UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM 8-A/A
(Amendment
No. 2)
FOR
REGISTRATION OF CERTAIN CLASSES OF SECURITIES PURSUANT TO
SECTION 12(b) or
(g) OF THE SECURITIES EXCHANGE ACT OF 1934
FIRSTFED
FINANCIAL CORP.
(Exact
name of registrant as specified in its charter)
Delaware
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95-4087449
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(State
of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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12555
W. Jefferson Boulevard
Los
Angeles, California
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90066
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(Address
of principal executive offices)
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(Zip
Code)
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Securities
to be registered pursuant to Section 12(b) of the Act:
Title
of each class
to
be so registered
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Name
of each exchange on which
each
class is to be registered
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Preferred
Stock Purchase Rights
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New
York Stock Exchange
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If this
form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box.
ý
If this
form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box.
o
Securities
Act registration statement file number to which this form
relates: (if
applicable)
Securities
to be registered pursuant to Section 12(g) of the Act:
(title of
class)
(title of
class)
AMENDMENT
NO. 2 ON FORM 8-A/A TO
REGISTRATION
STATEMENT ON FORM 8-A FILED NOVEMBER 4, 1988
Item
1. Description of Registrant’s Securities to be Registered.
Explanatory
Note
On
October 23, 2008, the Board of Directors of FirstFed Financial Corp. (the
“Company”) amended and restated the Company’s stockholder rights agreement in
the form of a Second Amended and Restated Rights Agreement, dated as of October
23, 2008 (the “Amended Rights Agreement”), between the Company and Registrar and
Transfer Company, as rights agent (the “Rights Agent”). The Amended
Rights Agreement was originally adopted in the form of a Rights Agreement, dated
as of November 2, 1988, and was subsequently amended and restated as an Amended
and Restated Rights Agreement, dated as of June 25, 1998 (such agreements,
together with the Amended Rights Agreement, are collectively referred to herein
as the “Rights Agreement”).
The
amendments included in the Amended Rights Agreement include: (i) extending
the final expiration of the Rights (as defined below) issued under the Rights
Agreement from November 15, 2008 to November 14, 2018; (ii) revising the
purchase price of each Right from $200.00 to $100.00 per one one thousandth of a
share of the Company’s Series A Preferred Stock or other securities or property
issued upon exercise of such Right; and (iii) adopting certain other clarifying
changes. On October 23, 2008, the Board of Directors also approved
the appointment of the Rights Agent to act as the agent for the Company and the
holders of the Rights under the Rights Agreement. Accordingly, the prior
description of the Rights Agreement in Item 1 is hereby amended and restated in
its entirety as follows:
Rights
Agreement
The Board
of Directors of the Company previously declared a dividend distribution of one
right (a “Right”) for each outstanding share of the Company’s common stock, par
value $0.01 per share (“Common Stock”). Each Right entitles the holders of
a share of Common Stock, when exercisable, to purchase from the Company one
one-thousandth (1/1,000) of a share of Series A Preferred Stock at an initial
price of $100.00 per one one-thousandth of a share. The exercise price and
the number of Series A Preferred Stock issuable upon exercise of a Right are
subject to adjustment from time to time to prevent dilution. With certain
exceptions, no adjustment will be made until a cumulative adjustment of at least
1% is required. The Company is not required to issue fractional shares and,
instead, may make a cash payment based on the market price of the Common
Stock. The Rights will expire on November 14, 2018 unless
earlier redeemed or exchanged by the Company as described below. The
description and terms of the Rights, as amended, are set forth in the Second
Amended and Restated Rights Agreement, dated as of October 23, 2008, between the
Company and Registrar and Transfer Company, as rights agent.
The
Rights will become exercisable immediately upon the earlier to occur of: (i) the
close of business on the tenth day following public announcement that, without
the prior consent of the Company’s disinterested directors, a person or group
has acquired, or obtained the right to acquire, beneficial ownership of 15% or
more of the outstanding shares of the Common Stock (such date, the “Stock
Acquisition Date”); or (ii) the close of business on the tenth
business day (unless such date is extended by the Board of Directors) following
the commencement or announcement of a tender offer or exchange offer which would
result in any person or group becoming an acquiring person. The
Rights are evidenced by the stock certificate representing Common
Stock. Upon the Rights becoming exercisable, separate certificates
evidencing the Rights will be mailed to the holders of record.
In the
event a person becomes an acquiring person (excluding as of the result of a
tender offer or exchange offer determined by a majority of the disinterested
members of the Board of Directors to be both adequate and in the best interests
of the Company and its stockholders), each holder of a Right (other than an
acquiring person) will have the right, for a 60-day period after the later of
the occurrence of such event or the effectiveness of an appropriate registration
statement, to receive upon exercise of such Right that number of shares of
Common Stock (or, in the discretion or the Board of Directors, units of
one-thousandth of a share of Series A Preferred Stock) having an average market
value during a specified time period of two times the purchase price of the
Right.
If, on or
after the Stock Acquisition Date, (i) a person or group becomes an acquiring
person, (ii) the Company is acquired in a merger or other business combination
or (iii) 50% or more of the Company’s assets or earning power is sold, each of
the Rights will “flip-over” and become the right to purchase common stock of the
acquiror. The holder (other than an acquiring person) of each Right would, upon
the occurrence of a flip-over event, be entitled to receive upon exercise of
such Right that number of shares of common stock of the acquiror having a market
value of two times the purchase price of the Right.
In
addition, the Board of Directors may elect at any time after a person becomes an
acquiring person to exchange all of the then outstanding Rights of other holders
for shares of Common Stock at an exchange ratio of one share of Common Stock for
each Right, subject to adjustments. Upon election of this exchange, a Right will
no longer be exercisable and will only represent a right to receive such Common
Stock.
The shares of the
Company’s Series A Preferred Stock purchasable upon the exercise of such Rights
will be nonredeemable and junior to any other series of preferred stock that the
Company may issue.
Each share of Series A Preferred Stock will be
entitled to a preferential quarterly dividend in an amount equal to 1,000 times
the dividend declared per share of Common Stock, but in no event less than
$10.00. In the event the Company liquidates, the holders of the Series A
Preferred Stock will be entitled to a preferential liquidation payment equal to
the greater of 1,000 times the payment per share made per share of Common Stock
or 1,000 times the purchase price per Right. Each share of Series A
Preferred Stock will have 1,000 votes, voting together with the shares of Common
Stock. In the event of any merger, consolidation or other transaction in
which shares of Common Stock are exchanged, each share of Series A Preferred
Stock will be entitled to receive 1,000 times the amount received per share of
Common Stock. These rights are protected by customary antidilution
provisions.
At any
time before an acquiring person acquires beneficial ownership of 15% or more of
the outstanding Common Stock or the expiration of the Rights, the Board of
Directors may redeem the rights in whole, but not in part, at a price of $0.01
per Right. Immediately upon any share purchase rights redemption, the
exercise rights terminate, and the holders will only be entitled to receive the
redemption price.
Until the
Rights are exercised, the holders of the Rights, as such, will have no rights as
stockholders, including no rights to vote or receive dividends. Upon exercise of
the Rights, the holder of the stock received upon exercise will be entitled to
all the rights of any other holder of such class or series of
stock.
The
Rights Agreement is subject to amendment by the Company as provided therein,
including in certain circumstances without the requirement that the Company
obtain approval from the holders of Rights. A copy of the Rights Agreement,
which includes the form of Rights Certificate as an exhibit thereto, is attached
hereto as Exhibit 4.1 and is incorporated herein by this reference. A copy
of the Rights Agreement is available free of charge from the Company. The
foregoing summary does not purport to be complete and is qualified in its
entirety by reference to the Rights Agreement.
Item
2. Exhibits.
Exhibit No.
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Description
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4.1
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Second
Amended and Restated Rights Agreement, dated as of October 23, 2008,
between FirstFed Financial Corp. and Registrar and Transfer Company, as
Rights Agent (which includes: as Exhibit A thereto, the form of Amended
Certificate of Designation specifying the terms of the Series A Preferred
Stock; as Exhibit B thereto, the form of Rights Certificate; and as
Exhibit C thereto, the Summary of
Rights).
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SIGNATURE
Pursuant
to the requirements of Section 12 of the Securities Exchange Act of 1934,
the registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized.
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FIRSTFED
FINANCIAL CORP.
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(Registrant)
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October 28,
2008
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By:
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_
/s/
Babette E.
Heimbuch
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Babette E. Heimbuch
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Chief Executive Officer
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INDEX
TO EXHIBITS
Exhibit No.
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Description
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4.1
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Second
Amended and Restated Rights Agreement, dated as of October 23, 2008,
between FirstFed Financial Corp. and Registrar and Transfer Company, as
Rights Agent (which includes: as Exhibit A thereto, the form of Amended
Certificate of Designation specifying the terms of the Series A Preferred
Stock; as Exhibit B thereto, the form of Rights Certificate; and as
Exhibit C thereto, the Summary of
Rights).
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Exhibit
4.1
_________________________________
FIRSTFED
FINANCIAL CORP.
and
REGISTRAR
AND TRANSFER COMPANY, as Rights Agent
_________________________________
Second
Amended and Restated Rights Agreement
Dated as
of October 23, 2008
_________________________________
DEFINED
TERM CROSS REFERENCE SHEET
Acquiring
Person
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Section
1(a)
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Affiliate
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Section
1(b)
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Agreement
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Preface
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Associate
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Section
1(b)
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Beneficial
Owner, Beneficial Ownership, beneficially own, beneficially
owned
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Section
1(c)
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Board
of Directors
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Section
1(d)
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Business
Day
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Section
1(e)
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Certificate
of Designation
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.Preface
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close
of business
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Section
1(f)
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Common
Stock
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Section
1(g)
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Common
Stock Equivalent
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Section
11(a)(iii)
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Company
|
Preface
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current
per share market price
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Section
11(d)(i)
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Current
Value
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Section
11(a)(iii)
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Derivative
Common Stock
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Section
1(c)(iv)
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Disinterested
Director
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Section
1(h)
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Distribution
Date
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Section
3(a)
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Equivalent
Preferred Stock
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Section
11(b)
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Exchange
Act
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Section
1(b)
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Exchange
Ratio
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Section
25(a)
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Exempt
Person
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Section
1(i)
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Expiration
Date
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Section
7(a)
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Final
Expiration Date
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Section
7(a)
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Flip-In
Event
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Section
11(a)(ii)
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Original
Rights
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Section
1(c)(ii)
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Original
Rights Agreement
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.Preface
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NASDAQ
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Section
1(j)
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Permitted
Offer
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Section
1(k)
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Person
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Section
1(l)
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Pre-Amendment
Right
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Preface
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Preferred
Stock
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Section
1(m)
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Principal
Party
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Section
13(b)
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Prior
Rights Agent
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Preface
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Prior
Rights Agreement
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Preface
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Purchase
Price
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Section
7(b)
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Record
Date
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Preface
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Redemption
Date
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Section
7(a)
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Redemption
Price
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Section
24(a)
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Right
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Preface
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Rights
Agent
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Preface
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Rights
Agreement
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Section
3(c)
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Rights
Certificate
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Section
3(a)
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Section
11(a)(ii) Trigger Date
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Section
11(a)(iii)
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Section
13 Event
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Section
1(n)
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Security
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Section
11(d)(i)
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Securities
Act
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Section
1(o)
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Spread
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Section
11(a)(iii)
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Stock
Acquisition Date
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Section
1(p)
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Subsidiary
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Section
1(q)
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Substitution
Period
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Section
11(a)(iii)
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then
outstanding
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Section
1(c)
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Trading
Day
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Section
11(d)(i)
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Triggering
Event
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Section
1(r)
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Voting
Power
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Section
1(s)
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SECOND AMENDED AND RESTATED
RIGHTS AGREEMENT
This
Second Amended and Restated Rights Agreement, dated as of October 23, 2008 (this
“
Agreement
”),
between FirstFed Financial Corp., a Delaware corporation (the “
Company
”), and
Registrar and Transfer Company (the “
Rights
Agent
”).
W I T N E S S E T
H
WHEREAS,
the Board of Directors (as such term is hereinafter defined) previously
authorized and declared a dividend distribution of one right (a “
Pre-Amendment Right
”)
for each share of Common Stock, $0.01 par value per share, of the Company
outstanding on November 15, 1988 (the “
Record Date
”), and
contemplated the issuance of one right (subject to adjustment as provided
herein) for each share of Common Stock of the Company issued between the Record
Date and the earliest of the Distribution Date and the Expiration Date (as such
terms are hereinafter defined), each Pre-Amendment Right representing the right
to purchase one one-hundredth of a share of Series A Preferred Stock, par value
$0.01 per share, of the Company having the rights, powers and preferences set
forth in the form of Certificate of Designation attached as
Exhibit A
(the “
Certificate of
Designation
”) to the Rights Agreement dated November 2, 1988 (the “
Original Rights
Agreement
”), between the Company and Harris Trust and Savings Bank (the
“
Prior Rights
Agent
”);
WHEREAS,
on June 25, 1998, the Board of Directors amended and restated the Original
Rights Agreement as the Amended and Restated Rights Agreement, dated as of June
25, 1998 (as so amended, the “
Prior Rights
Agreement
”), upon the terms and subject to the conditions set forth
therein, and determined that the Pre-Amendment Rights would thenceforth be
governed by the terms and subject to the terms and conditions set forth therein;
and
WHEREAS,
on October 23, 2008, the Board of Directors determined that it was advisable and
in the best interests of the Company and its stockholders to amend and restate
in its entirety the Prior Rights Agreement as set forth herein, with the Rights
Agent acting as agent for the Company and the holders of the Rights, and that in
connection therewith the Pre-Amendment Rights shall henceforth be governed by
the terms and subject to the conditions set forth herein and that each
Pre-Amendment Right shall hereafter be referred to as one Right (a “
Right
”) and each
Right shall represent the right to purchase one one-thousandth of a share of
Series A Preferred Stock of the Company having the rights, powers and
preferences set forth in the form of Certificate of Designation (also attached
hereto as
Exhibit
A)
, upon the terms and subject to the conditions set forth
therein.
NOW,
THEREFORE, in consideration of the premises and the mutual agreements herein set
forth, the parties hereto hereby agree as follows:
Section
1.
Certain
Definitions
. For purposes of this Agreement, the following
terms have the meanings indicated:
(a)
“
Acquiring Person
”
shall mean any Person (as such term is hereinafter defined) who or which,
together with all Affiliates and Associates (as such terms are hereinafter
defined) of such Person, without the prior approval of at least a majority of
the Disinterested Directors of the Company, shall be the Beneficial Owner (as
such term is hereinafter defined) of securities representing 15% or more of the
shares of Common Stock then outstanding (but, shall not include an Exempt Person
(as such term is hereinafter defined) or as a result of a Permitted Offer (as
hereinafter defined) or who was such a Beneficial Owner at any time after the
date hereof, whether or not such Person continues to be the Beneficial Owner of
securities representing 15% or more of the outstanding shares of Common
Stock. Notwithstanding the foregoing, (A) the term Acquiring Person
shall not include (i) the Company, (ii) any Subsidiary (as such term is
hereinafter defined) of the Company, (iii) any employee benefit plan of the
Company or of any Subsidiary of the Company or (iv) any Person or entity
organized, appointed or established by the Company or any Subsidiary of the
Company for or pursuant to the terms of any such plan and (B) no Person shall
become an “
Acquiring
Person
” (i) as a result of the acquisition of shares of Common Stock by
the Company which, by reducing the number of shares of Common Stock outstanding,
increases the proportional number of shares beneficially owned by such Person
together with all Affiliates and Associates of such Person, provided, that if
(1) a Person would become an Acquiring Person (but for the operation of this
subclause (i)
)
as a result of the acquisition of shares of Common Stock by the Company, and (2)
after such share acquisition by the Company, such Person, or an Affiliate or
Associate of such Person, becomes the Beneficial Owner of any additional shares
of Common Stock (except as the result of a stock split, stock dividend,
recapitalization or similar transaction), then such Person shall be deemed an
Acquiring Person or; (ii) if (1) within five Business Days after such Person
would otherwise have become an Acquiring Person (but for the operation of this
subclause
(ii)
), such Person notifies the Board of Directors that such Person did
so inadvertently, and (2) within two Business Days after such notification (or
such greater period of time as may be determined by action of the Board of
Directors, but in no event greater than five Business Days), such Person divests
itself of a sufficient number of shares of Common Stock (or, in the case solely
of Derivative Common Shares (as such term is hereinafter defined), such Person
terminates the subject derivative transaction or transactions or disposes of the
subject derivative security or securities, or establishes to the satisfaction of
the Board of Directors that such Derivative Common Shares are not held with any
intention of changing or influencing control of the Company) so that such Person
is the Beneficial Owner of less than 15% of the outstanding shares of Common
Stock.
1
(b)
“
Affiliate
” and “
Associate
” shall have
the respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as amended, and
in effect on the date of this Agreement (the “
Exchange
Act
”).
(c)
A Person
shall be deemed the “
Beneficial Owner
” of,
and shall be deemed to have “
Beneficial Ownership
”
of and shall be deemed to “
beneficially own
,”
any securities:
(i)
which
such Person or any of such Person’s Affiliates or Associates is deemed to
beneficially own, directly or indirectly, within the meaning of Rule 13d-3 of
the General Rules and Regulations under the Exchange Act as in effect on the
date of this Agreement;
(ii)
which
such Person or any of such Person’s Affiliates or Associates has (A) the right
or obligation to acquire (whether such right or obligation is exercisable or
effective immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing, other than
customary agreements with and between underwriters and selling group members
with respect to a bona fide public offering of securities) or upon the exercise
of conversion rights, exchange rights, rights (other than the Rights), warrants
or options, or otherwise;
provided, however
, that a
Person shall not be deemed the “
Beneficial Owner
” of,
or to “
beneficially
own
,” securities tendered pursuant to a tender or exchange offer made by
or on behalf of such Person or any of such Person’s Affiliates or Associates
until such tendered securities are accepted for purchase or exchange, (y)
securities which such Person has a right to acquire upon the exercise of Rights
at any time prior to the time that any Person becomes an Acquiring Person or (z)
securities issuable upon the exercise of Rights from and after the time that any
Person becomes an Acquiring Person if such Rights were acquired by such Person
or any of such Person’s Affiliates or Associates prior to the Distribution Date
or pursuant to
Section
3(a)
or
Section
22
(“
Original
Rights
”) or pursuant to
Section 11(i)
or
Section 11(n)
with respect to an adjustment to Original Rights; or (B) the right to vote
pursuant to any agreement, arrangement or understanding (whether or not in
writing);
provided,
however
, that a Person shall not be deemed the “
Beneficial Owner
” of,
or to “
beneficially
own
,” any security by reason of such agreement, arrangement, or
understanding if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations promulgated under
the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report);
2
(iii)
which are
beneficially owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) with which such Person (or any of such Person’s
Affiliates or Associates) has any agreement, arrangement or understanding
(whether or not in writing), or with which such Person or any of such Person’s
Affiliates have otherwise formed a group, related to the acquisition, holding,
voting (except pursuant to a revocable proxy or consent as described in
Section 1(d)(ii)(B)
)
or disposing of any securities of the Company (other than customary agreements
with and between underwriters and selling group members with respect to a bona
fide public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the proviso to
Section 1(c)(ii)(B)
or disposing of such securities of the Company; or
(iv)
that
are the subject of a derivative transaction entered into by such Person, or
derivative security acquired by such Person, which gives such Person the
economic equivalent of ownership of an amount of such securities due to the fact
that the value of the derivative is explicitly determined by reference to the
price or value of such securities, without regard to whether (a) such
derivative conveys any voting rights in such securities to such Person,
(b) the derivative is required to be, or capable of being, settled through
delivery of such securities, or (c) such Person may have entered into other
transactions that hedge the economic effect of such derivative. In
determining the number of Common Stock deemed Beneficially Owned by virtue of
the operation of this
Section 1(c)(iv)
,
the subject Person shall be deemed to Beneficially Own (without duplication) the
number of shares of Common Stock that are synthetically owned pursuant to such
derivative transactions or such derivative securities. Such shares of
Common Stock that are deemed so Beneficially Owned pursuant to the operation of
this
Section 1(c)(iv)
shall be referred to herein as “
Derivative Common
Stock
”;
provided, however
, that no
Person who is an officer, director or employee of an Exempt Person shall be
deemed, solely by reason of such Person’s status or authority as such, to be the
“
Beneficial
Owner
” of, to have “
Beneficial Ownership
”
of or to “
beneficially
own
” any securities that are “
beneficially owned
”
(as defined in this
Section l(c)
),
including, without limitation, in a fiduciary capacity, by an Exempt Person or
by any other such officer, director or employee of an Exempt
Person.
3
Notwithstanding
anything in this definition of Beneficial Ownership to the contrary, the phrase
“
then
outstanding
,” when used with reference to a Person’s Beneficial Ownership
of securities of the Company, shall mean the number of such securities then
issued and outstanding together with the number of such securities not then
actually issued and outstanding which such Person would be deemed to own
beneficially hereunder.
(d)
“
Board of Directors
”
shall mean the Board of Directors of the Company.
(e)
“
Business Day
” shall
mean any day other than a Saturday, Sunday, or a day on which banking
institutions in the State of New Jersey are authorized or obligated by law or
executive order to close.
(f)
“
close of business
” on
any given date shall mean 5:00 P.M., New York time on such date;
provided, however
, that if
such date is not a Business Day it shall mean 5:00 P.M. New York time on the
next succeeding Business Day.
(g)
“
Common Stock
” when
used in reference to the Company shall mean the Common Stock, $0.01 par value,
of the Company or, in the event of a subdivision, combination or consolidation
with respect to such shares of Common Stock, the shares of Common Stock
resulting from such subdivision, combination or consolidation. “
Common Stock
” when
used with reference to any Person other than the Company shall mean the capital
stock with the greatest voting power, or the equity securities or other equity
interest having power to control or direct the management, of such Person or, if
such Person is a subsidiary of another Person, of the Person or Persons which
ultimately control such first-mentioned Person.
(h)
“
Disinterested
Director
” means any director of the Board of Directors who is not (a) an
officer or employee of the Company, (b) a Person proposing or attempting to
effect a business combination or similar transaction with the Company
(including, without limitation, a merger, tender offer or exchange offer, sale
of substantially all of the Company’s assets, or liquidation of the Company’s
assets) or any Affiliate or Associate of such Person or Person acting directly
or indirectly on behalf of, or as a representative of, or in concert with, any
such Person, Affiliate or Associate, (c) an Acquiring Person, an Affiliate or
Associate of an Acquiring Person, or a Person acting directly or indirectly on
behalf of, or as a representative of, or in concert with, an Acquiring Person or
an Affiliate or Associate of an Acquiring Person, or (d) any Person who was
directly or indirectly proposed or nominated as a director of the Company by an
Acquiring Person.
(i)
“
Exempt Person
” shall
mean the Company, any Subsidiary (as such term is hereinafter defined) of the
Company, or any employee benefit plan of the Company or any Subsidiary of the
Company, or any Person or entity organized, appointed or established by the
Company or any Subsidiary of the Company for or pursuant to the terms of any
such plan
(j)
“
NASDAQ
” shall mean
The Nasdaq Stock Market.
4
(k)
“
Permitted Offer
”
shall mean a tender or exchange offer for all outstanding shares of Common Stock
at a price and on terms determined, prior to the purchase of shares under such
tender or exchange offer, by at least a majority of the Disinterested Directors
to be adequate and otherwise in the best interests of the Company and its
stockholders (other than the Person or any Affiliate or Associate thereof on
whose behalf the offer is being made) taking into account all factors that such
directors may deem relevant.
(l)
“
Person
” shall mean
any individual, firm, corporation, partnership, joint venture, association,
trust, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(m)
“
Preferred Stock
”
shall mean the Series A Preferred Stock, $0.01 par value per share, of the
Company.
(n)
“
Section 13 Event
”
shall mean any event described in clause
(i)
,
(ii)
or
(iii)
of
Section
13(a)
.
(o)
“
Securities Act
” shall
mean the Securities Act of 1933, as amended and as in effect on the date of this
Agreement.
(p)
“
Stock Acquisition
Date
” shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) of the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such, or such earlier date as a
majority of the Board of Directors shall become aware of the existence of an
Acquiring Person.
(q)
A “
Subsidiary
” of any
Person shall mean any corporation or other Person of which a majority of the
voting power of the voting equity securities or equity interests is owned,
directly or indirectly, by such Person, or which is otherwise controlled by such
Person.
(r)
“
Triggering Event
”
shall mean any Flip-In Event or any Section 13 Event.
(s)
“
Voting Power
” shall
mean the voting power of all securities of the Company then outstanding and
generally entitled to vote for the election of directors of the
Company.
Section
2.
Appointment of Rights
Agent
. The Company hereby appoints the Rights Agent to act as
agent for the Company and the holders of the Rights (who, in accordance with
Section 3
,
shall prior to the Distribution Date also be the holders of the Common Stock) in
accordance with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint
such co-rights agents as it may deem necessary or desirable.
Section
3.
Issue of Rights
Certificates
.
(a)
Until the
close of business on the earlier of (i) the tenth day after the Stock
Acquisition Date or (ii) the tenth Business Day (or such later date as may be
determined by action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the date of the commencement by any Person
(other than an Exempt Person) of, or of the first public announcement of the
intention of any Person (other than an Exempt Person) to commence, a tender or
exchange offer, the consummation of which would result in any Person (other than
an Exempt Person) becoming an Acquiring Person, unless such date is extended by
the Board of Directors (the earlier of such dates being herein referred to as
the “
Distribution
Date
”), (x) the Rights will be evidenced (subject to the provisions of
Section 3(b)
)
by the certificates for Common Stock registered in the names of the holders
thereof and not by separate Rights Certificates, and (y) the Rights (and the
right to receive certificates therefor) shall be transferable only in connection
with the transfer of Common Stock. As soon as practicable after the
Distribution Date, the Company will prepare and execute, the Rights Agent will
countersign and the Company will send or cause to be sent (and the Rights Agent
will, if requested, send) by first-class, insured, postage prepaid mail, to each
record holder of the Common Stock as of the close of business on the
Distribution Date (other than any Acquiring Person or any Associate or Affiliate
of an Acquiring Person), at the address of such holder shown on the records of
the Company, a certificate for Rights, in substantially the form of
Exhibit B
hereto (the
“
Rights
Certificates
”), evidencing one Right (subject to adjustment as provided
herein) for each share of Common Stock so held. As of the
Distribution Date, the Rights shall be evidenced solely by such Rights
Certificates.
5
(b)
With
respect to certificates for the Common Stock outstanding as of the date of this
Agreement, until the Distribution Date (or earlier redemption, expiration or
termination of the Rights), the Rights shall be evidenced by such certificates
for the Common Stock and the registered holders of the Common Stock shall also
be the registered holders of the associated Rights. Until the
Distribution Date (or, if earlier, the Expiration Date), the surrender for
transfer of any of the certificates for the Common Stock outstanding on or after
the Record Date shall also constitute the transfer of the Rights associated with
the Common Stock represented thereby.
(c)
Certificates
issued for shares of Common Stock (including, without limitation, certificates
issued upon transfer or exchange of Common Stock or reacquired shares of Common
Stock referred to in the last sentence of this
Section 3(c)
or
shares which become outstanding) after the date of this Agreement, but prior to
the earlier of the Distribution Date or the Expiration Date (as such term is
hereinafter defined), shall be deemed also to be certificates for Rights, and
shall have impressed, printed, stamped, written or otherwise affixed onto them
the following legend:
This
certificate also evidences and entitles the holder hereof to certain Rights as
set forth in the Second Amended and Restated Rights Agreement between FirstFed
Financial Corp. and Registrar and Transfer Company (the “
Rights Agent
”) dated
as of October 23, 2008 (the “
Rights Agreement
”)
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal offices of FirstFed Financial Corp. Under
certain circumstances, as set forth in the Rights Agreement, such Rights may be
redeemed, may expire, or may be evidenced by separate certificates and will no
longer be evidenced by this certificate. FirstFed Financial Corp.
will mail to the holder of this certificate a copy of the Rights Agreement
without charge within ten days after receipt of a written request therefor.
Under certain circumstances set forth in the Rights Agreement, Rights issued to
or held by any Person who is, was or becomes an Acquiring Person or an Affiliate
or Associate thereof (as defined in the Rights Agreement) and certain related
persons whether currently held by or on behalf of such Person or by any
subsequent holder of such Rights may become null and void.
6
With
respect to such certificates containing the foregoing legend or any legend
required under the Original Rights Agreement or the Prior Rights Agreement,
until the Distribution Date, the Rights associated with the Common Stock
represented by such certificates shall be evidenced by such certificates alone,
and the surrender for transfer of any such certificate, except as otherwise
provided herein, shall also constitute the transfer of the Rights associated
with the Common Stock represented by such certificate. In the event
that the Company purchases or acquires any shares of Common Stock prior to the
Distribution Date, any Rights associated with such shares of Common Stock shall
be deemed canceled and retired so that the Company shall not be entitled to
exercise any Rights associated with the shares of Common Stock which are no
longer outstanding.
Notwithstanding
this
Section
3(c)
, the omission of a legend shall not affect the enforceability of any
part of this Agreement or the rights of any holder of the Rights.
Section
4.
Form of Rights
Certificates
.
(a)
The
Rights Certificates (and the forms of election to purchase shares and of
assignment to be printed on the reverse thereof) shall each be substantially in
the form set forth in
Exhibit B
hereto and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or interdealer
quotation system on which the Rights may from time to time be listed or quoted,
or to conform to usage. Subject to the provisions of this Agreement,
the Rights Certificates, shall entitle the holders thereof to purchase such
number of one one-thousandths of a share of Preferred Stock as shall be set
forth therein at the Purchase Price, but the number of such one one-thousandths
of a share of Preferred Stock and the Purchase Price shall be subject to
adjustment as provided herein.
(b)
Any
Rights Certificate issued pursuant to
Section 3(a)
or
Section 23
that
represents Rights which are null and void pursuant to
Section 7(e)
and any
Rights Certificates issued at any time upon the transfer of any Rights to such
an Acquiring Person or any Associate or Affiliate thereof or to any nominee of
such Acquiring Person, Associate or Affiliate, and any Rights Certificate issued
pursuant to
Section
6
or
Section
11
upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent feasible)
the following legend:
The
Rights represented by this Rights Certificate are or were beneficially owned by
a Person who was or became an Acquiring Person or an Affiliate or an Associate
of an Acquiring Person (as such terms are defined in the Rights Agreement) or
certain related persons. Accordingly, this Rights
Certificate and the Rights represented hereby are null and void.
7
The
provisions of
Section
7(e)
shall be operative whether or not the foregoing legend is contained
on any such Rights Certificate.
Section
5.
Countersignature and
Registration
. The Rights Certificates shall be executed on
behalf of the Company by its Chairman of the Board, any Vice Chairman of the
Board, its President, its Chief Executive Officer, or any Vice President, or its
Treasurer, either manually or by facsimile signature, and shall have affixed
thereto the Company’s seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Rights Certificates shall be manually
countersigned by the Rights Agent and shall not be valid for any purpose unless
so countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Rights Certificates, nevertheless, may be countersigned by the
Rights Agent, and issued and delivered by the Company with the same force and
effect as though the Person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed on
behalf of the Company by any Person who, at the actual date of the execution of
such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Agreement any
such Person was not such an officer.
Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at the
offices designated by the Rights Agent for such purpose, books for registration
and transfer of the Rights Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates, the certificate number and the date of each of the Rights
Certificates.
Section
6.
Transfer, Split Up,
Combination and Exchange of Rights Certificates; Mutilated, Destroyed, Lost or
Stolen-Rights Certificates
. Subject to the provisions of this
Agreement, at any time after the close of business on the Distribution Date, and
at or prior to the close of business on the Expiration Date, any Rights
Certificate or Rights Certificates may be transferred, split up, combined or
exchanged for another Rights Certificate or Rights Certificates, entitling the
registered holder to purchase a like number of one one-thousandths of a share of
Preferred Stock (or, following a Triggering Event, other securities, as the case
may be) as the Rights Certificate or Rights Certificates surrendered then
entitled such holder (or former holder in the case of a transfer) to
purchase. Any registered holder desiring to transfer, split up,
combine or exchange any Rights Certificate or Rights Certificates shall make
such request in writing delivered to the Rights Agent, and shall surrender the
Rights Certificate or Rights Certificates to be transferred, split up, combined
or exchanged at the principal office of the Rights Agent designated for such
purpose. Neither the Rights Agent nor the Company shall be obligated
to take any action whatsoever with respect to the transfer of any such
surrendered Rights Certificate until the registered holder shall have completed
and signed the certificate contained in the form of assignment on the reverse
side of such Rights Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request at the
office or agency of the Rights Agent designated for such
purpose. Thereupon the Rights Agent shall countersign and deliver to
the Person entitled thereto a Rights Certificate or Rights Certificates, as the
case may be, as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
Subject
to the provisions of this Agreement, at any time after the Distribution Date and
prior to the Expiration Date, upon receipt by the Company and the Rights Agent
of evidence reasonably satisfactory to them of the loss, theft, destruction or
mutilation of a Rights Certificate, and in case of loss, theft or destruction,
of indemnity or security reasonably satisfactory to them, and, at the Company’s
request, reimbursement to the Company and the Rights Agent of all reasonable
expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Rights Certificate if mutilated, the Company will make and
deliver a new Rights Certificate of like tenor to the Rights Agent for delivery
to the registered holder in lieu of the Rights Certificate so lost, stolen,
destroyed or mutilated.
8
Section
7.
Exercise of Rights, Purchase
Price; Expiration Date of Rights
.
(a)
Except as
otherwise provided herein, the Rights shall become exercisable on the
Distribution Date, and thereafter the registered holder of any Rights
Certificate may, subject to
Section 11(a)(ii)
and
except as otherwise provided herein, exercise the Rights evidenced thereby in
whole or in part upon surrender of the Rights Certificate, with the form of
election to purchase and the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office of the Rights Agent
designated for such purpose, together with payment of the aggregate Purchase
Price with respect to the total number of one one-thousandths of a share of
Preferred Stock (or other securities, cash or other assets as the case may be)
as to which such surrendered Rights are exercised, at any time which is both
after the Distribution Date and prior to the time (the “
Expiration Date
”)
that is the earliest of (i) the close of business on November 14, 2018 (the
“
Final Expiration
Date
”), or (ii) the time at which the Rights are redeemed as provided in
Section 24
(the
“
Redemption
Date
”) or (iii) the time at which the Rights are exchanged as provided in
Section
25
.
(b)
The
purchase price for each one one-thousandth of a share of Preferred Stock
pursuant to the exercise of a Right shall initially be $100.00 (the “
Purchase Price
”). The
Purchase Price and the number of one one-thousandths of a share of Preferred
Stock or other securities or property to be acquired upon exercise of a Right
shall be subject to adjustment from time to time as provided in
Sections 11
and
13
and shall be
payable in lawful money of the United States of America in accordance with
Section
7(c)
.
(c)
Except as
otherwise provided herein, upon receipt of a Rights Certificate representing
exercisable Rights, with the appropriate form of election to purchase duly
executed, accompanied by payment of the aggregate Purchase Price for the shares
(or other securities, as the case may be) to be purchased and an amount equal to
any applicable transfer tax required to be paid by the holder of such Rights
Certificate in accordance with
Section 9
, in cash,
by certified check, cashier’s check or money order payable to the order of the
Company, the Rights Agent shall, thereupon promptly (i) (A) requisition from any
transfer agent of the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent) certificates for the number of shares of
Preferred Stock to be purchased, and the Company hereby irrevocably authorizes
its transfer agent to comply with all such requests, or (B) if the Company, in
its sole discretion, shall have elected to deposit the shares of Preferred Stock
issuable upon exercise of the Rights hereunder into a depositary, requisition
from the depositary agent depositary receipts representing interests in such
number of one one-thousandths of a share of Preferred Stock as are to be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with the
depositary agent) and the Company hereby directs any such depositary agent to
comply with such requests, (ii) when appropriate, requisition from the Company
the amount of cash, to be paid in lieu of issuance of fractional shares in
accordance with
Section 15
, (iii)
promptly after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder and (iv) when appropriate, after receipt promptly deliver such cash
to or upon the order of the registered holder of such Rights
Certificate.
9
(d)
Except as
otherwise provided herein, in case the registered holder of any Rights
Certificate shall exercise less than all of the Rights evidenced thereby, a new
Rights Certificate evidencing Rights equivalent to the exercisable Rights
remaining unexercised shall be issued by the Rights Agent to the registered
holder of such Rights Certificate or to his duly authorized assigns, subject to
the provisions of
Section 15
, or the
Rights Agent shall place an appropriate notation on the Rights Certificate with
respect to those Rights exercised.
(e)
Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported transfer or exercise of Rights
pursuant to
Section
6
or as set forth in this
Section 7
unless such
registered holder shall have (i) completed and signed the certificate contained
in the appropriate form of assignment or form of election to purchase set forth
on the reverse side of the Rights Certificate surrendered for such transfer or
exercise and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) thereof as the Company shall
reasonably request.
Section
8.
Cancellation and Destruction
of Rights Certificates
. All Rights Certificates surrendered
for the purpose of exercise, transfer, split up, combination or exchange shall,
if surrendered to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in canceled form, or, if surrendered to the Rights
Agent, shall be canceled by it, and no Rights Certificates shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the Company otherwise than
upon the exercise thereof. The Rights Agent shall deliver all
canceled Rights Certificates to the Company, or shall, at the written request of
the Company, destroy such canceled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
10
Section
9.
Reservation and Availability
of Preferred Stock
.
(a)
The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock, or any
authorized and issued shares of Preferred Stock held in its treasury, the number
of shares of Preferred Stock that will be sufficient to permit the exercise in
full of all outstanding Rights.
(b)
So long
as the shares of Preferred Stock issuable upon the exercise of the Rights may be
listed or admitted to trading on any national securities exchange, or quoted on
NASDAQ, the Company shall use its best efforts to cause, from and after such
time as the Rights become exercisable, all shares reserved for such issuance to
be listed or admitted to trading on such exchange, or quoted on NASDAQ upon
official notice of issuance upon such exercise.
(c)
From and
after such time as the Rights become exercisable, the Company shall use its best
efforts, if then necessary to permit the issuance of shares of Preferred Stock
upon the exercise of Rights, to register and qualify such shares of Preferred
Stock under the Securities Act and any applicable state securities or “Blue Sky”
laws (to the extent exemptions therefrom are not available), cause such
registration statement and qualifications to become effective as soon as
possible after such filing and keep such registration and qualifications
effective (with a prospectus at all times meeting the requirements of the
Securities Act) until the earlier of the date as of which the Rights are no
longer exercisable for such securities and the Expiration Date. The
Company may temporarily suspend, for a period of time not to exceed 90 days, the
exercisability of the Rights in order to prepare and file a registration
statement under the Securities Act and permit it to become
effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension is no
longer in effect. Notwithstanding any provision of this Agreement to
the contrary, the Rights shall not be exercisable in any jurisdiction unless the
requisite qualification in such jurisdiction shall have been obtained and until
a registration statement under the Securities Act shall have been declared
effective, unless an exemption therefrom is available.
(d)
The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all shares of Preferred Stock delivered upon exercise
of Rights shall, at the time of delivery of the certificates for such shares or
other securities (subject to payment of the Purchase Price), be duly and validly
authorized and issued and fully paid and nonassessable shares.
(e)
The
Company further covenants and agrees that it will pay when due and payable any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Rights Certificates or of any
certificates for shares of Preferred Stock upon the exercise of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of
Rights Certificates to a person other than, or in respect of the issuance or
delivery of certificates or depositary receipts for the shares of Preferred
Stock in a name other than that of, the registered holder of the Rights
Certificates evidencing Rights surrendered for exercise or to issue or deliver
any certificates or depositary receipts for shares of Preferred Stock in a name
other than that of the registered holder upon the exercise of any Rights until
any such tax shall have been paid (any such tax being payable by that holder of
such Rights Certificate at the time of surrender) or until it has been
established to the Company’s satisfaction that no such tax is due.
11
Section
10.
Preferred Stock Record
Date
. Each Person in whose name any certificate for shares of
Preferred Stock is issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of Preferred Stock
represented thereby on, and such certificate shall be dated, the date upon which
the Rights Certificate evidencing such Rights was duly surrendered and payment
of the Purchase Price (and any applicable transfer taxes) was made;
provided, however
, that if
the date of such surrender and payment is a date upon which the Preferred Stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the Preferred Stock transfer books of
the Company are open. Prior to the exercise of the Rights evidenced
thereby, the holder of a Rights Certificate, as such, shall not be entitled to
any rights of a holder of Preferred Stock for which the Rights shall be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions, and shall not be entitled to receive any
notice of any proceedings of the Company, except as provided
herein.
Section
11.
Adjustment of Purchase
Price, Number and Kind of Shares or Number of Rights
. The
Purchase Price, the number of shares of Preferred Stock or other securities or
property purchasable upon exercise of each Right and the number of Rights
outstanding are subject to adjustment from time to time as provided in this
Section
11
.
(a)
(i) In
the event the Company shall at any time after the date of this Agreement (A)
declare and pay a dividend on the Preferred Stock payable in shares of Preferred
Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the
outstanding Preferred Stock into a smaller number of shares or (D) issue any
shares of its capital stock in a reclassification of the Preferred Stock
(including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), except
as otherwise provided in this
Section 11(a)
and in
Section 7(e)
,
the Purchase Price in effect at the time of the record date for such dividend or
of the effective date of such subdivision, combination or reclassification, and
the number and kind of shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
capital stock and other securities which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock transfer
books of the Company were open, such holder would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification.
12
(ii)
Subject
to
Section 24
,
in the event that any Person becomes an Acquiring Person (the first occurrence
of such event being referred to hereinafter as the “
Flip-In Event
”), then
(A) the Purchase Price shall be adjusted to be the Purchase Price in effect
immediately prior to the Flip-In Event multiplied by the number of one
one-thousandths of a share of Preferred Stock for which a Right is then
exercisable immediately prior to such Flip-In Event, whether or not such Right
was then exercisable, and (B) each holder of a Right, except as otherwise
provided in this
Section 11(a)(ii)
and
Section
11(a)(iii)
, shall thereafter have the right to receive, upon exercise
thereof at a price equal to the Purchase Price (as so adjusted), in accordance
with the terms of this Agreement and in lieu of shares of Preferred Stock, such
number of shares of Common Stock as shall equal the result obtained by dividing
the Purchase Price (as so adjusted) by 50% of the current per share market price
of the Common Stock (determined pursuant to
Section 11(d)
) on the
date of such Flip-In Event;
provided, however
, that the
Purchase Price (as so adjusted) and the number of shares of Common Stock so
receivable upon exercise of a Right shall, following the Flip-In Event, be
subject to further adjustment as appropriate in accordance with
Section
11(f)
. Notwithstanding anything in this Agreement to the
contrary, however, from and after the Flip-In Event, any Rights that are
beneficially owned by (x) any Acquiring Person (or any Affiliate or Associate of
any Acquiring Person), (y) a transferee of any Acquiring Person (or any such
Affiliate or Associate) who becomes a transferee after the Flip-In Event or (z)
a transferee of any Acquiring Person (or any such Affiliate or Associate) who
became a transferee prior to or concurrently with the Flip-In Event pursuant to
either (I) a transfer from the Acquiring Person to holders of its equity
securities or to any Person with whom it has any continuing agreement,
arrangement or understanding regarding the transferred Rights or (II) a
transfer which the Board of Directors has determined is part of a plan,
arrangement or understanding which has the purpose or effect of avoiding the
provisions of this
Section 11(a)(ii)
,
and subsequent transferees of such Persons, shall be void without any further
action and any holder of such Rights shall thereafter have no rights whatsoever
with respect to such Rights under any provision of this
Agreement. The Company shall use all reasonable efforts to ensure
that the provisions of this
Section 11(a)(ii)
are
complied with, but shall have no liability to any holder of Rights Certificates
or other Person as a result of its failure to make any determinations with
respect to an Acquiring Person or its Affiliates, Associates or transferees
hereunder. From and after the Flip-In Event, no Rights Certificate
shall be issued pursuant to
Section 3
or
Section 6
that
represents Rights that are or have become void pursuant to the provisions of
this
Section
11(a)(ii)
, and any Rights Certificate delivered to the Rights Agent that
represents Rights that are or have become void pursuant to the provisions of
this
Section
11(a)(ii)
shall be canceled. From and after the occurrence of
an event specified in
Section 13(a)
, any
Rights that theretofore have not been exercised pursuant to this
Section 11(a)(ii)
shall thereafter be exercisable only in accordance with
Section 13
and not
pursuant to this
Section
11(a)(ii)
.
13
(iii)
The
Company may at its option substitute for a share of Common Stock issuable upon
the exercise of Rights in accordance with
Section 11(a)(ii)
a
number of shares of Preferred Stock or fraction thereof such that the current
per share market price of one share of Preferred Stock multiplied by such number
or fraction is equal to the current per share market price of one share of
Common Stock. In the event that there shall not be sufficient shares
of Common Stock issued but not outstanding or authorized but unissued shares
(and unreserved) of Common Stock to permit the exercise in full of the Rights in
accordance with
Section 11(a)(ii)
,
the Board of Directors shall, with respect to such deficiency, to the extent
permitted by applicable law and any material agreements then in effect to which
the Company is a party, (A) determine the excess (such excess, the “
Spread
”) of (1) the
value of the shares of Common Stock issuable upon the exercise of a Right in
accordance with
Section
11(a)(ii)
(the “
Current Value
”) over
(2) the Purchase Price (as adjusted in accordance with
Section 11(a)(ii)
),
and (B) with respect to each Right (other than Rights which have become void
pursuant to
Section
11(a)(ii)
), make adequate provision to substitute for the shares of
Common Stock issuable in accordance with
Section 11(a)(ii)
upon exercise of the Right and payment of the Purchase Price (as adjusted in
accordance therewith), (1) cash, (2) a reduction in such Purchase Price, (3)
shares of Preferred Stock or other equity securities of the Company (including,
without limitation, shares or fractions of shares of preferred stock which, by
virtue of having dividend, voting and liquidation rights substantially
comparable to those of the shares of Common Stock, are deemed in good faith by
the Board of Directors to have substantially the same value as the shares of
Common Stock (such shares of Preferred Stock and shares or fractions of shares
of preferred stock are hereinafter referred to as “
Common Stock
Equivalents
”)), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having a value which, when
added to the value of the shares of Common Stock issued upon exercise of such
Right, shall have an aggregate value equal to the Current Value (less the amount
of any reduction in such Purchase Price), where such aggregate value has been
determined by the Board of Directors upon the advice of a nationally recognized
investment banking firm selected in good faith by the Board of Directors;
provided, however
, that if
the Company shall not make adequate provision to deliver value pursuant to
clause (B) above within thirty (30) days following the Flip-In Event (the date
of the Flip-In Event being the “
Section 11(a)(ii) Trigger
Date
”), then the Company shall be obligated to deliver, to the extent
permitted by applicable law and any material agreements then in effect to which
the Company is a party, upon the surrender for exercise of a Right and without
requiring payment of such Purchase Price, shares of Common Stock (to the extent
available), and then, if necessary, such number or fractions of shares of
Preferred Stock (to the extent available) and then, if necessary, cash, which
shares and/or cash have an aggregate value equal to the Spread. If,
upon the occurrence of the Flip-In Event, the Board of Directors shall determine
in good faith that it is likely that sufficient additional shares of Common
Stock could be authorized for issuance upon exercise in full of the Rights,
then, if the Board of Directors so elects, the 30 day period set forth above may
be extended to the extent necessary, but not more than 90 days after the Section
11(a)(ii) Trigger Date, in order that the Company may seek stockholder approval
for the authorization of such additional shares (such 30 day period, as it may
be extended, is herein called the “
Substitution
Period
”). To the extent that the Company determines that some
action need be taken pursuant to the second and/or third sentence of this
Section 11(a)(iii)
,
the Company (x) shall provide, subject to
Section 11(a)(ii)
and
the last sentence of this
Section 11(a)(iii)
,
that such action shall apply uniformly to all outstanding Rights and (y) may
suspend the exercisability of the Rights until the expiration of the
Substitution Period in order to seek any authorization of additional shares
and/or to decide the appropriate form of distribution to be made pursuant to
such second sentence and to determine the value thereof. In the event
of any such suspension, the Company shall issue a public announcement stating
that the exercisability of the Rights has been temporarily suspended, as well as
a public announcement at such time as the suspension is no longer in
effect. For purposes of this
Section 11(a)(iii)
,
the value of the shares of Common Stock shall be the current per share market
price (as determined pursuant to
Section 11(d)(i)
) on
the Section 11(a)(ii) Trigger Date and the per share or fractional value of any
“
Common Stock
Equivalent
” shall be deemed to equal the current per share market price
of the Common Stock. The Board of Directors may, but shall not be
required to, establish procedures to allocate the right to receive shares of
Common Stock upon the exercise of the Rights among holders of Rights pursuant to
this
Section
11(a)(iii)
.
14
(b)
In case
the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them (for a period expiring
within 45 calendar days after such record date) to subscribe for or purchase
Preferred Stock (or shares having the same, privileges and preferences as the
Preferred Stock (“
Equivalent Preferred
Stock
”)) or securities convertible into Preferred Stock or Equivalent
Preferred Stock at a price per share of Preferred Stock or per share of
Equivalent Preferred Stock (or having a conversion price per share, if a
security convertible into Preferred Stock or Equivalent Preferred Stock) less
than the then current per share market price of the Preferred Stock (determined
pursuant to
Section
11(d)
) on such record date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of shares of Preferred Stock and Equivalent Preferred Stock
outstanding on such record date, plus the number of shares of Preferred Stock
and Equivalent Preferred Stock which the aggregate offering price of the total
number of shares of Preferred Stock and/or Equivalent Preferred Stock so to be
offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such current per share market
price of Preferred Stock and the denominator of which shall be the number of
shares of Preferred Stock and Equivalent Preferred Stock outstanding on such
record date, plus the number of additional shares of Preferred Stock and/or
Equivalent Preferred Stock to be offered for subscription or purchase (or into
which the convertible securities so to be offered are initially convertible);
provided, however
, that
in no event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of capital stock of the Company
issuable upon the exercise of one Right. In case such subscription
price may be paid in a consideration part or all of which shall be in a form
other than cash, the value of such consideration shall be as determined in good
faith by the Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent. Shares of Preferred Stock and
Equivalent Preferred Stock owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such
a record date is fixed; and in the event that such rights, options or warrants
are not so issued, the Purchase Price shall be adjusted to be the Purchase Price
which would then be in effect if such record date had not been
fixed.
(c)
If the
Company shall fix a record date for the making of a distribution to all holders
of Preferred Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Preferred Stock, but including any dividend
payable in stock other than Preferred Stock) or subscription rights or warrants
(excluding those referred to in
Section 11(b)
), the
Purchase Price to be in effect after such record date shall be determined by
multiplying the Purchase Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the current per share market
price of the Preferred Stock (determined pursuant to
Section 11(d)
) on
such record date, less the fair market value (as determined in good faith by the
Board of Directors, whose determination shall be described in a statement filed
with the Rights Agent) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of such subscription rights or warrants
applicable to one share of Preferred Stock and the denominator of which shall be
such current per share market price (determined pursuant to
Section 11(d)
) of the
Preferred Stock;
provided,
however
, that in no event shall the consideration to be paid upon the
exercise of one Right be less than the aggregate par value of the shares of
capital stock of the Company to be issued upon exercise of one
Right. Such adjustments shall be made successively whenever such a
record date is fixed; and in the event that such distribution is not so made,
the Purchase Price shall again be adjusted to be the Purchase Price which would
then be in effect if such record date had not been fixed.
15
(d)
(i) Except
as otherwise provided herein, for the purpose of any computation hereunder, the
“
current per share
market price
” of any Security (a “
Security
” for the
purpose of this
Section 11(d)(i)
) on
any date shall be deemed to be the average of the daily closing prices per share
of such Security for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date;
provided, however
, that in
the event that the current per share market price of the Security is determined
during a period following the announcement by the issuer of such Security of
(A) a dividend or distribution on such Security payable in shares of such
Security or securities convertible into such shares or (B) any subdivision,
combination or reclassification of such Security, and prior to the expiration of
30 Trading Days after the ex-dividend date for such dividend or distribution, or
the record date for such subdivision, combination or reclassification, then, and
in each such case, the “
current per share market
price
” shall be appropriately adjusted to reflect the current per share
market price equivalent of such Security. The closing price for each
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported by the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Security is not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Security is listed or admitted to trading or,
if the Security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices on NASDAQ or in the over-the-counter market, as
reported by the NASDAQ or such other system then in use, or, if on any such date
the Security is not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Security selected by the Board of Directors. The term “
Trading Day
” shall
mean a day on which the principal national securities exchange on which the
shares of Security is listed or admitted to trading is open for the transaction
of business or, if the Security is not listed or admitted to trading on any
national securities exchange, a Business Day.
(ii)
For the
purpose of any computation hereunder, if the Preferred Stock is publicly traded,
the “
current per share
market price
” shall be determined in accordance with the method set forth
above in
Section
11(d)(i)
. If the Preferred Stock is not publicly traded but
the Common Stock is publicly traded, the “
current per share market
price
” of the Preferred Stock shall be conclusively deemed to be the
current per share market price of the Common Stock as determined pursuant to
Section
11(d)(i)
multiplied by the then applicable Adjustment Number (as defined
in and determined in accordance with the Certificate of Designation for the
Preferred Stock). If neither the Common Stock nor the Preferred Stock
is publicly traded, “
current per share market
price
” shall mean the fair value per share as determined in good faith by
the Board of Directors, whose determination shall be described in a statement
filed with the Rights Agent.
16
(e)
No
adjustment in the-Purchase Price shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Purchase Price;
provided, however
, that any
adjustments which by reason of this
Section 11(e)
are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this
Section 11
shall be
made to the nearest cent or to the nearest one hundred-thousandth of a share of
Preferred Stock or one one-hundredth of a share of Common Stock or other share
or security, as the case may be. Notwithstanding the first sentence
of this
Section
11(e)
, any adjustment required by this
Section 11
shall be
made no later than the earlier of (i) three years from the date of the
transaction which requires such adjustment or (ii) the Expiration
Date.
(f)
If, as a
result of an adjustment made pursuant to
Section 11(a)
, the
holder of any Right thereafter exercised shall become entitled to receive any
shares of capital stock of the Company other than the Preferred Stock, then the
Purchase Price and the number of such other shares so receivable upon exercise
of a Right shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to the
Preferred Stock contained in
Sections
11(a)
,
11(b)
,
11(c)
,
11(e)
,
11(h)
,
11(i)
and
11(m)
, as applicable,
and the provisions of
Sections 7
,
9
,
10
,
13
and
15
with respect to
the Preferred Stock shall apply on like terms to any such other
shares.
(g)
All
Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of one one-thousandths of a share of Preferred Stock
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(h)
Unless
the Company shall have exercised its election as provided in
Section 11(i)
, upon
each adjustment of the Purchase Price as a result of the calculations made in
Sections 11(b)
and
(c)
, each
Right outstanding immediately prior to the making of such adjustment shall
thereafter evidence the right to purchase, at the adjusted Purchase Price, that
number of one one-thousandths of a share of Preferred Stock (calculated to the
nearest one hundred-thousandth) obtained by (i) multiplying (x) the number of
one one-thousandths of a share purchasable upon the exercise of a Right
immediately prior to such adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment and (ii) dividing the product so obtained
by the Purchase Price in effect immediately after such adjustment.
(i)
The
Company may elect on or after the date of any adjustment of the Purchase Price
pursuant to
Section
11(b)
or
11(c)
to adjust the
number of Rights, in substitution for any adjustment in the number of one
one-thousandths of a share of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment of the
number of Rights shall be exercisable for the number of one one-thousandths of a
share of Preferred Stock for which a Right was exercisable immediately prior to
such adjustment. Each Right held of record prior to such adjustment
of the number of Rights shall become that number of Rights (calculated to the
nearest one-hundredth) obtained by dividing the Purchase Price in effect
immediately prior to adjustment of the Purchase Price by the Purchase Price in
effect immediately after adjustment of the Purchase Price. The
Company shall make a public announcement of its election to adjust the number of
Rights, indicating the record date for the adjustment, and, if known at the
time, the amount of the adjustment to be made. This record date may
be the date on which the Purchase Price is adjusted or any day thereafter, but,
if the Rights Certificates have been issued, shall be at least 10 days later
than the date of the public announcement. If Rights Certificates have
been issued, upon each adjustment of the number of Rights pursuant to this
Section 11(i)
, the
Company shall, as promptly as practicable, cause to be distributed to holders of
record of Rights Certificates on such record date Rights Certificates
evidencing, subject to
Section 15
, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein and shall be
registered in the names of the holders of record of Rights Certificates on the
record date specified in the public announcement.
17
(j)
Irrespective
of any adjustment or change in the Purchase Price or the number of one
one-thousandths of a share of Preferred Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued may continue
to express the Purchase Price and the number of one one-thousandths of a share
of Preferred Stock which were expressed in the initial Rights Certificates
issued hereunder.
(k)
Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then par value, if any, of the fraction of Preferred Stock, Common
Stock or other securities issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue such number of
fully paid and nonassessable shares of Preferred Stock or other such share at
such adjusted Purchase Price.
(l)
In any
case in which this
Section 11
shall
require that an adjustment in the Purchase Price be made effective as of a
record date for a specified event, the Company may elect to defer until the
occurrence of such event issuing to the holder of any Right exercised after such
record date the Preferred Stock, and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the Preferred Stock
and other capital stock or securities of the Company, if any, issuable upon such
exercise on the basis of the Purchase Price in effect prior to such adjustment;
provided, however
, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder’s right to receive such additional shares upon
the occurrence of the event requiring such adjustment.
(m)
Anything
to the contrary in this
Section 11
notwithstanding, the Company shall be entitled to make such adjustments in the
Purchase Price, in addition to those adjustments expressly required by this
Section 11
, as
and to the extent that it in its sole discretion shall determine to be advisable
in order that any (i) consolidation or subdivision of the Preferred Stock, (ii)
issuance wholly for cash of any shares of Preferred Stock at less than the
current market price, (iii) issuance wholly for cash of shares of Preferred
Stock or securities which by their terms are convertible into or exchangeable
for shares of Preferred Stock, (iv) stock dividends or (v) issuance of rights,
options or warrants referred to hereinabove in this
Section 11
, hereafter
made by the Company to holders of its Preferred Stock shall not be taxable to
such stockholders.
18
(n)
Anything
in this Agreement to the contrary notwithstanding, in the event that at any time
after the date of this Agreement and prior to the Distribution Date, the Company
shall (i) declare and pay any dividend on the Common Stock payable in Common
Stock or (ii) effect a subdivision, combination or consolidation of the Common
Stock (by reclassification or otherwise than by payment of a dividend payable in
Common Stock) into a greater or lesser number of shares of Common Stock, then,
in each such case, the number of Rights associated with each share of Common
Stock then outstanding, or issued or delivered thereafter, shall be
proportionately adjusted so that the number of Rights thereafter associated with
each share of Common Stock following any such event shall equal the result
obtained by multiplying the number of Rights associated with each share of
Common Stock immediately prior to such event by a fraction the numerator of
which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which
shall be the total number of shares of Common Stock outstanding immediately
following the occurrence of such event.
(o)
The
Company agrees that, after the earlier of the Distribution Date or the Stock
Acquisition Date, it will not, except as permitted by
Sections 24
,
25
or
28
, take (or permit
any Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially or eliminate
the benefits intended to be afforded by the Rights.
Section
12.
Certificate of Adjusted
Purchase Price or Number of Shares
. Whenever an adjustment is
made as provided in
Sections 11
and
13
, the Company shall
(a) promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (b) promptly file with
the Rights Agent and with each transfer agent for the Preferred Stock and the
Common Stock a copy of such certificate and (c) mail a brief summary thereof to
each holder of a Rights Certificate in accordance with
Section 27
(if so
required under
Section
25
). The Rights Agent shall be fully protected in relying on
any such certificate and on any adjustment therein contained, and shall not be
deemed to have knowledge of such an adjustment unless and until it shall have
received such certificate.
Section
13.
Consolidation, Merger or
Sale or Transfer of Assets or Earning Power
.
(a)
In the
event, directly or indirectly, at any time after the Flip-In Event (i) the
Company shall consolidate with, or merge with and into any other Person, (ii)
any Person shall consolidate with the Company or merge with and into the Company
and the Company shall be the continuing or surviving corporation of such
consolidation or merger and, in connection with such merger, all or part of the
shares of Common Stock shall be changed into or exchanged for stock or other
securities of any other Person (or of the Company) or cash or any other
property, or (iii) the Company shall sell, mortgage or otherwise transfer (or
one or more of its Subsidiaries shall sell, mortgage or otherwise transfer), in
one transaction or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more wholly-owned Subsidiaries of the Company), then, and in each such
case, proper provision shall be made so that (A) each holder of a Right (other
than Rights which have become void pursuant to
Section 11(a)(ii)
)
shall thereafter have the right to receive, upon the exercise thereof at the
Purchase Price (as heretofore adjusted in accordance with
Section 11(a)(ii)
),
in accordance with the terms of this Agreement and in lieu of shares of
Preferred Stock or Common Stock of the Company, such number of validly
authorized and issued, fully paid, non-assessable and freely tradeable Common
Stock of the Principal Party (as hereinafter defined), free and clear of liens,
rights of call or first refusal, encumbrances or other adverse claims, as shall
equal the result obtained by dividing the Purchase Price (as theretofore
adjusted in accordance with
Section 11(a)(ii)
) by
50% of the current per share market price of the Common Stock of such Principal
Party (determined pursuant to
Section 11(d)
) on the
date of consummation of such consolidation, merger, sale or transfer;
provided, however
, that the
Purchase Price (as theretofore adjusted in accordance with
Section 11(a)(ii)
)
and the number of shares of Common Stock of such Principal Party so receivable
upon exercise of a Right shall be subject to further adjustment as appropriate
in accordance with
Section 11(f)
to
reflect any events occurring in respect of the Common Stock of such Principal
Party after the occurrence of such consolidation, merger, sale or transfer; (B))
such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, all the obligations and duties
of the Company pursuant to this Agreement; (C) the term “
Company
” shall
thereafter be deemed to refer to such Principal Party,; and (D) such Principal
Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock in accordance with
Section 9
) in
connection with the consummation of any such transaction as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to its shares of Common Stock thereafter
deliverable upon the exercise of the Rights; provided that, upon the subsequent
occurrence of any consolidation, merger, sale or transfer of assets or other
extraordinary transaction in respect of such Principal Party, each holder of a
Right shall thereupon be entitled to receive, upon exercise of a Right and
payment of the Purchase Price as provided in this
Section 13(a)
, such
cash, shares, rights, warrants and other property which such holder would have
been entitled to receive had such holder, at the time of such transaction, owned
the Common Stock of the Principal Party receivable upon the exercise of a Right
pursuant to this
Section 13(a)
, and
such Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent
exercise of the Rights in accordance with the terms hereof for such cash,
shares, rights, warrants and other property.
19
(b)
“
Principal Party
”
shall mean
(i)
in the
case of any transaction described in clause
Section 13(a)
(i) or
13(a)
(ii): (A)
the Person that is the issuer of the securities into which the shares of Common
Stock of the Company are converted in such merger or consolidation, or, if there
is more than one such issuer, the issuer the shares of Common Stock of which
have the greatest aggregate market value of shares outstanding, or (B) if no
securities are so issued, (x) the Person that is the other party to the merger,
if such Person survives said merger, or, if there is more than one such Person,
the Person the shares of Common Stock of which have the greatest aggregate
market value of shares outstanding or (y) if the Person that is the other party
to the merger does not survive the merger, the Person that does survive the
merger (including the Company if it survives) or (z) the Person resulting from
the consolidation; and
(ii)
in the
case of any transaction described in
Section 13(a)(iii)
,
the Person that is the party receiving the greatest portion of the assets or
earning power transferred pursuant to such transaction or transactions, or if
each Person that is a party to such transaction or transactions receives the
same portion of the assets or earning power so transferred or if the Person
receiving the greatest portion of the assets or earning power cannot be
determined, whichever of such Persons is the issuer of Common Stock having the
greatest aggregate market value of shares outstanding;
provided, however
, that in
any such case described in the foregoing
clause (b)(i)
or
(b)(ii)
, if the
Common Stock of such Person is not at such time or has not been continuously
over the preceding 12-month period registered under
Section 12
of
the Exchange Act, then (1) if such Person is a direct or indirect Subsidiary of
another Person, the Common Stock of which is and has been so registered, the
term “
Principal
Party
” shall refer to such other Person; or (2) if such Person is a
Subsidiary, directly or indirectly, of more than one Person, the shares of
Common Stock of all of which is and has been so registered, the term “
Principal Party
”
shall refer to whichever of such Persons is the issuer of the Common Stock
having the greatest aggregate market value of shares outstanding; and (3) if
such Person is owned, directly or indirectly, by a joint venture formed by two
or more Persons that are not owned, directly or indirectly, by the same Person,
the rules set forth in
clauses (1)
and
(2)
above shall apply
to each of the owners having an interest in the venture as if the Person owned
by the joint venture was a “
Subsidiary
” of both
or all of such joint venturers, and the Principal Party in each such case shall
bear the obligations set forth in this
Section 13
in the
same ratio as its interest in such Person bears to the total of such
interests.
20
(c)
The
Company shall not consummate any such consolidation, merger, sale or transfer
referred to in
Section
13(a)
unless prior thereto the Company and the Principal Party involved
therein shall have executed and delivered to the Rights Agent an agreement
confirming that the requirements of
Sections 13(a)
and
(b)
shall
promptly be performed in accordance with their terms and that such
consolidation, merger, sale or transfer of assets shall not result in a default
by the Principal Party under this Agreement as the same shall have been assumed
by the Principal Party pursuant to
Sections 13(a)
and
(b)
and
providing that, as soon as practicable after executing such agreement pursuant
to this
Section
13
, the Principal Party shall:
(i)
prepare
and file a registration statement under the Securities Act, if necessary, with
respect to the Rights and the securities purchasable upon exercise of the Rights
on an appropriate form, use its best efforts to cause such registration
statement to become effective as soon as practicable after such filing and use
its best efforts to cause such registration statement to remain effective (with
a prospectus at all times meeting the requirements of the Securities Act) until
the Expiration Date; and similarly comply with applicable state securities
laws;
(ii)
use its
best efforts, if the Common Stock of the Principal Party shall be listed or
admitted to trading on the New York Stock Exchange or on another national
securities exchange, to list or admit to trading (or continue the listing of)
the Rights and the securities purchasable upon exercise of the Rights on the New
York Stock Exchange or such securities exchange, or, if the Common Stock of the
Principal Party shall not be listed or admitted to trading on the New York Stock
Exchange or a national securities exchange, to cause the Rights and the
securities receivable upon exercise of the Rights to be authorized for quotation
on NASDAQ or on such other system then in use;
(iii)
deliver
to holders of the Rights historical financial statements for the Principal Party
which comply in all material respects with the requirements for registration on
Form 10 (or any successor form) under the Exchange Act; and
(iv)
obtain
waivers of any rights of first refusal or preemptive rights in respect of the
Common Stock of the Principal Party subject to purchase upon exercise of
outstanding Rights.
21
(d)
In case
the Principal Party has a provision in any of its authorized securities or in
its certificate of incorporation or by-laws or other instrument governing its
affairs, which provision would have the effect of (i) causing such Principal
Party to issue (other than to holders of Rights pursuant to this
Section 13
), in
connection with, or as a consequence of, the consummation of a transaction
referred to in this
Section 13
, shares of
Common Stock or Common Stock Equivalents of such Principal Party at less than
the then current per share market price thereof (determined pursuant to
Section 11(d)
) or
securities exercisable for, or convertible into, Common Stock or Common Stock
Equivalents of such Principal Party at less than such then current per share
market price, or (ii) providing for any special payment, tax or similar
provision in connection with the issuance of the Common Stock of such Principal
Party pursuant to the provisions of
Section 13
, then, in
such event, the Company hereby agrees with each holder of Rights that it shall
not consummate any such transaction unless prior thereto the Company and such
Principal Party shall have executed and delivered to the Rights Agent a
supplemental agreement providing that the provision in question of such
Principal Party shall have been canceled, waived or amended, or that the
authorized securities shall be redeemed, so that the applicable provision will
have no effect in connection with, or as a consequence of, the consummation of
the proposed transaction.
Section
14.
Additional Covenants
.
The Company covenants and agrees that it shall not, at any time after the
Flip-In Event, enter into any transaction of the type described in
Section 13(a)
(i)
through
13(a)(iii)
if (i) at
the time of or immediately after such consolidation, merger, sale, or transfer,
or other transaction there are any charter or by-law provisions or any rights,
warrants or other instruments outstanding or agreements in effect or other
actions taken, which would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or, (ii) prior to, simultaneously
with or immediately after such consolidation, merger, or sale, transfer or other
transaction, the stockholders of the Person who constitutes, or would
constitute, the “
Principal Party
” for
purposes of
Section
13(b)
shall have received a distribution of Rights previously owned by
such Person or any of its Affiliates or Associates or (iii) the form or nature
of organization of the Principal Party would preclude or limit the
exercisability of the Rights.
Section
15.
Fractional Rights and
Fractional Shares
.
(a)
The
Company shall not be required to issue fractions of Rights (except prior to the
Distribution Date in accordance with
Section 11(n)
) or to
distribute Rights Certificates which evidence fractional Rights. In
lieu of such fractional Rights, there shall be paid to the registered holders of
the Rights Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this
Section 15(a)
, the
current market value of a whole Right shall be the closing price of the Rights
for the Trading Day immediately prior to the date on which such fractional
Rights would have been otherwise issuable. The closing price for any
day shall be the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the New York
Stock Exchange or, if the Rights are not listed or admitted to trading on the
New York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed on the principal national
securities exchange on which the Rights are listed or admitted to trading or, if
the Rights are not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the high
bid and low asked prices on NASDAQ or in the over-the-counter market, as
reported by NASDAQ or such other system then in use or, if on any such date the
Rights are not quoted by any such organization, the average of the closing bid
and asked prices as furnished by a professional market maker making a market in
the Rights selected by the Board of Directors. If on any such date no
such market maker is making a market in the Rights, the fair value of the Rights
on such date as determined in good faith by the Board of Directors of the
Company shall be used
22
(b)
The
Company shall not be required to issue fractions of shares of Preferred Stock
(other than fractions which are one one-thousandth or integral multiples of one
one-thousandth of a share of Preferred Stock) or to distribute certificates
which evidence fractional shares of Preferred Stock (other than fractions which
are one one-thousandth or integral multiples of one one-thousandth of a share of
Preferred Stock) upon the exercise or exchange of Rights. Interests
in fractions of shares of Preferred Stock in integral multiples of one
one-thousandth of a share of Preferred Stock may, at the election of the
Company, be evidenced by depositary receipts, pursuant to an appropriate
agreement between the Company and a depositary selected by it, provided that
such agreement shall provide that the holders of such depositary receipts shall
have all the rights, privileges and preferences to which they are entitled as
beneficial owners of the shares of Preferred Stock represented by such
depositary receipts. In lieu of fractional shares of Preferred Stock
that are not one one-thousandth or integral multiples of one one-thousandth of a
share of Preferred Stock, the Company may pay to the registered holders of
Rights Certificates at the time such Rights are exercised or exchanged as herein
provided an amount in cash equal to the same fraction of the current market
value of one one-thousandth of a whole share of Preferred Stock (as determined
in accordance with
Section 14
) for the
Trading Day immediately prior to the date of such exercise or
exchange.
(c)
The
Company shall not be required to issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares of Common Stock upon
the exercise or exchange of Rights. In lieu of such fractional shares
of Common Stock, the Company shall pay to the registered holders of the Rights
Certificates with regard to which such fractional shares of Common Stock would
otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock (as determined in
accordance with
Section 14
) for the
Trading Day immediately prior to the date of such exercise or
exchange.
(d)
The
holder of a Right by the acceptance of the Right expressly waives the right to
receive any fractional Right or any fractional shares upon exercise or exchange
of a Right (except as provided above).
23
Section
16.
Rights of
Action
. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under
Section 19
, are
vested in the respective registered holders of the Rights Certificates (and,
prior to the Distribution Date, the registered holders of the Common Stock); and
any registered holder of any Rights Certificate (or, prior to the Distribution
Date, of the Common Stock), without the consent of the Rights Agent or of the
holder of any other Rights Certificate (or, prior to the Distribution Date, of
the Common Stock), may, in his own behalf and for his own benefit, enforce, and
may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to exercise the Rights
evidenced by such Rights Certificate (or, prior to the Distribution Date, such
Common Stock) in the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders of
Rights would not have an adequate remedy at law for any breach of this Agreement
and shall be entitled to specific performance of the obligations hereunder and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
Section
17.
Agreement of Rights
Holders
. Every holder of a Right by accepting the same
consents and agrees with the Company and the Rights Agent and with every other
holder of a Right that:
(a)
prior to
the Distribution Date, the Rights will be transferable only in connection with
the transfer of Common Stock;
(b)
after the
Distribution Date, the Rights Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the principal office of the Rights
Agent designated for such purpose, duly endorsed or accompanied by a proper
instrument of transfer; and
(c)
the
Company and the Rights Agent may deem and treat the person in whose name the
Rights Certificate (or, prior to the Distribution Date, the associated Common
Stock certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on the
Rights Certificates or the Common Stock certificate made by anyone other than
the Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent, subject to
Section 7(e),
shall
be affected by any notice to the contrary.
Section
18.
Rights Certificate Holder
Not Deemed a Stockholder
. No holder, as such, of any Rights
Certificate shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of the shares of Preferred Stock, Common Stock or any other
securities of the Company which may at any time be issuable on the exercise or
exchange of the Rights represented thereby, nor shall anything contained herein
or in any Rights Certificate be construed to confer upon the holder of any
Rights Certificate, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Rights Certificate shall have been exercised or exchanged in accordance with the
provisions hereof.
24
Section
19.
Concerning the Rights
Agent
. The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable expenses and counsel fees
and other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for,
and to hold it harmless against, any loss, liability, or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability arising therefrom, directly
or indirectly. The foregoing indemnities contained in this
Section
19
shall survive the resignation or substitution of the Rights
and the termination of this Agreement. The costs and expenses of
fulfilling its indemnification obligation under this
Section 19
shall also
be paid by the Company.
The
Rights Agent shall be protected and shall incur no liability for or in respect
of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights Certificate or
certificate for the Preferred Stock of Common Stock (or for other securities of
the Company), instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by it to be genuine and to be
signed, executed and, where necessary, verified or acknowledged, by the proper
Person or Persons or otherwise upon the advice of counsel as set forth in
Section 21
.
Notwithstanding anything in this Agreement to the contrary, in no event shall
the Rights Agent be liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if the
Rights Agent has been advised of the likelihood of such loss or damage and
regardless of the form of the action.
Section
20.
Merger or Consolidation or
Change of Name of Rights Agent
. Any corporation into which the
Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any corporation resulting from any merger or consolidation to
which the Rights Agent or any successor Rights Agent shall be a party, or any
corporation succeeding to the stock transfer or corporate trust business of the
Rights Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or filing of any paper or any
further act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent under
the provisions of
Section
22
. In case at the time such successor Rights Agent shall
succeed to the agency created by this Agreement, any of the Rights Certificates
shall have been countersigned but not delivered, any such successor Rights Agent
may adopt the countersignature of the predecessor Rights Agent and deliver such
Rights Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name of the predecessor or in
the name of the successor Rights Agent; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates and
in this Agreement.
In case
at any time the name of the Rights Agent shall be changed and at such time any
of the Rights Certificates shall have been countersigned but not delivered, the
Rights Agent may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at that time any of the Rights
Certificates shall not have been countersigned, the Rights Agent may countersign
such Rights Certificates either in its prior name or in its changed name; and in
all such cases such Rights Certificates shall have the full force provided in
the Rights Certificates and in this Agreement.
25
Section
21.
Duties of Rights
Agent
. The Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and conditions, all of which
the Company and the holders of Rights Certificates, by their acceptance thereof,
shall be bound:
(a)
Before
the Rights Agent acts or refrains from acting, the Rights Agent may consult with
legal counsel selected by it (who may be legal counsel for the Company), and the
opinion of such counsel shall be full and complete authorization and protection
to the Rights Agent as to any action taken or omitted by it in good faith and in
accordance with such opinion.
(b)
Whenever
in the performance of its duties under this Agreement the Rights Agent shall
deem it necessary or desirable that any fact or matter (including, without
limitation, the identity of an Acquiring Person) be proved or established by the
Company prior to taking or suffering any action hereunder, such fact or matter
(unless other evidence in respect thereof be herein specifically prescribed) may
be deemed to be conclusively proved and established by a certificate signed by
any one of the Chairman of the Board, any Vice Chairman of the Board, the Chief
Executive Officer, the President, any Executive or Senior Vice President, the
Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary of
the Company and delivered to the Rights Agent; and such certificate shall be
full authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c)
The
Rights Agent shall be liable hereunder only for its own negligence, bad faith or
willful misconduct.
(d)
The
Rights Agent shall not be liable for or by reason of any of the statements of
fact or recitals contained in this Agreement or in the Rights Certificates
(except as to the fact that it has countersigned the Rights Certificates) or be
required to verify the same, but all such statements and recitals are and shall
be deemed to have been made by the Company only.
(e)
The
Rights Agent shall not be under any responsibility in respect of the validity of
this Agreement or the execution and delivery hereof (except the due execution
hereof by the Rights Agent) or in respect of the validity or execution of any
Rights Certificate (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or condition contained
in this Agreement or in any Rights Certificate; nor shall it be responsible for
any change in the exercisability of the Rights (including the Rights becoming
void pursuant to
Section 7(e)
), or any
adjustment required under the provisions of
Section 11
or
13
or responsible for
the manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with respect
to the exercise of Rights evidenced by Rights Certificates after receipt of a
certificate furnished pursuant to
Section 12
,
describing such change or adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Preferred Stock or other securities to be issued
pursuant to this Agreement or any Rights Certificate or as to whether any shares
of Preferred Stock, shares of Common Stock or other securities will, when so
issued, be validly authorized and issued, fully paid and
nonassessable.
26
(f)
The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g)
The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder and certificates delivered
pursuant to any provision hereof from any one of the Chairman of the Board, any
Vice Chairman of the Board, the Chief Executive Officer, the President, any
Executive or Senior Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer of the Company, and is authorized to apply
to such officers for advice or instructions in connection with its duties, and
it shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by
the Rights Agent for written instructions from the Company may, at the option of
the Rights Agent, set forth in writing any action proposed to be taken or
omitted by the Rights Agent under this Agreement and the date on or after which
such action shall be taken or such omission shall be effective. The
Rights Agent shall not be liable for any action taken by, or omission of, the
Rights Agent in accordance with a proposal included in any such application on
or after the date specified in such application (which date shall not be less
than ten Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to an earlier date) unless, prior to taking any such action (or the
effective date in the case of an omission), the Rights Agent shall have received
written instructions in response to such application not to take or omit the
proposed action and/or specifying the action to be taken or
omitted.
(h)
The
Rights Agent and any stockholder, director, officer or employee of the Rights
Agent may buy, sell or deal in any of the Rights or other securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal
entity.
(i)
The
Rights Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerable or accountable for any
act, omission, default, neglect or misconduct of any such attorneys or agents or
for any loss to the Company or to the holders of the Rights resulting from any
such act, omission, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
27
(j)
No
provision of this Agreement shall require the Rights Agent to expend or risk its
own funds or otherwise incur any financial liability in the performance of any
of its duties hereunder or in the exercise of its rights hereunder if there
shall be reasonable grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability is not reasonably
assured to it.
(k)
If, with
respect to any Rights Certificate surrendered to the Rights Agent for exercise
or transfer, the certificate attached to the form of assignment or form of
election to purchase, as the case may be, has not been completed to certify the
holder is not an Acquiring Person (or an Affiliate or Associate thereof) or a
transferee thereof, the Rights Agent shall not take any further action with
respect to such requested exercise or transfer without first consulting with the
Company.
(l)
The
Rights Agent shall not be required to take notice or be deemed to have notice of
any fact, event or determination (including, without limitation, any dates or
events defined in this Agreement or the designation of any Person as an
Acquiring Person, Affiliate or Associate) under this Agreement unless and until
the Rights Agent shall be specifically notified in writing by the Company, or
has actual knowledge from the Company, of such fact, event or
determination.
Section
22.
Change of Rights
Agent
. The Rights Agent or any successor Rights Agent may
resign and be discharged from its duties under this Agreement upon 30 days’
notice in writing mailed to the Company and to each transfer agent of the Common
Stock or Preferred Stock by registered or certified mail, and, at the expense of
the Company, following the Distribution Date to the holders of the Rights
Certificates by first-class mail. The Company may remove the Rights
Agent or any successor Rights Agent upon 30 days’ notice in writing, mailed to
the Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock or Preferred Stock by registered or certified
mail, and, following the Distribution Date, to the holders of the Rights
Certificates by first-class mail. If the Rights Agent shall resign or
be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to
make such appointment within a period of 30 days after giving notice of such
removal or after it has been notified in writing of such resignation or
incapacity by the resigning or incapacitated Rights Agent or by the holder of a
Rights Certificate (who shall, with such notice, submit his Rights Certificate
for inspection by the Company), then the registered holder of any Rights
Certificate may apply to any court of competent jurisdiction for the appointment
of a new Rights Agent. Any successor Rights Agent appointed after the
date of this Agreement, whether appointed by the Company or by such a court,
shall be (a) a corporation organized and doing business under the laws of the
United States or the laws of any state of the United States or the District of
Columbia, in good standing, so long as such corporation (i) complies with the
applicable rules and requirements of the New York Stock Exchange, as such rules
and requirements may be amended or modified from time to time, (ii) is
authorized under such laws to exercise stock transfer or corporate trust powers
and (iii) is subject to supervision or examination by federal or state authority
and which has at the time of its appointment as Rights Agent a combined capital
and surplus of at least $50,000,000 (or such lower number as approved by the
Board) or (b) an affiliate of a corporation described in clause (a) of this
sentence. After appointment, the successor Rights Agent shall be
vested with the same powers, rights, duties and responsibilities as if it had
been originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the
purpose. Not later than the effective date of any such appointment,
the Company shall file notice thereof in writing with the predecessor Rights
Agent and each transfer agent of the Common Stock or Preferred Stock, and,
following the Distribution Date, mail a notice thereof in writing to the
registered holders of the Rights Certificates.
28
Failure
to give any notice provided for in this
Section 22
, however,
or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
Section
23.
Issuance of New Rights
Certificates
. Notwithstanding any of the provisions of this Agreement or
of the Rights to the contrary, the Company may, at its option, issue new Rights
Certificates evidencing Rights in such forms as may be approved by its Board of
Directors to reflect any adjustment or change in the Purchase Price per share
and the number or kind or class of shares or other securities or property
purchasable under the Rights Certificates made in accordance with the provisions
of this Agreement. In addition, in connection with the issuance or
sale of Common Stock following the Distribution Date and prior to the Expiration
Date, the Company (a) may with respect to shares of Common Stock so issued or
sold pursuant to (i) the exercise of stock options, (ii) under any employee plan
or arrangement, (iii) upon the exercise, conversion or exchange of securities,
notes or debentures issued by the Company, or (iv) a contractual obligation of
the Company, in each case, existing prior to the Distribution Date, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale.
Section
24.
Redemption and
Termination
.
(a)
The Board
of Directors may at any time prior to the Flip-In Event, redeem all but not less
than all of the then outstanding Rights at a redemption price of $0.01 per
Right, as such amount may be appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring in respect of the Common Stock
after the date of this Agreement (the redemption price being hereinafter
referred to as the “
Redemption
Price
”). The redemption of the Rights may be made
effective at such time, on such basis and with such conditions as the Board of
Directors in its sole discretion may establish. The Redemption Price
shall be payable, at the option of the Company, in cash, shares of Common Stock,
or such other form of consideration as the Board of Directors shall
determine.
(b)
Immediately
upon the action of the Board of Directors ordering the redemption of the
Rights, pursuant to
Section 24(a)
(or at
such later time as the Board of Directors may establish for the effectiveness of
such redemption), and without any further action and without any notice, the
right to exercise the Rights will terminate and the only right thereafter of the
holders of Rights shall be to receive the Redemption Price. The
Company shall promptly give public notice of any such redemption;
provided, however
, that the
failure to give, or any defect in, any such notice shall not affect the validity
of such redemption. Within ten days after the action of the Board of
Directors ordering the redemption of the Rights (or such later time as the Board
of Directors may establish for the effectiveness of such redemption), the
Company shall mail a notice of such redemption to all the holders of the then
outstanding Rights at their last addresses as they appear upon the registry
books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Stock. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be
made.
29
Section
25.
Exchange
.
(a)
The Board
of Directors may, at its option, at any time after the Flip-In Event, exchange
all or part of the then outstanding and exercisable Rights (which shall not
include Rights that have become void pursuant to the provisions of
Section 7(e)
and
Section
11(a)(ii)
) for Common Stock of the Company at an exchange ratio of one
Common Stock per Right, appropriately adjusted to reflect any stock split, stock
dividend, recapitalization or similar transaction involving either the Common
Stock or the Preferred Stock occurring after the date (such amount
per Right being hereinafter referred to as the “
Exchange
Ratio
”).
Notwithstanding
the foregoing, the Board of Directors shall not be empowered to effect such
exchange at any time after an Acquiring Person an Acquiring Person shall have
become the Beneficial Owner of shares of Common Stock aggregating 50% or more of
the shares of Common Stock then outstanding. From and after the
occurrence of an event specified in
Section 13(a)
, any
Rights that theretofore have not been exchanged pursuant to this
Section 25(a)
shall
thereafter be exercisable only in accordance with
Section 13
and may
not be exchanged pursuant to this
Section
25(a)
. The exchange of the Rights by the Board of Directors
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish.
(b)
Immediately
upon the effectiveness of the action of the Board of Directors ordering the
exchange of any Rights pursuant to
Section 25(a)
and
without any further action and without any notice, the right to exercise such
rights shall terminate and the only right thereafter of a holder of such Rights
shall be to receive that number of shares of Common Stock equal to the number of
such rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange;
provided, however
, that the
failure to give, or any defect in, such notice shall not affect the validity of
such exchange. The Company promptly shall mail a notice of any such
exchange to all of the holders of such Rights so exchanged at their last
addresses as they appear upon the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of the
shares of Common Stock for Rights will be effected and, in the event of any
partial exchange, the number of Rights which will be exchanged. Any
partial exchange shall be effected pro rata based on the number of Rights (other
than Rights which have become void pursuant to the provisions of
Sections 7(e)
and
11(a)(ii)
) held
by each holder of Rights.
(c)
The
Company may at its option substitute, and, in the event that there shall not be
sufficient shares of Common Stock issued but not outstanding, or authorized but
unissued, to permit the exchange of Rights as contemplated in accordance with
this
Section
25
, the Company shall substitute to the extent of such insufficiency, for
each share of Common Stock that would otherwise be issuable upon exchange of a
Right, a number of shares of Preferred Stock or fraction thereof (or Equivalent
Preferred Stock, as such term is defined in
Section 11(b)
) such
that the current per share market price (determined pursuant to
Section 11(d)
) of one
share of Preferred Stock (or Equivalent Preferred Stock) multiplied by such
number or fraction is equal to the current per share market price of one share
of Common Stock (determined pursuant to
Section 11(d)
) as of
the date of such exchange.
30
Section
26.
Notice of Certain
Events
. In case the Company shall at any time after the
earlier of the Distribution Date or the Stock Acquisition Date propose (i) to
pay any dividend payable in stock of any class to the holders of Preferred Stock
or to make any other distribution to the holders of Preferred Stock (other than
a regular quarterly cash dividend) (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision or
combination of outstanding shares of Preferred Stock), (iv) to effect the
liquidation, dissolution or winding up of the Company, or (v) to pay any
dividend on the Common Stock payable in Common Stock or to effect a subdivision,
combination or consolidation of the Common Stock (by reclassification or
otherwise than by payment of dividends in Common Stock), then, in each such
case, the Company shall give to each holder of a Rights Certificate, in
accordance with
Section 27
, a notice
of such proposed action, which shall specify the record date for the purposes of
such stock dividend, distribution or offering of rights or warrants, or the date
on which such reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the Preferred Stock, if any such date is
to be fixed, and such notice shall be so given in the case of any action covered
by clause (i) or (ii) above at least 10 days prior to the record date for
determining holders of the shares of Preferred Stock for purposes of such
action, and in the case of any such other action, at least 10 days prior to the
date of the taking of such proposed action or the date of, participation therein
by the holders of the Common Stock and/or Preferred Stock whichever shall be the
earlier.
(b) In
case any event described in
Section 11(a)(ii)
or
Section 13
shall occur then, the Company shall as soon as practicable thereafter give to
each holder of a Rights Certificate (or if occurring prior to the Distribution
Date, the holders of the Common Stock), in accordance with
Section 27
, a notice
of the occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under
Section 11(a)(ii)
and
Section
13
.
Section
27.
Notices
. Notices
or demands authorized by this Agreement to be given or made by the Rights Agent
or by the holder of any Rights Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Rights Agent) as
follows:
FirstFed
Financial Corp.
12555 W.
Jefferson Boulevard
Los
Angeles, California 90066
Facsimile: 310-302-1702
Attention: Corporate
Secretary
31
Subject
to the provisions of
Section 22
, any
notice or demand authorized by this Agreement to be given or made by the Company
or by the holder of any Rights Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the Company) as
follows:
Registrar
and Transfer Company
10
Commerce Drive
Cranford,
NJ 07016
Facsimile: 908-497-2314
Attention:
Account Executive
The
method of delivery of all documents is at the option and risk of the sender and
not Registrar and Transfer Company. If such delivery is by mail,
registered or certified mail with return receipt requested, properly insured, is
recommended.
Notices
or demands authorized by this Agreement to be given or made by the Company or
the Rights Agent to the holder of any Rights Certificate or, if prior to the
Distribution Date, to the holder of certificates representing Common Stock shall
be sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
Section
28.
Supplements and
Amendments
. Prior to the Distribution Date, except as provided
in the penultimate sentence of this
Section 28
, for so
long as the Rights are then redeemable, the Company may in its sole and absolute
discretion, and the Rights Agent shall if the Company so directs, supplement or
amend any provision of this Agreement in any respect without the approval of any
holders of the Rights. At any time when the Rights are no longer
redeemable, except as provided in the penultimate sentence of this
Section 28
, the
Company may, and the Rights Agent shall, if the Company so directs, supplement
or amend this Agreement without the approval of any holders of Rights, provided
that no such supplement or amendment may (a) adversely affect the
interests of the holders of Rights as such (other than an Acquiring Person or an
Affiliate or Associate of an Acquiring Person), (b) cause this Agreement again
to become amendable other than in accordance with this sentence, or (c) cause
the Rights again to become redeemable. Notwithstanding anything
contained in this Agreement to the contrary, no supplement or amendment shall be
made which changes the Redemption Price. Upon the delivery of a
certificate from an appropriate officer of the Company which states that the
supplement or amendment is in compliance with the terms of this
Section 28
, the
Rights Agent shall execute such supplement or amendment provided that any such
supplement or amendment that does not amend
Section 19
,
20
,
21
or
22
or this
Section 28
in a
manner adverse to the Rights Agent shall become effective immediately upon
execution by the Company, whether or not also executed by the Rights Agent.
Section
29.
Determination and Actions by
the Board of Directors, etc
. For all purposes of this
Agreement, any calculation of the number of shares of Common Stock outstanding
at any particular time, including for purposes of determining the particular
percentage of such outstanding shares of Common Stock or any other securities of
which any Person is the Beneficial Owner, shall be made in accordance with the
last sentence of Rule 13d-3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act as in effect on the date of this Agreement. The
Board of Directors shall have the exclusive power and authority to administer
this Agreement and to exercise all rights and powers specifically granted to the
Board or the Company, or as may be necessary or advisable in the administration
of this Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Agreement, and (ii) make all determinations
deemed necessary or advisable for the administration of this Agreement
(including without limitation, a determination to redeem or not redeem the
Rights or to amend the Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (y) below,
all omissions with respect to the foregoing) which are done or made by the Board
in good faith, shall (x) be final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights Certificates and all other parties, and
(y) not subject the Board to any liability to the holders of the Rights
Certificates.
32
Section
30.
Successors
. All
the covenants and provisions of this Agreement by or for the benefit of the
Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section
31.
Benefits of this
Agreement
. Nothing in this Agreement shall be construed to
give to any person or corporation other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and, prior to the
Distribution Date, the Common Stock) any legal or equitable right, remedy or
claim under this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Rights Certificates (and, prior to the Distribution Date, the Common
Stock).
Section
32.
Severability
. If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of-the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
Section
33.
Governing
Law
. This Agreement, each Right and each Rights Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and to
be performed entirely within such State.
Section
34.
Counterparts
. This
Agreement may be executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same
instrument.
Section
35.
Descriptive
Headings
. Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall not control or affect the
meaning or construction of any of the provisions of this Agreement.
[
signature page follows ]
33
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, all as of the day and year first above written.
|
FIRSTFED
FINANCIAL CORP.
|
|
|
|
By: _
/s/
Babette E.
Heimbuch
_________
|
|
Name: Babette
E. Heimbuch
|
|
Title: Chief
Executive Officer
|
|
REGISTRAR
AND TRANSFER COMPANY, as Rights Agent
|
|
|
|
By: _
/s/
William P.
Tatler
_________
|
|
Name: William
P. Tatler
|
|
Title: Vice
President
|
Signature
page to Second Amended and Restated Rights Agreement
EXHIBIT
A
AMENDED
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES
A PREFERRED STOCK
of
FIRSTFED
FINANCIAL CORP.
Pursuant
to Section 151 of the General Corporation Law
of the
State of Delaware
FirstFed
Financial Corp., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the “
Corporation
”), in
accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That (i)
pursuant to the authority conferred upon the Board of Directors by the
Certificate of Incorporation, the Board of Directors on November 2, 1988,
adopted a resolution creating a series of 250,000 shares of Preferred Stock
designated as “
Series
A Preferred Stock
”; (ii) the Corporation filed a Certificate of
Designation, Preferences and Rights of Series A Preferred Stock on November 4,
1988 (the “
Certificate
of Designation
”), and (iii) no shares of the Series A Preferred Stock
have been issued.
The
Corporation DOES HEREBY FURTHER CERTIFY:
That
pursuant to the authority conferred upon the Board of Directors by Article
FOURTH of the Certificate of Incorporation and Section 151(g) of the General
Corporation Law of the State of Delaware, the Board of Directors on June 25,
1998, adopted the following resolution amending the Certificate of Designation
originally filed with the Secretary of State of Delaware on November 4, 1988,
that created a series of preferred stock designated as “
Series A Preferred
Stock
:”
RESOLVED,
that pursuant to the authority vested in the Board of Directors of the
Corporation by Article FOURTH of the Certificate of Incorporation, the
Certificate of Designation originally filed with the Secretary of State of the
State of Delaware on November 4, 1988, that created a series of preferred stock
designated as “
Series
A Preferred Stock
” of the Corporation be, and it hereby is, amended, and
that the designation and amount thereof and the powers, preferences and
relative, participating, optional and other special rights of the shares of such
series, and the qualifications, limitations or restrictions thereof are as
follows:
Section
1. Designation
and Amount. The shares of such series shall be designated as “
Series A Preferred
Stock
” $0.01 par value per share, and the number of shares constituting
such series shall be 250,000. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided, that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less
than that of the shares then outstanding plus the number of shares issuable upon
exercise of outstanding rights, options or warrants or upon conversion of
outstanding securities issued by the Corporation.
A1
Section
2. Dividends
and Distributions.
(A) Subject
to the prior and superior rights of the holders of any shares of any series of
Preferred Stock ranking prior and superior to the shares of Series A Preferred
Stock with respect to dividends, the holders of shares of Series A Preferred
Stock in preference to the holders of shares of Common Stock, par value $.01 per
share (the “
Common
Stock
”), of the Corporation and any other junior stock, shall be entitled
to receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, quarterly dividends payable in cash on the
first day of January, April, July and October in each year (each such date being
referred to herein as a “
Quarterly Dividend Payment
Date
”), commencing on the first Quarterly Dividend Payment Date after the
first issuance of a share or fraction of a share of Series A Preferred Stock in
an amount per share (rounded to the nearest cent) equal to the greater of (a)
$10.00, or (b) subject to the provision for adjustment hereinafter set forth,
1,000 times the aggregate per share amount of all cash dividends, and 1,000
times the aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions other than a dividend payable in shares of Common Stock
or a subdivision of the outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, since the immediately preceding
Quarterly Dividend Payment Date, or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series A Preferred Stock. In the event the Corporation shall
at any time after November 15, 1988 (the “
Rights Declaration
Date
”) (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, or (iii) combine the
outstanding Common Stock into a smaller number of shares, then in each such case
the amount to which holders of shares of Series A Preferred Stock were entitled
immediately prior to such event under clause (b) of the preceding sentence shall
be adjusted by multiplying such amount by a fraction the numerator of which is
the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The
Corporation shall declare a dividend or distribution on the Series A Preferred
Stock as provided in paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the period between any
Quarterly Dividend Payment Date and the next subsequent Quarterly Dividend
Payment Date, a dividend of $10.00 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment
Date.
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the date
of issue of such shares of Series A Preferred Stock unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to the
date fixed for the payment thereof.
A2
Section
3. Voting
Rights. The holders of shares of Series A Preferred Stock shall have
the following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of Series A
Preferred Stock shall entitle the holder thereof to 1,000 votes on all matters
submitted to a vote of the stockholders of the Corporation.
(B) Except
as otherwise provided herein or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall vote together as
one class on all matters submitted to a vote of stockholders of the
Corporation.
(C) (i) If
at any time dividends on any Series A Preferred Stock shall be in arrears in an
amount equal to six (6) quarterly dividends thereon, the occurrence of such
contingency shall mark the beginning of a period (herein called a “
default period
”)
which shall extend until such time when all accrued and unpaid dividends for all
previous quarterly dividend periods and for the current quarterly dividend
period on all shares of Series A Preferred Stock then outstanding shall have
been declared and paid or set apart for payment. During each default
period, all holders of Preferred Stock (including holders of the Series A
Preferred Stock) with dividends in arrears in an amount equal to six (6)
quarterly dividends thereon, voting as a class, irrespective of series, shall
have the right to elect two (2) Directors.
(ii) During
any default period, such voting right of the holders of Series A Preferred Stock
may be exercised initially at a special meeting called pursuant to subparagraph
(iii) of this Section 3(C) or at any annual meeting of stockholders, and
thereafter at annual meetings of stockholders, provided that neither such voting
right nor the right of the holders of any other series of Preferred Stock, if
any, to increase, in certain cases, the authorized number of Directors shall be
exercised unless the holders of ten percent (10%) in number of shares of
Preferred Stock outstanding shall be present in person or by
proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect Directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two (2)
Directors or, if such right is exercised at an annual meeting, to elect two (2)
Directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of Directors as
shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have exercised
their right to elect Directors in any default period and during the continuance
of such period, the number of Directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to or pari passu with the
Series A Preferred Stock.
A3
(iii) Unless
the holders of Preferred Stock shall, during an existing default period, have
previously exercised their right to elect Directors, the Board of Directors may
order, or any stockholder or stockholders owning in the aggregate not less than
ten percent (10%) of the total number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of a special meeting of the
holders of Preferred Stock, which meeting shall thereupon be called by the
President, a Vice-President or the Corporate Secretary of the
Corporation. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of Preferred Stock by mailing a
copy of such notice to him or her at his last address as the same appears on the
books of the Corporation. Such meeting shall be called for a time not
earlier than 10 days and not later than 60 days after such order or request or
in default of the calling of such meeting within 60 days after such order or
request, such meeting may be called on similar notice by any stockholder or
stockholders owning in the aggregate not less than ten percent (10%) of the
total number of shares of Preferred Stock
outstanding. Notwithstanding the provisions of this paragraph
(C)(iii), no such special meeting shall be called during the period within 60
days immediately preceding the date fixed for the next annual meeting of the
stockholders.
(iv) In
any default period, the holders of Common Stock, and other classes of stock of
the Corporation if applicable, shall continue to be entitled to elect the whole
number of Directors until the holders of Preferred Stock shall have exercised
their right to elect two (2) Directors voting as a class, after the exercise of
which right (x) the Directors so elected by the holders of Preferred Stock shall
continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any vacancy in
the Board of Directors may (except as provided in paragraph (C)(ii) of this
Section 3) be filled by vote of a majority of the remaining Directors
theretofore elected by the holders of the class of stock which elected the
Director whose office shall have become vacant. References in this
paragraph (C) to Directors elected by the holders of a particular class of stock
shall include Directors elected by such Directors to fill vacancies as provided
in clause (y) of the foregoing sentence.
(v) Immediately
upon the expiration of a default period, (x) the right of the holders of
Preferred Stock as a class to elect Directors shall cease, (y) the term of any
Directors elected by the holders of Preferred Stock as a class shall terminate,
and (z) the number of Directors shall be such number as may be provided for in,
or pursuant to, the Restated Certificate of Incorporation or By-Laws
irrespective of any increase made pursuant to the provisions of paragraph
(C)(ii) of this Section 3 (such number being subject, however to change
thereafter in any manner provided by law or in the Restated Certificate of
Incorporation or By-Laws). Any vacancies in the Board of Directors
effected by the provisions of clauses (y) and (z) in the preceding sentence may
be filled by a majority of the remaining Directors, even though less than a
quorum.
(D) Except
as set forth herein, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
A4
Section
4. Certain
Restrictions.
(A) Whenever
quarterly dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare
or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock;
(ii) declare
or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock except dividends paid ratably on
the Series A Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders of
all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock provided that the Corporation may at any
time redeem, purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding up) to the Series A
Preferred Stock; or
(iv) purchase
or otherwise acquire for consideration any shares of Series A Preferred Stock or
any shares of stock ranking on a parity with the Series A Preferred Stock except
in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The
Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under paragraph (A) of this Section 4, purchase or
otherwise acquire such shares at such time and in such manner.
Section
5. Reacquired
Shares. Any shares of Series A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
cancelled promptly after the acquisition thereof. All such shares
shall upon their cancellation become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth herein.
A5
Section
6. Liquidation,
Dissolution or Winding Up. (A) Upon any liquidation (voluntary or otherwise),
dissolution or winding up of the Corporation, no distribution shall be made to
the holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock, unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received per share, the greater of 1,000 times the exercise price per right or
1,000 times the payment made per share of Common Stock, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared,
to the date of such payment (the “
Series A Liquidation
Preference
”). Following the payment of the full amount of the
Series A Liquidation Preference, no additional distributions shall be made to
the holders of shares of Series A Preferred Stock unless, prior thereto, the
holders of shares of Common Stock shall have received an amount per share (the
“
Common
Adjustment
”) equal to the quotient obtained by dividing (i) the Series A
Liquidation Preference by (ii) 1,000 (as appropriately adjusted as set forth-in
subparagraph (C) below to reflect such events as stock splits, stock dividends
and recapitalizations with respect to the Common Stock) (such number in clause
(ii), the “
Adjustment
Number
”). Following the payment of the full amount of the
Series A Liquidation Preference and the Common Adjustment in respect of all
outstanding shares of Series A Preferred Stock and Common Stock, respectively,
holders of Series A Preferred Stock and holders of shares of Common Stock shall
receive their ratable and proportionate share of the remaining assets to be
distributed in the ratio of the Adjustment Number to 1 with respect to such
Preferred Stock and Common Stock, on a per share basis,
respectively.
(B) In
the event there are not sufficient assets available to permit payment in full of
the Series A Liquidation Preference and the liquidation preferences of all other
series of Preferred Stock, if any, which rank on a parity with the Series A
Preferred Stock then such remaining assets shall be distributed ratably to the
holders of such parity shares in proportion to their respective liquidation
preferences. In the event there are not sufficient assets available
to permit payment in full of the Common Adjustment, then such remaining assets
shall be distributed ratably to the holders of Common Stock.
(C) In
the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the Adjustment
Number in effect immediately prior to such event shall be adjusted by
multiplying such Adjustment Number by a fraction the numerator of which is the
number of shares of Common Stock outstanding immediately after such event and
the denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section
7. Consolidation,
Merger, etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the shares of
Common Stock are exchanged for or changed into other stock or securities, cash
and/or any other property, then in any such case the shares of Series A
Preferred Stock shall at the same time be similarly exchanged or changed in an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 1,000 times the aggregate amount of stock, securities, cash and/or any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the Corporation
shall at any time after the Rights Declaration Date (i) declare any dividend on
Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding
Common Stock, or (iii) combine the outstanding Common Stock into a smaller
number of shares, then in each such case the amount set forth in the preceding
sentence with respect to the exchange or change of shares of Series A Preferred
Stock shall be adjusted by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock outstanding immediately after
such event and the denominator of which is the number of shares of Common Stock
that are outstanding immediately prior to such event.
A6
Section
8. Redemption. The
shares of Series A Preferred Stock shall not be redeemable.
Section
9. Ranking. The
Series A Preferred Stock shall rank junior to all other series of the
Corporation’s Preferred Stock as to the payment of dividends and the
distribution of assets, unless the terms of any such series shall provide
otherwise.
Section
10. Amendment. The
Certificate of Incorporation of the Corporation shall not be further amended in
any manner which would materially alter or change the powers, preferences or
special rights of the holders of the Series A Preferred Stock so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds (66 2/3%) of the outstanding shares of Series A Preferred Stock
voting separately as a class.
Section
11. Fractional
Shares. Series A Preferred Stock may be issued in fractions of a
share which shall entitle the holder, in proportion to such holder’s fractional
shares, to exercise voting rights, receive dividends, in distributions and to
have the benefit of all other rights of holders of Series A Preferred
Stock.
IN
WITNESS WHEREOF, I have executed and subscribed this Amended Certificate of
Designation and do affirm the foregoing as true under the penalties of perjury,
this 25th day of June, 1998.
FIRSTFED
FINANCIAL CORP.
By:_
/s/
Ann
E. Lederer
_________
Name: Ann
E. Lederer
Title: Secretary
and General Counsel
A7
EXHIBIT
B
[Form of Rights
Certificate]
Certificate
No. R- ______ Rights
NOT
EXERCISABLE AFTER NOVEMBER 14, 2018
OR
EARLIER IF NOTICE OF REDEMPTION IS GIVEN. THE RIGHTS ARE SUBJECT TO
REDEMPTION, AT THE OPTION OF THE COMPANY, AT $0.01 PER RIGHT ON THE
TERMS
SET FORTH
IN THE RIGHTS AGREEMENT. THE RIGHTS ARE SUBJECT TO EXCHANGE, AT THE OPTION OF
THE COMPANY, AT ONE COMMON SHARE PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING
PERSON (AS DEFINED IN THE RIGHTS AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL
BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.
Rights
Certificate
FIRSTFED
FINANCIAL CORP.
This
certifies that ___________, or registered assigns, is the registered owner of
the number of Rights set forth above, each of which entitles the owner thereof,
subject to the terms, provisions and conditions of the Second Amended and
Restated Rights Agreement dated as of October 23, 1998 (the “
Rights Agreement
”)
between FirstFed Financial Corp., a Delaware corporation (the “
Company
”), and
Registrar and Transfer Company (the “
Rights Agent
”), to
purchase from the Company at any time after the Distribution Date (as such term
is defined in the Rights Agreement) and prior to 5:00 P.M. (New York time) on
November 14, 2018 at the principal office of the Rights Agent in Cranford, New
Jersey one one-thousandth of a fully paid, nonassessable share of Series A
Preferred Stock (the “
Preferred Stock
”) of
the Company, at a purchase price of $100.00 per one one-thousandth of a share
(the “
Purchase
Price
”), upon presentation and surrender of this Rights Certificate with
the appropriate Form of Election to Purchase duly executed. The
number of Rights evidenced by this Rights Certificate (and the number of shares
which may be purchased upon exercise thereof) set forth above, and the Purchase
Price set forth above, are the number and Purchase Price as of October 23, 2008
based on the Preferred Stock as constituted at such date. As provided in the
Rights Agreement, the Purchase Price and the number of shares of Preferred Stock
or other securities which may be purchased upon the exercise of the Rights
evidenced by this Rights Certificate are subject to modification and adjustment
upon the happening of certain events.
B1
This
Rights Certificate is subject to all of the terms, provisions and conditions of
the Rights Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights
Certificates. Copies of the Rights Agreement are on file at the
principal office of the Company and the above-mentioned office or agency of the
Rights Agent. The Company will mail to the holder of this Rights
Certificate a copy of the Rights Agreement without charge after receipt of a
written request therefor.
This
Rights Certificate, with or without other Rights Certificates, upon surrender at
the principal office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing Rights entitling the holder to purchase a like aggregate
number of shares of Preferred Stock as the Rights evidenced by the Rights
Certificate or Rights Certificates surrendered shall have entitled such holder
to purchase. If this Rights Certificate shall be exercised (other
than pursuant to Section 11(a)(ii) of the Rights Agreement) in part, the holder
shall be entitled to receive upon surrender hereof another Rights Certificate or
Rights Certificates for the number of whole Rights not exercised.
Subject
to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate (i) may be redeemed by the Company at a redemption price of $0.01
per Right. or (ii) may be exchanged in whole or in part for shares of the
Company’s Common Stock, par value, $0.01 per share, or shares of Preferred
Stock.
No
fractional shares of Preferred Stock will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of one one-thousandth of a share of Preferred Stock, which may, at the
election of the Company, be evidenced by depositary receipts), but in lieu
thereof a cash payment will be made, as provided in the Rights
Agreement.
No
holder, as such, of any Rights Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Preferred Stock
or of any other securities of the Company which may at any time be issuable on
the exercise or exchange hereof, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or, to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights or otherwise, until the Right or Rights evidenced by this Rights
Certificate shall have been exercised or exchanged as provided in the Rights
Agreement.
This
Rights Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
B2
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal. Dated as of ___________.
ATTEST:
|
_______________________________
|
|
|
_____________________________
|
_______________________________
|
Name:
|
Name:
|
Title:
|
Title:
|
|
|
|
|
Countersigned:
|
|
|
|
REGISTRAR
AND TRANSFER COMPANY,
as
Rights Agent
|
|
|
|
____________________________
|
|
Authorized
Signature
|
|
B3
[Form of
Reverse Side of Rights Certificate]
FORM OF
ASSIGNMENT
(To be
executed by the registered holder if such
holder
desires to transfer the Rights Certificate.)
FOR VALUE
RECEIVED ______________________________ hereby sell, assigns and transfers unto
______________________________________________________________
(Please
print name and address of transferee)
______________________________________________________________
Rights
represented by this Rights Certificate, together with all right, title and
interest therein, and does hereby irrevocably constitute and appoint
____________ Attorney, to transfer the within Rights Certificate on the books of
the within-named Company, with full power of substitution.
Dated:_____________,
____
___________________________
Signature
Signature
Guaranteed:
B4
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Rights Certificate [ ] are [ ]
are not being sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate, Associate or transferee of any such
Acquiring Person (as such terms are defined in the Rights
Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it did not acquire the
Rights evidenced by this Rights Certificate from any Person who is, or was an
Acquiring Person, or an Affiliate, Associate or transferee of any such Acquiring
Person (as such terms are defined in the Rights Agreement).
Dated:
__________, ____
___________________________
Signature
NOTICE
The
signature to the foregoing Assignment must correspond to the name as written
upon the face of this Rights Certificate in every particular, without alteration
or enlargement or any change whatsoever.
In the
event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the
Rights Agent will deem the Beneficial Owner of the Rights evidenced by this
Rights Certificate to be an Acquiring Person, or any Affiliate, Associate or
transferee of such Acquiring Person (as such terms are defined in the Rights
Agreement), and such Assignment or Election to Purchase will not be
honored.
B5
FORM OF ELECTION TO
PURCHASE
(To be
executed if holder desires to
exercise
the Rights Certificate pursuant to
Section
11(a)(ii) of the Rights Agreement.)
To
FIRSTFED FINANCIAL CORP.:
The
undersigned hereby irrevocably elects to exercise ___________ Rights represented
by this Rights Certificate to purchase the shares of Common Stock (or such other
securities of the Company) issuable upon the exercise of the Rights and requests
that certificates for such shares be issued in the name of:
_________________________________________________________________
(Please
insert social security or other identifying number)
_________________________________________________________________
(Please
print name and address)
_________________________________________________________________
The
Rights Certificate indicating the balance, if any, of such Rights which may
still be exercised pursuant each of to Section 11(a)(ii) and Section 13 of the
Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificate be registered in the name of and delivered
to:
_________________________________________________________________
Please
insert social security or other identifying number
(complete
only if Rights Certificate is to be registered in a
name
other than the undersigned)
_________________________________________________________________
(Please
print name and address)
_________________________________________________________________
Dated:
____________, ____
__________________________
Signature
Signature
Guaranteed:
B6
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Rights Certificate [ ] are [ ]
are not being exercised by or on behalf of a Person who is or was an Acquiring
Person or Affiliate, Associate or transferee of any such Acquiring Person (as
such terms are defined in the Rights Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it [ ] did
[ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, or was an Acquiring Person, or an Affiliate, Associate
or transferee of any such Acquiring Person (as such terms are defined in the
Rights Agreement).
Dated:
_________, ____
______________________________
Signature
NOTICE
The
signature to the foregoing Election to Purchase must correspond to the name as
written upon the face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the
event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the
Rights Agent will deem the Beneficial Owner of the Rights evidenced by this
Rights Certificate to be an Acquiring Person, or any Affiliate, Associate or
transferee of such Acquiring Person (as such terms are defined in the Rights
Agreement), and such Assignment or Election to Purchase will not be
honored.
B7
FORM OF ELECTION TO
PURCHASE
(To be
executed if holder desires to
exercise
the Rights Certificate other than pursuant to
Section
11(a)(ii) of the Rights Agreement.)
To
FIRSTFED FINANCIAL CORP.:
The
undersigned hereby irrevocably elects to exercise Rights represented by this
Rights Certificate to purchase the shares of Preferred Stock (or such other
securities of the Company or any other Person) issuable upon the exercise of the
Rights and requests that certificates for such shares be issued in the name
of:
________________________________________________________________
(Please
insert social security or other identifying number)
________________________________________________________________
(Please
print name and address)
________________________________________________________________
The
Rights Certificate indicating the balance, if any, of such Rights which may
still be exercised pursuant to each of Section 11(a)(ii) and Section 13 of the
Rights Agreement shall be returned to the undersigned unless such person
requests that the Rights Certificate be registered in the name of and delivered
to:
_________________________________________________________________
Please
insert social security or other identifying number
(complete
only if Rights Certificate is to be registered in a
name
other than the undersigned)
_________________________________________________________________
(Please
print name and address)
_________________________________________________________________
_________________________________________________________________
Dated:
____________, ____
__________________________
Signature
Signature
Guaranteed:
B8
Certificate
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) the
Rights evidenced by this Rights Certificate [ ] are [ ]
are not being sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person, or an Affiliate, Associate or transferee of any such
Acquiring Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it [ ] did
[ ] did not acquire the Rights evidenced by this Rights Certificate
from any Person who is, or was an Acquiring Person, or an Affiliate, Associate
or transferee of any such Acquiring Person (as such terms are defined in the
Rights Agreement).
Dated:
_________, ____
_______________________________
Signature
NOTICE
The
signature to the foregoing Election to Purchase must correspond to the name as
written upon the face of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
In the
event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, the Company and the
Rights Agent will deem the Beneficial Owner of the Rights evidenced by this
Rights Certificate to be an Acquiring Person, or any Affiliate, Associate or
transferee of such Acquiring Person (as such terms are defined in the Rights
Agreement), and such Assignment or Election to Purchase will not be
honored.
B9
EXHIBIT
C
SUMMARY
OF RIGHTS
In 1988,
the Board of Directors of FirstFed Financial Corp. (the “
Company
”) declared a
dividend distribution of one right (a “
Right
”) for each
outstanding share of common stock, $0.01 par value (the “
Common Stock
”), of
the Company to stockholders of record at the close of business on November 15,
1988 (the “
Record
Date
”), with such Rights to expire on November 15, 1998. On
June 25, 1998, the Board of Directors of the Company (the “
Board of Directors
”)
extended the expiration date of the Rights and adopted certain amendments to the
terms of the Rights. On October 23, 2008, the Board of Directors
again extended the expiration date of the Rights and adopted certain amendments
to the terms of the Rights. Except as set forth below, each Right (as
amended), when exercisable, entitles the registered holder to purchase from the
Company one one-thousandth share of a series of preferred stock, designated as
Series A Preferred Stock, $0.01 par value (the “
Preferred Stock
”), at
a price of $100.00 per share (the “
Purchase Price
”),
subject to adjustment. The description and terms of the Rights, as
amended, are set forth in the Second Amended and Restated Rights Agreement (the
“
Rights
Agreement
”) between the Company and Registrar and Transfer Company, as
Rights Agent.
Until the
earlier to occur of (i) 10 days following a public announcement that a person or
group of affiliated or associated persons (with certain limited exceptions) has
acquired, or obtained the right to acquire, without the prior consent of at
least a majority of the Company’s disinterested directors, beneficial ownership
of 15% or more of the outstanding shares of Common Stock (which includes for
this purpose stock referenced in derivative transactions and securities) at any
time after the date of adoption of the Agreement, or any such person or group
that owned 15% or more of such securities as of the date of adoption of the
Agreement acquires any additional such securities (an “
Acquiring Person
”) or
(ii) 10 business days (or such later date as may be determined by action of the
Board of Directors prior to such time as any person or group of affiliated
persons becomes an Acquiring Person) following the commencement of
or announcement of an intention to make) a tender offer or exchange
offer the consummation of which would result in any Person or group of related
Persons becoming an Acquiring Person, (the earlier of (i) and (ii) being called
the “
Distribution
Date
”), the Rights will be evidenced, with respect to any of the Common
Stock certificates outstanding as of the Record Date, by such Common Stock
certificate together with this Summary of Rights.
The
Rights Agreement provides that, until the Distribution Date (or earlier
expiration of the Rights), the Rights will be transferred with and only with the
Common Stock. Until the Distribution Date (or earlier redemption or
expiration of the Rights), new Common Stock certificates issued after the Record
Date upon transfer, replacement or new issuance of the Common Stock will contain
a notation incorporating the Rights Agreement by reference. Until the
Distribution Date (or earlier redemption or expiration of the Rights), the
surrender for transfer of any Common Stock certificates outstanding as of the
Record Date (with or without this Summary or Rights attached) will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights (“
Rights Certificates
”)
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date, and the separate Rights Certificates alone
will evidence the Rights.
C1
The
Rights are not exercisable until the Distribution Date and will expire on
November 14, 2018 (the “
Final Expiration
Date
”), unless the Final Expiration Date is advanced or extended or
unless the Rights are earlier redeemed or exchanged by the Company, in each case
as described below.
The
Purchase Price payable, and the number of shares of Preferred Stock or other
securities or property issuable, upon exercise of the Rights is subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of the Preferred
Stock, (ii) upon the grant to holders of the Preferred Stock of certain rights
or warrants to subscribe for Preferred Stock, certain convertible securities or
securities having the same or more favorable rights, privileges and preferences
as the Preferred Stock at less than the current per share market price of the
Preferred Stock or (iii) upon the distribution to holders of the Preferred Stock
of evidences of indebtedness or assets (excluding regular quarterly cash
dividends out of earnings or retained earnings) or of subscription rights or
warrants (other than those referred to above).
The
number of outstanding Rights is also subject to adjustment in the event of a
stock dividend on the Common Stock payable in shares of Common Stock, or
subdivisions, consolidations or combinations of the Common Stock occurring, in
any such case, prior to the Distribution Date.
With
certain exceptions, no adjustments in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional Rights will be issued (other than fractions of
Preferred Stock which are integral multiples of one one-thousandth of a share of
Preferred Stock, which may, at the election of the Company, be evidenced by
depositary receipts), in lieu thereof, an adjustment in cash will be made based
on the current per share market price of the Preferred Stock or the Common
Stock.
Shares of
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable. Each share of Preferred Stock will be entitled, when, as
and if declared, to a minimum preferential quarterly dividend payment of the
greater of (a) $10.00 per share, and (b) in an amount equal to 1,000 times the
dividend declared per share of Common Stock. In the event of
liquidation, dissolution or winding up of the Company, the holders of the
Preferred Stock will be entitled to a minimum preferential payment before any
distributions to holders of Common Stock or other shares ranking junior to
Preferred Stock of the greater of (a) an amount equal to 1,000 times the
exercise price per Right, and (b) an amount equal to 1,000 times the payment
made per share of Common Stock, plus any accrued but unpaid
dividends.
Each
share of Preferred Stock will have 1,000 votes, voting together with the shares
of Common Stock, on all matters submitted to a vote of the stockholders of the
Company. If the Company fails to pay dividends on the Preferred Stock
for a specified period (a “
default period
”), the
holders of Preferred Stock shall have the additional right to elect two (2)
directors to the Board of Directors until such default period
expires.
Finally,
in the event of any merger, consolidation or other transaction in which
outstanding shares of Common Stock are converted or exchanged, each share of
Preferred Stock will be entitled to receive 1,000 times the amount received per
share of Common Stock. These rights are protected by customary
antidilution provisions.
C2
Because
of the nature of the Preferred Stock’s dividend, liquidation and voting rights,
the value of the one one-thousandth interest in a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
In the
event that any person or group of affiliated or associated persons becomes an
Acquiring Person, each holder of a Right, other than Rights beneficially owned
by the Acquiring Person (which will thereupon become void), will thereafter have
the right to receive upon exercise of a Right that number of shares of Common
Stock having a market value of two times the exercise price of the
Right.
In the
event that, after a person or group has become an Acquiring Person, the Company
is acquired in a merger or other business combination transaction or 50% or more
of its consolidated assets or earning power are sold, proper provisions will be
made so that each holder of a Right (other than Rights beneficially owned by an
Acquiring Person which will have become void) will thereafter have the right to
receive upon the exercise of a Right that number of shares of common stock of
the person with whom the Company has engaged in the foregoing transaction (or
its parent) that at the time of such transaction have a market value of two
times the exercise price of the Right.
At any
time after any person or group becomes an Acquiring Person and prior to the
earlier of one of the events described in the previous paragraph or the
acquisition by such Acquiring Person of 50% or more of the outstanding shares of
Common Stock, the Board of Directors may exchange the Rights (other than Rights
owned by such Acquiring Person which will have become void), in whole or in
part, for shares of Common Stock or Preferred Stock (or a series of the
Company’s preferred stock having equivalent rights, preferences and privileges),
at an exchange ratio of one share of Common Stock, or a fractional share of
Preferred Stock (or other preferred stock) equivalent in value thereto, per
Right.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional shares of Preferred Stock or Common Stock will
be issued (other than fractions of Preferred Stock which are integral multiples
of one one-thousandth of a share of Preferred Stock, which may, at the election
of the Company, be evidenced by depositary receipts), and in lieu thereof an
adjustment in cash will be made based on the current per share market price of
the Preferred Stock or the Common Stock.
At any
time prior to the time an Acquiring Person becomes such, the Board of Directors
may redeem the Rights in whole, but not in part, at a price of $0.01 per Right
(the “
Redemption
Price
”) payable, at the option of the Company, in cash, shares of Common
Stock or such other form of consideration as the Board of Directors shall
determine. The redemption of the Rights may be made effective at such
time, on such basis and with such conditions as the Board of Directors in its
sole discretion may establish. Immediately upon any redemption of the
Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
For so
long as the Rights are then redeemable, the Company may, except with respect to
the Redemption Price, amend the Rights Agreement in any manner. After
the Rights are no longer redeemable, the Company may, except with respect to the
Redemption Price, amend the Rights Agreement in any manner that does not
adversely affect the interests of holders of the Rights.
C3
Until a
Right is exercised or exchanged, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of
the Rights Agreement has been filed with the Securities and Exchange Commission
as an Exhibit to a Form 8-A/A amending the Company’s Registration Statement on
Form 8-A, previously filed on November 4, 1988. A copy of the Rights
Agreement is available free of charge from the Company. This summary
description of the Rights does not purport to be complete and its qualified in
its entirety by reference to the Rights Agreement, as the same may be amended
from time to time, which is hereby incorporated herein by
reference.
C4
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