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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
L.B. Foster Company
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(Exact name of registrant as specified in its charter)
Delaware 25-1324733
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(State of incorporation (IRS Employer Identification No.)
or organization)
415 Holiday Drive, Pittsburgh, PA 15220
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(Address of principal executive offices) (Zip code)
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please
check the following box. []
If this Form relates to the registration of a class of debt securities and
is to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box. []
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Class A Common Stock Purchase Rights
(Title of Class)
ITEM 1 DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
On May 15, 1997, the Board of Directors of L.B. Foster Company
(the "Company") declared a dividend distribution of one right (a "Right")
for each outstanding share of the Company's Class A Common Stock, par value
$0.01 per share ("Common Stock"), to stockholders of record at the close of
business on May 21, 1997. Except as described below, each Right, when
exercisable, entitles the registered holder to purchase from the Company one
share of Common Stock at a purchase price of $30.00 (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement") between the Company and
American Stock Transfer & Trust Company as Rights Agent. The following
is a general description only and is subject to the detailed terms and
conditions of the Rights Agreement. A copy of the Rights Agreement,
including the form of Rights Certificate and the Summary of Rights to be
provided to stockholders of the Company, is being filed with the Securities
and Exchange Commission as Exhibit 4A to this Registration Statement on Form
8-A and is incorporated herein by reference.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates
will be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a
public announcement that a person or group of affiliated or associated
persons other than the Company, its subsidiaries or any person receiving
newly-issued shares of Common Stock directly from the Company or indirectly
via an underwriter in connection with a public offering by the Company
(an "Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of 20% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would result in a
person or group beneficially owning 20% or more of such outstanding shares
of Common Stock. Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and
only with such Common Stock certificates, (ii) new Common Stock certificates
issued after May 21, 1997 will contain a notation incorporating the
Rights Agreement by reference and (iii) the surrender for transfer of any
certificates for Common Stock will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificates.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on May 15, 2007, unless earlier redeemed or
exchanged by the Company as described below (the "Expiration Date").
Page 2.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise
determined by the Board of Directors, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
If any person becomes an Acquiring Person other than pursuant to a
Qualifying Offer (as defined below), each holder of a Right will thereafter
have the right to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a
value equal to two times the exercise price of the Right. The Rights
Agreement contains an exemption for any issuance of Common Stock by the
Company directly to any person (for example, in a private placement or an
acquisition by the Company in which Common Stock is used as consideration)
or indirectly via an underwriter in connection with a public offering by the
Company, even if that person would become the beneficial owner of 20% or
more of the outstanding Common Stock, provided that such person does not
acquire any additional shares of Common Stock. Notwithstanding any of the
foregoing, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by any Acquiring Person
will be null and void. However, Rights are not exercisable in any event
until such time as the Rights are no longer redeemable by the Company as
set forth below.
A "Qualifying Offer" means a tender offer or exchange offer for all
outstanding shares of Common Stock at a price and on terms determined by at
least a majority of the Continuing Directors (as defined below) who are not
officers or employees of the Company and who are not related (as specified
in the Rights Agreement) to the Person making such offer, to be fair to and
in the best interests of the Company and its stockholders.
If at any time following the Stock Acquisition Date (i) the Company is
acquired in a merger or other business combination transaction in which the
Common Stock is changed or exchanged or in which the Company is not the
surviving corporation (other than a merger that follows a Qualifying Offer
and satisfies certain other requirements), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a
Right (except Rights that have been previously voided as set forth above)
shall thereafter have the right to receive, upon exercise, common stock
of the acquiring company having a value equal to two times the exercise
price of the Right. The event set forth in this paragraph and in the
second preceding paragraph are referred to as the "Triggering Events."
Page 3.
The Purchase Price payable, and the number of shares of Common Stock or
other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, combination or reclassification of,
the Common Stock, (ii) if holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible securities
at less than the current market price of the Common Stock, or (iii) upon
the distribution to holders of the Common Stock of evidences of indebtedness
or assets (excluding regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Common
Stock on the last trading date prior to the date of exercise.
At any time until ten days following the Stock Acquisition Date, the Company
may redeem the Rights in whole, but not in part, at a price of $.O5 per
Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Under certain circumstances set
forth in the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors. Immediately upon
the action of the Board of Directors ordering redemption of the Rights or at
such other time as may be specified by the Board when it orders redemption,
with, where required, the concurrence of a majority of the Continuing
Directors, the Rights will terminate and the only right of the holders of
Rights will be to receive the $.05 redemption price.
The term "Continuing Directors" means any member of the Board of Directors
of the Company who was a member of the Board prior to the Stock Acquisition
Date, and any person who is subsequently elected to the Board if such person
is recommended or approved by a majority of the Continuing Directors, but
shall not include an Acquiring Person, or an affiliate or associate of an
Acquiring Person, or any representative of the foregoing entities.
Until a Right is exercised, 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. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending
upon the circumstances, recognize taxable income if the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Page 4.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the Rights Agreement may be amended by the Board (in
certain circumstances, with the concurrence of the Continuing Directors) in
order to cure any ambiguity, to make changes that do not adversely affect the
interests of holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at a time when the Rights are not
redeemable.
As of May 15, 1997, there were 10,162,738 shares of Common Stock outstanding
and 759,000 shares of Common Stock reserved for issuance under outstanding
options to purchase Common Stock. Each outstanding share of Common Stock on
May 21, 1997 will receive one Right. In addition, Rights shall be issued in
respect of all shares of Common Stock that are issued (whether originally
issued or from the Company's treasury) after that date but prior to the
earlier of the Distribution Date or the Expiration Date and, in certain
circumstances as provided in the Rights Agreement, after the Distribution
Date.
Certain Anti-takeover Effects
The Rights approved by the Board are designed to protect and maximize the
value of the outstanding equity interests in the Company in the event of an
unsolicited attempt by an acquiror to take over the Company, in a manner or
on terms not approved by the Board of Directors. Takeover attempts
frequently include coercive tactics to deprive a corporation's Board of
Directors and its stockholders of any real opportunity to determine the
destiny of the corporation. The Rights have been declared by the Board in
order to deter such tactics, including a gradual accumulation of shares in
the open market of a 20% or greater position to be followed by a merger or a
partial or two-tier tender offer that does not treat all stockholders
equally. These tactics unfairly pressure stockholders, squeeze them out of
their investment without giving them any real choice and deprive them of the
full value of their shares.
The Rights are not intended to prevent a takeover of the Company and will
not do so. The Rights are not exercisable in the event of a Qualifying
Offer, as described above. The Rights may be redeemed by the Company at
$.05 per Right within ten days (or such later date as may be determined by a
majority of the Continuing Directors) after the accumulation of 20% or more
of the Company's Common Stock by a single acquiror or group. Accordingly,
the Rights should not preclude any merger or business combination approved
by the Board of Directors.
Page 5.
Issuance of the Rights does not in any way weaken the financial strength of
the Company or interfere with its business plans. The issuance of the Rights
has no immediate dilutive effect, will not affect reported earnings per
share, should not be taxable to the Company or to its stockholders and will
not change the way in which the Company's shares are presently traded. The
Company's Board of Directors believes that the Rights represent a sound and
reasonable means of addressing the complex issues of corporate policy
created by the current takeover environment.
However, the Rights may have the effect of rendering more difficult or
discouraging an acquisition of the Company deemed undesirable by the Board
of Directors. The Rights will cause substantial dilution to a person or
group that attempts to acquire the Company on terms or in a manner not
approved by the Company's Board of Directors, except pursuant to an offer
conditioned upon the negation, purchase or redemption of the Rights.
ITEM 2 EXHIBITS
The following exhibit is filed herewith as part of this registration
statement:
4A Rights Agreement, dated as of May 15, 1997, between
L.B.Foster Company and American Stock Transfer & Trust
Company, including the form of Rights Certificate and
the Summary of Rights attached thereto as Exhibits A
and B, respectively.
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, thereto duly authorized.
Date: May 20, 1997 L.B. FOSTER COMPANY
(Registrant)
By: /s/ David L. Voltz
-------------------
David L. Voltz
Vice President
Page 6.
L.B. FOSTER COMPANY
AND
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Rights Agent
RIGHTS AGREEMENT
DATED AS OF MAY 15, 1997
Exhibit 4A
TABLE OF CONTENTS
Section 1. Certain Definitions
Section 2. Appointment of Rights Agent
Section 3. Issuance of Rights Certificates
Section 4. Form of Rights Certificates
Section 5. Countersignature and Registration
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights
Certificates.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
Section 8. Cancellation and Destruction of Rights Certificates
Section 9. Reservation and Availability of Capital Stock
Section 10. Common Stock Record Date
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights
Section 12. Certificate of Adjusted Purchase Price or Number of Shares
Section 13. Consolidation, Merger or Sale or Transfer of Assets or
Earning Power
Section 14. Fractional Rights and Fractional Shares
Section 15. Rights of Action
Section 16. Agreement of Rights Holders
Section 17. Rights Certificate Holder Not Deemed a Stockholder
Section 18. Concerning the Rights Agent
Section 19. Merger or Consolidation or Change of Name of Rights Agent
Section 20. Duties of Rights Agent
Section 21. Change of Rights Agent
Section 22. Issuance of New Rights Certificates
Section 23. Redemption and Termination
Section 24. Exchange
Section 25. Notice of Certain Events
Section 26. Notices
Section 27. Supplements and Amendments
Section 28. Successors
Section 29. Determinations and Actions by the Board of Directors, etc
Section 30. Benefits of this Agreement
Section 31. Severability
Section 32. Governing Law
Section 33. Counterparts
Section 34. Descriptive Headings
EXHIBIT A
EXHIBIT B
i.
RIGHTS AGREEMENT
This Rights Agreement, dated as of May 15, 1997 (the "Agreement"), is made
and entered into by and between L.B. Foster Company, a Delaware corporation
(the "Company"), and American Stock Transfer & Trust Company, a New York
corporation (the "Rights Agent"), with reference to the following background:
On May 15, 1997 (the "Declaration Date"), the board of directors of the
Company authorized and declared a dividend distribution of one right for
each share of Class A Common Stock, par value $.01 per share, of the Company
(the "Common Stock") outstanding at the close of business on May 21, 1997
(the "Record Date"), and has authorized the issuance of one Right (as such
number may hereafter be adjusted pursuant to the provisions of Section 11(p))
for each share of Common Stock of the Company issued between the Record Date
(whether originally issued or delivered from the Company's treasury) and the
Distribution Date. This Agreement sets forth the terms of the Rights.
NOW, THEREFORE, with the intention of being legally bound, the parties
agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" means any Person that, together with all Affiliates
and Associates of that Person, is the Beneficial Owner of 20% or more of the
shares of Common Stock then outstanding, but shall not include:
(i) the Company, any Subsidiary of the Company, any employee benefit plan of
the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the
terms of any such plan, or
(ii) any Person who would otherwise become an Acquiring Person solely as a
result of a reduction in the number of shares of Common Stock outstanding due
to the repurchase of shares of Common Stock by the Company, unless and until
that Person shall purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock constituting 0.5% or more of the then
outstanding shares of Common Stock other than pursuant to a Qualifying Offer.
Notwithstanding the foregoing, a Person shall not become an "Acquiring
Person" as the result of the acquisition by the Person of newly issued
shares of Common Stock directly from the Company (it being understood that a
purchase from an underwriter or other intermediary in connection with a
public offering by the Company is deemed for purposes hereof to be a
purchase directly from the Company). If a Person (x) shall become the
Beneficial Owner of 20% or more of the shares of Common Stock of the Company
Page 1.
then outstanding by reason of the receipt of newly-issued shares of Common
Stock directly from the Company and (y) shall, after such direct issuance by
the Company, become the Beneficial Owner of any additional shares of Common
Stock of the Company other than pursuant to a Qualifying Offer (and
thereafter remains a Beneficial Owner of 20% or more of the shares of Common
Stock of the Company), then such Person shall be deemed to be an "Acquiring
Person." If a transferee of shares from a Person described in clause (x) of
the preceding sentence, regardless of whether the transferor acquires
additional shares as described in clause (y) of the preceding sentence,
becomes the Beneficial Owner of 20% or more of the shares of Common Stock of
the Company then outstanding, the transferee shall be deemed to be an
"Acquiring Person."
(b) "Act" means the Securities Act of 1933, as amended.
(c) "Affiliate" and "Associate" have the respective meanings ascribed to
those terms in Rule 12b-2 of the General Rules and Regulations under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(d) A Person shall be deemed the "Beneficial Owner" of, and shall be
deemed to "beneficially own," any securities:
(i) that the Person or any of the Person's Affiliates or Associates,
directly or indirectly, has the right to acquire (whether that right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing) or upon
the exercise of conversion rights, exchange rights, rights, warrants or
options, or otherwise; except that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own":
(A) securities tendered pursuant to a tender or exchange offer made
by the Person or any of the Person's Affiliates or Associates until the
tendered securities are accepted for purchase or exchange, or
(B) securities issuable upon exercise of Rights at any time prior to
the occurrence of a Triggering Event, or
(C) securities issuable upon exercise of Rights from and after the
occurrence of a Triggering Event which Rights were acquired by the Person or
any of the Person's Affiliates or Associates prior to the Distribution Date
or pursuant to Section 3(a) or Section 22 (the "Original Rights") or pursuant
to Section 11(a)(i) in connection with an adjustment made with respect to
any Original Rights;
(ii) that the Person or any of the Person's Affiliates or Associates,
directly or indirectly, has the right to vote or dispose of or has
"beneficial ownership" of (as determined pursuant to Rule 13d-3 or any
successor regulation of the General Rules and Regulations under the Exchange
Page 2.
Act), including pursuant to any agreement, arrangement or understanding,
whether or not in writing; except that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under this
paragraph (ii) as a result of an agreement, arrangement or understanding to
vote such security if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in accordance
with, the applicable provisions of the General Rules and Regulations under
the Exchange Act, and
(B) is not also then reportable by the Person on Schedule 13D under
the Exchange Act (or any comparable or successor report); or
(iii) that are beneficially owned, directly or indirectly, by any other
Person (or any Affiliate or Associate thereof) with which the Person (or any
of the Person's Affiliates or Associates) has any agreement, arrangement or
understanding (whether or not in writing), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in the
exception to subparagraph (ii) above or disposing of any voting securities
of the Company.
Nothing in this subsection (d) shall cause a Person engaged in business as
an underwriter of securities to be the "Beneficial Owner" of, or to
"beneficially own," any securities acquired through that Person's
participation in good faith in a firm commitment underwriting until the
expiration of 40 days after the date of such acquisition.
(e) "Business Day" means any day other than a Saturday, Sunday or a day
on which banking institutions in the Commonwealth of Pennsylvania are
authorized or obligated by law or executive order to close.
(f) "Close of business" on a date means 5:00 P.M., Pittsburgh time, on
that date; except that if that date is not a Business Day it shall mean
5:00 P.M., Pittsburgh time, on the next succeeding Business Day.
(g) "Common Stock" means the Class A Common Stock, par value $.01 per
share, of the Company, except that "Common Stock" when used with reference
to any Person other than the Company shall mean the capital stock of that
Person with the greatest voting power, or the equity securities or other
equity interest having power to control or direct the management, of that
Person.
(h) "Continuing Director" shall mean any member of the board of directors
of the Company who is not an Acquiring Person or an Affiliate or Associate of
an Acquiring Person or a nominee or representative of an Acquiring Person or
any such Affiliate or Associate and who was a member of the board of
Page 3.
directors of the Company before the Stock Acquisition Date, and any successor
to a Continuing Director who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person or nominee or representative of an
Acquiring Person or of any such Affiliate or Associate and who was
recommended for election or elected to succeed the Continuing Director by a
majority of the Continuing Directors then on the board of directors of the
Company.
(i) "Distribution Date" means the earlier of the following:
(i) the close of business on the tenth day after the Stock Acquisition
Date, or
(ii) the close of business on the tenth Business Day after the date that
a tender or exchange offer by any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of
any Subsidiary of the Company, or any Person or entity organized, appointed
or established by the Company for or pursuant to any such plan) is first
published or sent or given within the meaning of Rule 14d-2(a) of the General
Rules and Regulations under the Exchange Act, if upon consummation thereof,
the person would be the Beneficial Owner of 20% or more of the shares of
Common Stock then outstanding.
(j) "Person" means any individual, firm, corporation, partnership,
association or other entity.
(k) "Purchase Price" means the exercise price at which a holder of a
Right may purchase one share of Common Stock upon exercise of a Right.
(l) "Qualifying Offer" means a tender offer or exchange offer for all
outstanding shares of Common Stock at a price and on terms determined by at
least a majority of the members of the Continuing Directors who are not
officers or employees of the Company and who are not representatives,
nominees, Affiliates or Associates of the Person making the offer, to be
(i) at a price that is fair to Stockholders (taking into account all
factors that such Continuing Directors deem relevant) and
(ii) otherwise in the best interests of the Company and its Stockholders.
(m) "Section 11(a)(ii) Event" means any event described in
Section 11(a)(ii).
(n) "Section 13 Event" means any event described in clauses (x), (y) or
(z) of Section 13(a).
Page 4.
(o) "Stock Acquisition Date" means the first date of public announcement
(which, for purposes of this definition, includes, without limitation, a
report filed pursuant to Section 13(d) under the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such.
(p) "Subsidiary" means, with reference to any Person, any corporation of
which an amount of voting securities sufficient to elect at least a majority
of the directors of that corporation is beneficially owned, directly or
indirectly, by that Person, or otherwise controlled by that Person.
(q) "Triggering Event" means any Section 11(a)(ii) Event or Section 13
Event.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the
Rights (who, in accordance with Section 3, shall prior to the Distribution
Date also be the holders of the Common Stock) in accordance with the terms
of this Agreement, and the Rights Agent hereby accepts such appointment.
The Company may from time to time appoint such Co-Rights Agents as it deems
necessary or desirable.
Section 3. Issuance of Rights Certificates.
(a) Until the Distribution Date:
(i) the Rights will be evidenced (subject to subsection (b)) by the
certificates for the Common Stock registered in the names of the holders of
the Common Stock (which certificates for Common Stock shall be deemed also
to be certificates for Rights) and not by separate certificates, and
(ii) the Rights will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a transfer to
the Company).
As soon as practicable after the Distribution Date, the Rights Agent will
send by first-class, insured, postage prepaid mail, to each record holder of
the Common Stock as of the close of business on the Distribution Date, at the
address of the holder shown on the records of the Company, one or more rights
certificates in substantially the form of Exhibit A (the "Rights
Certificates"), evidencing one Right for each share of Common Stock so held,
subject to adjustment as provided in this Agreement. If an adjustment in the
number of Rights per share of Common Stock has been made pursuant to
Section 11(p) at the time of distribution of the Rights Certificates, the
Company shall make the necessary and appropriate rounding adjustments
(in accordance with Section 14(a)) so that Rights Certificates representing
only whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights. On and after the Distribution Date, the Rights will be
evidenced solely by the Rights Certificates.
Page 5.
(b) As promptly as practicable following the Record Date, the Company
will send a copy of a Summary of Rights, in substantially the form attached
hereto as Exhibit B (the "Summary of Rights"), by first-class, postage
prepaid mail, to each record holder of the Common Stock as of the close of
business on the Record Date, at the address of the holder shown on the
records of the Company. With respect to certificates for the Common Stock
outstanding as of the Record Date, until the Distribution Date, the Rights
will be evidenced by the certificates for the Common Stock and the registered
holders of the Common Stock shall also be registered holders of the
associated Rights. Until the earlier of the Distribution Date or the
Expiration Date (as defined in Section 7), the transfer of any certificates
representing shares of Common Stock in respect of which Rights have been
issued shall also constitute the transfer of the Rights associated with
those shares of Common Stock.
(c) Rights shall be issued in respect of all shares of Common Stock that
are issued (whether originally issued or from the Company's treasury) after
the Record Date but prior to the earlier of the Distribution Date or the
Expiration Date and, in certain circumstances as provided in Section 22,
after the Distribution Date. Certificates representing those shares of
Common Stock shall also be deemed to be certificates for Rights, and shall
bear the following legend:
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in the Rights Agreement between L.B. Foster Company (the
"Company") and American Stock Transfer & Trust Company (the "Rights Agent")
dated as of May 15, 1997 (the "Rights Agreement"), the terms of which are
incorporated herein by this reference and a copy of which is on file at the
principal office of the Company. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be evidenced by this certificate.
The Company will mail to the holder of this certificate a copy of the Rights
Agreement, as in effect on the date of mailing, without charge promptly
after receipt of a written request therefor. Under certain circumstances set
forth in the Rights Agreement, Rights issued to or held by any Person who is
or was or becomes an Acquiring Person or any Affiliate or Associate thereof
(as such terns are defined in the Rights Agreement), whether currently held
by or on behalf of such Person or by any subsequent holder, may become
null and void.
With respect to certificates containing the foregoing legend, until the
earlier of (i) the Distribution Date or (ii) the Expiration Date, the Rights
associated with the Common Stock represented by such certificates shall be
evidenced by such certificates alone and registered holders of Common Stock
shall also be the registered holders of the associated Rights, and the
transfer of any such certificates shall also constitute the transfer of the
Rights associated with the Common Stock represented by such certificates.
If the Company acquires any Common Stock after the Record Date but before
the Distribution Date, any Rights associated with such Common Stock shall
be deemed canceled and retires to that the Company shall not
Page 6.
be entitled to exercise any rights associated with Common Stock that is no
longer outstanding.
Section 4. Form of Rights Certificates.
(a) The Rights Certificates (and the forms of election to purchase and
of assignment to be printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit A 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 this Agreement, or as may be required to comply with any
applicable law, rule or regulation, including any rule or regulation of
any stock exchange or other trading facility on which the Rights may from
time to time be listed or traded, or to conform to usage. Subject to
Section 11 and Section 22, the Rights Certificates, whenever distributed,
shall be dated as of the Record Date and on their face shall entitle the
holders thereof to purchase such number of shares of Common Stock as shall
be set forth therein at the Purchase Price, but the amount and type of
securities purchasable upon the exercise of each Right and the Purchase Price
thereof shall be subject to adjustment as provided in this Agreement.
(b) Any Rights Certificate issued pursuant to Section 3(a) or Section
22 that represents Rights beneficially owned by a Person described in
Section 7(e), 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 Associate of an Acquiring Person (as such terms are defined
in the Rights Agreement). Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
Section 5. Countersignature and Registration.
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and shall have affixed thereto
the Company's seal or a facsimile thereof which shall be attested by the
Secretary or an Assistant Secretary of the Company, either manually or by
facsimile signature. The Rights Certificates shall be manually countersigned
by the Rights Agent and shall not be valid for any purpose unless so
countersigned. If any officer of the Company who has signed any of the
Rights Certificates ceases 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 Agentt 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. Any Rights Certificate may be
Page 7.
signed on behalf of the Company by any person who, at the actual date of the
execution of such Rights Certificate, is a proper officer of the Company to
sign such Rights Certificate, although at the date of the execution of this
Rights Agreement any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its principal office or offices designated as the
appropriate place for surrender of Rights Certificates upon exercise or
transfer, books for registration and transfer of the Rights Certificates
issued hereunder. Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the number of Rights evidenced
on its face by each of the Rights Certificates and the date of each of the
Rights Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Rights
Certificates; Mutilated, Destroyed, Lost or Stolen Rights Certificates.
(a) Subject to Sections 4(b), 7(e) and 14, at any time after the close
of business on the Distribution Date, and at or prior to the close of
business on the Expiration Date, any Rights Certificate or Certificates may
be transferred, split up, combined or exchanged for another Rights
Certificate or Certificates, entitling the registered holder to purchase a
like number of shares of Common Stock (or other securities, cash or other
assets, as the case may be) as the Rights Certificate or Certificates
surrendered then entitled such holder (or former holder desiring to transfer,
split up, combine or exchange any Rights Certificate or Certificates shall
make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be transferred, split up,
combined or exchanged at the principal office or offices of the Rights Agent
designated for that purpose. Neither the Rights Agent nor the Company shall
be obligated to take any action with respect to the transfer of any
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 the Rights Certificate and shall have provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall, subject to
Sections 4(b), 7(e) and 14, countersign and deliver to the Person entitled
thereto a Rights Certificate or Rights Certificates, as the case may be, as
so requested. The Company may require payment of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any
transfer, split up, combination or exchange of Rights Certificates.
b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation
of a Rights Certificate, and, in case of loss, theft or destruction of
indemnity or security reasonably satifactory to them, and reimbursement to the
Company and the Rights Agent of all reasonable expenses incedental thereto,
and upon surrender to the Rights Agent and cancellation of the Rights
Certificate if mutilated, the Company will execute and deliver a new Rights
Certificate of like tenor to the Rights Agent for countersignature and
delivery to the registered owner in lieu of the Rights Certificat so lost,
stolen, destroyed or mutilated.
Page 8.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to subsection (e), the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby (except as otherwise
provided in this Agreement) in whole or part at any time after the
Distribution Date upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the principal office or offices of the
Rights Agent designated for that purpose, together with payment of the
aggregate Purchase Price with respect to the total number of shares of
Common Stock (or other securities, cash or other assets, as the case may be)
as to which the surrendered Rights are then exercisable, at or prior to the
earliest of (the earliest of (i), (ii) and (iii) being herein referred to as
the "Expiration Date"):
(i) the close of business on May 15, 2007 (the "Final Expiration Date"),
(ii) the time at which the Rights are redeemed as provided in
Section 23, or,
(iii) the time at which the Rights are exchanged as provided in Section 24.
(b) The Purchase Price for each share of Common Stock pursuant to the
exercise of a Right shall initially be $30.00 and shall be subject to
adjustment from time to time as privided in Sections 11 and 13(a) and shall
be payable in accordance with subsection (c).
(c) Upon receipt of a Rights Certificate representing exercisable Rights,
with the for of election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so exercised, of the
Purchase Price per share of Common Stock (or other shares, securities, cash
or other assets, as the case may be) to be purchased as set forth below and
an amount equal to any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k), thereupon promptly:
(i) (A) requisition from any transfer agent of the shares of Common
Stock (or make available, if the Rights Agent is the transfer agent for those
shares) certificates for the total number if shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, or
(B) if the Company shall have elected to deposit the total
number of shares of Common Stock issuable upon exercise of the Rights
hereunder with a depositary agent, requisition from the depositary agent
depositary receipts representing the number of shares of Common Stock as are
to be purchased (in which case certificates for the shares of Common Stock
represented by such receipts shall be deposited by the transfer agent with
Page 9.
the depositary agent) and the Company will direct the depositary agent to
comply with such request,
(ii) requisition from the Company the amount of cash, if any, to be paid
in lieu of fractional shares in accordance with Section 14,
(iii) after receipt of such certificates or depositary receipts, cause the
same to be delivered to or upon the order of the registered holder of the
Rights Certificate, registered in such name or names as may be designated by
the holder, and
(iv) after receipt thereof, deliver such cash, if any, to or upon the
order of the registered holder of the Rights Certificate.
The payment of the Purchase Price (as the amount may be reduced pursuant to
Section 11(a)(iii) shall be made in cash or by certified bank check or bank
draft payable to the order of the Company. If the Company is obligated to
issue other securities of the Company, to pay cash and/or to distribute other
property pursuant to Section 11(a), the Company will make all arrangements
necessary so that such other securities, cash and/or other property are
available for distribution by the Rights Agent, if and when appropriate.
(d) If the registered holder of any Rights Certificate exercises fewer than
all the Rights evidenced thereby, a new Rights Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to, or upon the order of, the registered holder of the
Rights Certificate, registered in such name or names as may be designated by
such holder, subject to Section 14.
(e) Notwithstanding anything in this Agreement to the contrary, from and
after the first occurrence of a Section 11(a)(ii) Event, any Rights
beneficially owned by:
(i) an Acquiring Person or an Associate or Affiliate of an Acquiring
Person,
(ii) a transferee of an Acquiring Person (or an Associate or Affiliate
of an Acquiring Person) who becomes a transferee after the Acquiring Person
becomes such, or
(iii) a transferee of an Acquiring Person (or an Associate or Affiliate
of an Acquiring Person) who becomes a transferee prior to or concurrently
with the Acquiring Person becoming such and receives such Rights pursuant to
either:
(A) a transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in the Acquiring Person
or to any Person with whom the Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred Rights, or
Page 10.
(B) a transfer that the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding that has as a
primary purpose or effect the avoidance of this subsection (e),
shall become null and void without any further action and no holder of such
Rights shall have any rights whatsoever with respect to such Rights, whether
under this Agreement or otherwise. The Company shall use all reasonable
efforts to ensure that this subsection (e) and Section 4(b) 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 hereunder with
respect to an Acquiring Person or its Affiliates, Associates or transferees.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless the registered holder shall
have:
(i) completed and signed the certificate contained in the form of
election to purchase set forth on the reverse side of the Rights Certificate
surrendered for such exercise, and
(ii) provided such additional evidence of the identity of the Beneficial
Owner (or former Beneficial Owner) of the Rights or Affiliates or Associates
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Rights Certificates. All Rights
Certificates surrendered for 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
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.
Section 9. Reservation and Availability of Capital Stock.
(a) The Company covenants and agrees that it will from and after such
time as the Rights become exercisable use its best reasonable efforts to
cause to be reserved and kept available out of its authorized and unissued
shares of Common Stock (and any other securities for which the Rights become
exercisable), the number of shares of Common Stock (and/or other securities)
Page 11.
that, as provided in this Agreement, including without limitation Section
11(a)(iii), will be sufficient to permit the exercise in full of all
outstanding Rights.
(b) So long as the shares of Common Stock (and/or other securities)
issuable and deliverable upon the exercise of the Rights may be listed on any
national securities exchange or authorized for quotation on the National
Association of Securities Dealers, Inc. Automated Quotation System
("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 authorized for such quotation or to be listed on such exchange
upon official notice of issuance upon such exercise.
(c) The Company shall use its best efforts to:
(i) file, as soon as practicable following the earliest date after
the first occurrence of a Section 11(a)(ii) Event, a registration statement
under the Act, with respect to the securities purchasable upon exercise of
the Rights on an appropriate form,
(ii) cause that registration statement to become effective as soon as
practicable after such filing, and
(iii) cause that registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Act) until the
earlier of:
(A) the date as of which the Rights are no longer exercisable for
such securities, and
(B) the Expiration Date.
The Company will also take such action as may be appropriate under, or to
ensure compliance with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the Rights. The Company may
temporarily suspend, for up to 90 days after the date set forth in clause
(i) of the first sentence of this subsection (c), the exercisability of the
Rights in order to prepare and file such registration statement and permit it
to become effective. Upon any such suspension, the Company shall issue a
public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the
suspension is no longer in effect. In addition, if the Company shall
determine that a registration statement is required following the
Distribution Date, the Company may temporarily suspend the exercisability
of the Rights until such time as a registration statement has been declared
effective so long as the Company uses good faith efforts to that end.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification
in that jurisdiction has not been obtained, the exercise therof is not
permitted under applicable law or a registration statement has not been
declared effective.
Page 12.
(d) The Company will take all such action as may be necessary to
ensure that all Common Stock and/or other shares of capital stock delivered
upon exercise of Rights shall, at the time of delivery of the certificates
for such shares (subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and nonassessable.
(e) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges that may
be payable in respect of the issuance or delivery of the Rights Certificates
and of any certificates for Common Stock (and/or other securities, as the
case may be) issued upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax payable in respect of any
transfer or delivery of Rights Certificates to a Person other than, or the
issuance or delivery of Common Stock (and/or other securities, as the case
may be) in respect of a name other than that of the registered holder of the
Rights Certificates evidencing Rights surrendered for exercise or to issue
or deliver any certificates for Common Stock (and/or other securities, as the
case may be), in a name other than that of the registered holder upon the
exercise of any Rights until such tax shall have been paid (any such tax
being payable by the holder of such Rights Certificate at the time of
surrender) or until it has been established to the Company's reasonable
satisfaction that no such tax is due.
Section 10. Common Stock Record Date. Each Person in whose name any
certificate for Common Stock (and/or other securities, as the case may be)
is issued upon the exercise of Rights shall for all purposes be deemed to
have become the holder of record of that Common Stock and/or other
securities, as the case may be) represented thereby on, and such certificate
shall be dated, the date upon which the Rights Certificate evidencing those
Rights was duly surrendered and payment of the Purchase Price (and all
applicable transfer taxes) was made. If the date of the surrender and payment
is a date upon which a Common Stock (and/or other securities, as the case may
be) transfer books of the Company are closed, the Person shall be
deemed to have become the record holder of such shares (fractional or
otherwise) on, and such certificate shall be dated, the next succeeding
Business Day on which the Common Stock (and/or other securities, as the case
may be) transfer books of the Company are open. Prior to the exercise of the
Rights evidenced thereby, the holder of a Rights Certificate shall not be
entitled to any rights of a stockholder of the Company with respect to shares
for which the Rights shall be exercisable, including, without limitation, the
right to vote, to receive dividends or other distributions or to exercise any
preemptive rights, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided in this Agreement.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares or
Number of Rights. The Purchase Price, the number and kind of shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) If the Company at any time after the Distribution Date:
Page 13.
(A) declares a dividend on the Common Stock payable in shares of
Common Stock,
(B) subdivides the outstanding Common Stock,
(C) combines the outstanding Common Stock into a smaller number of
shares, or
(D) issues any shares of its capital stock in a reclassification of
the Common 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 subsection (a) and Section 7(e), the
number and kind of shares of Common Stock or capital stock, as the case may
be, issuable on the record date for such dividend or of the effective date of
such subdivision, combination or reclassification, shall be proportionately
adjusted so that the holder of any Right exercised after such time shall be
entitled to receive, upon payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Common Stock or capital stock, as the
case may be, that, if such Right had been exercised immediately prior to
such date and at a time when the Common Stock transfer books of the Company
were open, the holder would have owned upon such exercise and been entitled
to receive by virtue of such dividend, subdivision, combination or
reclassification.
(ii) If any Person becomes an Acquiring Person other than pursuant
to a transaction subject to Section 13(a) or a Qualifying Offer, then,
promptly following the occurrence of such event, proper provision shall be
made so that each holder of a Right (except as provided below and in Section
7(e)) shall thereafter have the right to receive, upon exercise thereof at
the then current Purchase Price in accordance with this Agreement, such
number of shares of Common Stock of the Company as shall equal the result
obtained by (x) multiplying the then current Purchase Price by the number of
shares if Common Stock for which a Right was exercisable immediately prior to
the first occurrence of a Section 11(a)(ii) Event, and (y) dividing
that product (which, following such first occurrence, shall thereafter be
referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the current market price (determined
pursuant to subsection (d)) per share of Common Stock on the date of such
first occurrence (such number of shares, the "Adjustment Shares").
(iii) If the number of shares of Common Stock authorized by the
Company's certificate of incorporation but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights is not
Page 14.
sufficient to permit the exercise in full of the Rights in accordance with
the foregoing paragraph (ii) of this subsection (a), the Company shall:
(A) determine the excess of (1) the value of the Adjustment
Shares issuable upon the exercise of a Right (the "Current Value") over (2)
the Purchase Price (such excess, the "Spread"), and
(B) with respect to each Right, make adequate provision to substitute
for the Adjustment Shares, upon payment of the applicable Purchase Price:
(1) cash,
(2) a reduction in the Purchase Price,
(3) Common Stock or other equity securities of the
Company (including, without limitation, shares, or units of shares, of Class
B Common Stock that the Board of Directors of the Company has deemed to have
the same value as shares of Common Stock (such shares of Class B Common Stock
being "common stock equivalents")),
(4) debt securities of the Company,
(5) other assets, or
(6) any combination of the foregoing, having an
aggregate value equal to the Current Value, where such aggregate value has
been determined by the board of directors of the Company based upon the
advice of a nationally recognized investment banking firm selected by the
board of directors.
If the Company shall not have made adequate provision to deliver value
pursuant to subparagraph (B) of this paragraph (iii) within 30 days following
the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y)
the date on which the Company's right of redemption pursuant to Section 23(a)
expires (the later of (x) and (y) being referred to herein as the "Section
11(a)(ii) Trigger Date"), then the Company shall be obligated to deliver,
upon the surrender for exercise of a Right and without requiring payment of
the Purchase Price, shares of Common Stock (to the extent available) and
then, if necessary, cash, which shares and/or cash have an aggregate value
equal to the Spread. If the board of directors of the Company determines 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, 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
Page 15.
additional shares (such period, as it may be extended, the "Substitution
Period"). To the extent that the Company determines that some
action need be taken pursuant to this Section 11(a)(iii), the Company (x)
shall provide, subject to Section 7(e), 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 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 the purposes of this Section 11(a)(iii), the value
of the Common Stock shall be the current market price (as determined
pursuant to subsection (d)) per share of the Common Stock on the
Section 11(a)(ii) Trigger Date and the value of any "common stock equivalent"
shall be deemed to have the same value as the Common Stock on such date.
(b) If the Company fixes a record date for the issuance of rights,
options or warrants to all holders of Common Stock entitling them to
subscribe for or purchase (for a period expiring within 45 calendar days
after such record date) Common Stock (or shares having the same rights,
privileges and preferences as the shares of Common Stock ("equivalent
stock")) or securities convertible into Common Stock or equivalent stock at
a price per share of Common Stock or per share of equivalent stock (or
having a conversion price per share, if a security convertable into Common
Stock or equivalent stock) less than the current market price (as determined
pursuant to subsection (d)) per share of Common Stock on such record date,
the Purchase Price to be in effect after such record date shall be determined
by multiplying the Purchase Price in effect immediately before such record
date by a fraction, the numerator of which is the number of shares of Common
Stock outstanding on such record date, plus the number of shares of Common
Stock that the aggregate offering price of the total number of shares of
Common Stock and/or equivalent stock so to be offered (and/or the aggregate
initial conversion price of the convertible securities so to be offered)
would purchase at such current market price, and the denominator of which
shall be the number of shares of Common Stock outstanding on such record date,
plus the number of additional shares of Common Stock and/or equivalent stock
to be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). If such subscription
price may be paid by delivery of consideration part or all of which may be in
a form other than cash, the value of such consideration shall be as
determined in good faith by the board of directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the holders of the Rights.
Shares of Common Stock owned by or held for the account of the Company shall
not be deemed outstanding for the purpose of any such computation. An
adjustment shall be made successively whenever such a record date is fixed,
and in the event that such rights or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price that would then be in effect
if such record date had not been fixed.
Page 16.
(c) If the Company fixes a record date for a distribution to all
holders of Common Stock (including any distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation)
of evidences of indebtedness, cash (other than a regular quarterly cash
dividend out of the earnings or retained earnings of the Company), assets
(other than a dividend payable in Common Stock, but including any dividend
payable in stock other than Common Stock) or subscription rights or warrants
(excluding those referred to in subsection (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 the record date by a fraction, the
numerator of which shall be the current market price (as determined pursuant
to subsection (d)) per share of Common Stock on the record date, less the
fair market value (as determined in good faith by the board of directors of
the Company, whose determination shall be described in a statement filed with
the Rights Agent) of the portion of the cash, assets or evidences of
indebtedness so to be distributed or of the subscription rights or warrants
applicable to a share of Common Stock and the denominator of which shall be
the current market price (as determined pursuant to subsection (d)) per share
of Common Stock. Adjustments shall be made successively whenever such a
record date is fixed, and if the distribution is not so made, the Purchase
Price shall be adjusted to be the Purchase Price that would have been in
effect if such record date had not been fixed.
(d) For the purpose of any computation hereunder, other than
computations made pursuant to Section 11(a)(iii) and Section 24(c), the
"current market price" per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of Common Stock for
the 30 consecutive Trading Days (as defined below) immediately prior to that
date; for purposes of computations made pursuant to Section 11(a)(iii), the
"current market price" per share of Common Stock on any date shall be deemed
to be the average of the daily closing prices per share of that Common Stock
for the 10 consecutive Trading Days immediately following that date; and for
purposes of computations made pursuant to Section 24(c),
the "current market price" per share of Common Stock shall be deemed to
be the closing price per share of Common Stock on the Trading Day immediately
preceding the date of exchange pursuant to Section 24. If the current market
price per share of Common Stock is determined during a period following the
announcement by the issuer of the Common Stock of:
(i) a dividend or distribution on such Common Stock payable in shares of
such Common Stock or securities convertible into shares of such Common Stock
(other than the Rights), or
(ii) any subdivision, combination or reclassification of such Common
Stock;
and prior to the expiration of the requisite 30 Trading-Day or 10 Trading-Day
period, as set forth above, after the ex-dividend date for the dividend or
distribution, or the record date for the subdivision, combination or
reclassification, then, and in each such case, the "current market price"
shall be properly adjusted to take into account ex-dividend trading. The
Page 17.
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to
securities listed on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if the shares
of Common Stock are not listed or admitted to trading on any national
securities exchange, the last quoted sale price or, if not so quoted, the
average of the high bid and low asked prices in the over-the-counter market,
as reported by Nasdaq or such other system then in use, or, if on any such
date the shares of Common Stock are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Common Stock selected by the board of
directors of the Company. If on any such date no market maker is making a
market in the Common Stock, the fair value of such shares on such date as
determined in good faith by the board the transaction of business or, if the
shares of Common Stock are not listed or admitted to trading on any national
securities exchange, a Business Day. If the Common Stock is not publicly
held or not so listed or traded, "current market price" per share shall mean
the fair value per share as determined in good faith by the board of
directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.
(e) Notwithstanding anything in this Agreement to the contrary, no
adjustment in the Purchase Price shall be required unless the adjustment
would require an increase or decrease of at least 1% in the Purchase Price,
but any adjustments that by reason of this subsection (e) are not required to
be made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a share of Common Stock or
other share, as the case may be. Notwithstanding the first sentence of this
subsection (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 that mandates such
adjustment, or
(ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 13(a),
the holder of any Right thereafter exercised becomes entitled to receive any
shares of capital stock other than Common Stock, the number of such other
shares so receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with respect to
Page 18.
the Common Stock contained in subsections (a), (b), (c), (e), (g), (h), (i),
(j), (k) and (m), and Sections 7, 9, 10, 13 and 14 with respect to the
Common Stock shall apply on the like terms to any such other shares.
(g) All Rights originally issued by the Company after any adjustment
of the Purchase Price shall evidence the right to purchase, at the adjusted
Purchase Price, the number of shares of Common Stock purchasable from time to
time 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 subsection (i), upon each adjustment of the Purchase Price as a result of
the calculations made in subsections (b) and (c), each Right outstanding
immediately prior to the making of the adjustment shall thereafter evidence
the right to purchase, at the adjusted Purchase Price, that number of shares
of Common Stock (calculated to the nearest one-thousandth) obtained by:
(i) multiplying (x) the number of shares covered by a Right
immediately prior to this adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price, and
(ii) dividing the product so obtained by the Purchase Price in effect
immediately after such adjustment of the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of the
Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of shares of Common Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in the number of
Rights shall be exercisable for the number of shares of Common Stock for
which a Right was exercisable immediately prior to the adjustment. Each
Right held of record prior to the adjustment of the number of Rights shall
become that number of Rights (calculated to the nearest ten-thousandth)
obtained by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect
immediately after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. This record date may be the date on
which the Purchase Price is adjusted or any day thereafter, but, if the
Rights Certificates have been issued, shall be at least 10 days later than
the date of the public announcement. If Rights Certificates have be
date Rights Certificates evidencing, subject to Section 14, the additional
Rights to which the holders shall be entitled as a result of the adjustment,
or, at the option of the Company, shall cause to be distributed to the
holders of record in substitution and replacement for the Rights Certificates
held by the 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 the holders shall be entitled after the adjustment.
Page 19.
Rights Certificates so to be distributed shall be issued, executed and
countersigned in the manner provided for in this Agreement (and may bear, at
the option of the Company, the adjusted Purchase Price) and
shall be registered in the names of the holders of record of Rights
Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of shares of Common Stock issuable upon the exercise of the
Rights, the Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per share and the number of shares
that were expressed in the initial Rights Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below the then stated or par value, if any, of the number
of shares of Common Stock issuable upon exercise of the Rights, the Company
shall take any corporate action that may, in the opinion of its counsel, be
necessary for the Company validly to issue fully paid and nonassessable
shares of Common Stock at the 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 that
event the issuance to the holder of any Right exercised after that record
date the number of shares of Common Stock and other capital stock or
securities of the Company, if any, issuable upon such exercise over and above
the number of shares of Common 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 the adjustment. In that case, the Company
shall deliver to such holder a due bill or other appropriate
nstrument evidencing the holder's right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring the adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and
to the extent that in their good faith judgment the board of directors of the
Company shall determine to be advisable in order that any:
(i) consolidation or subdivision of the Common Stock,
(ii) issuance wholly for cash of any shares of Common Stock at less
than the current market price,
(iii) issuance wholly for cash of shares of Common Stock or
securities that by their terms are convertible into or exchangeable for
shares of Common Stock,
(iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this
Page 20.
Section 11, hereafter made by the Company to holders of its Common Stock
shall not be taxable to such stockholders.
(n) The Company covenants and agrees that it will not, at any time after
the Distribution Date:
(i) consolidate with or merge with or into any other Person (other
than a Subsidiary of the Company in a transaction that complies with
subsection (o)), or
(ii) sell or transfer (or permit any Subsidiary to sell or transfer),
in one transaction, or a series of related transactions, assets or earning
power aggregating more than 50% of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to any other Person or Persons (other
than the Company and/or any of its Subsidiaries in one or more transactions
each of which complies with subsection (o));
if:
(x) at the time of or immediately after such consolidation, merger or
sale there are any rights, warrants or other instruments or securities
outstanding or agreements in effect that would substantially diminish or
otherwise eliminate the benefits intended to be afforded by the Rights; or
(y) prior to, simultaneously with or immediately after such
consolidation, merger or sale, the stockholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of
Section 13(a) shall have received a distribution of Rights previously owned
by such Person or any of its Affiliates and Associates.
(o) The Company covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 23 or Section 27, take (or
permit any Subsidiary to take) any action if at the time the action is taken
it is reasonably foreseeable that the action will diminish substantially or
eliminate the benefits intended to be afforded by the Rights.
(p) Notwithstanding anything in this Agreement to the contrary, if the
Company at any time after the Declaration Date and before the Distribution
Date:
(i) declares a dividend on the outstanding shares of Common Stock payable
in shares of Common Stock,
(ii) subdivides the outstanding shares of Common Stock, or
(iii) combines the outstanding shares of Common Stock into a smaller number
of shares,
Page 21.
the number of Rights associated with each share of Common Stock then
outstanding, or issued or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the number of Rights
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 immediatley prior to the occurrence of the event and the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Section 11 or Section 13
(other than adjustments occurring prior to the Distribution Date or any
Triggering Event), the Company shall:
(i) promptly prepare a certificate setting forth the adjustment and a
brief statement of the facts accounting for the adjustment,
(ii) promptly file with the Rights Agent, and with each transfer agent for
the Common Stock, a copy of the certificate, and
(iii) mail a brief summary thereof to each holder of a Rights Certificate
in accordance with Section 26.
Promptly after the Distribution Date or any Triggering Event, the Company
shall comply with the foregoing for any adjustment that occurred prior to the
Distribution Date or the Triggering Event. The Rights Agent shall be fully
protected in relying on any certificate delivered by the Company pursuant to
this Section 12 and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) If, following the Stock Acquisition Date, directly or indirectly,
(x) the Company shall consolidate with, or merge into, any other Person
(other than a Subsidiary of the Company in a transaction that complies with
Section 11(o)), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger,
(y) any Person (other than a Subsidiary of the Company in a transaction
that complies with Section 11(o)) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or surviving
corporation of the consolidation or merger and, in connection with the
consolidation or merger, all or part of the outstanding shares of Common
Page 22.
Stock shall be changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or
(z) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating more than
50% of the assets or earning power of the Company and its Subsidiaries (taken
as a whole) to any Person or Persons (other than the Company or any
Subsidiary of the Company in one or more transactions each of which and all
of which comply with Section 11(o));
then, and in each such case (except as contemplated by subsection (d)),
proper provision shall be made so that:
(i) each holder of a Right, except as provided in Section 7(e),
shall thereafter have the right to receive, upon the exercise thereof at the
then current Purchase Price in accordance with the terms of this Agreement,
such number of validly authorized and issued, fully paid, non-assessable and
freely tradeable shares of Common Stock of the Principal Party (as defined
below), not subject to any liens, encumbrances, rights of first refusal or
other adverse claims or restrictions, as shall be equal to the results
obtained by:
(1) multiplying the then current Purchase Price by the number of shares of
Common Stock for which a Right is exercisable immediately prior to the first
occurrence of a Section 13 Event (or, if a Section 11(a)(ii) Event has
occurred prior to the first occurrence of a Section 13 Event, multiplying
the number of such shares for which a Right was exercisable immediately
prior to the first occurrence of a Section 11(a)(ii) Event by the Purchase
Price in effect immediately prior to such first occurrence) and
(2) dividing that product (which, following the first occurrence of a
Section 13 Event, shall be referred to as the "Purchase Price" for each
Right and for all purposes of this Agreement) by 50% of the current market
price (determined pursuant to Section 11(d)(i)) per share of the Common
Stock of such Principal Party on the date of consummation of such Section 13
Event;
(ii) such Principal Party shall thereafter be liable for, and shall
assume, by virtue of such Section 13 Event, all the obligations and duties of
the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that the provisions of
Section 11 shall apply only to such Principal Party following the first
occurrence of a Section 13 Event;
Page 23.
(iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its Common
Stock) in connection with the consummation of any such transaction as may
be necessary to assure that the provisions hereof shall thereafter be
applicable, as nearly as reasonably may be, in relation to its shares of
Common Stock thereafter deliverable upon the exercise of the Rights; and
(v) Section 11(a)(ii) shall be of ne effect following the first occurrence
of any Section 13 Event.
(b) "Principal Party" shall mean:
(i) in the case of any transaction described in clause (x) or (y) of the
first sentence of subsection (a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company are converted in
the merger or consolidation, and if no securities are so issued, the Person
that is the other party to the merger or consolidation; and
(ii) in the case of any transaction described in clause (z) of the first
sentence of subsection (a), the Person that receives the greatest portion of
the assets or earning power transferred pursuant to such transaction or
transactions;
In the case of either paragraph (i) or (ii) of this subsection (b):
(1) 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, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which is and has been so
registered, "Principal Party" shall refer to such other Person; and
(2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been
so registered, "Principal Party" shall refer to whichever of such Persons is
the issuer of the Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such consolidation, merger, sale
or transfer unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock that have not been issued or reserved
for issuance to permit the exercise in full of the Rights in accordance with
this Section 13 and unless prior thereto the Company and the Principal Party
shall have executed and delivered to the Rights Agent a supplemental
agreement providing for the terms set forth in subsections (a), the Principal
Party will:
Page 24.
(i) prepare and file a registration statement under the Act, with respect
to the Rights and the securities purchasable upon exercise of the Rights on
an appropriate form, and will use its best efforts to cause such registration
statement to:
(A) become effective as soon as practicable after such filing, and
(B) remain effective (with a prospectus at all times meeting the
requirements of the Act) until the Expiration Date; and
(ii) deliver to holders of the Rights historical financial statements
for the Principal Party and each of its Affiliates that comply in all
respects with the requirements for registration on Form 10 under the Exchange
Act.
This Section 13 shall similarly apply to successive mergers or consolidations
or sales or other transfers. If a Section 13 Event occurs at any time after
the occurrence of a Section 11(a)(ii) Event, the Rights that have not
theretofore been exercised shall thereafter become exercisable in the manner
described in subsection (a), subject to Section 7(e).
(d) Notwithstanding anything in this Agreement to the contrary, this
Section 13 shall not apply to a transaction described in clauses (x) and (y)
of the first sentence of subsection (a) if:
(i) the transaction is consummated with a Person or Persons who acquired
shares of Common Stock pursuant to a Qualifying Offer (or a wholly owned
subsidiary of any such Person or Persons),
(ii) the price per share of Common Stock offered in the transaction is
not less than the highest price paid per share pursuant to the Qualifying
Offer, and
(iii) the form of consideration being offered to the remaining holders
of shares of Common Stock pursuant to the transaction is the same as the form
of consideration paid pursuant to the Qualifying Offer.
Upon consummation of a transaction contemplated by this subsection (d), all
Rights shall expire.
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights,
except prior to the Distribution Date as provided in Section 11(p), or to
distribute Rights Certificates that evidence fractional Rights. After the
Distribution Date, in lieu of fractional Rights, there shall be paid to the
registered holders of the Rights Certificates with regard to which fractional
Rights would otherwise be issuable, an amount in cash equal to the same
fraction of the current market value of a whole Right. For purposes of this
subsection (a), the current market value of a whole Right shall be the
Page 25.
closing price of the Rights for the Trading Day immediately prior to the date
on which the fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case
as reported in the principal consolidated transaction reporting system with
respect to securities listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted to trading on the New
York Stock Exchange, as reported in the principal consolidated transaction
reporting system with respect to securities listed 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 sysem with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading, or if the Rights are not listed or admitted to trading
on any national securities exchange, the last quoted price or, if not so
quoted, the average of the high bid and low asked prices in the over-the-
counter market, as reported by Nasdaq or such other system then in use or, if
on any such date the Rights are not quoted by any such organization, the
average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by the Board of Directors
of the Company. If on any such date no such market maker is making a market
in the Rights, the fair value of the Rights on such date as determined in
good faith by the board of directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certificates that
evidence fractional shares of Common Stock. In lieu of fractional shares of
Common Stock, the Company may pay to the registered holders of Rights
Certificates at the time the Rights are exercised as herein provided an
amount in cash equal to the same fraction of the current market value of one
share of Common Stock. For purposes of this subsection (b), the current
market value of one share of Common Stock shall be the closing price of one
share of Common Stock (as determined pursuant to Section 11(d)) for the
Trading Day immediately prior to the date of exercise.
(c) The holder of a Right by the acceptance of the Rights expressly
waives his right to receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this Section 14.
Section 15. Rights of Action. All rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the Common Stock). 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, on 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 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
Page 26.
to specific performance of the obligations hereunder and injunctive relief
against actual or threatened violations of this Agreement.
Section 16. Agreement of Rights Holders. Every holder of a Right by
accepting the same consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of Common Stock;
(b) after the Distribution Date, the Rights Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the
principal office or offices of the Rights Agent designated for that purpose,
duly endorsed or accompanied by a proper instrument of transfer and with the
appropriate forms and certificates fully executed;
(c) subject to Section 6(a) and Section 7(f), the Company and the Rights
Agent may deem and treat the person in whose name a Rights Certificate (or,
prior to the Distribution Date, the associated Common Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing on the Rights
Certificates or the associated Common Stock certificate made by anyone other
than the Company or the Rights Agent) for all purposes, and neither the
Company nor the Rights Agent, subject to the last sentence of Section 7(e),
shall be affected by any notice to the contrary; and
(d) notwithstanding anything in this Agreement to the contrary, neither
the Company nor the Rights Agent shall have any liability to any holder of a
Right or other Person as a result of its inability to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated
or enacted by any government authority, prohibiting or otherwise restraining
performance of such obligation, but the Company shall use its best efforts to
have any such order, decree or ruling lifted or otherwise overturned as soon
as possible.
Section 17. Rights Certificate Holder Not Deemed a 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 number of shares of
Common Stock or any other securities of the Company that may at any time be
issuable on the exercise of the Rights represented thereby, nor shall
anything contained in this Agreement 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
Page 27.
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 Section 25), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate have been exercised in accordance with the provisions
of this Agreement.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation
for all services rendered by it hereunder and, from time to time, on demand
of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, suit, action, proceeding or
expense, incurred without negligence, bad faith or willful misconduct on the
part of the Rights Agent, for any action taken or suffered by the Rights Agent
in connection with the acceptance and administration of this Agreement and
the exercise and performance of its duties hereunder, including the costs
and expenses of defending against and appealing any claim of liability
arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability for
or in respect of any action taken, suffered or omitted by it in connection
with its acceptance and administration of this Agreement or the exercise and
performance of its duties hereunder in reliance upon any Rights Certificate
or certificate for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement,
instruction 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 advise of counsel as set forth in
Section 20.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor Rights
Agent may be merged or with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the Rights Agent or any
successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust or stockholder services business of the Rights Agent or
any successor Rights Agent, shall be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of either of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 21. 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
Page 28.
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 in this
Agreement.
(b) In case at any time the name of the Rights Agent shall be changed and
at such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either in its prior
name or in its changed name; and in all such cases such Rights Certificates
shall have the full force provided in the Rights Certificates and in this
Agreement.
Section 20. Duties of Rights Agent. The Rights Agent shall have only the
duties and obligations expressly set forth in this Agreement. There shall be
no implied duties or obligations of the Rights Agent. The Rights Agent
undertakes the duties and obligations imposed by this Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel selected by it
(who may be legal counsel for the Company), and the advice of such counsel
shall be full and complete authorization and protection to the Rights Agent
as to any action taken, suffered or omitted by it in good faith and in
accordance with such advice.
(b) Whenever in the administration, exercise and performance of its
duties under this Agreement the Rights Agent shall deem it necessary or
desirable that any fact or matter (including, without limitation, the
identity of any Acquiring Person and the determination of "current market
price") be proved or established by the Company prior to taking, suffering
or omitting 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 President, any
Vice President, the Treasurer, any Assistant Treasurer, the Secretary or any
Assistant Secretary of the Company and delivered to the Rights
Agent; and any such certificate shall be full authorization and protection
to the Rights Agent for any action taken, suffered or omitted in good faith
by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall not be liable or responsible hereunder to
the Company except for its own negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable or responsible for or by
reason of any of the representations, warranties, 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
Page 29.
required to verify the same, but all such representations, warranties,
statements and recitals are and shall be deemed to have been made by the
Company only.
(e) The Rights Agent shall not have any liability or responsibility in
respect of the legality, validity or enforceability of this Agreement or the
execution and delivery hereof (except the due execution hereof by the Rights
Agent) or in respect of the legality, validity, enforceability or execution
of any Rights Certificate (except its countersignature thereof); nor shall
it be liable or 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 liable or responsible for any adjustment including without
limitation, as required under the provisions of Section 11 or 13 (including
any adjustment which results in the Rights becoming void) or liable 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 notice or certificate pursuant to
Section 12 describing any such adjustment); nor shall it by any act hereunder
be deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock or other securities to be issued
pursuant to this Agreement or any Rights Certificate or as to whether any
shares of Common Stock or other securities will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably be
required by the Rights Agent or 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 or directions with respect to the administration of this
Agreement and the execution and performance of its duties hereunder and
certificates delivered pursuant to any provision hereof from the Chairman
of the Board, any Vice Chairman of the Board, the President, any 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 or responsible for any action taken, suffered or omitted
to be taken by it in good faith in accordance with instructions of any officer
or for any delay in acting while waiting for such instructions.
(h) The Rights Agent and any Affiliate, 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 the
Page 30.
Rights Agent were not Rights Agent under this Agreement. Nothing herein
shall preclude the Rights Agent or any such Affiliate, stockholder, director,
officer or employee 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 liable
or responsible for any act, omission, default, neglect or misconduct of any
such attorneys or agents or for any loss or damages 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. The Rights Agent shall not be under any
duty or responsibility to insure compliance with any applicable federal or
state securities laws in connection with the issuance, transfer or exchange
of the Rights Certificates.
(j) No provision of this Agreement shall require the Rights Agent to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of its
rights if there shall be reasonable grounds for believing that repayment of
such funds or adequate indemnification against such risk or liability is
not reasonably assured to it.
(k) If, with respect to any Rights Certificate surrendered to the
Rights Agent for exercise, transfer, split up, combination or exchange, the
Certificate attached to the form of assignment or form of election to
purchase, as the case may be, has either not been completed or indicates an
affirmative response to clause 1 and/or 2 thereof, the Rights Agent shall
not take any further action with respect to such requested exercise,
transfer, split up, combination or exchange without first consulting with
the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' prior notice in writing mailed to the Company, and
to each transfer agent of the Common Stock, by registered or certified mail,
and, after 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' prior notice in writing, mailed to t
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 30 days after giving
notice of such removal or after it has been notified in writing of such
resignation or incapacity by the resigning or incapacitated Rights Agent or
by the holder of a Rights Certificate (who shall, with such notice, submit
his Rights Certificate for inspection by the Company), then any
Page 31.
shall be a corporation organized and doing business under the laws of the
United States or of the Commonwealth of Pennsylvania (or of any other state
of the United States so long as such corporation is authorized to do
business as a banking institution in the Commonwealth of Pennsylvania),
in good standing, having a principal office in the Commonwealth of
Pennsylvania, which is authorized under such laws to exercise corporate
trust powers and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as Rights Agent
a combined capital and surplus of at least $50,000,000. After appointment,
the successor Rights Agent shall be vested with the same powers, rights,
duties and responsibilities as if it had been originally named as Rights Agent
without further act or deed; but the predecessor Rights Agent shall deliver
and transfer to the successor Rights Agent any property at the time held by
it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any
such appointment, the Company shall file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock, and
mail a notice thereof in writing to the registered holders of the Rights
Certificates. Failure to give any notice provided for in this Section 21,
however, or any defect therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
Section 22. Issuance of Ner Rights Certificates. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by its board of directors to reflect any
adjustment or change in the Purchase Price and the number or kind or class
of shares or other securities or property purchasable under the Rights
Certificates made in accordance with this Agreement. In addition, in
connection with the issuance or sale of shares of Common Stock following the
Distribution Date and prior to the redemption of the Rights, the Company:
(i) shall, with respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or warrants or under any employee
plan or arrangement, or upon the exercise, conversion or exchange of
securities hereafter issued by the Company, and
(ii) may, in any other case, if deemed necessary or appropriate by the
board of directors of the Company;
issue Rights Certificates representing the appropriate number of Rights in
connection with such issuance or sale. No such Rights Certificate shall be
issued if, and to the extent that, the Company shall be advised by counsel
that such issuance would create a significant risk of material adverse tax
consequences to the Company or the Person to whom such Rights Certificate
Page 32.
would be issued, or appropriate adjustment has otherwise been made in lieu
of the issuance thereof.
Section 23. Redemption and Termination.
(a) The board of directors of the Company may, at its option, at any time
before the earlier of:
(i) the close of business on the tenth day following the Stock
Acquisition Date, or
(ii) the Final Expiration Date;
redeem all but not less than all of the then outstanding Rights at a
redemption price of $.05 per Right, as such amount may be appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price being referred to as
the "Redemption Price"). Notwithstanding the foregoing, if the board of
directors of the Company authorizes redemption of the Rights in either of
the circumstances set forth in clauses (x) or (y) below, then there must
be Continuing Directors then in office and the authorization shall require
the concurrenct of a majority of such Continuing Directors:
(x) the authorization occurs on or after the time a Person becomes an
Acquiring Person, or
(y) the authorization occurs on or after the date of a change (resulting
from a proxy or consent solicitation) in a majority of the directors in
office at the commencement of such solicitation if any Person who is a
participant in such solicitation has stated (or, if upon the commencement of
such solicitation, a majority of the board of directors of the Company has
determined in good faith) that such Person (or any of its Affiliates or
Associates) intends to take, or may consider taking, any action that would
result in such Person becoming an Acquiring Person or that would cause the
occurrence of a Triggering Event.
Notwithstanding anything in this Agreement to the contrary, the Rights shall
not be exercisable at any time when the Company may redeem them pursuant to
this Section 23. The Company may, at its option, pay the Redemption Price
in cash, shares of Common Stock (based on the "current market price", as
defined in Section 11(d), of the Common Stock at the time of redemption) or
any other form of consideration deemed appropriate by the board of directors.
(b) At such time as specified in the resolution of the board of directors
ordering redemption of the Rights (or at such time as is determined by, a
committee of the board of directors authorized by the board of directors to
specify such time at the time of the board's adoption of such resolution or
Page 33.
immediately upon such action of the board of directors if the board does not
specify a date or so empower a committee) and without any further action and
without any notice, the right to exercise the Rights will terminate and the
only right thereafter of the holders of Rights shall be to receive the
Redemption Price for each Right so held. Promptly after the action of the
board of directors ordering the redemption of the Rights, the Company shall
give notice of such redemption to the Rights Agent and the holders of the
then outstanding Rights by mailing such notice to all such holders at each
holder's last address as it appears upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
Transfer Agent for the Common Stock. Any notice 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. Any failure to
give or inadequacy of such notice shall not affect the validity of the
redemption. The Redemption Price shall be payable to those Persons who are
record holders of the Rights at the close of business on
a date determined by the board of directors, which date shall be at least
eleven days after the board of directors orders redemption of the Rights.
Neither the Company nor any of its Affiliates or Associates may redeem,
acquire or purchase for value any Rights at any time except:
(i) in the manner specifically set forth in this Section 23 or in Section
24, or
(ii) in connection with the purchase of Common Stock prior to the
Distribution Date.
Section 24. Exchange.
(a) The board of directors of the Company may, at its option, at any time
and from time to time on or after a Section 11(a)(ii) 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)) for
shares of Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock dividend or
similar transaction occurring after the date hereof (such exchange ratio
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 any Person (other than the Companym any Subsidiary
of the Company, any employee benefit plan of the Company or any such
Subsidiary, or any entity holding shares of Common Stock for or pursuant to
the terms of any such plan), together with all Affiliates and Associates of
such Person, becomes the Beneficial Owner of 50% or more of the Common Stock
then outstanding. In the event that there shall not be sufficient Common
Stock issued but not outstanding or authorized but unissued to permit any
exchange of Rights as contemplated in accordance with this Section 24, the
Company shall use its best reasonable efforts to take all such action as
may be necessary to authorize additional Common Stock for issuance upon
exchange of Rights.
Page 34.
(b) Immediately upon the action of the board of directors of the Company
ordering the exchange of any Rights pursuant to subsection (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, but the
failure to give, or any defect in, such notice shall not affect the validity
of the exchange. The Company promptly shall mail a notice of any the
exchange to all of the holders of Rights 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 notice of exchange shall state
the method by which the exchange of the Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights
that will be exchanged. Any partial exchange shall be effected pro rata
based on the number of Rights (other than Rights that have become void
pursuant to the provisions of Section 7(e)) held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute for any share of Common Stock exchangeable for a Right:
(i) "common stock equivalents,"
(ii) cash,
(iii) debt securities of the Company,
(iv) other assets, or
(v) any combination of the foregoing, having an aggregate value which a
majority of the Continuing Directors and the board of directors of the
Company shall have determined in good faith to be equal to the current
market price of one share of Common Stock (determined pursuant to Section
11(d)).
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the Distribution
Date:
(i) to pay any dividend payable in stock of any class to the holders of
Common Stock, or
(ii) to offer to the holders of Common Stock rights or warrants to
subscribe for or to purchase any additional shares of Common Stock or shares
of stock of any class or any other securities, rights or options, or
Page 35.
(iii) to effect any reclassification of its Common Stock (other than a
reclassification involving only the subdivision of outstanding shares of
Common Stock), or
(iv) to effect any consolidation or merger into or with any other Person
(other than a Subsidiary of the Company in a transaction that complies with
Section 11(o)), or to effect any sale or other transfer (or to permit one
or more of its Subsidiaries to effect any sale or other transfer), in one
transaction or a series of related transactions, of more than 50% of the
assets or earning power of the Company and its Subsidiaries (taken as a
whole) to any other Person or Persons (other than the Company and/or any if
its Subsidiaries in one or more transactions each of which and all of which
comply with Section 11(o)), or
(v) to effect the liquidation, dissolution or winding up of the Company;
then, in each such case, the Company shall give to each holder of a Rights
Certificate, to the extent feasible and in accordance with Section 26, a
notice of the proposed action, which shall specify the record date for the
purposes of the stock dividend, distribution of rights or warrants, or the
date on which the reclassification, consolidation, merger, sale, transfer,
liquidation, dissolution, or winding up is to take place and the date of
participation therein by the holders of the shares of Common Stock
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 20 days prior to the record
date for determining holders of the shares of Common Stock for purposes of
the action, and in the case of any other action, at least 20 days prior to
the date of the taking of the proposed action or the date of participation
therein by the holders of the shares of Common Stock, whichever shall be the
earlier.
(b) In case any Section 11(a)(ii) Event shall occur, then, in any such
case:
(i) the Company shall as soon as practicable thereafter give to each
holder of a Rights Certificate, to the extent feasible and in accordance
with Section 26, a notice of the occurrence of such event, which shall
specify the event and the consequences of the event to holders of Rights
under Section 11(a)(ii), and
(ii) all references in subsection (a) to Common Stock shall be deemed
thereafter to refer to Common Stock and/or, if appropriate, other securities.
Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights to or on
the Company shall be sufficiently given or made if and when sent by
first-class mail, postage prepaid, addressed (until another address is filed
in writing with the Rights Agent) as follows:
L.B. Foster Company
415 Holiday Drive
Page 36.
Pittsburgh, PA 15220
Attention: Secretary
Subject to Section 21, any notice or demand authorized by this Agreement to
be given or made by the Company or by the holder of any Rights Certificate
to or on the Rights Agent shall be sufficiently given or made if and when
sent by first class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street, 46th Floor
New York, NY 10005
Attention: Herbert Lemmer
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
before the Distribution Date, to the holder of certificates representing
shares of Common Stock) shall be sufficiently given or made if and when 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 27. Supplements and Amendments.
(a) Prior to the Distribution Date and subject to subsection (f), the
Company and the Rights Agent shall, if the Company so directs, supplement or
amend any provision of this Agreement without the approval of any holders of
certificates representing shares of Common Stock.
(b) From and after the Distribution Date and subject to subsection (f),
the Company and the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of
Rights in order:
(i) to cure any ambiguity,
(ii) to correct or supplement any provision contained herein that may be
defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder (which lengthening
or shortening, following the first occurrence of an event set forth in
clauses (i) or (ii) of the first sentence to Section 23(a), shall be
effective only if there are Continuing Directors and shall require the
concurrence of a majority of such Continuing Directors), or
(iv) to change or supplement the provisions hereunder in any manner that
the Company deems necessary or desirable and that does not adversely affect
the interests of the holders of Rights Certificates (other than any
Acquiring Person).
Page 37.
(c) This Agreement may not be supplemented or amended to lengthen,
pursuant to subsection (b)(iii):
(i) a time period relating to when the Rights may be redeemed at such time
as the Rights are not then redeemable, or
(ii) any other time period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or the benefits to,
the holders of Rights.
(d) Without limiting the other provisions of this section, the Company
may at any time or from time to time prior to such time as any Person
becomes an Acquiring Person amend this Agreement to lower the thresholds
set forth in Sections 1(a) and 1(i) to not less than 10%.
(e) Upon the delivery of a certificate from an appropriate officer of
the Company stating that the proposed supplement or amendment is in
compliance with this Section 27, the Rights Agent shall execute
such supplement or amendment.
(f) Notwithstanding anything in this Agreement to the contrary, no
supplement or amendment shall be made pursuant to this Section 27 that
changes the Redemption Price, the Final Expiration Date, the Purchase Price
or the number of shares of Common Stock for which a Right is exercisable.
(g) Prior to the Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of the holders of
Common Stock.
Section 28. 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 29. Determinations and Actions by the Board of Directors, etc.
For all purposes of this Agreement, any calculation of the number of shares
of Common Stock outstanding at any particular time, including for purposes
of determining the particular percentage of such outstanding shares of
Common Stock of which any Person is the Beneficial Owner, shall be made in
accordance with the last sentence of Rule 13d-3(d)(1)(i) of the General
Rules and Regulations under the Exchange Act as in effect on the date
ment and to exercise all rights and powers specifically granted to the
board (with, where specifically provided for herein, the concurrence of
the Continuing Directors) or to the Company, or as may be necessary or
advisable in the administration of this Agreement, including, without
limitation, the right and power to interpret this Agreement, and make all
determinations deemed necessary or advisable for the administration of this
Page 38.
Agreement (including a determination to redeem or not redeem the Rights or
to amend the Agreement). All such actions, calculations, interpretations
and determinations (including, for purposes of clause (i) below, all
ommissions with respect to the foregoing) that are done or made by the
board (with, where specifically provided for herein, the concurrence of the
Continuing Directors) in good faith, shall:
(i) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other parties, and
(ii) not subject the board or the Continuing Directors to any liability
to the holders of the Rights.
Section 30. Benefits of this Agreement. Nothing in this Agreement shall
be construed to give to any Person other than the Company, the Rights Agent
and the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement
shall be for the sole and exclusive benefit of the Company, the Rights Agent
and the registered holders of the Rights Certificates (and, prior to the
Distribution Date, registered holders of the Common Stock).
Section 31. Severability. If any term 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; except that
notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or authority
to be invalid, void or unenforceable, and the board of directors of the
Company determines in its good faith judgement that severing the invalid
language from this Agreement would materially adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23
shall be reinstated and shall not expire until the close of business on the
tenth day following the date of such determination by the board of directors.
Section 32. Governing Law. This Agreement, each Right and each Rights
Certificate issued hereunder shall be governed by and interpreted and
enforced in accordance with the substantive laws of the State of Delaware,
without reference to the principles governing the conflict of laws applicable
in that or any other jurisdiction.
Section 33. Counterparts. This Agreement may be executed in any number of
counterparts, each which shall be an original, and all of which shall
together constitute a single instrument.
Section 34. Descriptive Headings. Descriptive headings of the provisions
of this Agreement are inserted for convenience only and shall not affect the
meaning of this Agreement.
Page 39.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
L.B. FOSTER COMPANY
By: /s/ David L. Voltz
-----------------------
Name: David L. Voltz
Title: Vice President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert Lemmer
-------------------------
Name: Herbert Lemmer
Title: Vice President
Page 40.
EXHIBIT A
[FORM OF RIGHTS CERTIFICATE]
Certificate No. R- Rights
NOT EXERCISABLE AFTER MAY 15, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.O5
PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS DEFINED
IN THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME
NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR
WERE BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR
AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED
IN SECTION 7(e) OF SUCH AGREEMENT.] (1)
RIGHTS CERTIFICATE
L.B. FOSTER COMPANY
This certifies that , or registered assigns, is the registered owner
of the number of Rights set forth above, each of which entities the owner
thereof, subject to the terms of the Rights Agreement dated as of May 15,
1997 (the "Rights Agreement") between L.B. Foster Company, a Delaware
corporation (the "Company"), and American Stock Transfer & Trust Company, a
New York corporation (the "Rights Agent"), to purchase from the Company at
any time prior to 5:00 P.M. (Pittsburgh time) on May 15, 2007 at th
$30.00 per share (the "Purchase Price"), upon presentation and surrender of
this Rights Certificate with the Form of Election to Purchase and related
Certificate duly executed. The number of Rights evidenced by this Rights
Certificate (and the number of shares that may be purchased upon exercise
thereof) set forth above, and the Purchase Price per share set forth above,
- ------------------------------------------
(1) The portion of the legend in brackets shall be inserted in the place of
the preceding sentence if applicable.
Page 41.
are the number and Purchase Price as of May 15, 1997, based on the Common
Stock as constituted at such date.
Upon the occurrence of a Section 11(a)(ii) Event (as defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate
of any such Acquiring Person (as defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights Agreement, a transferee
of a person who, after such transfer, became an Acquiring Person, or an
Affiliate of Associate of an Acquiring Person, such Rights shall become
null and void and no holder hereof shall have any right with respect to such
Rights from and after the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the Purchase Price and the number and
kind of shares of Common Stock or other securities that may be purchased
upon exercise of the Rights evidenced by this Rights Certificate are subject
to modification and adjustment upon the occurrence of certain events,
including a Triggering Event (as defined in the Rights Agreement).
This Rights Certificate is subject to the terms of the Rights Agreement,
which terms are hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is made for a full description
of the rights, limitations of rights, obligations, duties and immunities
hereunder of the Rights Agent, the Company and the holders of the Rights
Certificates, which limitations of rights include the temporary suspension
of the exercisability of such Rights under the circumstances set forth in the
Rights Agreement. Copies of the Rights Agreement are on file at the above-
mentioned office of the Rights Agent and are also available upon written
request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office or offices of the Rights Agent designated
for such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number of shares of Common Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered shall
have entitled such holder to purchase. If this Rights Certificate is
exercised in part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the Rights Agreement, the Rights evidenced by this Certificate
may be (i) redeemed by the Company at its option at a redemption price of
$.05 per Right at any time prior to the earlier of the close of business on
(A) the tenth day following the Stock Acquisition Date (as such time period
may be extended pursuant to the Rights Agreement), and (B) the Final
Expiration Date (as defined in the Rights Agreement) or (ii) exchanged by
the Company under certain circumstances, at its option, in whole or
part, for one share of Common Stock per Right (or, in certain cases, other
Page 42.
securities, cash or assets of the Company), subject in each case to adjustment
in certain events as provided in the Rights Agreement. Under
certain circumstances set forth in the Rights Agreement, the decision to
redeem shall require the concurrence of a majority of the Continuing
Directors.
No fractional shares of Common Stock will be issued upon the exercise of
any Right or Rights evidenced hereby, but in lieu thereof a cash payment
will be made, as provided in the Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Common Stock
or of any other securities of the Company issuable upon the exercise hereof,
nor shall anything contained in the Rights Agreement or herein be construed
to confer upon the holder hereof, as such, any of the rights of a
stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting therof,
or to give or withhold consent to any corporate action, or to receive notice
of meetings or other action 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 as provided in the Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
unless countersigned by the Rights Agent.
WITNESS the ficsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of
ATTEST: L.B. FOSTER COMPANY
By: By:
---------------- ------------------
Secretary Title:
Countersigned: AMERICAN STOCK TRANSFER & TRUST COMPANY
By:--------------------
Authorized Signature
Page 43.
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder to transfer the
Rights Certificate.)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------
this Rights Certificate, together with all right, title and interest
therein and does hereby irrevocably constitute and appoint Attorney,
to transfer the within Rights Certificate on the books of the within-named
Company, with full power of substitution.
Dated: ,
----------- -- -----
----------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [ ]
did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Page 44.
Dated: ,
-------------- -- -----
----------------------
Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights represented by the
Rights Certificate.)
To: L.B. Foster Company:
The undersigned hereby irrevocably elects to exercise Rights
represented by this Rights Certificate to purchase the shares of Common
Stock issuable upon the exercise of the Rights (or such other securities of
the Company or of any other person that may be issuable upon the exercise of
the Rights) and requests that certificates for such shares be issued in the
name of and delivered to:
- ----------------------------
Please insert social security
or other identifying number
- -------------------------------
- -------------------------------
- -------------------------------
(Please print name and address)
Page 45.
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
- -----------------------------
Please insert social security
or other identifying number
- --------------------------------
- --------------------------------
- --------------------------------
(Please print name and address)
Dated: ,
-------------- -- ----
---------------------
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such
terms are defined pursuant to the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned,
it [ ] did [ ] did not acquire the Rights evidenced by this Rights
Certificate from any Person who is, was or subsequently became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person.
Dated: ,
----------- -- ----
---------------------
Signature
Signature Guaranteed:
Page 46.
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate
in every particular.
Page 47.
EXHIBIT B
SUMMARY OF RIGHTS
On May 15, 1997, the Board of Directors of L.B. Foster Company (the
"Company") declared a dividend distribution of one right (a "Right") for
each outstanding share of the Company's Class A Common Stock, par value
$0.01 per share ("Common Stock"), to stockholders of record at the close of
business on May 21, 1997. Except as described below, each Right, when
exercisable, entitles the registered holder to purchase from the Company one
share of Common Stock at a purchase price of $30.00 (the "Purchase Price"),
subject to adjustment. The description and terms of the Rights are set forth
in a Rights Agreement (the "Rights Agreement") between the Company and
American Stock Transfer & Trust Company, as Rights Agent. The following
is a general description only and is subject to the detailed terms and
conditions of the Rights Agreement. A copy of the Rights Agreement,
including the form of Rights Certificate and the Summary of Rights to be
provided to stockholders of the Company, is being filed with the Securities
and Exchange Commission as an Exhibit to the Company's Registration
Statement on Form 8-A and is incorporated herein by reference.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates
will be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days following a
public announcement that a person or group of affiliated or associated
persons other than the Company, its subsidiaries or any person receiving
newly-issued shares of Common Stock directly from the Company or indirectly
via an underwriter in connection with a public offering by the Company (an
"Acquiring Person") has acquired, or obtained the right to acquire, beneficial
ownership of 20% or more of the outstanding shares of Common Stock
(the "Stock Acquisition Date"), or (ii) 10 business days following the
commencement of a tender offer or exchange offer that would result in a
person or group beneficially owning 20% or more of such outstanding shares
of Common Stock. Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be transferred with and
only with such Common Stock certificates, (ii) new Common Stock certificates
issued after May 21, 1997 will contain a notation incorporating the Rights
Agreement by reference and (iii) the surrender for transfer of any
certificates for Common Stock will also constitute the transfer of the
Rights associated with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will expire
at the close of business on May 15, 2007, unless earlier redeemed or
exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise
determined by the Board of Directors, only shares of Common Stock issued
prior to the Distribution Date will be issued with Rights.
Page 48.
If any person becomes an Acquiring Person other than pursuant to a
Qualifying Offer (as defined below), each holder of a Right will thereafter
have the right to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a
value equal to two times the exercise price of the Right. The Rights
Agreement contains an exemption for any issuance of Common Stock by the
Company directly to any person (for example, in a private placement or an
acquisition by the Company in which Common Stock is used as consideration)
or indirectly via an underwriter in connection with a public offering by the
Company, even if that person would become the beneficial owner of 20% or
more of the outstanding Common Stock, provided that such person does not
acquire any additional shares of Common Stock. Notwithstanding any of the
foregoing, all Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by any Acquiring Person will
be null and void. However, Rights are not exercisable in any event until
such time as the Rights are no longer redeemable by the Company as set forth
below.
A "Qualifying Offer" means a tender offer or exchange offer for all
outstanding shares of Common Stock at a price and on terms determined by at
least a majority of the Continuing Directors (as defined below) who are not
officers or employees of the Company and who are not related (as specified
in the Rights Agreement) to the Person making such offer, to be fair to and
in the best interests of the Company and its stockholders.
If at any time following the Stock Acquisition Date (i) the Company is
acquired in a merger or other business combination transaction in which the
Common Stock is changed or exchanged or in which the Company is not the
surviving corporation (other than a merger that follows a Qualifying Offer
and satisfies certain other requirements), or (ii) 50% or more of the
Company's assets or earning power is sold or transferred, each holder of a
Right (except Rights that have been previously voided as set forth above)
shall thereafter have the right to receive, upon exercise, common stock of
the acquiring company having a value equal to two times the exercise price of
the Right. The events set forth in this paragraph and in the second
preceding paragraph are referred to as the "Triggering Events."
The Purchase Price payable, and the number of shares of Common Stock or
other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, combination or reclassification of,
the Common Stock, (ii) if holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible securities
at less than the current market price of the Common Stock, or (iii) upon the
distribution to holders of the Common Stock of evidences of indebtedness or
assets (excluding regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional shares will be issued and, in lieu thereof, an
adjustment in cash will be made based on the market price of the Common
Stock on the last trading date prior to the date of exercise.
Page 49.
At any time until ten days following the Stock Acquisition Date, the
Company may redeem the Rights in whole, but not in part, at a price of
$.O5 per Right (payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Under certain circumstances set
forth in the Rights Agreement, the decision to redeem shall require the
concurrence of a majority of the Continuing Directors. Immediately upon
the action of the Board of Directors ordering redemption of the Rights or at
such other time as may be specified by the Board when it orders redemption,
with, when required, the concurrence of a majority of the Continuing
Directors, the Rights will terminate and the only right of the holders of
Rights will be to receive the $.05 redemption price.
The term "Continuing Directors" means any member of the Board of Directors
of the Company who was a member of the Board prior to the Stock Acquisition
Date, and any person who is subsequently elected to the Board if such person
is recommended or approved by a majority of the Continuing Directors, but
shall not include an Acquiring Person, or an affiliate or associate of an
Acquiring Person, or any representative of the foregoing entities.
Until a Right is exercised, 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. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income if the Rights
become exercisable for Common Stock (or other consideration) of the Company
or for common stock of the acquiring company as set forth above.
Other than those provisions relating to the principal economic terms of the
Rights, any of the provisions of the Rights Agreement may be amended by the
Board of Directors of the Company prior to the Distribution Date. After the
Distribution Date, the Rights Agreement may be amended by the Board (in
certain circumstances, with the concurrence of the Continuing Directors) in
order to cure any ambiguity, to make changes that do not adversely affect
the interests of holders of Rights (excluding the interests of any Acquiring
Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at a time when the Rights are not
redeemable.
Page 50.
As of May 15, 1997, there were 10,162,738 shares of Common Stock
outstanding and 759,000 shares of Common Stock reserved for issuance under
outstanding options to purchase Common Stock. Each outstanding share of
Common Stock on May 21, 1997 will receive one Right. In addition, Rights
shall be issued in respect of all shares of Common Stock that are issued
(whether originally issued or from the Company's treasury) after that date
but prior to the earlier of the Distribution Date or the Expiration Date and,
in certain circumstances as provided in the Rights Agreement, after the
Distribution Date.
Page 51.