a registration statement under the Act, with respect to the securities
\nissuable upon exercise of the Rights on an appropriate form, (ii) to cause such
\nregistration <\/p>\n
-13-<\/p>\n
16<\/p>\n
statement to become effective as soon as practicable after such filing, and
\n(iii) to cause such registration statement to remain effective (with a
\nprospectus at all times meeting the requirements of the Act) until the earlier
\nof (A) the date as of which the Rights are no longer exercisable for such
\nsecurities, or (B) the Expiration Date or earlier redemption of the Rights. The
\nCompany will also take such action as may be appropriate under, or to ensure
\ncompliance with, the securities or “blue sky” laws of the various states of the
\nUnited States in connection with the exercisability of the Rights. The Company
\nmay temporarily suspend, for a period of time not to exceed ninety (90) days
\nafter the date set forth in clause (i) of the first sentence of this Section
\n9(e), the exercisability of the Rights in order to prepare and file such
\nregistration statement or to permit it to become effective. Upon any such
\nsuspension, the Company shall issue a public announcement stating that the
\nexercisability of the Rights has been temporarily suspended. The Company shall
\nthereafter issue a public announcement at such time as the suspension is no
\nlonger in effect. Notwithstanding any provision of this Agreement to the
\ncontrary, the Rights shall not be exercisable in any jurisdiction unless the
\nrequisite qualification in such jurisdiction shall have been obtained.<\/p>\n
Section 10. PREFERRED STOCK RECORD DATE; ETC.<\/p>\n
Each Person in whose name any certificate for any shares of Preferred Stock
\n(or, following the occurrence of a Common Stock Event, shares and\/or similar
\nunits of Common Stock or Other Consideration) is issued upon the exercise of
\nRights shall for all purposes be deemed to have become the holder of record of
\nsuch shares of Preferred Stock (or such shares and similar units of Common Stock
\nand\/or Other Consideration, as the case may be) represented thereby, and such
\ncertificate shall be dated the date which is the later of (i) the date upon
\nwhich the Rights Certificate evidencing such Rights was duly surrendered, or
\n(ii) the date upon which payment of the Purchase Price (and any applicable
\ntransfer taxes) in respect thereof was made; PROVIDED, HOWEVER, that if such
\ndate is a date upon which the relevant transfer books of the Company are closed,
\nsuch Person shall be deemed to have become the record holder of such shares (or
\nOther Consideration) on, and such certificate shall be dated, the next
\nsucceeding Business Day on which such transfer books of the Company are open;
\nPROVIDED, FURTHER, that the Company covenants and agrees that it shall not close
\nsuch transfer books for a period exceeding ten consecutive days. Prior to the
\nexercise of the Rights evidenced thereby (which shall be deemed to have occurred
\non the date such certificate for shares and\/or similar units of Preferred Stock,
\nCommon Stock or Other Consideration shall be dated in accordance with this
\nSection 10), the holder of a Rights Certificate, as such, shall not be entitled
\nto any rights of a security holder of the Company with respect to the shares of
\nPreferred Stock or Common Stock (and\/or such shares or similar units of Common
\nStock or Other Consideration) for which the Rights shall be exercisable,
\nincluding, without limitation, the right to vote, to receive dividends or other
\ndistributions, or to exercise any preemptive rights, and shall not be entitled
\nto receive any notice of any proceedings of the Company, except as expressly
\nprovided herein.<\/p>\n
Section 11. ANTIDILUTION ADJUSTMENTS.<\/p>\n
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17<\/p>\n
The Purchase Price and the number and kind of securities covered by each
\nRight and the number of Rights outstanding are subject to adjustment from time
\nto time as provided in this Section 11.<\/p>\n
(a)(i) In the event that the Company shall at any time after the
\n Declaration Date (A) declare and pay a dividend on the Preferred Stock
\n payable in shares of Preferred Stock, (B) subdivide the outstanding
\n Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller
\n number of shares, or (D) issue, change, or alter any of its shares of
\n capital stock in a reclassification or recapitalization (including any such
\n reclassification in connection with a consolidation or merger in which the
\n Company is the continuing or surviving Person), except as otherwise
\n provided in this Section 11(a) and Section 7(e) hereof, then, and in each
\n such case, the Purchase Price in effect at the time of the record date for
\n such dividend or the effective time of such subdivision, combination,
\n reclassification or recapitalization, and the number and kind of shares of
\n capital stock issuable upon exercise of the Rights at such time, shall be
\n proportionately adjusted so that the holder of any Right exercised after
\n such time shall be entitled to receive the aggregate number and kind of
\n shares of Preferred Stock or other capital stock which, if such Right had
\n been exercised immediately prior to such time at the Purchase Price then in
\n effect and at a time when the transfer books for the Preferred Stock (or
\n other capital stock) of the Company were open, such holder would have owned
\n upon such exercise and been entitled to receive by virtue of such dividend,
\n subdivision, combination, reclassification or recapitalization. If an event
\n occurs which would require an adjustment under both this Section 11(a)(i)
\n and Section 11(a)(ii) hereof, the adjustment provided in this Section
\n 11(a)(i) shall be in addition to, and shall be made prior to, any
\n adjustment required pursuant to Section 11(a)(ii) hereof.<\/p>\n
(ii) In the event<\/p>\n
(A) any Person shall at any time after the Declaration Date
\n become an Acquiring Person; or<\/p>\n
(B) any Acquiring Person or any Affiliate of any Acquiring
\n Person, at any time after the Declaration Date, directly or
\n indirectly, shall (1) merge into the Company or otherwise combine with
\n the Company, and the Company shall be the continuing or surviving
\n corporation of such merger or combination and the Common Stock of the
\n Company shall remain outstanding and no shares thereof shall be
\n changed or otherwise transformed into stock or other securities of any
\n other Person or the Company or cash or any other property, (2) in one
\n or more transactions, transfer any assets to the Company in exchange
\n (in whole or in part) for shares of any class of its equity securities
\n or for securities exercisable for or convertible into shares of any
\n such class or otherwise obtain from the Company, with or without
\n consideration, any additional shares of any such class or securities
\n exercisable for or convertible into shares of any such <\/p>\n
-15-<\/p>\n
18<\/p>\n
class (other than as part of a pro rata distribution to all holders of
\n such class), (3) sell, purchase, lease, exchange, mortgage, pledge,
\n transfer or otherwise dispose (in one transaction or a series of
\n transactions) to, from or with the Company or any of the Company’s
\n Subsidiaries, assets with an aggregate fair market value in excess of
\n 25% of the assets of the Company and its Subsidiaries determined on a
\n consolidated basis on terms and conditions less favorable to the
\n Company than the Company would be able to obtain through arm’s-length
\n negotiation with an unaffiliated third party, (4) receive any
\n compensation from the Company or any of the Company’s Subsidiaries
\n other than compensation as a director of the Company or for full-time
\n employment as a regular employee at rates in accordance with the
\n Company’s (or such Subsidiary’s) past practices, (5) receive the
\n benefit (except proportionately as a stockholder), of any loans,
\n advances, guarantees, pledges or other financial assistance provided
\n by the Company or any of its Subsidiaries on terms and conditions less
\n favorable to the Company (or such Subsidiary) than the Company would
\n be able to obtain through arm’s-length negotiation with an
\n unaffiliated third party or (6) commence a tender or exchange offer
\n for securities of the Company; or<\/p>\n
(C) during such time as there is an Acquiring Person at any time
\n after the Declaration Date, there shall be any reclassification of
\n securities (including any combination thereof), or recapitalization of
\n the Company, or any merger or consolidation of the Company with any of
\n its Subsidiaries (whether or not with or into or otherwise involving
\n an Acquiring Person or any Affiliate of an Acquiring Person), or any
\n repurchase by the Company or any of its Subsidiaries of shares of the
\n Common Stock of the Company, or any other class or series of
\n securities issued by the Company, which reclassification,
\n recapitalization, merger, consolidation or repurchase is effected at a
\n time when a majority of the Board consists of persons who are the
\n Acquiring Person or its Affiliates, or nominees or designees of any
\n thereof, which has the effect, directly or indirectly, of increasing
\n by more than 1% the proportionate share of the outstanding shares of
\n any class of equity securities or securities exercisable for or
\n convertible into any class of equity securities of the Company or any
\n of its Subsidiaries which is directly or indirectly owned by an
\n Acquiring Person or any Affiliate of an Acquiring Person<\/p>\n
then, in each such case, upon the Close of Business 10 Business Days after
\n the occurrence of such event, proper provision shall be made so that each
\n holder of a Right, except as provided in Section 7(e) hereof, shall
\n thereafter have the right to receive, upon exercise thereof at the Purchase
\n Price in effect at the time of exercise in accordance with the terms of
\n this Agreement, in lieu of a number of one one-<\/p>\n
-16-<\/p>\n
19<\/p>\n
thousandths of a share of Preferred Stock, such number of shares of Common
\n Stock of the Company as shall equal the result obtained by (x) multiplying
\n an amount equal to the then current Purchase Price by an amount equal to
\n the number of one one-thousandths of a share of Preferred Stock for which a
\n Right was or would have been exercisable immediately prior to the first
\n occurrence of any such event whether or not such Right was then
\n exercisable, and (y) dividing that product by 50% of the Current Market
\n Price per share of the Common Stock of the Company (as defined in Section
\n 11(d) hereof) determined as of the date of such first occurrence.<\/p>\n
(iii) In lieu of issuing whole or fractional shares of Common Stock in
\n accordance with Section 7(c) hereof, the Company shall (i) in the event
\n that the number of shares of Common Stock which are authorized by the
\n Company’s charter but not outstanding or reserved for issuance for purposes
\n other than upon exercise of the Rights are not sufficient to permit the
\n exercise in full of the Rights in accordance with Section 7(c) hereof, or
\n (ii) if a majority of the Board determines that it would be appropriate and
\n not contrary to the interests of the holders of Rights (other than any
\n Acquiring Person or Disqualified Transferee or any Affiliate of the
\n Acquiring Person or Disqualified Transferee), (A) determine an amount, if
\n any, (the “Excess Amount”) equal to the excess of (1) the value (the
\n “Current Value”) of the whole or fractional shares of Preferred Stock (or
\n Common Stock) issuable upon the exercise of a Right in accordance with
\n Section 7(c) hereof, over (2) the Purchase Price, and (B) with respect to
\n each Right, (subject to Section 7(e) hereof) make adequate provision to
\n substitute for such whole or fractional shares of Preferred Stock (or
\n Common Stock), upon payment of the applicable Purchase Price, (1) cash, (2)
\n a reduction in the Purchase Price, (3) Common Stock or other equity
\n securities of the Company (including, without limitation, shares or units
\n of Preferred Stock or preferred stock which the Board has deemed in good
\n faith to have the same value as a share of Common Stock (such shares of
\n preferred stock being referred to herein as “Common Stock Equivalents”)),
\n (4) debt securities of the Company, (5) other assets, or (6) any
\n combination of the foregoing (which would include the additional
\n consideration provided to any holder by reducing the Purchase Price) having
\n an aggregate value equal to the Current Value, where such aggregate value
\n has been determined by the Board; PROVIDED, HOWEVER, subject to the
\n provisions of Section 9(e) hereof, that if the Company shall not have made
\n adequate provision to deliver value pursuant to clause (B) above within 30
\n days following the Close of Business 10 Business Days after the first
\n occurrence of a Common Stock Event described in Section 11(a)(ii) hereof,
\n then the Company shall be obligated to deliver, upon the surrender for
\n exercise of a Right and without requiring payment of the Purchase Price,
\n whole or fractional shares of Preferred Stock (or Common Stock) (to the
\n extent available) and then, if necessary, cash, securities, and\/or assets
\n which in the aggregate are equal to the Excess Amount. If the Board shall
\n determine in good faith that it is likely that sufficient additional shares
\n of Common Stock or Common Stock Equivalents could be authorized for
\n issuance upon exercise in full of the Rights, the 30-day period set forth
\n above may be extended to the extent necessary, but not more than 90 days
\n following the Close of Business 10 Business Days after the first occurrence
\n of such a Common Stock Event (such 30 day period) as it may be extended to
\n 90 days, is referred to herein as the “Substitution Period”). To the extent
\n that the <\/p>\n
-17-
\n 20<\/p>\n
Company determines that some action is to be taken pursuant to the
\n preceding provisions of this Section 11(a)(iii), the Company (x) shall
\n provide, subject to Section 7(e) hereof, that (except as to the form of
\n consideration which shall be determined as appropriate by a majority of the
\n Board) such action shall apply uniformly to all outstanding Rights which
\n shall not have become null and void, and (y) may suspend the exercisability
\n of the Rights until the expiration of the Substitution Period in order to
\n seek any authorization of additional shares and\/or to decide the
\n appropriate form of distribution to be made pursuant to such provisions and
\n to determine the value thereof. In the event of any such suspension, the
\n Company shall issue a public announcement stating that the exercisability
\n of the Rights has been temporarily suspended. The Company shall thereafter
\n issue a public announcement at such time as the suspension is no longer in
\n effect. For purposes of this Section 11(a)(iii), the value of the Common
\n Stock issuable upon exercise of a Right in accordance with Section 7(c)
\n hereof shall be the Current Market Price per share of the Common Stock (as
\n determined pursuant to Section 11(d) hereof) on the Close of Business 10
\n Business Days after the date of the first occurrence of such a Common Stock
\n Event and the value of any Common Stock Equivalent shall be deemed to be
\n equal to the Current Market Price per share of the Common Stock on such
\n date.<\/p>\n
(b) In the event the Company shall, after the Dividend Record Date, fix a
\nrecord date for the issuance of any options, warrants, or other rights to all
\nholders of Preferred Stock entitling them (for a period expiring within 45
\ncalendar days after such record date) to subscribe for or purchase (i) Preferred
\nStock or (ii) shares having the same rights, privileges and preferences as the
\nshares of any number of one one-thousandths of a share of Preferred Stock
\n(“Equivalent Preferred Stock”) or (iii) securities convertible into Preferred
\nStock or Equivalent Preferred Stock at a price per share of Preferred Stock or
\nEquivalent Preferred Stock (or having a conversion price per share of Preferred
\nStock or Equivalent Preferred Stock, if a security is convertible into Preferred
\nStock or Equivalent Preferred Stock) less than the Current Market Price per
\nshare of Preferred Stock (determined in accordance with Section 11(d) hereof)
\ndetermined as of such record date, the Purchase Price to be in effect after such
\nrecord date shall be determined by multiplying the Purchase Price in effect
\nimmediately prior to such record date by a fraction, the numerator of which
\nshall be the number of shares of Preferred Stock outstanding on such record date
\nplus the number of shares of Preferred Stock and\/or Equivalent Preferred Stock
\nwhich the aggregate minimum offering price of the total number of shares of one
\none-thousandths of a share of Preferred Stock and\/or Equivalent Preferred Stock
\nso to be offered (and\/or the aggregate minimum conversion price of such
\nconvertible securities so to be offered) would purchase at such Current Market
\nPrice, and the denominator of which shall be the number of shares of Preferred
\nStock outstanding on such record date plus the maximum number of additional
\nshares of Preferred Stock and\/or Equivalent Preferred Stock to be offered for
\nsubscription or purchase (or the maximum number of shares into which such
\nconvertible securities so to be offered are convertible). In case such
\nsubscription price may be paid by delivery of consideration part or all of which
\nshall be in a form other than cash, for purposes of this Section 11(b) the value
\nof such consideration <\/p>\n
-18-<\/p>\n
21<\/p>\n
shall be the fair market value thereof as determined in good faith by the Board
\n(which determination shall be described in an Officers’ Certificate filed with
\nthe Rights Agent). Shares of Preferred Stock owned by or held for the account of
\nthe Company shall not be deemed outstanding for the purpose of any such
\ncomputation. Such adjustment shall be made successively whenever such a record
\ndate is fixed; and in the event that such options, warrants or other rights are
\nnot so issued, the Purchase Price shall be adjusted to be the Purchase Price
\nwhich would then be in effect if such record date had not been fixed (subject,
\nhowever, to such other adjustments as are provided herein).<\/p>\n
(c) In the event that the Company shall, after the Dividend Record Date,
\nfix a record date for the making of a distribution to all holders of Preferred
\nStock (including any such distribution made in connection with a consolidation
\nor merger in which the Company is the surviving or continuing Person) of
\nevidences of indebtedness, cash (other than cash dividends paid out of the
\nearnings or retained earnings of the Company and its Subsidiaries determined on
\na consolidated basis in accordance with generally accepted accounting principles
\nconsistently applied), other property (other than a dividend payable in a number
\nof one one-thousandths of a share of Preferred Stock, but including any dividend
\npayable in capital stock other than Preferred Stock), or subscription rights or
\nwarrants (excluding those referred to in Section 11(b) hereof), the Purchase
\nPrice to be in effect after such record date shall be determined by multiplying
\nthe Purchase Price in effect immediately prior to such record date by a
\nfraction, of which the numerator shall be (i) the Current Market Price per share
\nof Preferred Stock (as defined in Section 11(d) hereof) determined as of such
\nrecord date, LESS (ii) the sum of (A) that portion of cash plus (B) the fair
\nmarket value, as determined in good faith by the Board (which determination
\nshall be described in an Officers’ Certificate filed with the Rights Agent) of
\nthat portion of such evidences of indebtedness, such other property, and\/or such
\nsubscription rights or warrants applicable to one share of Preferred Stock and
\nof which the denominator shall be such Current Market Price per share of the
\nPreferred Stock. Such adjustments shall be made successively whenever such a
\nrecord date is fixed; and in the event such distribution is not so made, the
\nPurchase Price shall again be adjusted to be the Purchase Price which would then
\nbe in effect if such record date had not been fixed (subject, however, to such
\nother adjustments as are provided herein).<\/p>\n
(d) For purposes of any computation pursuant to Section 11(a)(iii) hereof,
\nthe “Current Market Price” per share (or unit) of any security on any date shall
\nbe deemed to be the average of the daily Closing Price of such security for the
\n10 consecutive Trading Days immediately after such date, and for the purpose of
\nany other computation hereunder, the “Current Market Price” per share (or unit)
\nof any security on any date shall be deemed to be the average of the daily
\nClosing Price of such security for the 20 consecutive Trading Days immediately
\nprior to such date; PROVIDED, HOWEVER, that in the event that the Current Market
\nPrice per share of such security is determined during a period following the
\nannouncement by the issuer of such security of (i) a dividend or distribution on
\nsuch security payable in shares (or units) of such security or securities
\nconvertible into shares (or units) of such security, or (ii) any subdivision,
\ncombination or reclassification of such security, and prior to the <\/p>\n
-19-<\/p>\n
22<\/p>\n
expiration of such 10 Trading Days or 20 Trading Days after (A) the ex-dividend
\ndate for such dividend or distribution, or (B) the record date for such
\nsubdivision, combination or reclassification, as the case may be, then, and in
\neach such case, the “Current Market Price” shall be the Closing Price of such
\nsecurity on the last day of such respective 10 Trading Day or 20 Trading Day
\nperiod. For purposes of this Agreement, the “Closing Price” of any security on
\nany day shall be the last sale price, regular way, with respect to shares (or
\nunits) of such security, or, in case no such sale takes place on such day, the
\naverage of the closing bid and asked prices, regular way, with respect to such
\nsecurity, in either case as reported in the principal consolidated transaction
\nreporting system with respect to securities listed or admitted to trading on the
\nNew York Stock Exchange; or, if such security is not listed or admitted to
\ntrading on the New York Stock Exchange, as reported in the principal
\nconsolidated transaction reporting system with respect to securities listed on
\nthe principal national securities exchange on which such security is listed or
\nadmitted to trading; or, if such security is not so listed or admitted to
\ntrading, the last quoted sale price with respect to shares (or units) of such
\nsecurity, or, if not so quoted, the average of the high bid and low asked prices
\nin the over-the-counter market with respect to shares (or units) of such
\nsecurity, as reported by the National Association of Securities Dealers, Inc.
\nAutomated Quotation System or such other similar system then in use; or, if on
\nany such date such security is not quoted by any such organization, the average
\nof the closing bid and asked prices with respect to shares (or units) of such
\nsecurity, as furnished by a professional market maker making a market in such
\nsecurity selected by the Board; or, if no such market maker is available, the
\nfair market value of shares (or units) of such security as of such day as
\ndetermined in good faith by the Board (which determination shall be described in
\nan Officers’ Certificate filed with the Rights Agent); PROVIDED, HOWEVER, that
\nthe “Closing Price” of one one-thousandth of a share of Preferred Stock as of
\nany Trading Day shall be equal to the Closing Price of a whole share of
\nPreferred Stock on such Trading Day divided by 1000; PROVIDED, FURTHER, that if
\nthe Closing Price of such a share of Preferred Stock as of any Trading Day
\ncannot be reasonably determined by the foregoing provisions, the “Closing Price”
\nof one one-thousandth of a share of Preferred Stock on such Trading Date shall
\nbe the Closing Price of a share of Common Stock on such Trading Day.<\/p>\n
(e) No adjustment in the Purchase Price shall be required unless
\nadjustment would require an increase or decrease of at least 1% in such price;
\nPROVIDED, HOWEVER, that any adjustments which by reason of this Section 11(e)
\nare not required to be made shall be carried forward and taken into account in
\nany subsequent adjustment. All calculations under this Section 11 shall be made
\nto the nearest cent or to the nearest (x) ten-thousandth of a share (or similar
\nunit) of Common Stock or securities other than Preferred Stock or Equivalent
\nPreferred Stock or (y) ten-millionth of a share of Preferred Stock or Equivalent
\nPreferred Stock. Notwithstanding the first sentence of this Section 11(e), any
\nadjustment required by this Section 11 shall be made no later than the earlier
\nof (i) three years from the date of the transaction which mandates the
\nadjustment or (ii) the Expiration Date. Anything in this Section 11 to the
\ncontrary notwithstanding, the Company shall be entitled to make such reductions
\nin the Purchase Price, in addition to those required by this Section 11, as it
\nin its <\/p>\n
-20-<\/p>\n
23<\/p>\n
discretion shall determine to be advisable in order that any dividends,
\nsubdivision of shares, distribution of rights to purchase shares of beneficial
\ninterest or other stock or securities, or distribution of securities convertible
\ninto or exchangeable for stock hereafter made by the Company to its stockholders
\nshall not be taxable.<\/p>\n
(f) In the event that at any time, as a result of an adjustment made in
\nrespect of a Common Stock Event, the holder of any Right thereafter exercised
\nshall become entitled to receive any shares of capital stock of the Company
\nother than shares of Preferred Stock, thereafter the number of such other shares
\nso receivable upon exercise of any Right and the Purchase Price thereof shall be
\nsubject to adjustment from time to time in a manner and on terms as nearly
\nequivalent as practicable to the provisions with respect to such other shares
\ncontained in Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k), (m) and (p)
\nhereof, and the provisions of Sections 7, 9, 10, 11(d), 13 and 14 hereof with
\nrespect to the shares of Preferred Stock shall apply on like terms to any such
\nother shares.<\/p>\n
(g) All Rights originally issued by the Company subsequent to any
\nadjustment made to the Purchase Price hereunder shall evidence the right to
\npurchase, at the adjusted Purchase Price, the number of one one-thousandths of a
\nshare of Preferred Stock purchasable from time to time hereunder upon exercise
\nof the Rights represented thereby, all subject to further adjustment as provided
\nherein.<\/p>\n
(h) Unless the Company shall have exercised its election as provided in
\nSection 11(i) hereof, upon each adjustment of the Purchase Price as a result of
\nthe calculations made pursuant to Sections 11(b) and 11(c) hereof, each Right
\noutstanding immediately prior to the making of such adjustment shall thereafter
\nevidence the right to purchase, at the adjusted Purchase Price, that number of
\none one-thousandths of a share of Preferred Stock (calculated to the nearest
\nten-millionth of a share) obtained by (i) multiplying (x) the number of one
\none-thousandths of a share of Preferred Stock covered by a Right immediately
\nprior to this adjustment, by (y) the Purchase Price in effect immediately prior
\nto such adjustment of the Purchase Price, and (ii) dividing the product so
\nobtained by the Purchase Price in effect immediately after such adjustment of
\nthe Purchase Price.<\/p>\n
(i) Assuming that no other adjustment pursuant to this Section 11 has been
\nmade, the Company may elect on or after the date of any adjustment of the
\nPurchase Price to adjust the number of Rights in substitution for any adjustment
\nin the number of one one-thousandths of a share of Preferred Stock purchasable
\nupon the exercise of a Right. Each of the Rights outstanding after such
\nadjustment of the number of Rights shall be exercisable for the number of one
\none-thousandths of a share of Preferred Stock for which a Right was exercisable
\nimmediately prior to such adjustment. Each Right held of record prior to such
\nadjustment of the number of Rights shall become that number of Rights
\n(calculated to the nearest ten-thousandth) obtained by dividing the Purchase
\nPrice in effect immediately prior to such adjustment of the Purchase Price by
\nthe Purchase Price in effect immediately after such adjustment of the Purchase
\nPrice. The Company shall make a public announcement of its <\/p>\n
-21-<\/p>\n
24<\/p>\n
election to adjust the number of Rights, indicating the record date for the
\nadjustment, and, if known at the time, the amount of the adjustment to be made.
\nThis record date may be the date on which the Purchase Price is adjusted or any
\nday thereafter, but, if the Rights Certificates have been issued, shall be at
\nleast 10 days later than the date of the public announcement. If Rights
\nCertificates have been issued, upon each adjustment of the number of Rights
\npursuant to this Section 11(i) the Company shall, as promptly as practicable,
\ncause to be distributed to holders of record of Rights Certificates on such
\nrecord date Rights Certificates evidencing, subject to Section 14 hereof, the
\nadditional Rights to which such holders shall be entitled as a result of such
\nadjustment, or, at the option of the Company, shall cause to be distributed to
\nsuch holders of record in substitution and replacement for the Rights
\nCertificates held by such holders prior to the date of adjustment, and upon
\nsurrender thereof, if required by the Company, new Rights Certificates
\nevidencing all the Rights to which such holders shall be entitled after such
\nadjustment. Rights Certificates so to be distributed shall be issued, executed,
\nand countersigned in the manner provided for herein (and may bear, at the option
\nof the Company, the adjusted Purchase Price) and shall be registered in the
\nnames of the holders of record of Rights Certificates on the record date
\nspecified in the public announcement.<\/p>\n
(j) Irrespective of any adjustment or change in the Purchase Price or the
\nnumber of whole or fractional shares of Preferred Stock issuable upon exercise
\nof such Rights, the Rights Certificates theretofore and thereafter issued may
\ncontinue to express the Purchase Price per share and the number of one
\none-thousandths of a share of Preferred Stock which were expressed in the
\ninitial Rights Certificates issued hereunder.<\/p>\n
(k) Before taking any action that would cause an adjustment reducing the
\nPurchase Price below the then par value, if any, of the number of one
\none-thousandths of a share of Preferred Stock issuable upon exercise of the
\nRights, the Company shall take any corporate action which may, in the opinion of
\nits counsel, be necessary in order that the Company may validly and legally
\nissue such number of fully paid and nonassessable one one-thousandths of a share
\nof Preferred Stock at such adjusted Purchase Price.<\/p>\n
(l) In any case in which this Section 11 shall require that an adjustment
\nin the Purchase Price be made effective as of a record date for a specified
\nevent, the Company may elect to defer until the occurrence of such event the
\nissuing to the holder of any Right exercised after such record date of the
\nnumber of one one-thousandths of a share of Preferred Stock or other capital
\nstock or securities of the Company, if any, issuable upon such exercise over and
\nabove the number of one one-thousandths of a share of Preferred Stock or other
\ncapital stock or securities of the Company, if any, issuable upon such exercise
\non the basis of the Purchase Price in effect prior to such adjustment; PROVIDED,
\nHOWEVER, that the Company shall deliver to such holder a due bill or other
\nappropriate instrument evidencing such holder’s right to receive such additional
\nsecurities upon the occurrence of the event requiring such adjustment.<\/p>\n
-22-
\n 25<\/p>\n
(m) Anything in this Section 11 to the contrary notwithstanding, the
\nCompany shall be entitled to make such reductions in the Purchase Price, in
\naddition to those adjustments expressly required by this Section 11, as and to
\nthe extent that it, by means of a resolution of the Board acting in good faith,
\nshall determine to be advisable in order that any consolidation or subdivision
\nof the Common Stock, issuance wholly for cash of any Common Stock at less than
\nthe Current Market Price thereof, issuance wholly for cash of Common Stock (or
\nother securities which by their terms are convertible into or exchangeable for
\nCommon Stock), dividends payable in shares of Common Stock or other capital
\nstock or shares of beneficial interest, or issuance of rights, options, or
\nwarrants referred to hereinabove in this Section 11, hereafter made or declared
\nby the Company to the holders of its Common Stock, shall not be taxable to such
\nholders.<\/p>\n
(n) The Company covenants and agrees that it shall not, at any time after
\nthe Distribution Date, (i) consolidate with any other Person (other than a
\nSubsidiary of the Company in a transaction that complies with Section 11(o)
\nhereof), (ii) merge with or into any other Person (other than a Subsidiary of
\nthe Company in a transaction which complies with Section 11(o) hereof), or (iii)
\nsell or transfer (or permit any Subsidiary to sell or transfer), in one
\ntransaction or a series of related transactions, more than 25% of (A) the assets
\n(taken at net asset value as stated on the books of the Company and determined
\non a consolidated basis in accordance with generally accepted accounting
\nprinciples consistently applied) or (B) the earning power of the Company and its
\nSubsidiaries (determined on a consolidated basis in accordance with generally
\naccepted accounting principles consistently applied) to any other Person or
\nPersons (other than the Company or any of its Subsidiaries in one or more
\ntransactions each of which complies with Section 11(o) hereof), if (x) at the
\ntime of or immediately after such consolidation, merger or sale, there are any
\nrights, warrants or other instruments or securities outstanding or agreements
\n(whether or not in writing) in effect that would substantially diminish or
\notherwise eliminate the benefits intended to be afforded by the Rights or (y)
\nprior to, simultaneously with or immediately after such consolidation, merger or
\nsale, the stockholders of such other Person shall have received a distribution
\nof Rights previously owned by such Person or any of its Affiliates.<\/p>\n
(o) The Company covenants and agrees that, after the Distribution Date, it
\nwill not, except as permitted by Section 23 or 27 hereof, take (or permit any
\nSubsidiary to take) any action if at the time such action is taken it is
\nreasonably foreseeable that such action will diminish substantially or otherwise
\neliminate the benefits intended to be afforded by the Rights.<\/p>\n
(p) Anything in this Agreement to the contrary notwithstanding, in the
\nevent that the Company shall at any time after the Dividend Declaration Date and
\nprior to the Distribution Date (i) declare or pay a dividend on the outstanding
\nshares of Common Stock payable in shares of Common Stock, or (ii) effect a
\nsubdivision, combination or consolidation of the outstanding Common Stock (by
\nreclassification or otherwise than by payment of dividends in shares of Common
\nStock) into a greater or smaller number of shares, then in any such case, (i)<\/p>\n
-23-<\/p>\n
26<\/p>\n
the number of one one-thousandths of a share of Preferred Stock purchasable
\nafter such event upon proper exercise of each Right shall be determined by
\nmultiplying the number of one one-thousandths of a share of Preferred Stock so
\npurchasable immediately prior to such event by a fraction the numerator of which
\nshall be the total number of shares of Common Stock outstanding immediately
\nprior to the occurrence of the event and the denominator of which shall be the
\ntotal number of shares of Common Stock outstanding immediately following the
\noccurrence of such event; and (ii) each share of Common Stock outstanding
\nimmediately after such event shall have issued with respect to it that number of
\nRights which each share of Common Stock outstanding immediately prior to such
\nevent had issued with respect to it. The adjustments provided for in this
\nSection 11(p) shall be made successively whenever such a dividend is declared or
\npaid or such a subdivision, combination or consolidation is effected.<\/p>\n
Section 12. CERTIFICATE OF ADJUSTMENTS.<\/p>\n
Whenever an adjustment is made as provided in Section 11 or 13 hereof,
\nthe Company shall (a) promptly prepare an Officers’ Certificate setting forth
\nsuch adjustment, including any adjustment in Purchase Price, the number of
\nshares or Other Consideration payable, and a brief statement of the facts
\naccounting for such adjustment, (b) promptly file with the Rights Agent and with
\neach transfer agent for the Preferred Stock and Common Stock a copy of such
\nOfficers’ Certificate, and (c) mail a brief summary thereof to each registered
\nholder of a Rights Certificate in accordance with Section 26 hereof. The Rights
\nAgent shall be fully protected in relying on any such Officers’ Certificate and
\non any adjustment therein contained, and shall not be deemed to have knowledge
\nof any such adjustment unless and until it shall have received such an Officers’
\nCertificate.<\/p>\n
Section 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR EARNING
\n POWER.<\/p>\n
In the event that, following the Stock Acquisition Date, directly or
\nindirectly, (a) the Company shall consolidate with, or merge with and into, any
\nother Person (other than a Subsidiary of the Company in a transaction that
\ncomplies with Section 11(o) hereof) and the Company shall not be the continuing
\nor surviving Person of such consolidation or merger, (b) any Person (other than
\na Subsidiary of the Company in a transaction that complies with Section 11(o)
\nhereof) shall consolidate with, or merge with and into, the Company, the Company
\nshall be the continuing or surviving Person of such consolidation or merger and,
\nin connection with such consolidation or merger, all or part of the Common Stock
\nof the Company shall be changed or otherwise transformed into other stock or
\nother securities of any other Person or the Company or cash or any other
\nproperty, or (c) the Company shall sell or otherwise transfer (or one or more of
\nits Subsidiaries shall sell or otherwise transfer), in one transaction or a
\nseries of related transactions, more than 25% of (A) the assets (taken at net
\nasset value as stated on the books of the Company and determined on a
\nconsolidated basis in accordance with generally accepted accounting principles
\nconsistently applied) or (B) the earning power of the Company and its
\nSubsidiaries (determined on a consolidated basis in accordance with generally
\naccepted accounting principles consistently applied) to any Person <\/p>\n
-24-<\/p>\n
27<\/p>\n
(other than the Company or any Subsidiary of the Company in one or more
\ntransactions each of which complies with Section 11(o) hereof) then, from and
\nafter such event, proper provision shall be made so that (i) each holder of a
\nRight, except as provided in Section 7(e) hereof, shall thereafter have the
\nright to receive, upon the exercise thereof at the Purchase Price in effect at
\nthe time of such exercise in accordance with the terms of this Agreement, such
\nnumber of whole or fractional shares of validly authorized and issued, fully
\npaid, non-assessable, and freely tradeable Common Stock of such other Person (OR
\nin the case of a transaction or series of transactions described in clause (c)
\nabove, the Person receiving the greatest amount of the assets or earning power
\nof the Company, OR if the Common Stock of such other Person is not and has not
\nbeen continuously registered under Section 12 of the Exchange Act for the
\npreceding 12-month period and such Person is a direct or indirect Subsidiary of
\nanother Person, that other Person, OR if such other Person is a direct or
\nindirect Subsidiary of more than one other Person, the Common Stock of two or
\nmore of which are and have been so registered, such other Person whose
\noutstanding Common Stock has the greatest aggregate value), free and clear of
\nany liens, encumbrances, rights of first refusal, or other adverse claims, as
\nshall be equal to the result obtained by (x) multiplying the Purchase Price in
\neffect immediately prior to the first occurrence of any Common Stock Event
\ndescribed in this Section 13 by the number of one one-thousandths of a share of
\nPreferred Stock for which a Right is exercisable immediately prior to such first
\noccurrence (and without taking into account any prior adjustment made pursuant
\nto 11(a)(ii)) and (y) dividing that product by 50% of the Current Market Price
\nper share (as defined in Section 11(d) hereof) of the Common Stock of such other
\nPerson determined as of the date of consummation of such consolidation, merger,
\nsale, or transfer; (ii) the issuer of such Common Stock shall thereafter be
\nliable for, and shall assume, by virtue of such consolidation, merger, sale, or
\ntransfer, all the obligations and duties of the Company pursuant to this
\nAgreement; (iii) the term “Company” shall thereafter be deemed, for all purposes
\nof this Agreement, to refer to such issuer, it being specifically intended that
\nthe provisions of Section 11 hereof (other than Section 11(a)(ii) hereof) shall
\napply only to such issuer following the first occurrence of a Common Stock Event
\ndescribed in this Section 13; (iv) such issuer shall take such steps (including,
\nbut not limited to, the reservation of a sufficient number of shares of its
\nCommon Stock) in connection with such consummation as may be necessary to assure
\nthat the provisions hereof shall thereafter be applicable, as nearly as
\nreasonably may be, in relation to the whole or fractional shares of its Common
\nStock thereafter deliverable upon the exercise of the Rights; and (v) the
\nprovisions of Section 11(a)(ii) hereof shall be of no effect following the first
\noccurrence of any Common Stock Event described in clauses (a), (b) or (c) of
\nthis Section 13. The Company shall not consummate any such consolidation,
\nmerger, sale or transfer unless (i) such issuer shall have a sufficient number
\nof authorized shares of its Common Stock which have not been issued or reserved
\nfor issuance as will permit the exercise in full of the Rights in accordance
\nwith this Section 13, and (ii) prior thereto the Company and such issuer shall
\nhave executed and delivered to the Rights Agent a supplemental agreement so
\nproviding and further providing that as soon as practicable after the date of
\nany Common Stock Event described above in this Section 13 such issuer shall (A)
\nprepare and file a registration statement under the Act, with respect to the
\nRights and the securities purchasable upon <\/p>\n
-25-<\/p>\n
28<\/p>\n
exercise of the Rights on an appropriate form, and will use its best efforts to
\ncause such registration statement to (I) become effective as soon as practicable
\nafter such filing and (II) remain effective (with a prospectus at all times
\nmeeting the requirements of the Act) until the Expiration Date, and (B) will
\ndeliver to holders of the Rights historical financial statements of such issuer
\nand each of its Affiliates which comply in all respects with the requirements
\nfor registration on Form 10 under the Exchange Act. Furthermore, in case the
\nPerson which is to be party to a transaction referred to in this Section 13 has
\nany provision in any of its authorized securities or in its charter or by-laws
\nor other agreement or instrument governing its affairs, which provision would
\nhave the effect of causing such Person to issue, in connection with, or as a
\nconsequence of, the consummation of a Common Stock Event described in clauses
\n(a), (b), or (c) of this Section 13, whole or fractional shares of Common Stock
\nof such Person at less than the then Current Market Price per share thereof (as
\ndefined in Section 11(d) hereof), or to issue securities exercisable for, or
\nconvertible into, Common Stock of such Person at less than such then Current
\nMarket Price, then, in such event, the Company hereby agrees with each holder of
\nthe Rights that it shall not consummate any such transaction unless prior
\nthereto the Company and such Person shall have executed and delivered to the
\nRights Agent a supplemental agreement providing that such provision in question
\nshall have been canceled, waived, or amended so that it will have no effect in
\nconnection with, or as a consequence of, the consummation of the proposed
\ntransaction. The provisions of this Section 13 shall similarly apply to
\nsuccessive mergers or consolidations or sales or other transfers. In the event
\nthat a Common Stock Event described in this Section 13 shall occur at any time
\nafter the occurrence of a Common Stock Event described in Section 11(a)(ii)
\nhereof, the Rights which have not theretofore been exercised shall thereafter
\nbecome exercisable, except as provided in Section 7(e) hereof, in the manner
\ndescribed in this Section 13.<\/p>\n
Section 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.<\/p>\n
(a) The Company shall not be required to issue fractions of Rights or to
\ndistribute fractions of Rights, except prior to the Distribution Date as
\nprovided in Section 11(i) hereof, or to distribute Rights Certificates which
\nevidence fractional Rights. In lieu of issuing such fractional Rights, at the
\nelection of the Company, there shall be paid to the registered holders of the
\nRights with regard to which such fractional Rights would otherwise be issuable,
\nan amount in cash equal to the same fraction of the current market value of a
\nwhole Right. For the purposes of this Section 14(a), the current market value of
\na whole Right shall be the Closing Price of the Rights for the Trading Day
\nimmediately prior to the date on which such fractional Rights would have been
\notherwise issuable.<\/p>\n
(b) The Company shall not be required to issue fractions of shares of its
\ncapital stock upon exercise of the Rights or to distribute certificates which
\nevidence fractional shares (other than, in each case with respect to Preferred
\nStock or Equivalent Preferred Stock, fractions which are integral multiples of
\none one-thousandth of a share of Preferred Stock or Equivalent Preferred Stock,
\nas the case may be). Fractions of shares of Preferred Stock or Equivalent
\nPreferred Stock, as the case may be, in integral multiples of one one-thousandth
\nof <\/p>\n
-26-<\/p>\n
29<\/p>\n
a share of Preferred Stock or Equivalent Preferred Stock may, at the election of
\nthe Company, be evidenced by depositary receipts, pursuant to an appropriate
\nagreement between the Company and a depository selected by it, provided that
\nsuch agreement shall provide that the holders of such depositary receipts shall
\nhave all the rights, privileges and preferences to which they are entitled as
\nbeneficial owners of the Preferred Stock or the Equivalent Preferred Stock
\nrepresented by such depositary receipts. In lieu of fractional shares, at the
\nelection of the Company, there shall be paid to the registered holders of Rights
\nat the time such Rights are exercised as herein provided an amount in cash equal
\nto the same fraction of the current market value of a share of such capital
\nstock. For purposes of this Section 14(b), the current market value of a share
\nof such capital stock shall be the Closing Price of such capital stock for the
\nTrading Day immediately prior to the date of such exercise.<\/p>\n
(c) The holder of a Right, by the acceptance of the Right, expressly
\nwaives such holder’s right to receive any fractional Rights or (except as
\nprovided in Section 14(b) hereof) any fractional share upon exercise of a Right.<\/p>\n
Section 15. RIGHTS OF ACTION.<\/p>\n
Excepting the rights of action given the Rights Agent under Section 18
\nhereof and except as set forth in Section 20(l) hereof, all rights of action in
\nrespect of this Agreement are vested in the registered holder of each Right; and
\nany registered holder of any Right, without the consent of the Rights Agent or
\nof the holder of any other Right, may, in its own behalf and for its own
\nbenefit, enforce, and may institute and maintain any suit, action, or proceeding
\nagainst the Company to enforce, or otherwise act in respect of, such registered
\nholder’s right to exercise the rights evidenced by such Right in the manner
\nprovided in such Rights Certificate and in this Agreement, and the Company
\nhereby agrees to reimburse such registered holder for all expenses (including
\nreasonable attorneys’ fees) incurred by such registered holder in connection
\ntherewith. Without limiting the foregoing or any remedies available to the
\nholders of Rights, it is specifically acknowledged that the holders of Rights
\nwould not have an adequate remedy at law for any breach of the obligations
\nhereunder, and shall be entitled to injunctive relief against actual or
\nthreatened violations of the obligations hereunder of any Person subject to this
\nAgreement.<\/p>\n
Section 16. AGREEMENT OF RIGHTS HOLDERS.<\/p>\n
Every holder of a Right by accepting the same consents and agrees with the
\nCompany and the Rights Agent and with every other holder of a Right that:<\/p>\n
(a) prior to the Distribution Date, the Rights will be transferable only
\nin connection with the transfer of Common Stock;<\/p>\n
(b) from and after the Distribution Date, the Rights Certificates are
\ntransferable only on the registry books of the Rights Agent if surrendered at
\nthe principal office of the <\/p>\n
-27-<\/p>\n
30<\/p>\n
Rights Agent, duly endorsed or accompanied by a proper instrument of transfer
\nwith a form of assignment and certificate set forth on the reverse side thereof
\nduly executed, accompanied by a signature guarantee and such other documentation
\nas the Rights Agent may reasonably request;<\/p>\n
(c) subject to Sections 6(a) and 7(f) hereof, the Company and the Rights
\nAgent may deem and treat the person in whose name a Rights Certificate (or,
\nprior to the Distribution Date, the associated Common Stock certificate) is
\nregistered as the absolute owner thereof and of the Rights evidenced thereby
\n(notwithstanding any notations of ownership or writing on the Rights Certificate
\nor, prior to the Distribution Date, the associated Common Stock certificate,
\nmade by anyone other than the Company or the Rights Agent) for all purposes
\nwhatsoever, and neither the Company nor the Rights Agent shall be affected by
\nany notice to the contrary; and<\/p>\n
(d) notwithstanding anything in this Agreement to the contrary, neither
\nthe Company nor the Rights Agent shall have any liability to any holder of a
\nRight or other Person as a result of its inability to perform any of its
\nobligations under this Agreement by reason of any preliminary or permanent
\ninjunction or other order, decree or ruling issued by a court of competent
\njurisdiction or by a governmental, regulatory or administrative agency or
\ncommission, or any statute, rule, regulation or executive order promulgated or
\nenacted by any governmental authority prohibiting or otherwise restraining
\nperformance of such obligation; PROVIDED, HOWEVER, the Company agrees to use its
\nbest efforts to have any such order, decree or ruling lifted or otherwise
\noverturned as soon as possible.<\/p>\n
Section 17. RIGHTS CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER.<\/p>\n
No holder, as such, of any Rights Certificate shall be entitled to vote,
\nreceive dividends, or otherwise be deemed for any purpose the holder of any
\nsecurities of the Company which may be issuable on the exercise of the Rights
\nrepresented thereby, nor shall anything contained herein or in any Rights
\nCertificate be construed to confer upon the holder of any Rights Certificate, as
\nsuch, any of the rights of a stockholder of the Company or any right to vote in
\nthe election of directors or upon any matter submitted to stockholders at any
\nmeeting thereof, or to give or withhold consent to any action by the Company, or
\nto receive notice of meetings or other actions affecting stockholders (except as
\nprovided in Section 25 hereof), or to receive dividends or preemptive rights, or
\notherwise, until the time specified in Section 10 hereof.<\/p>\n
Section 18. CONCERNING THE RIGHTS AGENT.<\/p>\n
The Company agrees to pay to the Rights Agent such reasonable compensation
\nas shall be agreed to in writing between the Company and the Rights Agent for
\nall services rendered by it hereunder and, from time to time, on demand of the
\nRights Agent, its reasonable expenses and counsel fees and disbursements and
\nother disbursements incurred in the administration and <\/p>\n
-28-<\/p>\n
31<\/p>\n
execution of this Agreement and the exercise and performance of its duties
\nhereunder. The Company also agrees to indemnify the Rights Agent for, and to
\nhold it harmless against, any and all loss, liability, damages, claims or
\nexpense, incurred without gross negligence, bad faith or willful misconduct on
\nthe part of the Rights Agent, for anything done or omitted by the Rights Agent
\nin connection with the acceptance and administration of this Agreement,
\nincluding the costs and expenses (including reasonable attorneys’ fees and
\nexpenses) of defending against any claim of liability for any of the foregoing.<\/p>\n
The Rights Agent shall be protected and shall incur no liability for or in
\nrespect of any action taken, suffered, or omitted by it in connection with its
\nadministration of this Agreement in reliance upon any Rights Certificate or
\ncertificate for any number of one one-thousandths of a share of Preferred Stock,
\nor for shares of Common Stock or for other securities of the Company, instrument
\nof assignment or transfer, power of attorney, endorsement, affidavit, letter,
\nnotice, instruction, direction, consent, certificate, statement, or other paper
\nor document believed by it to be genuine and to be signed and executed by the
\nproper Person or Persons, and verified or acknowledged as required by this
\nAgreement.<\/p>\n
Section 19. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.<\/p>\n
Any corporation into which the Rights Agent may be merged or with which it
\nmay be consolidated, or any corporation resulting from any merger or
\nconsolidation to which the Rights Agent shall be a party, or any corporation
\nsucceeding to the shareholder services business of the Rights Agent, shall be
\nthe successor to the Rights Agent under this Agreement without the execution or
\nfiling of any paper or any further act on the part of any of the parties hereto;
\nPROVIDED, HOWEVER, that such corporation would be eligible for appointment as a
\nsuccessor Rights Agent under the provisions of Section 21 hereof. In case at the
\ntime such successor Rights Agent shall succeed to the agency created by this
\nAgreement and any of the Rights Certificates shall have been countersigned but
\nnot delivered, any such successor Rights Agent may adopt the countersignature of
\nthe predecessor Rights Agent and deliver such Rights Certificates so
\ncountersigned; and in case at that time any of the Rights Certificates shall not
\nhave been countersigned, any successor Rights Agent may countersign such Rights
\nCertificates either in the name of the predecessor Rights Agent or in the name
\nof the successor Rights Agent; and in all such cases such Rights Certificates
\nshall have the full force provided in the Rights Certificates and in this
\nAgreement.<\/p>\n
In case at any time the name of the Rights Agent shall be changed and at
\nsuch time any of the Rights Certificates shall have been countersigned but not
\ndelivered, the Rights Agent may adopt the countersignature under its prior name
\nand deliver such Rights Certificates so countersigned; and in case at that time
\nany of the Rights Certificates shall not have been countersigned, the Rights
\nAgent may countersign such Rights Certificates either in its prior name or in
\nits changed name; and in all such cases such Rights Certificates shall have the
\nfull force provided in the Rights Certificates and in this Agreement.<\/p>\n
-29-
\n 32<\/p>\n
Section 20. DUTIES OF RIGHTS AGENT.<\/p>\n
The Rights Agent undertakes only the duties and obligations expressly
\nimposed upon it by this Agreement and no implied duties or obligations shall be
\nread into this Agreement against the Rights Agent. The Rights Agent shall
\nperform its duties and obligations hereunder upon the following terms and
\nconditions:<\/p>\n
(a) The Rights Agent may consult with legal counsel of its selection (who
\nmay be legal counsel to the Company), and the opinion of such counsel shall be
\nfull and complete authorization and protection to the Rights Agent as to any
\naction taken or omitted by it in good faith and in accordance with such opinion.<\/p>\n
(b) Whenever in the performance of its duties under this Agreement the
\nRights Agent shall deem it necessary or desirable that any fact or matter
\n(including, without limitation, the identity of any Acquiring Person) be proved
\nor established by the Company prior to taking or suffering any action hereunder,
\nsuch fact or matter (unless other evidence in respect thereof be herein
\nspecifically prescribed) may be deemed to be conclusively proved and established
\nby a certificate (an “Officers’ Certificate”) signed by a person believed by the
\nRights Agent to be the Chairman of the Board, the President or any Vice
\nPresident and by the Treasurer or any Assistant Treasurer or the Secretary or
\nany Assistant Secretary of the Company and delivered to the Rights Agent; and
\nsuch Officers’ Certificate shall be full authorization to the Rights Agent for
\nany action taken or suffered in good faith by it under the provisions of this
\nAgreement in reliance upon such Officers’ Certificate.<\/p>\n
(c) The Rights Agent shall be liable hereunder only for its own gross
\nnegligence, bad faith, or willful misconduct.<\/p>\n
(d) The Rights Agent shall not be liable for or by reason of any of the
\nstatements of fact or recitals contained in this Agreement or in the Rights
\nCertificates (except its countersignature on such Rights Certificate) or be
\nrequired to verify the same, but all such statements and recitals are and shall
\nbe deemed to have been made by the Company only.<\/p>\n
(e) The Rights Agent shall not be under any responsibility in respect of
\nthe validity of this Agreement or the execution and delivery hereof (except the
\ndue execution hereof by the Rights Agent) or in respect of the validity or
\nexecution of any Rights Certificate (except its countersignature thereof); nor
\nshall it be responsible for any breach by the Company of any covenant or
\ncondition contained in this Agreement or in any Rights Certificate; nor shall it
\nbe responsible for any adjustment required under the provisions of Sections 11
\nor 13 hereof or be responsible for the manner, method or amount of any such
\nadjustment or procedures or the ascertaining of the existence of facts that
\nwould require any such adjustment or procedure (except with respect to the
\nexercise of Rights evidenced by Rights Certificates after receipt of a
\ncertificate delivered pursuant to Section 12 hereof, describing any such
\nadjustment or procedures); nor shall it by any act hereunder be deemed to make
\nany representation or <\/p>\n
-30-<\/p>\n
33<\/p>\n
warranty as to the authorization or reservation of any Preferred Stock, Common
\nStock or other securities to be issued pursuant to this Agreement or any Rights
\nCertificate or as to whether any shares of Common Stock, or any shares or
\nsimilar units of other securities, will, when issued, be validly authorized and
\nissued, fully paid, and nonassessable.<\/p>\n
(f) The Company agrees that it will perform, execute, acknowledge and
\ndeliver, or cause to be performed, executed, acknowledged and delivered, all
\nsuch further and other acts, instruments and assurances as may reasonably be
\nrequired by the Rights Agent for the carrying out or performing by the Rights
\nAgent of the provisions of this Agreement.<\/p>\n
(g) The Rights Agent is hereby authorized and directed to accept
\ninstructions with respect to the performance of its duties hereunder from any
\nperson believed by the Rights Agent to be the Chairman of the Board, the
\nPresident or any Vice President or the Secretary or any Assistant Secretary or
\nthe Treasurer or any Assistant Treasurer of the Company, and to apply to such
\nofficers for advice or instructions in connection with its duties, and it shall
\nnot be liable for any action taken or suffered to be taken by it in good faith
\nin accordance with instructions of any such officer. Any application by the
\nRights Agent for written instructions from the Company may, at the option of the
\nRights Agent, set forth in writing any action proposed to be taken or omitted by
\nthe Rights Agent with respect to its duties or obligations under this Agreement
\nand the date on and\/or after which such action shall be taken or omitted and the
\nRights Agent shall not be liable for any action taken or omitted in accordance
\nwith a proposal included in any such application on or after the date specified
\ntherein (which date shall not be less than three Business Days after the date
\nany such officer actually receives such application, unless any such officer
\nshall have consented in writing to an earlier date) unless, prior to taking or
\nomitting any such action, the Rights Agent has received written instructions
\nfrom the Company in response to such application specifying the action to be
\ntaken or omitted.<\/p>\n
(h) The Rights Agent and any stockholder, director, officer, or employee
\nof the Rights Agent may buy, sell, or deal in any of the Rights or other
\nsecurities of the Company or become pecuniarily interested in any transaction in
\nwhich the Company may be interested, or contract with or lend money to the
\nCompany or otherwise act as fully and freely as though it were not Rights Agent
\nunder this Agreement. Nothing herein shall preclude the Rights Agent from acting
\nin any other capacity for the Company or for any other entity.<\/p>\n
(i) The Rights Agent may execute and exercise any of the rights or powers
\nhereby vested in it or perform any duty hereunder either itself or by or through
\nits attorneys or agents, and the Rights Agent shall not be answerable or
\naccountable for any act, default, neglect or misconduct of any such attorneys or
\nagents or for any loss to the Company resulting from any such act, default,
\nneglect or misconduct; PROVIDED, HOWEVER, that reasonable care was exercised in
\nthe selection and continued employment thereof.<\/p>\n
(j) No provision of this Agreement shall require the Rights Agent to
\nexpend or risk its own funds or otherwise incur any financial liability in the
\nperformance of any of its duties <\/p>\n
-31-<\/p>\n
34<\/p>\n
hereunder or in the exercise of its rights if there shall be reasonable grounds
\nfor believing that repayment of such funds or adequate indemnification against
\nsuch risk or liability is not reasonably assured to it.<\/p>\n
(k) If, with respect to any Rights Certificate surrendered to the Rights
\nAgent for exercise or transfer, the certification appearing on the reverse side
\nthereof following the form of election to purchase has either not been completed
\nor indicates an affirmative response to clause 1 and\/or 2 thereof, the Rights
\nAgent shall not take any further action with respect to such requested exercise
\nof transfer without first consulting with the Company.<\/p>\n
(l) The provisions of this Section 20 are solely for the benefit of the
\nRights Agent or the Company and any failure or omission under this Section 20
\nshall not affect the rights of the Company under this Agreement and neither the
\nRights Agent nor the Company shall have any liability to any holder of Rights or
\nother Person on account of such failure or omission.<\/p>\n
Section 21. CHANGE OF RIGHTS AGENT.<\/p>\n
The Rights Agent or any successor Rights Agent may resign and be discharged
\nfrom its duties under this Agreement upon 30 days’ notice in writing mailed to
\nthe Company and to each transfer agent of the Common Stock by registered or
\ncertified mail, and, subsequent to the Distribution Date, to the holders of the
\nRights Certificates by first-class mail. The Company may remove the Rights Agent
\nor any successor Rights Agent upon 30 days’ notice in writing, mailed to the
\nRights Agent, to each transfer agent of the Common Stock by registered or
\ncertified mail, and, subsequent to the Distribution Date, to the holders of the
\nRights Certificates by first-class mail. If the Rights Agent shall resign or be
\nremoved or shall otherwise become incapable of acting, the Company shall appoint
\na successor to the Rights Agent. If the Company shall fail to make such
\nappointment within a period of 30 days after giving notice of such removal or
\nafter it has been notified in writing of such resignation or incapacity by the
\nresigning or incapacitated Rights Agent or by the holder of a Rights Certificate
\n(who shall, with such notice, submit such holder’s Rights Certificate for
\ninspection by the Company), then the registered holder of any Rights Certificate
\nmay apply to any court of competent jurisdiction for the appointment of a new
\nRights Agent. Any successor Rights Agent, whether appointed by the Company or by
\nsuch a court, shall be a corporation organized and doing business under the laws
\nof the United States, the State of New York or The Commonwealth of Massachusetts
\n(or of any other State of the United States so long as such corporation is
\nauthorized to do business as a banking institution in the State of New York or
\nThe Commonwealth of Massachusetts), in good standing, having an office
\ndesignated for such purpose in the State of New York or The Commonwealth of
\nMassachusetts, which is authorized under such laws to exercise corporate trust
\npowers and is subject to supervision or examination by federal or state
\nauthority and which has at the time of its appointment as Rights Agent a
\ncombined capital and surplus of at least $50,000,000. After appointment, the
\nsuccessor Rights Agent shall be vested with the same powers, rights, duties and
\nresponsibilities as if it had been originally named as Rights Agent without
\nfurther act or deed; but the <\/p>\n
-32-<\/p>\n
35<\/p>\n
predecessor Rights Agent shall deliver and transfer to the successor Rights
\nAgent any property at the time held by it hereunder, and execute and deliver any
\nfurther assurance, conveyance, act or deed necessary for the purpose; and,
\nexcept as the context herein otherwise requires, such successor Rights Agent
\nshall be deemed to be the “Rights Agent” for all purposes of this Agreement. Not
\nlater than the effective date of any such appointment the Company shall file
\nnotice thereof in writing with the predecessor Rights Agent and each transfer
\nagent of the Common Stock, and mail a notice thereof in writing to the
\nregistered holders of the Rights Certificates. Failure to give any notice
\nprovided for in this Section 21, however, or any defect therein, shall not
\naffect the legality or validity of the resignation or removal of the Rights
\nAgent or the appointment of the successor Rights Agent, as the case may be.<\/p>\n
Section 22. ISSUANCE OF NEW RIGHTS CERTIFICATES.<\/p>\n
Notwithstanding any of the provisions of this Agreement or of the Rights to
\nthe contrary, the Company may, at its option, issue new Rights Certificates
\nevidencing Rights in such form as may be approved by the Board to reflect any
\nadjustment or change in the Purchase Price per share and the number or kind or
\nclass of shares of stock or other securities or property purchasable under the
\nRights Certificates made in accordance with the provisions of this Agreement. In
\naddition, in connection with the issuance or sale by the Company of shares of
\nCommon Stock following the Distribution Date and prior to the redemption or
\nexpiration of the Rights, the Company (a) shall, with respect to shares of
\nCommon Stock so issued or sold pursuant to the exercise of stock options or
\nunder any employee plan or arrangement, or upon the exercise, conversion or
\nexchange of securities hereinafter issued by the Company, and (b) may, in any
\nother case, if deemed necessary or appropriate by the Board, issue Rights
\nCertificates representing the appropriate number of Rights in connection with
\nsuch issuance or sale; PROVIDED, HOWEVER, that (i) no such Rights evidenced by a
\nRights Certificate shall be issued if, and to the extent that, the Company shall
\nbe advised by counsel that such issuance would create a significant risk of
\nmaterial adverse tax consequences to the Company or the Person to whom such
\nRights would be issued, and (ii) no such Rights Certificate shall be issued if,
\nand to the extent that, appropriate adjustment shall otherwise have been made in
\nlieu of the issuance thereof.<\/p>\n
Section 23. REDEMPTION AND TERMINATION.<\/p>\n
The Board, by majority vote, may, at its option, at any time prior to the
\nearlier of (i) the Distribution Date or (ii) the Close of Business on the
\nExpiration Date, redeem all (but not less than all) of the then outstanding
\nRights at a redemption price of $.01 per Right, appropriately adjusted to
\nreflect any stock split, stock dividend, combination of shares, or similar
\ntransaction occurring after the date hereof (such redemption price being
\nhereinafter referred to as the “Redemption Price”). Immediately upon the taking
\nof such action ordering the redemption of all of the Rights, evidence of which
\nshall have been filed with the Rights Agent, and without any further action and
\nwithout any notice, the right to exercise the Rights so redeemed will terminate
\nand the only right thereafter of the holders of such Rights so <\/p>\n
-33-<\/p>\n
36<\/p>\n
redeemed shall be to receive the Redemption Price (without the payment of any
\ninterest thereon). Within 10 days after such action ordering the redemption of
\nall of the Rights, the Company shall give notice of such redemption to the
\nholders of the then outstanding Rights by mailing such notice to all such
\nholders at their last addresses as they appear upon the registry books of the
\nRights Agent or, prior to the Distribution Date, on the registry books of the
\ntransfer agent for the Common Stock. Any notice which is mailed in the manner
\nherein provided shall be deemed given, whether or not the holder receives the
\nnotice. Each such notice of redemption shall state the method by which the
\npayment of the Redemption Price shall be made.<\/p>\n
Section 24. EXCHANGE.<\/p>\n
(a) The Board, by majority vote, may, at its option, at any time after any
\nPerson becomes an Acquiring Person, exchange all or part of the then outstanding
\nand exercisable Rights for shares of Common Stock at an exchange ratio of one
\nshare of Common Stock per Right, appropriately adjusted to reflect any stock
\nsplit, stock dividend or similar transaction occurring after the date hereof
\n(such exchange ratio, as the same may be so adjusted from time to time, being
\nhereinafter referred to as the “Exchange Ratio”). Notwithstanding the foregoing,
\nthe Board shall not be empowered to effect such exchange at any time after any
\nPerson (other than (i) the Company, (ii) any Subsidiary of the Company, (iii)
\nany employee benefit plan of the Company or of any such Subsidiary, or (iv) any
\nentity holding Common Stock for or pursuant to the terms of any such plan),
\ntogether with all Affiliates of such Person, becomes the Beneficial Owner of 50%
\nor more of the Common Stock then outstanding.<\/p>\n
(b) Immediately upon the action of the Board ordering the exchange of any
\nRights pursuant to subsection (a) of this Section 24 and without any further
\naction and without any notice, the right to exercise such Rights shall terminate
\nand the only right thereafter of a holder of such Rights shall be to receive
\nthat number of shares of Common Stock equal to the number of such Rights held by
\nsuch holder multiplied by the Exchange Ratio. The Company shall promptly give
\npublic notice of any such exchange; PROVIDED, HOWEVER, that the failure to give,
\nor any defect in, such notice shall not affect the validity of such exchange.
\nThe Company promptly shall mail a notice of any such exchange to all of the
\nholders of such Rights at their last addresses as they appear upon the registry
\nbooks of the Rights Agent. Any notice which is mailed in the manner herein
\nprovided shall be deemed given, whether or not the holder receives the notice.
\nEach such notice of exchange shall state the method by which the exchange of the
\nCommon Stock for Rights shall be effected and, in the event of any partial
\nexchange, the number of Rights which will be exchanged. Any partial exchange
\nshall be effected pro rata based on the number of Rights (other than Rights
\nwhich have become void pursuant to the provisions of Section 7(e) hereof) held
\nby each holder of Rights.<\/p>\n
(c) In any exchange pursuant to this Section 24, the Company, at its
\noption, may substitute shares of Preferred Stock (or shares of Equivalent
\nPreferred Stock) for shares of <\/p>\n
-34-<\/p>\n
37<\/p>\n
Common Stock exchangeable for Rights, at the initial rate of one one-thousandth
\nof a share of Preferred Stock (or share of Equivalent Preferred Stock) for each
\nshare of Common Stock, as appropriately adjusted to reflect adjustments in the
\nvoting rights of shares of Preferred Stock pursuant to the terms thereof, so
\nthat the fraction of a share of Preferred Stock delivered in lieu of each share
\nof Common Stock shall have the same voting rights as one share of Common Stock.<\/p>\n
(d) In the event that there shall not be sufficient shares of Common Stock
\nor Preferred Stock issued but not outstanding or authorized but unissued to
\npermit any exchange of Rights as contemplated in accordance with this Section
\n24, the Company shall take all such action as may be necessary to authorize
\nadditional Common Stock or Preferred Stock for issuance upon exchange of the
\nRights.<\/p>\n
(e) The Company shall not be required to issue fractions of shares of
\nCommon Stock or to distribute certificates which evidence fractional shares of
\nCommon Stock. In lieu of such fractional shares of Common Stock, the Company
\nshall pay to each registered holder of a Rights Certificate with regard to which
\na fractional share of Common Stock would otherwise be issuable an amount in cash
\nequal to the same fraction of the current market value of a whole share of
\nCommon Stock. For the purposes of this paragraph (e), the current market value
\nof a whole share of Common Stock shall be the Closing Price of a share of Common
\nStock (as determined pursuant to Section 11(d) hereof) for the Trading Day
\nimmediately prior to the date of exchange pursuant to this Section 24.<\/p>\n
Section 25. NOTICE OF PROPOSED ACTIONS.<\/p>\n
In case the Company shall after the Distribution Date propose (a) to pay
\nany dividend payable in stock of any class to the holders of its Preferred Stock
\nor to make any other distribution to the holders of its Preferred Stock (other
\nthan a cash dividend out of earnings or the retained earnings of the Company),
\nor (b) to offer to the holders of its Preferred Stock rights or warrants to
\nsubscribe for or to purchase any additional shares of Preferred Stock, Common
\nStock or shares of stock of any other class or any other securities, rights, or
\noptions, or (c) to effect any reclassification of the Preferred Stock (other
\nthan a reclassification involving only the subdivision of outstanding shares of
\nPreferred Stock), or (d) to effect any consolidation or merger into or with, or
\nto effect any sale or other transfer (or to permit one or more of its
\nSubsidiaries to effect any sale or other transfer), in one transaction or a
\nseries of related transactions, of more than 25% of (i) the assets of the
\nCompany and its Subsidiaries (taken at net asset value as stated on the books of
\nthe Company and determined on a consolidated basis in accordance with generally
\naccepted accounting principles consistently applied) or (ii) the earning power
\nof the Company and its Subsidiaries (determined on a consolidated basis in
\naccordance with generally accepted accounting principles consistently applied)
\nto any other Person or Persons, or (e) to effect the liquidation, dissolution or
\nwinding up of the Company, then, in each such case, the Company shall give to
\nthe Rights Agent and each holder of a Right, in accordance with Section 26
\nhereof, a notice of such proposed action, <\/p>\n
-35-<\/p>\n
38<\/p>\n
which shall specify the record date for the purposes of such stock dividend,
\ndistribution of rights or warrants, or the date on which such reclassification,
\nconsolidation, merger, sale, transfer, liquidation, dissolution, or winding up
\nis to take place and the date of participation therein by the holders of
\nPreferred Stock, if any such date is to be fixed, and such notice shall be so
\ngiven in the case of any action covered by clause (a) or (b) above at least 20
\ndays prior to the record date for determining holders of the Preferred Stock for
\npurposes of such action, and in the case of any such other action, at least 20
\ndays prior to the date of the taking of such proposed action or the date of
\nparticipation therein by the holders of Common Stock whichever shall be the
\nearlier. The failure to give notice required by this Section 25 or any defect
\ntherein shall not affect the legality or validity of the action taken by the
\nCompany or the vote upon any such action.<\/p>\n
In case any Common Stock Event described in Section 11(a)(ii) hereof shall
\noccur, then, in any such case, the Company shall as soon as practicable
\nthereafter give to the Rights Agent and each holder of a Rights Certificate, in
\naccordance with Section 26 hereof, a notice of the occurrence of such Common
\nStock Event, which shall specify such event and the consequences of the event to
\nholders of Rights under Section 11(a)(ii) hereof.<\/p>\n
Notwithstanding anything in this Agreement to the contrary, prior to the
\nDistribution Date a filing by the Company with the Securities and Exchange
\nCommission shall constitute sufficient notice to the holders of securities of
\nthe Company, including the Rights, for purposes of this Agreement and no other
\nnotice need be given.<\/p>\n
Section 26. NOTICES.<\/p>\n
Notices or demands authorized by this Agreement to be given or made by the
\nRights Agent or by the holder of any Rights Certificate to the Company shall be
\nsufficiently given or made if sent by first-class mail, postage prepaid,
\naddressed (until another address is filed in writing with the Rights Agent) as
\nfollows:<\/p>\n
Summit Technology, Inc.
\n 21 Hickory Drive
\n Waltham, MA 02451<\/p>\n
Attention: General Counsel<\/p>\n
Copy to: Keith F. Higgins, Esq.
\n Ropes & Gray
\n One International Place
\n Boston, MA 02110-2624<\/p>\n
-36-
\n 39<\/p>\n
Subject to the provisions of Sections 19 and 21 hereof, any notice or
\ndemand authorized by this Agreement to be given or made by the Company or by the
\nholder of any Rights Certificate to or on the Rights Agent shall be sufficiently
\ngiven or made if sent by first-class mail, postage prepaid, addressed (until
\nanother address is filed in writing with the Company) as follows:<\/p>\n
Fleet National Bank
\n c\/o EquiServe Limited Partnership
\n 150 Royall Street
\n Canton, MA 02021<\/p>\n
Attn: Client Administration
\n (Summit Technology, Inc. Rights Agreement)<\/p>\n
Notices or demands authorized by this Agreement to be given or made by the
\nCompany or the Rights Agent to the holder of any Rights Certificate shall be
\nsufficiently given or made if sent by first-class mail, postage prepaid,
\naddressed to such holder at the address of such holder as shown on the registry
\nbooks of the Company.<\/p>\n
Section 27. SUPPLEMENTS AND AMENDMENTS.<\/p>\n
Prior to the Distribution Date, the Board, upon the vote of a majority of
\nthe Board, may from time to time supplement or amend this Agreement without the
\napproval of any holders of the Rights. From and after the Distribution Date, the
\nBoard may, upon the vote of a majority of the Board, from time to time amend
\nthis Agreement without the approval of any holders of the Rights in order (i) to
\ncure any ambiguity, (ii) to correct or supplement any provision contained herein
\nwhich may be defective or inconsistent with any other provisions herein, (iii)
\nto change any time period governing redemption of the Rights or any other time
\nperiod or (iv) to make any other provisions in regard to matters or questions
\narising hereunder which the Board, upon the vote of a majority of the Board, may
\ndeem necessary or desirable and which shall not adversely affect the interests
\nof the holders of the Rights (other than any Acquiring Person or Disqualified
\nTransferee or any Affiliate of an Acquiring Person or Disqualified Transferee).
\nAny amendment made pursuant to this Section 27 after a Stock Acquisition Date
\nshall require the approval of a majority of the Board. The Rights Agent shall
\njoin with the Company in the execution and delivery of any such supplement or
\namendment, unless such supplement or amendment affects any of the rights,
\nduties, or obligations of the Rights Agent hereunder, in which case the Rights
\nAgent may, but shall not be required to, join in such execution and delivery.<\/p>\n
-37-
\n 40<\/p>\n
Section 28. SUCCESSORS.<\/p>\n
All the covenants and provisions of this Agreement by or for the benefit of
\nthe Company or the Rights Agent shall bind and inure to the benefit of their
\nrespective successors and assigns hereunder.<\/p>\n
Section 29. DETERMINATIONS AND ACTIONS BY THE BOARD; ETC.<\/p>\n
The Board shall have the exclusive power and authority to administer this
\nAgreement and to exercise all rights and powers specifically granted to the
\nBoard, or to the Company, or as may be necessary or advisable in the
\nadministration of this Agreement, including, without limitation, the right and
\npower to (i) interpret the provisions of this Agreement and (ii) make all
\ndeterminations deemed necessary or advisable for the administration of this
\nAgreement. All such actions, calculations, interpretations and determinations
\n(including, for purposes of clause (y) below all omissions with respect to the
\nforegoing) which are done or made by the Board of Directors in good faith and
\nwith the concurrence of a majority of the Board then in office shall (x) be
\nfinal, conclusive and binding on the Company, the Rights Agent, the holders of
\nthe Rights and all other parties and (y) not subject any Director to any
\nliability to the holders of the Rights.<\/p>\n
Section 30. BENEFITS OF THIS AGREEMENT.<\/p>\n
Nothing in this Agreement shall be construed to give to any Person other
\nthan the Company, the Rights Agent, and the registered holders of the Rights
\n(and, prior to the Distribution Date, the associated shares of Common Stock) any
\nlegal or equitable right, remedy, or claim under this Agreement or the Rights;
\nbut this Agreement shall be for the sole and exclusive benefit of the Company,
\nthe Rights Agent, and the registered holders of the Rights (and, prior to the
\nDistribution Date, the associated Common Stock).<\/p>\n
Section 31. SEVERABILITY.<\/p>\n
The invalidity or unenforceability of any term or provision hereof shall
\nnot affect the validity or enforceability of any other term or provision hereof.
\nIf any term, provision, covenant or restriction of this Agreement is held by a
\ncourt of competent jurisdiction or other authority to be invalid, void or
\nunenforceable, the remainder of the terms, provisions, covenants and
\nrestrictions of this Agreement shall remain in full force and effect and shall
\nin no way be affected, impaired or invalidated; PROVIDED, HOWEVER, that
\nnotwithstanding anything in this Agreement to the contrary, if any such term,
\nprovision, covenant or restriction is held by such court or authority to be
\ninvalid, void or unenforceable and the Board determines in its good faith
\njudgment that severing the invalid language from this Agreement would adversely
\naffect the purpose or effect of this Agreement, the right of redemption set
\nforth in Section 23 hereof shall be reinstated and shall not expire until the
\nClose of Business on the tenth day following the date of such determination by
\nthe Board.<\/p>\n
-38-<\/p>\n
41<\/p>\n
Section 32. GOVERNING LAW.<\/p>\n
This Agreement and each Rights Certificate issued hereunder shall be deemed
\nto be a contract made under the laws of the Commonwealth of Massachusetts and
\nfor all purposes shall be governed by and construed in accordance with the laws
\nof said Commonwealth applicable to contracts to be made and performed entirely
\nwithin said Commonwealth.<\/p>\n
Section 33. COUNTERPARTS.<\/p>\n
This Agreement may be executed in any number of counterparts and each of
\nsuch counterparts shall for all purposes be deemed to be an original, and all
\nsuch counterparts shall together constitute but one and the same instrument.<\/p>\n
Section 34. DESCRIPTIVE HEADINGS.<\/p>\n
Descriptive headings of the several Sections of this Agreement are inserted
\nfor convenience only and shall not control or affect the meaning or construction
\nof any of the provisions hereof.<\/p>\n
-39-<\/p>\n
42<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed and set their respective hands and seals, all as of the day and
\nyear first above written.<\/p>\n
SUMMIT TECHNOLOGY, INC.<\/p>\n
By: \/s\/ Robert J. Palmisano
\n —————————
\n Title: Chief Executive Officer<\/p>\n
Attest:<\/p>\n
By:
\n —————————
\n Title:<\/p>\n
FLEET NATIONAL BANK<\/p>\n
Attest: By: \/s\/ Tyler Haynes
\n —————————-
\n Title: Managing Director<\/p>\n
By: \/s\/ James A. Walsh
\n —————————
\n Title: Account Manager<\/p>\n
43<\/p>\n
EXHIBIT A<\/p>\n
FORM OF CERTIFICATE OF DESIGNATION, PREFERENCES AND
\n RIGHTS OF PREFERRED STOCK<\/p>\n
of<\/p>\n
SUMMIT TECHNOLOGY, INC.<\/p>\n
Pursuant to Chapter 156B of the
\n Massachusetts General Laws<\/p>\n
Summit Technology, Inc., a corporation organized and existing under and by
\nvirtue of the General Laws of the State of Massachusetts (the “Corporation”)
\nDOES HEREBY CERTIFY:<\/p>\n
That pursuant to the authority conferred upon the Board of Directors (the
\n“Board of Directors”) by the Articles of Organization, as amended, of the
\nCorporation, and in accordance with the provisions of Chapter 156B, Section 26
\nof the General Laws of the State of Massachusetts, the Board of Directors on
\nMarch 28, 2000 adopted a resolution providing for the authorization of a series
\nof Preferred Stock, par value $.01 per share (the “Preferred Stock”) as follows:<\/p>\n
RESOLVED, that pursuant to the authority vested in the Board of Directors
\n of this Corporation in accordance with the provisions of its Articles of
\n Organization, as amended, a series of Preferred Stock of the Corporation be
\n and it hereby is created, and that the designation and amount thereof and
\n the voting powers, preferences and relative, participating, optional and
\n other special rights of the shares of such series, and the qualifications,
\n limitations or restrictions thereof are as follows:<\/p>\n
Section 1. DESIGNATION AND AMOUNT. The shares of such series shall be
\ndesignated as “Series A Preferred Stock” (the “Series A Stock”) and the number
\nof shares constituting such series shall be 100,000. The number of shares of
\nSeries A Stock may be increased or decreased by a resolution duly adopted by the
\nBoard of Directors, but may not be decreased below the number of shares of
\nSeries A Stock then outstanding plus the number of shares reserved for issuance
\nupon the exercise of outstanding options, rights or warrants or upon conversion
\nof any outstanding securities convertible into Series A Stock.<\/p>\n
Section 2. DIVIDENDS AND DISTRIBUTIONS.<\/p>\n
(a) Subject to the prior and superior rights of the holders of any
\n shares of any series of Preferred Stock ranking prior and superior to the
\n shares of Series A Stock with respect to dividends, the holders of shares
\n of Series A Stock shall be entitled to <\/p>\n
A-1<\/p>\n
44<\/p>\n
receive, when, as and if declared by the Board of Directors out of funds
\n legally available for the purpose, quarterly dividends payable in cash on
\n the last day of March, June, September and December in each year (each such
\n date being referred to herein as a “Quarterly Dividend Payment Date”),
\n commencing on the first Quarterly Dividend Payment Date after the first
\n issuance of a share or fraction of a share of Series A Stock, in an amount
\n per share (rounded to the nearest cent) equal to the greater of (a) $1.00
\n or (b) subject to the provision for adjustment set forth in Section 8
\n hereof, 1000 times the aggregate per share amount of all cash dividends,
\n and 1000 times the aggregate per share amount (payable in kind) of all
\n non-cash dividends or other distributions other than a dividend payable in
\n shares of Common Stock, $.01 par value per share, of the Corporation (the
\n “Common Stock”) or a subdivision of the outstanding shares of Common Stock
\n (by reclassification or otherwise), declared on the Common Stock since the
\n immediately preceding Quarterly Dividend Payment Date or, with respect to
\n the first Quarterly Dividend Payment Date, since the first issuance of any
\n share or fraction of a share of Series A Stock.<\/p>\n
(b) The Corporation shall declare a dividend or distribution on the
\n Series A Stock as provided in paragraph (a) of this Section 2 immediately
\n after it declares a dividend or distribution on the Common Stock (other
\n than a dividend payable in shares of or a subdivision with respect to
\n Common Stock); PROVIDED, HOWEVER, that, in the event no dividend or
\n distribution shall have been declared on the Common Stock during the period
\n between any Quarterly Dividend Payment Date, a dividend of $1.00 per share
\n on the Series A Stock shall nevertheless be payable on such subsequent
\n Quarterly Dividend Payment Date.<\/p>\n
(c) Dividends shall begin to accrue and be cumulative on outstanding
\n shares of Series A Stock from the Quarterly Dividend Payment Date next
\n preceding the date of issue of such shares of Series A Stock, unless the
\n date of issue of such shares is prior to the record date for the first
\n Quarterly Dividend Payment Date, in which case dividends on such shares
\n shall begin to accrue from the date of issue of such shares, or unless the
\n date of issue is a Quarterly Dividend Payment Date or is a date after the
\n record date for the determination of holders of shares of Series A Stock
\n entitled to receive a quarterly dividend and before such Quarterly Dividend
\n Payment Date, in either of which events such dividends shall begin to
\n accrue and be cumulative from such Quarterly Dividend Payment Date. Accrued
\n but unpaid dividends shall not bear interest. Dividends paid on the shares
\n of Series A Stock in an amount less than the total amount of such dividends
\n at the time accrued and payable on such shares shall be allocated pro rata
\n on a share-by-share basis among all such shares at the time outstanding.
\n The Board of Directors may fix a record date for the determination of
\n holders of shares of Series A Stock entitled to receive payment of a
\n dividend or distribution declared thereon, which record date shall be no
\n more than 60 days prior to the date fixed for the payment thereof.<\/p>\n
A-2
\n 45<\/p>\n
Section 3. VOTING RIGHTS. The holders of shares of Series A Stock shall
\nhave the following voting rights:<\/p>\n
(a) Subject to the provision for adjustment set forth in Section 8
\n hereof, each share of Series A Stock shall entitle the holder thereof to
\n one thousand votes on all matters submitted to a vote of the stockholders
\n of the Corporation.<\/p>\n
(b) Except as otherwise provided herein or required by applicable law,
\n the holders of shares of Series A Stock and the holders of shares of Common
\n Stock shall vote together as one class on all matters submitted to a vote
\n of stockholders of the Corporation.<\/p>\n
(c) Except as set forth herein or required by applicable law, holders
\n of Series A Stock shall have no special voting rights and their consent
\n shall not be required (except to the extent they are entitled to vote with
\n holders of Common Stock as set forth herein) for taking any corporate
\n action.<\/p>\n
Section 4. CERTAIN RESTRICTIONS<\/p>\n
(a) Whenever quarterly dividends or other dividends or distributions
\n payable on the Series A Stock as provided in Section 2 are in arrears,
\n thereafter and until all accrued and unpaid dividends and distributions,
\n whether or not declared, on shares of Series A Stock outstanding shall have
\n been paid in full, the Corporation shall not:<\/p>\n
(i) declare or pay dividends on, make any other distributions on,
\n or redeem or purchase or otherwise acquire for consideration any
\n shares of stock ranking junior (either as to dividends or upon
\n liquidation, dissolution or winding up) to the Series A Stock;<\/p>\n
(ii) declare or pay dividends on or make any other distributions
\n on any shares of stock ranking on a parity (either as to dividends or
\n upon liquidation, dissolution or winding up) with the Series A Stock,
\n except dividends paid ratably on the Series A Stock and all such
\n parity stock on which dividends are payable or in arrears in
\n proportion to the total amounts to which the holders of all such
\n shares are then entitled;<\/p>\n
(iii) redeem or purchase or otherwise acquire for consideration
\n shares of any stock ranking on a parity (either as to dividends or
\n upon liquidation, dissolution or winding up) with the Series A Stock,
\n provided that the Corporation may at any time redeem, purchase or
\n otherwise acquire shares of any such parity stock (A) in exchange for
\n shares of any stock of the Corporation ranking junior (either as to
\n dividends or upon dissolution, liquidation or winding <\/p>\n
A-3<\/p>\n
46<\/p>\n
up) to the Series A Stock or (B) in accordance with subparagraph (iv)
\n of this Section 4(a); or<\/p>\n
(iv) redeem or purchase or otherwise acquire for consideration
\n any shares of Series A Stock, or any shares of stock ranking on a
\n parity with the Series A Stock, except in accordance with a purchase
\n offer made in writing or by publication (as determined by the Board of
\n Directors) to all holders of the outstanding shares of such stock upon
\n such terms as the Board of Directors, after consideration of the
\n respective annual dividend rates and other relative rights and
\n preferences of the respective series and classes, shall determine in
\n good faith will result in fair and equitable treatment among the
\n respective series or classes.<\/p>\n
(b) The Corporation shall not permit any subsidiary of the Corporation
\n to purchase or otherwise acquire for consideration any shares of stock of
\n the Corporation unless the Corporation could, under paragraph (a) of this
\n Section 4, purchase or otherwise acquire such shares at such time and in
\n such manner.<\/p>\n
Section 5. REACQUIRED SHARES. Any shares of Series A Stock redeemed,
\npurchased or otherwise acquired by the Corporation in any manner whatsoever
\nshall be retired and canceled promptly after the acquisition thereof. All such
\nshares shall upon their cancellation become authorized but unissued shares of
\nPreferred Stock and may be reissued as part of a new series of Preferred Stock
\nto be created by resolution or resolutions of the Board of Directors, subject to
\nthe conditions and restrictions on issuance set forth herein.<\/p>\n
Section 6. LIQUIDATION, DISSOLUTION OR WINDING UP.<\/p>\n
(a) Upon any liquidation (voluntary or otherwise), dissolution or
\n winding up of the Corporation, no distribution shall be made to the holders
\n of shares of Common Stock or any other stock of the Corporation ranking
\n junior (upon liquidation, dissolution or winding up) to the Series A Stock
\n unless, prior thereto, the holders of shares of Series A Stock shall have
\n received $1000.00 per share plus an amount equal to all accrued and unpaid
\n dividends and distributions thereon, whether or not declared, to the date
\n of such payment (the “Series A Liquidation Preference”). Following the
\n payment of the full amount of the Series A Liquidation Preference, no
\n additional distributions shall be made to the holders of shares of Series A
\n Stock unless, prior thereto, the holders of shares of Common Stock (which
\n term shall include, for the purposes only of this Section 6, any series of
\n the Corporation’s Preferred Stock ranking on a parity with the Common Stock
\n upon liquidation, dissolution or winding up) shall have received an amount
\n per share (the “Common Adjustment”) equal to the quotient obtained by
\n dividing (i) the Series A Liquidation Preference by (ii) 1000 (as
\n appropriately adjusted as set forth in Section 8 hereof to reflect such
\n events as stock splits, stock dividends and recapitalizations with respect
\n to the Common Stock; such <\/p>\n
A-4<\/p>\n
47<\/p>\n
number in this clause (ii), as the same may be adjusted from time to time,
\n is hereinafter referred to as the “Adjustment Number”. In the event,
\n however, that there are not sufficient assets available to permit payment
\n in full of the Common Adjustment, then any remaining assets shall be
\n distributed ratably to the holders of Common Stock. Following the payment
\n of the full amount of the Series A Liquidation Preference and the Common
\n Adjustment in respect of all outstanding shares of Series A Stock and
\n Common Stock, respectively, holders of shares of Series A Stock and holders
\n of shares of Common Stock shall receive their ratable and proportionate
\n share of any remaining assets to be distributed in the ratio of the
\n Adjustment Number to one (1) with respect to such Series A Stock and Common
\n Stock, on a per share basis, respectively.<\/p>\n
(b) In the event, however, that there are not sufficient assets
\n available to permit payment in full of the Series A Liquidation Preference
\n and the liquidation preferences of all other series of Preferred Stock, if
\n any, which rank on a parity with the Series A Stock, then any remaining
\n assets shall be distributed ratably to the holders of the Series A Stock
\n and the holders of such parity stock in proportion to their respective
\n liquidation preferences.<\/p>\n
(c) None of the merger or consolidation of the Corporation into or
\n with any other entity, the sale of all or substantially all of the property
\n and assets of the Corporation or the distribution to the stockholders of
\n the Corporation of all or substantially all of the consideration for such
\n sale, unless such consideration (apart from the assumption of liabilities)
\n or the net proceeds thereof consists substantially entirely of cash, shall
\n be deemed to be a liquidation, dissolution or winding up within the meaning
\n of this Section 6.<\/p>\n
(d) Each share of Series A Stock shall stand on a parity with each
\n other share of Series A Stock or any other series of the same class of
\n Preferred Stock upon voluntary or involuntary liquidation, dissolution or
\n distribution of assets or winding up of the Corporation.<\/p>\n
Section 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter
\ninto any consolidation, merger, combination or other transaction in which the
\noutstanding shares of Common Stock are exchanged for or changed into other stock
\nor securities, cash and\/or any other property, then in any such case the
\noutstanding shares of Series A Stock shall at the same time be similarly
\nexchanged or changed in an amount per share (subject to the provision for
\nadjustment set forth in Section 8 hereof) equal to 1000 times the aggregate
\namount of stock, securities, cash and\/or any other property (payable in kind),
\nas the case may be, into which or for which each share of Common Stock is
\nchanged or exchanged.<\/p>\n
Section 8. CERTAIN ADJUSTMENTS. In the event the Corporation shall at any
\ntime declare or pay any dividend on Common Stock payable in shares of Common
\nStock, or effect a subdivision or combination or consolidation of the
\noutstanding shares of Common Stock (by <\/p>\n
A-5<\/p>\n
48<\/p>\n
reclassification or otherwise than by payment of a dividend in shares of Common
\nStock) into a greater or lesser number of shares of Common Stock, then, in each
\nsuch case, the amounts set forth in Sections 2(a) and (b), 3(a), 6(a) and 7
\nhereof with respect to the multiple of (i) cash and non-cash dividends, (ii)
\nvotes, (iii) the Series A Liquidation Preference and (iv) an aggregate amount of
\nstock, securities, cash and\/or other property referred to in Section 7 hereof,
\nshall be adjusted by multiplying such amount by a fraction the numerator of
\nwhich is the number of shares of Common Stock outstanding immediately after such
\nevent and the denominator of which is the number of shares of Common Stock that
\nwere outstanding immediately prior to such event.<\/p>\n
Section 9. RANKING. The Series A Stock shall rank PARI PASSU with (or if
\ndetermined by the Board of Directors in any vote establishing any other series
\nof Preferred Stock, either senior and prior in preference to, or junior and
\nsubordinate to, as the case may be) each other series of Preferred Stock of the
\nCorporation with respect to dividends and\/or preference upon liquidation,
\ndissolution or winding up.<\/p>\n
Section 10. REDEMPTION. The shares of Series A Stock may be purchased by
\nthe Corporation at such times and on such terms as may be agreed to between the
\nCorporation and the redeeming stockholder, subject to any limitations which may
\nbe imposed by law or the Articles of Organization, as amended.<\/p>\n
Section 11. AMENDMENT. The Articles of Organization, as amended, of the
\nCorporation shall not be amended in any manner which would materially alter or
\nchange the powers, preferences or special rights of the Series A Stock so as to
\naffect them adversely without the affirmative vote of the holders of two-thirds
\nor more of the outstanding shares of Series A Stock, voting together as a single
\nclass.<\/p>\n
Section 12. FRACTIONAL SHARES. Series A Stock may be issued in fractions of
\na share which shall entitle the holder, in proportion to such holder’s
\nfractional shares, to exercise voting rights, receive dividends, participate in
\ndistributions and to have the benefit of all other rights of holders of Series A
\nStock.<\/p>\n
A-6<\/p>\n
49<\/p>\n
IN WITNESS WHEREOF, this Certificate of Designation was executed on behalf
\nof the Corporation by its Chief Executive Officer and attested by its Clerk on
\n_____________, 2000.<\/p>\n
By_____________________________
\n Chief Executive Officer<\/p>\n
Attest:<\/p>\n
By___________________<\/p>\n
Clerk<\/p>\n
[SEAL]<\/p>\n
A-7<\/p>\n
50<\/p>\n
EXHIBIT B<\/p>\n
FORM OF RIGHTS CERTIFICATE<\/p>\n
Certificate No. R- _______ Rights<\/p>\n
NOT EXERCISABLE AFTER MARCH 28, 2010 OR EARLIER IF ORDER OF REDEMPTION IS
\n GIVEN. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY,
\n AT $.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
\n CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR
\n AN AFFILIATE (WHICH INCLUDES AFFILIATES AND ASSOCIATES) OF AN ACQUIRING
\n PERSON (AS EACH SUCH TERM IS DEFINED IN THE RIGHTS AGREEMENT) AND ANY
\n SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. THE RIGHTS SHALL
\n NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG AS HELD, BY A HOLDER IN ANY
\n JURISDICTION WHERE THE REQUISITE QUALIFICATION TO THE ISSUANCE TO SUCH
\n HOLDER, OR THE EXERCISE BY SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION
\n SHALL NOT HAVE BEEN OBTAINED OR BE OBTAINABLE. [THE RIGHTS REPRESENTED BY
\n THIS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR
\n BECAME AN ACQUIRING PERSON OR AN AFFILIATE (WHICH INCLUDES AFFILIATES AND
\n ASSOCIATES) OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS DEFINED IN THE
\n RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
\n REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED
\n IN SECTION 7(e) OF THE RIGHTS AGREEMENT. THE RIGHTS AGENT WILL MAIL TO THE
\n REGISTERED HOLDER OF THIS CERTIFICATE A COPY OF THE RIGHTS AGREEMENT, AS IN
\n EFFECT ON THE DATE OF SUCH MAILING, WITHOUT CHARGE UPON WRITTEN REQUEST.]*<\/p>\n
Rights Certificate<\/p>\n
SUMMIT TECHNOLOGY, INC.<\/p>\n
This certifies that , or registered assigns, is the registered owner of the
\n number of Rights set forth above, each of which entitles the owner thereof,
\n subject to the terms, provisions, and conditions of the Rights Agreement
\n dated as of March 28, <\/p>\n
————–<\/p>\n
* The portion of the legend in brackets shall be inserted only if applicable.<\/p>\n
B-1<\/p>\n
51<\/p>\n
2000 (the “Rights Agreement”) between Summit Technology, Inc. (the
\n “Company”), and Fleet National Bank, as Rights Agent (the “Rights Agent”),
\n to purchase from the Company at any time after the Distribution Date (as
\n such term is defined in the Rights Agreement) and prior to 5:00 p.m.
\n (Boston, Massachusetts time) on March 28, 2010 (the “Expiration Date”) at
\n the office of the Rights Agent designated for such purpose, or its
\n successors as Rights Agent, one one-thousandth of a share of the Series A
\n Preferred Stock, with a par value of $.01 per share (“Preferred Stock”), of
\n the Company per each Right represented hereby, at a purchase price of
\n $___________ per share (the “Purchase Price”) upon presentation and
\n surrender of this Rights Certificate with the Form of Election to Purchase
\n set forth on the reverse side hereof and the certificate contained therein
\n duly completed and executed, accompanied by a signature guarantee and such
\n other documentation as the Rights Agent may reasonably request. The number
\n of Rights evidenced by this Rights Certificate (and the number of shares
\n which may be purchased upon exercise thereof) set forth above, and the
\n Purchase Price per share set forth above, are the number and Purchase Price
\n as of March 29, 2000, based on the shares of Common Stock of the Company as
\n constituted at such date.<\/p>\n
As more fully set forth in the Rights Agreement, upon the occurrence of a
\nCommon Stock Event (as such term is defined in the Rights Agreement), if the
\nRights evidenced by this Rights Certificate are beneficially owned by (i) an
\nAcquiring Person or an Affiliate of an Acquiring Person (as each such term is
\ndefined in the Rights Agreement) or (ii) a Disqualified Transferee (as defined
\nin the Rights Agreement), such Rights shall automatically become null and void
\nand no holder hereof shall have any right with respect to such Rights from and
\nafter the occurrence of such Common Stock Event.<\/p>\n
The Rights evidenced by this Rights Certificate shall not be exercisable,
\nand shall be void so long as held, by a holder in any jurisdiction where the
\nrequisite qualification to the issuance to such holder, or the exercise by such
\nholder, of the Rights in such jurisdiction shall not have been obtained or be
\nobtainable.<\/p>\n
As provided in the Rights Agreement, the Purchase Price and the number of
\nwhole or fractional shares of Preferred Stock which may be purchased upon the
\nexercise of the Rights evidenced by this Rights Certificate are subject to
\nmodification and adjustment upon the happening of certain events.<\/p>\n
In the circumstances described in Section 13 of the Rights Agreement, the
\nsecurities issuable upon the exercise of the Rights evidenced hereby shall be
\nthe common stock or similar equity securities or equity interests of an entity
\nother than the Company.<\/p>\n
This Rights Certificate is subject to all of the terms, provisions, and
\nconditions of the Rights Agreement, which terms, provisions, and conditions are
\nhereby incorporated herein by reference and made a part hereof and to which
\nRights Agreement reference is hereby made for a full description of the rights,
\nlimitations of rights, obligations, duties, and immunities<\/p>\n
B-2<\/p>\n
52<\/p>\n
hereunder of the Rights Agent, the Company, and the holders of the Rights
\nCertificates, which limitations of rights include the temporary suspension of
\nthe exercisability of such Rights under the specific circumstances set forth in
\nthe Rights Agreement. Copies of the Rights Agreement are on file at the office
\nof the Rights Agent designated for such purpose and may be obtained by the
\nholder of any Rights upon written request to the Rights Agent.<\/p>\n
This Rights Certificate, with or without other Rights Certificates, upon
\nsurrender at the office of the Rights Agent designated for such purpose,
\naccompanied by a signature guarantee and such other documentation as the Rights
\nAgent may reasonably request, may be exchanged for another Rights Certificate or
\nRights Certificates of like tenor and date evidencing Rights entitling the
\nholder to purchase a like aggregate number of whole or fractional shares of
\nPreferred Stock (or other consideration, as the case may be) as the Rights
\nevidenced by the Rights Certificate or Rights Certificates surrendered shall
\nhave entitled such holder to purchase. If this Rights Certificate shall be
\nexercised in part, the holder shall be entitled to receive, upon surrender
\nhereof, another Rights Certificate or Rights Certificates for the number of
\nwhole Rights not exercised.<\/p>\n
Subject to the provisions of the Rights Agreement, the Rights evidenced by
\nthis Rights Certificate may be redeemed by the Company by a majority vote of the
\nBoard (as defined in the Rights Agreement) then in office at any time prior to
\nthe earlier of (i) the Distribution Date or (ii) the Close of Business (as
\ndefined in the Rights Agreement) on the Expiration Date, at a redemption price
\nof $.01 per Right (which amount is subject to adjustment as provided in the
\nRights Agreement).<\/p>\n
The Company is not obligated to issue whole or fractional shares of
\nPreferred Stock (or other securities) upon the exercise of any Right or Rights
\nevidenced hereby, but in lieu thereof a cash payment may be made at the election
\nof the Company, as provided in the Rights Agreement.<\/p>\n
No holder of this Rights Certificate, as such, shall be entitled to vote or
\nreceive dividends or be deemed for any purpose the holder of Preferred Stock or
\nof any other securities of the Company which may at any time be issuable on the
\nexercise hereof, nor shall anything contained in the Rights Agreement or herein
\nbe construed to confer upon the holder hereof, as such, any of the rights of a
\nstockholder of the Company or any right to vote for the election of directors or
\nupon any matter submitted to stockholders at any meeting thereof, or to give or
\nwithhold consent to any action by the Company, or to receive notice of meetings
\nor other actions affecting stockholders (except as provided in the Rights
\nAgreement), or to receive dividends or subscription rights, or otherwise, until
\nthe Right or Rights evidenced by this Rights Certificate shall have been
\nexercised as provided in the Rights Agreement.<\/p>\n
This Rights Certificate shall not be valid or obligatory for any purpose
\nuntil it shall have been countersigned by the Rights Agent.<\/p>\n
B-3
\n 53<\/p>\n
WITNESS the facsimile signature of the proper officers and the seal of the
\nCompany. Dated as of _________________, ____.<\/p>\n
SUMMIT TECHNOLOGY, INC.<\/p>\n
By______________________________
\n Title:<\/p>\n
ATTEST:<\/p>\n
——————–
\nTitle:<\/p>\n
Countersigned:<\/p>\n
——————–<\/p>\n
FLEET NATIONAL BANK, as Rights Agent<\/p>\n
By____________________
\n Authorized Signatory<\/p>\n
Date of Countersignature:<\/p>\n
B-4
\n 54<\/p>\n
[Form of Reverse Side of Rights Certificate]<\/p>\n
FORM OF ASSIGNMENT<\/p>\n
(To be executed by the registered holder if such
\n holder desires to transfer the Rights Certificate)<\/p>\n
FOR VALUE RECEIVED _________________________________<\/p>\n
hereby sells, assigns and transfers unto ______________________________________<\/p>\n
________________________________________________________________________________
\n (Please print name and address of transferee)<\/p>\n
______________________________________________________________________ whose
\nsocial security or tax identification number is ______________, the Rights
\nevidenced by this Rights Certificate, together with all right, title and
\ninterest herein, and does hereby irrevocably constitute and appoint
\n____________________ Attorney, to transfer the within Rights Certificate on the
\nbooks of the within-named Company, with full power of substitution.<\/p>\n
Dated: _________________________, ____.<\/p>\n
————————-
\n Signature<\/p>\n
Signature Guaranteed:*<\/p>\n
—————<\/p>\n
* Signature must be guaranteed by an “Eligible Guarantor Institution” (with
\nmembership in an approved signature guarantee medallion program) pursuant to
\nRule 17Ad-15 of the Securities Exchange Act of 1934. <\/p>\n
B-5
\n 55<\/p>\n
CERTIFICATE<\/p>\n
The undersigned hereby certifies by checking the appropriate boxes that:<\/p>\n
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
\nbeing sold, assigned and transferred by or on behalf of a Person who is or was
\nan Acquiring Person or an Affiliate of an Acquiring Person (as each such term is
\ndefined in the Rights Agreement); and<\/p>\n
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
\ndid [ ] did not acquire the Rights evidenced by this Rights Certificate after
\nthe occurrence of a Common Stock Event from any Person who is, was or
\nsubsequently became an Acquiring Person or an Affiliate of an Acquiring Person.<\/p>\n
Dated:____________________ ______________________________
\n Signature<\/p>\n
Signature Guaranteed:*<\/p>\n
—————————-<\/p>\n
NOTICE<\/p>\n
The signature to the foregoing Assignment and Certificate must correspond
\nto the name as written upon the face of this Rights Certificate in every
\nparticular, without alteration or enlargement or any change whatsoever.<\/p>\n
B-6
\n 56<\/p>\n
FORM OF ELECTION TO PURCHASE<\/p>\n
(To be executed if holder desires to exercise the Rights Certificate)<\/p>\n
To Summit Technology, Inc.<\/p>\n
The undersigned hereby irrevocably elects to exercise _________________
\nRights represented by this Rights Certificate to purchase the number of one
\none-thousandths of a share of Preferred Stock (or other securities) issuable
\nupon the exercise of such Rights and requests that certificates for such shares
\nbe issued in the name of:<\/p>\n
Please insert social security
\nor other identifying number<\/p>\n
_____________________________________________________________________________<\/p>\n
_____________________________________________________________________________
\n (Please print name and address)<\/p>\n
If such number of Rights shall not be all the Rights evidenced by this Rights
\nCertificate, a new Rights Certificate for the balance remaining of such Rights
\nshall be registered in the name of and delivered to:<\/p>\n
Please insert social security
\nor other identifying number ____________________________________________________<\/p>\n
________________________________________________________________________________
\n (Please print name and address)<\/p>\n
Dated: _______________________, ____<\/p>\n
___________________________________
\n Signature<\/p>\n
(Signature must conform in all
\n respects to name of holder as
\n specified on the face of this Rights
\n Certificate)<\/p>\n
Signature Guaranteed:**<\/p>\n
________________<\/p>\n
** Signature must be guaranteed by an “Eligible Guarantor Institution” (with
\nmembership in an approved signature guarantee medallion program) pursuant to
\nRule 17Ad-15 of the Securities Exchange Act of 1934.<\/p>\n
B-7
\n 57<\/p>\n
CERTIFICATE<\/p>\n
The undersigned hereby certifies by checking the appropriate boxes that:<\/p>\n
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
\nbeing exercised by or on behalf of a Person who is or was an Acquiring Person or
\nan Affiliate of any such Acquiring Person (as each such term is defined in the
\nRights Agreement); and<\/p>\n
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
\ndid [ ] did not acquire the Rights evidenced by this Rights Certificate after
\nthe occurrence of a Common Stock Event (as such term is defined in the Rights
\nAgreement) from any Person who is, was, or subsequently became an Acquiring
\nPerson or an Affiliate of an Acquiring Person.<\/p>\n
Dated: _________________, ____ _________________________
\n Signature<\/p>\n
Signature Guaranteed:***<\/p>\n
—————-<\/p>\n
*** Signature must be guaranteed by an “Eligible Guarantor Institution” (with
\nmembership in an approved signature guarantees medallion program) pursuant to
\nRule 17Ad-15 of the Securities Exchange Act of 1934.<\/p>\n
B-8<\/p>\n
58<\/p>\n
EXHIBIT C<\/p>\n
SUMMIT TECHNOLOGY, INC.<\/p>\n
SUMMARY OF PURCHASE RIGHTS<\/p>\n
On March 28, 2000, Summit Technology, Inc. declared a dividend distribution
\nof one preferred stock purchase right for each share of Common Stock. Each Right
\nentitles the registered holder to purchase from the Company after the
\nDistribution Date described below one-thousandth of a share of its Series A
\nPreferred Stock. The exercise price is $_____ for each one-thousandth share of
\nPreferred Stock. The distribution of Rights is payable on March 29, 2000 to the
\nrecord holders of Common Stock at the Close of Business on that date. One Right
\nwill also be issued for each share of Common Stock issued between March 29, 2000
\nand the Distribution Date.<\/p>\n
Exercisability of the Rights; Distribution Date. The Rights are not
\nexercisable until the Distribution Date. The Distribution Date would occur, if
\never, ten business days after either of the following events:<\/p>\n
* A public announcement that a person or group (an “Acquiring Person”)
\nhas acquired, or obtained the right to acquire, beneficial ownership of 15.0% or
\nmore of the Company’s outstanding Common Stock (the “Stock Acquisition Date”) or<\/p>\n
* The commencement or announcement of an intention to make a tender
\noffer or exchange offer that would result in a person or group owning 15.0% or
\nmore of the Company’s outstanding Common Stock.<\/p>\n
Mergers, Asset Sales and Self-Dealing Transactions. If after the Stock
\nAcquisition Date the Company is acquired in a merger or other business
\ncombination, or 25% or more of its assets or earning power is sold, proper
\nprovision is to be made so that each holder of a Right would have the right to
\nreceive, upon exercise of the Right, that number of shares of common stock of
\nthe acquiring company which at the time has a market value of two times the
\nexercise price of the Right.<\/p>\n
In the event that:<\/p>\n
(1) the Company is the surviving corporation in a merger with an Acquiring
\nPerson and its Common Stock is not changed or exchanged, or<\/p>\n
C-1<\/p>\n
59<\/p>\n
(2) an Acquiring Person engages in one of a number of self-dealing
\ntransactions specified in the Rights Agreement described below, or<\/p>\n
(3) during such time as there is an Acquiring Person any recapitalization,
\nreorganization or other transaction involving the Company occurs which result in
\nsuch Acquiring Person’s ownership interest being increased by more than 1%,<\/p>\n
then each holder of a Right would have the right to receive, upon exercise of
\nthe Right, that number of shares of Common Stock (or, in certain circumstances,
\ncash, property or other securities of the Company) having a market value of two
\ntimes the exercise price of the Right.<\/p>\n
Following the occurrence of any of the events described in this section,
\nany Rights beneficially owned by any Acquiring Person would immediately become
\nnull and void.<\/p>\n
Exchange Option. The Board may, at its option, at any time after any person
\nbecomes an Acquiring Person, exchange all or part of the then outstanding and
\nexercisable Rights for shares of Common Stock at an exchange ratio of one share
\nof Common Stock per Right. The Board, however, may not effect an exchange at any
\ntime after any person (other than (i) the Company, (ii) any subsidiary of the
\nCompany, (iii) any employee benefit plan of the Company or any such subsidiary
\nor any entity holding Common Stock for or pursuant to the terms of any such
\nplan), together with all affiliates of such person, becomes the beneficial owner
\nof 50% or more of the Common Stock then outstanding. Immediately upon the action
\nof the Board ordering the exchange of any Rights and without any further action
\nand without any notice, the right to exercise such Rights will terminate and the
\nonly right thereafter of a holder of such Rights will be to receive that number
\nof shares of Common Stock equal to the number of such Rights held by the holder.<\/p>\n
Transferability of Rights. Until the Distribution Date, the Common Stock
\nCertificates will evidence the Rights, and the transfer of the Common Stock
\ncertificates will constitute a transfer of the Rights. After the Distribution
\nDate, separate certificates evidencing the Rights would be mailed to holders of
\nrecord of the Company’s Common Stock as of the Close of Business on the
\nDistribution Date, and such separate Rights Certificates alone would evidence
\nthe Rights.<\/p>\n
Redemption. The Board of Directors, by a majority vote, may redeem the
\nRights at any time at a redemption price of $.01 per Right at any time before
\nthe earlier of the Distribution Date or the close of business on the Expiration
\nDate described below. Immediately upon such redemption, the right to exercise
\nthe Rights will terminate, and the Rights Holders will become entitled only to
\nreceive the Redemption Price.<\/p>\n
Expiration Date of Rights. If not previously exercised or redeemed, the
\nRights will expire on March 28, 2010.<\/p>\n
C-2
\n 60<\/p>\n
Anti-Dilution Adjustment. The exercise price, the redemption price, the
\nexchange ratio and the number of shares of the Preferred Stock or other
\nsecurities or property issuable upon exercise of the Rights are subject to
\nadjustment from time to time to prevent dilution under the following
\ncircumstances:<\/p>\n
* in the event of a stock dividend on, or a subdivision, combination or
\nreclassification of the Preferred Stock, or<\/p>\n
* upon the grant to holders of the Preferred Stock of certain rights or
\nwarrants to subscribe for shares of the Preferred Stock or convertible
\nsecurities at less than the current market price, or<\/p>\n
* upon the distribution to holders of the Preferred Stock of evidences
\nof indebtedness or assets (excluding regular quarterly cash dividends out of the
\nearnings or retained earnings of the Company and dividends payable in shares of
\nPreferred Stock) or of subscription rights or warrants (other than those
\nreferred to above).<\/p>\n
With certain exceptions, no adjustment in the exercise price will be
\nrequired until cumulative adjustments require an adjustment of at least 1% in
\nsuch price. At the Company’s option, cash (based on the market price on the last
\ntrading date prior to the date of the exercise) will be paid instead of issuing
\nfractional shares of any securities (other than fractional shares of Preferred
\nStock in integral multiples of one-thousandth of a share).<\/p>\n
No Shareholder Rights. A Right holder, as such, has no rights as a
\nshareholder of the Company, including, without limitation, the right to vote or
\nreceive dividends.<\/p>\n
Amendments. Any of the provisions of the Rights Agreement may be amended by
\nthe Board of Directors prior to the Distribution Date without the approval of
\nany holders of the Rights. After the Distribution Date, the Board of Directors
\nmay amend the Rights Agreement to cure any ambiguity, to make changes which do
\nnot adversely affect the interests of holders of Rights (excluding the interests
\nof any Acquiring Person) or to shorten or lengthen any time period under the
\nRights Agreement. A majority vote of the Board of Directors is required.<\/p>\n
Tax Consequences. Although the Company believes that neither the
\ndistribution of the Rights nor the subsequent separation of the Rights on the
\nDistribution Date should be taxable to the stockholders or the Company,
\nstockholders may, depending upon the circumstances, realize taxable income upon
\nthe occurrence of an event described under “Mergers, Asset Sales and
\nSelf-Dealing Transactions.”<\/p>\n
Rights Agreement. The terms of the Rights are set forth in a Rights
\nAgreement between the Company and Fleet National Bank, as Rights Agent. A copy
\nof the Rights Agreement is an Exhibit to Form 8-A filed with the Securities and
\nExchange Commission. A <\/p>\n
C-3<\/p>\n
61<\/p>\n
copy of the Rights Agreement is available free of charge from the Rights Agent
\nat the following address:<\/p>\n
Fleet National Bank
\n c\/o EquiServe Limited Partnership
\n 150 Royall Street
\n Canton, MA 02021<\/p>\n
Attn: Client Administration
\n (Summit Technology, Inc. Rights Agreement)<\/p>\n
This summary does not purport to be complete and is qualified in its entirety by
\nreference to the Rights Agreement, which is incorporated in this summary by
\nreference.<\/p>\n
C-4<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7545,8967],"corporate_contracts_industries":[9415,9436],"corporate_contracts_types":[9632,9629],"class_list":["post-43907","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-fleetboston-financial-corp","corporate_contracts_companies-summit-autonomous-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-health__instruments","corporate_contracts_types-securities__registration","corporate_contracts_types-securities"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43907","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43907"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43907"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43907"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43907"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}