Rights Agreement - Anheuser-Busch Companies Inc. and Centerre Trust Co. of St. Louis
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ANHEUSER-BUSCH COMPANIES, INC.
and
CENTERRE TRUST COMPANY OF ST. LOUIS
Rights Agent
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Rights Agreement
Amended and Restated as of December 17, 1986
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Table of Contents
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Section Page
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l Certain Definitions . . . . . . . . . . . . . . . . l
2 Appointment of Rights Agent . . . . . . . . . . . . 5
3 Issue of Rights Certificates . . . . . . . . . . . . 5
4 Form of Rights Certificates . . . . . . . . . . . . 7
5 Countersignature and Registration . . . . . . . . . 8
6 Transfer, Split Up, Combination and
Exchange of Rights Certificates;
Mutilated, Destroyed, Lost or
Stolen Rights Certificates . . . . . . . . . . . 9
7 Exercise of Rights; Purchase
Price; Expiration Date of Rights . . . . . . . . 10
8 Cancellation and Destruction of
Rights Certificates . . . . . . . . . . . . . . . 13
9 Reservation and Availability of
Capital Stock . . . . . . . . . . . . . . . . . . 13
10 Preferred Stock Record Date . . . . . . . . . . . . 15
11 Adjustment of Purchase Price,
Number and Kind of Shares or
Number of Rights . . . . . . . . . . . . . . . . 16
12 Certificate of Adjusted Purchase
Price or Number of Shares . . . . . . . . . . . . 29
13 Consolidation, Merger or Sale
or Transfer of Assets or Earning
Power . . . . . . . . . . . . . . . . . . . . . . 30
14 Fractional Rights and Fractional
Shares . . . . . . . . . . . . . . . . . . . . . 33
15 Rights of Action . . . . . . . . . . . . . . . . . . 34
16 Agreement of Rights Holders . . . . . . . . . . . . 35
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Section Page
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17 Rights Certificate Holder Not Deemed
a Stockholder . . . . . . . . . . . . . . . . . . 36
18 Concerning the Rights Agent . . . . . . . . . . . . 36
19 Merger or Consolidation or Change of
Name of Rights Agent . . . . . . . . . . . . . . . 37
20 Duties of Rights Agent . . . . . . . . . . . . . . . 38
21 Change of Rights Agent . . . . . . . . . . . . . . . 41
22 Issuance of New Rights Certificates . . . . . . . . 42
23 Redemption and Termination . . . . . . . . . . . . . 42
24 Notice of Certain Events . . . . . . . . . . . . . . 44
25 Notices . . . . . . . . . . . . . . . . . . . . . . 45
26 Supplements and Amendments . . . . . . . . . . . . . 46
27 Successors . . . . . . . . . . . . . . . . . . . . . 46
28 Determinations and Actions
by the Board of Directors, etc . . . . . . . . . . 47
29 Benefits of this Agreement . . . . . . . . . . . . . 47
30 Severability . . . . . . . . . . . . . . . . . . . . 48
31 Governing Law . . . . . . . . . . . . . . . . . . . 48
32 Counterparts . . . . . . . . . . . . . . . . . . . . 48
33 Descriptive Headings . . . . . . . . . . . . . . . . 48
Exhibit A -- Certificate of Designation,
Preferences and Rights
Exhibit B -- Form of Rights Certificate
ii
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RIGHTS AGREEMENT
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RIGHTS AGREEMENT, dated as of December 18,
1985, amended as of July 23, 1986, and amended and
restated as of December 17, 1986 (the "Agreement"),
between Anheuser-Busch Companies, Inc., a Delaware
corporation (the "Company"), and Centerre Trust Company
of St. Louis, a trust company organized under the laws
of the State of Missouri (the "Rights Agent").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, on December 18, 1985 (the "Rights
Dividend Declaration Date"), the Board of Directors of
the Company authorized and declared a dividend
distribution of one Right for each share of common
stock, par value $1.00 per share, of the Company (the
"Common Stock") outstanding at the close of business on
December 27, 1985 (the "Record Date"), and has
authorized the issuance of one Right (as such number
may hereinafter be adjusted pursuant to the provisions
of Section 11(p) hereof) for each share of Common Stock
of the Company issued between the Record Date (whether
originally issued or delivered from the Company's
treasury) and the Distribution Date, each Right
initially representing the right to purchase one
one-hundredth of a share of Series B Junior
Participating Preferred Stock of the Company having the
rights, powers and preferences set forth in the form of
Certificate of Designation, Preferences and Rights
attached hereto as Exhibit A, upon the terms and
subject to the conditions hereinafter set forth (the
"Rights");
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
Section 1. Certain Definitions. For
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purposes of this Agreement, the following terms have
the meanings indicated:
(a) "Acquiring Person" shall mean any
Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial
Owner of 20% or more of the shares of Common Stock then
outstanding, but shall not include the Company, any
Subsid-<PAGE>
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iary 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.
(b) "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended and in
effect on the date of this Agreement (the "Exchange
Act").
(c) A Person shall be deemed the
"Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which such Person or any of
such Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such
right is exercisable immediately or only after the
passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in
writing) or upon the exercise of conversions
rights, exchange rights, rights, warrants or
options, or otherwise; provided, however, that a
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Person shall not be deemed the "Beneficial Owner"
of, or to "beneficially own," (A) securities
tendered pursuant to a tender or exchange offer
made by such Person or any of such Person's
Affiliates or Associates until such tendered
securities are accepted for purchase or exchange,
or (B) securities issuable upon exercise of
Rights at any time prior to the occurrence of a
Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of
a Triggering Event which Rights were acquired by
such Person or any of such Person's Affiliates or
Associates prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof (the
"Original Rights") or pursuant to Section 11(i)
hereof in connection with an adjustment made with
respect to any Original Rights;
(ii) which such Person or any of
such Person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or
has "beneficial ownership" of (as determined
pursuant to Rule 13d-3 of the
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General Rules and Regulations under the Exchange
Act), including pursuant to any agreement,
arrangement or understanding, whether or not in
writing; provided, however, that a Person shall
--------
not be deemed the "Beneficial Owner" of, or to
"beneficially own," any security under this
subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security
if such agreement, arrangement or understanding:
(A) arises solely from a revocable proxy 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 such Person on Schedule
13D under the Exchange Act (or any comparable or
successor report); or
(iii) which are beneficially owned,
directly or indirectly, by any other Person (or
any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates
or Associates) has any agreement, arrangement or
understanding (whether or not in writing), for the
purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in the
proviso to subparagraph (ii) of this paragraph
(c)) or disposing of any voting securities of the
Company.
(d) "Business Day" shall mean any day
other than a Saturday, Sunday or a day on which banking
institutions in the State of Missouri are authorized or
obligated by law or executive order to close.
(e) "Close of business" on any given
date shall mean 4:45 P.M., St. Louis time, on such
date; provided, however, that if such date is
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not a Business Day it shall mean 4:45 P.M., St. Louis
time, on the next succeeding Business Day.
(f) "Common Stock" shall mean the
common stock, par value $1.00 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 such Person with the greatest
voting power, or the
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equity securities or other equity interest having power
to control or direct the management, of such Person.
(g) "Continuing Director" shall mean
(i) any member of the Board of Directors of the
Company, while such Person is a member of the Board,
who is not an Acquiring Person, or an Affiliate or
Associate of an Acquiring Person, or a representative
of an Acquiring Person or of any such Affiliate or
Associate, and was a member of the Board prior to the
date of this Agreement, or (ii) any Person who
subsequently becomes a member of the Board, while such
Person is a member of the Board, who is not an
Acquiring Person, or an Affiliate or Associate of an
Acquiring Person, or a representative of an Acquiring
Person or of any such Affiliate or Associate, if such
Person's nomination for election or election to the
Board is recommended or approved by a majority of the
Continuing Directors.
(h) "Person" shall mean any individual,
firm, corporation, partnership or other entity.
(i) "Preferred Stock" shall mean shares
of Series B Junior Participating Preferred Stock, par
value $1.00 per share, of the Company and, to the
extent that there are not a sufficient number of shares
of Series B Junior Participating Preferred Stock
authorized to permit the full exercise of the Rights,
any other series of Preferred Stock of the Company
designated for such purpose containing terms
substantially similar to the terms of the Series B
Junior Participating Preferred Stock.
(j) "Section 11 (a)(ii) Event" shall
mean any event described in Section 11(a)(ii)(A) or (B)
hereof.
(k) "Section 13 Event" shall mean any
event described in clauses (x), (y) or (z) of Section
13(a) hereof.
(l) "Stock Acquisition Date" shall mean
the first date of public announcement (which, for
purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d)
under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
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(m) "Subsidiary" shall mean, with
reference to any Person, any corporation of which an
amount of voting securities sufficient to elect at
least a majority of the directors of such corporation
is beneficially owned, directly or indirectly, by such
Person, or otherwise controlled by such Person.
(n) "Triggering Event" shall mean any
Section 11(a) (ii) Event or any Section 13 Event.
Section 2. Appointment of Rights Agent. The
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Company hereby appoints the Rights Agent to act as
agent for the Company and the holders of the Rights
(who, in accordance with Section 3 hereof, shall prior
to the Distribution Date also be the holders of the
Common Stock) in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time
appoint such Co-Rights Agents as it may deem necessary
or desirable.
Section 3. Issue of Rights Certificates.
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(a) Until the earlier of (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 the
terms of any such plan) is first published or sent or
given within the meaning of Rule 14d2(a) of the General
Rules and Regulations under the Exchange Act, if upon
consummation thereof, such Person would be the
Beneficial Owner of 30% or more of the shares of Common
Stock then outstanding (the earlier of (i) and (ii)
being herein referred to as the "Distribution note"),
(x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the
certificates for the Common Stock registered in the
names of the holders of the Common Stock (which
certificates for Common Stock shall be deemed also to
be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable
only in connection with the transfer of the underlying
shares of Common Stock (including a transfer to the
Company). As soon as practicable after the
Distribution Date, the Rights Agent will
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send by first-class, insured, postage prepaid mail, to
each record holder of the Common Stock as of the close
of business on the Distribution Date, at the address of
such holder shown on the records of the Company, one or
more right certificates, in substantially the form of
Exhibit B hereto (the "Rights Certificates"),
evidencing one Right for each share of Common Stock so
held, subject to adjustment as provided herein. In the
event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to
Section 11(p) hereof, at the time of distribution of
the Right Certificates, the company shall make the
necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights
are distributed and cash is paid in lieu of any
fractional Rights. As of and after the Distribution
Date, the Rights will be evidenced solely by such
Rights Certificates.
(b) Rights shall be issued in respect
of all shares of Common Stock which are issued after
the Record Date but prior to the earlier of the
Distribution Date or the Expiration Date. Certificates
representing such shares of Common Stock shall also be
deemed to be certificates for Rights, and shall bear
the following legend:
This certificate also evidences and entitles
the holder hereof to certain Rights as setforth in
the Rights Agreement between Anheuser-Busch
Companies, Inc. and Centerre Trust Company of St.
Louis dated as of December 18, 1985, amended as of
July 23, 1986, and amended and restated as of
December 17, 1986 (the "Rights Agreement"), the
terms of which are hereby incorporated herein by
reference and a copy of which is on file at the
principal offices of Anheuser-Busch Companies,
Inc. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no
longer be evidenced by this certificate.
Anheuser-Busch Companies, Inc. will mail to
the holder of this certificate a copy of the
Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of
a written request therefor. Under certain
circumstances set forth in the Rights Agreement,
Rights is-
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sued to, or held by, any Person who is, was or
becomes an Acquiring Person or any Affiliate or
Associates thereof (as such terms are defined in
the Rights Agreement), whether currently held by
or on behalf of such Person or by any subsequent
holder, may become null and void.
With respect to such certificates containing the
foregoing legend, until the earlier of (i) the
Distribution Date or (ii) the Expiration Date, the
Rights associated with the Common Stock represented by
such certificates shall be evidenced by such
certificates alone and registered holders of Common
Stock shall also be the registered holders of the
associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the
Rights associated with the Common Stock represented by
such certificates.
Section 4. Form of Rights Certificates.
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(a) The Rights Certificates (and the
forms of election to purchase and of assignment to be
printed on the reverse thereof) shall each be
substantially in the form set forth in Exhibit B hereto
and may have such marks of identification or
designation and such legends, summaries or endorsements
printed thereon as the Company may deem appropriate and
as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any
stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the
provisions of Section 11 and Section 22 hereof, the
Rights Certificates, whenever distributed, shall be
dated as of the Record Date and on their face shall
entitle the holders thereof to purchase such number of
one one-hundredths of a share of Preferred Stock as
shall be set forth therein at the price set forth
therein (such exercise price per one one-hundredth of a
share, the "Purchase Price"), but the amount and type
of securities purchasable upon the exercise of each
Right and the Purchase Price thereof shall be subject
to adjustment as provided herein.
(b) Any Rights Certificate issued
pursuant to Section 3(a) or Section 22 hereof that
represents Rights beneficially owned by: (i) an
Acquiring Person or any Associate or Affiliate of an
Acquiring Person, (ii) a
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transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom such
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan,
arrangement or understanding which has as a primary
purpose or effect avoidance of Section 7(e) hereof, and
any Rights Certificate issued pursuant to Section 6 or
Section 11 hereof upon transfer, exchange, replacement
or adjustment of any other Rights Certificate referred
to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights Certificate
are or were beneficially owned by a Person
who was or became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement).
Accordingly, this Rights Certificate and the
Rights represented hereby may become null and void
in the circumstances specified in Section 7(e) of
such Agreement.
Section 5. Countersignature and Registration.
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(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.
In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be
such officer of the Company before countersignature by
the Rights Agent and issuance and delivery by the
Company, such Rights Certificates, nevertheless, may be
countersigned by the Rights
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Agent and issued and delivered by the Company with the
same force and effect as though the person who signed
such Rights Certificates had not ceased to be such
officer of the Company; and any Rights Certificates may
be signed on behalf of the Company by any person who,
at the actual date of the execution of such Rights
Certificate, shall be a proper officer of the Company
to sign such Rights Certificate, although at the date
of the execution of this Rights Agreement any such
person was not such an officer.
(b) Following the Distribution Date,
the Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the
appropriate place for surrender of Rights Certificates
upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder.
Such books shall show the names and addresses of the
respective holders of the Rights Certificates, the
number of Rights evidenced on its face by each of the
Rights Certificates and the date of each of the Rights
Certificates.
Section 6. Transfer, Split Up, Combination
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and Exchange of Rights Certificates; Mutilated,
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Destroyed, Lost or Stolen Rights Certificates. (a)
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Subject to the provisions of Section 4(b), Section 7(e)
and Section 14 hereof, at any time after the close of
business on the Distribution Date, and at or prior to
the close of business on the Expiration Date, any
Rights Certificate or Certificates may be transferred,
split up, combined or exchanged for another Rights
Certificate or Certificates, entitling the registered
holder to purchase a like number of one one-hundredths
of a share of Preferred Stock (or, following a
Triggering Event, Common Stock, other securities, cash
or other assets, as the case may be) as, the Rights
Certificate or Certificates surrendered then entitled
such holder (or former holder in the case of a
transfer) to purchase. Any registered holder desiring
to transfer, split up, combine or exchange any Rights
Certificate or Certificates shall make such request in
writing delivered to the Rights Agent, and shall
surrender the Rights Certificate or Certificates to be
transferred, split up, combined or exchanged at the
principal office or offices of the Rights Agent
designated for such purpose. Neither the Rights
Agent nor the Company shall be obligated to take any
action whatsoever with respect to the transfer of any
such surrendered Rights Certificate until the
registered holder shall have completed and
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signed the certificate contained in the form of
assignment on the reverse side of such Rights
Certificate and shall have provided such additional
evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section
4(b), Section 7(e) and Section 14 hereof, countersign
and deliver to the Person entitled thereto a Rights
Certificate or Rights Certificates, as the case may be,
as so requested. The Company may require payment of a
sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer,
split up, combination or exchange of Rights
Certificates.
(b) Upon receipt by the Company and the
Rights Agent of evidence reasonably satisfactory to
them of the loss, theft, destruction or mutilation of a
Rights Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company
and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if
mutilated, the Company will execute and deliver a new
Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered
owner in lieu of the Rights Certificate so lost,
stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price;
-----------------------------------
Expiration Date of Rights. (a) Subject to Section
-------------------------
7(e) hereof, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without
limitation, the restrictions on exercisability set
forth in Section 9(c), Section 11(a)(iii) and Section
23(a) hereof) in whole or in part at any time after the
Distribution Date upon surrender of the Rights
Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly
executed, to the Rights Agent at the principal office
or offices of the Rights Agent designated for such
purpose, together with payment of the aggregate
Purchase Price with respect to the total number of one
one-hundredths of a share (or other securities, cash or
other assets, as the case may be) as to which such
surrendered Rights are then exercisable, at or prior to
the earlier of (i) the close of business on December
27, 1995 (the "Final Expiration Date"), or (ii) the
time
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at which the Rights are redeemed as provided in Section
23 hereof (the earlier of (i) and (ii) being herein
referred to as the "Expiration Date").
(b) The Purchase Price for each One
one-hundredth of a share of Preferred Stock pursuant to
the exercise of a Right shall initially be $50, and
shall be subject to adjustment from time to time as
provided in Sections 11 and 13(a) hereof and shall be
payable in accordance with paragraph (c) below.
(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of
election to purchase and the certificate duly executed,
accompanied by payment, with respect to each Right so
exercised, of the Purchase Price per one one-hundredth
of a share of Preferred Stock (or other shares,
securities, cash or other assets, as the case may be)
to be purchased as set forth below and an amount equal
to any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i)
(A) requisition from any transfer agent of the shares
of Preferred Stock (or make available, if the Rights
Agent is the transfer agent for such shares)
certificates for the total number of one one-hundredths
of a share of Preferred Stock to be purchased and the
Company hereby irrevocably authorizes its transfer
agent to comply with all such requests, or (B) if the
Company shall have elected to deposit the total number
of shares of Preferred Stock issuable upon exercise of
the Rights hereunder with a depositary agent,
requisition from the depositary agent depositary
receipts representing such number of one one-hundredths
of a share of Preferred Stock as are to be purchased
(in which case certificates for the shares of Preferred
Stock represented by such receipts shall be deposited
by the transfer agent with the depositary agent) and
the Company will direct the depositary agent to comply
with such request, (ii) requisition from the Company
the amount of cash, if any, to be paid in lieu of
fractional shares in accordance with Section 14 hereof,
(iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the
order of the registered holder of such Rights
Certificate, registered in such name or names as may be
designated by such holder, and (iv) after receipt
thereof, deliver such cash, if any, to or upon the
order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as
such amount may be reduced pursuant to Section 11(a)
(iii) hereof) may
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be made (x) in cash or by certified bank check or bank
draft payable to the order of the Company, or (y) by
delivery of a certificate or certificates (with
appropriate stock powers executed in blank attached
thereto) evidencing a number of shares of Common Stock
equal to the then Purchase Price divided by the closing
price (as determined pursuant to Section 11(d) hereof)
per share of Common Stock on the Trading Date
immediately preceding the date of such exercise. In
the event that the Company is obligated to issue other
securities (including Common Stock) of the Company, pay
cash and/or distribute other property pursuant to
Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities,
cash and/or other property are available for
distribution by the Rights Agent, if and when
appropriate.
(d) In case the registered holder of any
Rights Certificate shall exercise less than all the
Rights evidenced thereby, a new Rights Certificate
evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and
delivered to, or upon the order of, the registered
holder of such Rights Certificate, registered in such
name or names as may be designated by such holder,
subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this
Agreement to the contrary, from and after the first oc-
currence of a Section 11(a)(ii) Event, any Rights
beneficially owned by (i) an Acquiring Person or an
Associate or Affiliate of an Acquiring Person, (ii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee after
the Acquiring Person becomes such, or (iii) a
transferee of an Acquiring Person (or of any such
Associate or Affiliate) who becomes a transferee prior
to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a
transfer (whether or not for consideration) from the
Acquiring Person to holders of equity interests in such
Acquiring Person or to any Person with whom the
Acquiring Person has any continuing agreement,
arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors
of the Company has determined is part of a plan,
arrangement or understanding which has as a primary
purpose or effect the avoidance of this Section 7(e),
shall become null and void without any further action
and no holder of such
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Rights shall have any rights whatsoever with respect to
such Rights, whether under any provision of this
Agreement or otherwise. The Company shall use all
reasonable efforts to insure that the provisions of
this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of
Rights Certificates or other Person as a result of its
failure to make any determinations with respect to an
Acquiring Person or its Affiliates, Associates
or transferees hereunder.
(f) Notwithstanding anything in this
Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action
with respect to a registered holder upon the occurrence
of any purported exercise as set forth in this Section
7 unless such registered holder shall have (i)
completed and signed the certificate contained in the
form of election to purchase set forth on the reverse
side of the Rights Certificate surrendered for such
exercise, and (ii) provided such additional evidence of
the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof
as the Company shall reasonably request.
Section 8. Cancellation and Destruction of
-------------------------------
Rights Certificates. All Rights Certificates
-------------------
surrendered for the purpose of exercise, transfer,
split up, combination or exchange shall, if surrendered
to the Company or any of its agents, be delivered to
the Rights Agent for cancellation or in cancelled
form, or, if surrendered to the Rights Agent, shall be
cancelled by it, and no Rights Certificates shall be
issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company
shall deliver to the Rights Agent for cancellation and
retirement, and the Rights Agent shall so cancel and
retire, any other Rights Certificate purchased or
acquired by the Company otherwise than upon the
exercise thereof. The Rights Agent shall deliver all
cancelled Rights Certificates to the Company, or shall,
at the written request of the Company, destroy such
cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of
-------------------------------
Capital Stock. (a) The Company covenants and agrees
-------------
that it will cause to be reserved and kept available
out of its authorized and unissued shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, out
13
<PAGE>
<PAGE>17
of its authorized and unissued shares of Common Stock
and/or other securities or out of its authorized and
issued shares held in its treasury), the number of
shares of preferred Stock (and, following the
occurrence of a Triggering Event, Common Stock and/or
other securities) that, as provided in this Agreement
including Section 11(a)(iii) hereof, will be sufficient
to permit the exercise in full of all outstanding
Rights.
(b) So long as the shares of Preferred
Stock (and, following the occurrence of a Triggering
Event, Common Stock and/or other securities) issuable
and deliverable upon the exercise of the Rights may be
listed on any national securities exchange, the Company
shall use its best efforts to cause, from and after
such time as the Rights become exercisable, all shares
reserved for such issuance to be listed on such
exchange upon official notice of issuance upon such
exercise.
(c) The Company shall use its best
efforts to (i) file, as soon as practicable following
the earliest date after the first occurrence of a
Section 11(a)(ii) Event on which the consideration to
be delivered by the Company upon exercise of the Rights
has been determined in accordance with Section
11(a)(iii) hereof, or as soon as is required by law
following the Distribution Date, as the case may be, a
registration statement under the Securities Act of 1933
(the "Act"), with respect to the securities purchasable
upon exercise of the Rights on an appropriate form,
(ii) cause such registration statement to become
effective as soon as practicable after such filing, and
(iii) cause such registration statement to remain
effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the
date as of which the Rights are no longer exercisable
for such securities, and (B) the date of the expiration
of the Rights. The Company will also take such action
as may be appropriate under, or to ensure compliance
with, the securities or "blue sky" laws of the various
states in connection with the exercisability of the
Rights. The Company may temporarily suspend, for a
period of time not to exceed ninety (90) days after the
date set forth in clause (i) of the first sentence of
this Section 9(c), the exercisability of the Rights in
order to prepare and file such registration statement
and permit it to become effective. Upon any such
suspension, the Company shall issue a public
announcement stating that the exercisability of the
Rights has been temporar-
14
<PAGE>
<PAGE>18
ily suspended, as well as a public announcement at such
time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such
jurisdiction shall have been obtained.
(d) The Company covenants and agrees
that it will take all such action as may be necessary
to ensure that all one one-hundredths of a share
of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities)
delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares
(subject to payment of the Purchase Price), be duly and
validly authorized and issued and fully paid and
nonassessable.
(e) The Company further covenants and
agrees that it will pay when due and payable any and
all federal and state transfer taxes and charges which
may be payable in respect of the issuance or delivery
of the Rights Certificates and of any certificates for
a number of one one-hundredths of a share of Preferred
Stock (or Common Stock and/or other securities, as the
case may be) upon the exercise of Rights. The Company
shall not, however, be required to pay any transfer tax
which may be payable in respect of any transfer or
delivery of Rights Certificates to a Person other than,
or the issuance or delivery of a number of one
one-hundredths of a share of Preferred Stock (or 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 a number of one one-hundredths of a
share of Preferred Stock (or 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 satisfaction that no
such tax is due.
Section 10. Preferred Stock Record Date.
---------------------------
Each person in whose name any certificate for a number
of one one-hundredths of a share of Preferred Stock (or
Common Stock and/or other securities, as the case may
be) is issued upon the exercise of Rights shall for all
purposes
15
<PAGE>
<PAGE>19
be deemed to have become the holder of record of such
fractional shares of Preferred Stock (or 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 such Rights was duly surrendered and payment
of the Purchase Price (and all applicable transfer
taxes) was made; provided, however, that if the date of
--------
such surrender and payment is a date upon which the
Preferred Stock (or Common Stock and/or other
securities, as the case may be) transfer books of the
Company are closed, such Person shall be deemed to have
become the record holder of such shares (fractional or
otherwise) on, and such certificate shall be dated, the
next succeeding Business Day on which the Preferred
Stock (or Common 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 herein.
Section 11. Adjustment of Purchase Price,
-----------------------------
Number and Kind of Shares or Number of Rights. The
---------------------------------------------
Purchase Price, the number and kind of shares covered
by each Right and the number of Rights outstanding are
subject to adjustment from time to time as provided in
this Section 11.
(a)(i) In the event the Company
shall at any time after the date of this Agree-
ment (A) declare a dividend on the Preferred Stock
payable in shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C)
combine the outstanding Preferred Stock into a
smaller number of shares, or (D) issue any shares
of its capital stock in a reclassification of the
preferred Stock (including any such
reclassification in connection with a
consolidation or merger in which the Company is
the continuing or surviving corporation),
except as otherwise provided in this Section 11(a)
and Section 7(e) hereof, the Purchase Price in
effect at the time of the record date for such
16
<PAGE>20
dividend or of the effective date of such
subdivision, combination or reclassification, and
the number and kind of shares of Preferred Stock
or capital stock, as the case may be, issuable on
such date, shall be proportionately adjusted
so that the holder of any Right exercised after
such time shall be entitled to receive, upon
payment of the Purchase Price then in effect, the
aggregate number and kind of shares of Preferred
Stock or capital stock, as the case may be, which,
if such Right had been exercised immediately
prior to such date and at a time when the
Preferred Stock transfer books of the Company were
open, he would have owned upon such exercise and
been entitled to receive by virtue of such
dividend, subdivision, combination or
reclassification. If an event occurs which would
require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the
adjustment provided for in this Section 11(a)(i)
shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section
11(a)(ii) hereof.
(ii) In the event:
(A)(1) any Acquiring Person or any
Associate or Affiliate of any Acquiring Person, at any
time after the date of this Agreement, directly or
indirectly, shall merge into the Company or otherwise
combine with the Company and the Company shall be the
continuing or surviving corporation of such merger or
combination and the Common Stock of the Company shall
remain outstanding and unchanged, or (2) any Person
(other than the Company, any Subsidiary of the Company,
any employee benefit plan of the Company or of any
Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for
or pursuant to the terms of any such plan), alone or
together with its Affiliates and Associates, shall, at
any time after the Rights Dividend Declaration Date,
become the Beneficial Owner of 30% or more of the
shares of Common Stock then outstanding, other than
pursuant to any transaction set forth in Section 13(a)
hereof, or pursuant to an offer for all outstanding
17
<PAGE>
<PAGE>21
shares of Common Stock at a price and upon such
terms and conditions as a majority of the
Continuing Directors determine to be in the best
interests of the Company and its stockholders,
other than such Person, its Affiliates and its
Associates, or
(B) during such time as there is an
Acquiring Person, there shall be any
reclassification of securities (including any
reverse stock split), or recapitalization of the
Company, or any merger or consolidation of the
Company with any of its Subsidiaries or any other
transaction or series of transactions involving
the Company or any of its Subsidiaries, other than
a transaction or transactions to which the
provisions of Section 13(a) apply (whether or not
with or into or otherwise involving an Acquiring
Person) which has the effect, directly or
indirectly, of increasing by more than 1% the
proportionate share of the outstanding shares of
any class of equity securities of the Company or
any of its Subsidiaries which is directly or
indirectly beneficially owned by any Acquiring
Person or any Associate or Affiliate of any
Acquiring Person,
then, promptly following the occurrence of a Section
11(a)(ii) Event, proper provision shall be made so that
each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to
receive, upon exercise thereof at the then current
Purchase Price in accordance with the terms of this
Agreement, in lieu of a number of one one-hundredths of
a share of Preferred Stock, 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 then number of one one-hundredths of a
share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence
of a Section 11(a)(ii) Event, and (y) dividing that
product (which, following such first occurrence, shall
thereafter be referred to as the "Purchase Price" for
each Right and for all purposes of this Agreement) by
50% of the current market price (determined pursuant to
Section 11(d) hereof) per share of Common Stock on the
date of such first occurrence (such number of shares,
the "Adjustment Shares").
18
<PAGE>
<PAGE>22
(iii) In the event that the number of
shares of Common, Stock which are authorized by
the Company's certificate of incorporation but not
outstanding or reserved for issuance for purposes
other than upon exercise of the Rights are not
sufficient to permit the exercise in full of the
Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the
Company shall: (A) determine the excess of (l) 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
preferred stock which the Board of Directors of
the Company has deemed to have the same value as
shares of Common Stock (such shares of preferred
stock, "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 of
the Company; provided, however, if the Company
-------- -------
shall not have made adequate provision to deliver
value pursuant to clause (B) above within thirty
(30) days following the later of (x) the first
occurrence of a Section 11(a)(ii) Event and (y)
the date on which the Company's right of
redemption pursuant to Section 23(a) expires
(the later of (x) and (y) being referred to herein
as the "Section 11(a)(ii) Trigger Date"), then
the Company shall be obligated to deliver, upon
the surrender for exercise of a Right and without
requiring payment of the Purchase Price, 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 Com-
19
<PAGE>
<PAGE>23
pany shall determine in good faith that it is
likely that sufficient additional shares of Common
Stock could be authorized for issuance upon
exercise in full of the Rights, the thirty (30)
day period set forth above may be extended to the
extent necessary, but not more than ninety (90)
days after the Section 11(a) (ii) Trigger Date, in
order that the Company may seek shareholder
approval for the authorization of such additional
shares (such period, as it may be extended, the
"Substitution Period"). To the extent that the
Company determines that some action need be taken
pursuant to the first and/or second sentences of
this Section 11(a)(iii), the Company (x) shall
provide, subject to Section 7(e) hereof, that such
action shall apply uniformly to all outstanding
Rights, and (y) may suspend the exercisability of
the Rights until the expiration of the
Substitution Period in order to seek any
authorization of additional shares and/or to
decide the appropriate form of distribution to be
made pursuant to such first sentence and to
determine the value thereof. In the event of any
such suspension, the Company shall issue a public
announcement stating that the exercisability of
the Rights has been temporarily suspended, as
well as a public announcement at such time as the
Suspension is no longer in effect. For purposes
of this Section 11(a)(iii), the value of the
Common Stock shall be the current market price
(as determined pursuant to Section 11(d) hereof)
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) In case the Company shall fix a
record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling
them to subscribe for or purchase (for a period
expiring within forty-five (45) calendar days after
such record date) Preferred Stock (or shares having the
same rights, privileges and preferences as the shares
of Preferred Stock ("equivalent preferred stock")) or
securities convertible into Preferred Stock or
equivalent preferred stock at a price per share of
Preferred Stock or per share of equiv-
20<PAGE>
<PAGE>24
alent preferred stock (or having a conversion price per
share, if a security convertible into Preferred Stock
or equivalent preferred stock) less than the current
market price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record
date, the Purchase Price to be in effect after such
record date shall be determined by multiplying the
Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall
be the number of shares of Preferred Stock outstanding
on such record date, plus the number of shares of
Preferred Stock which the aggregate offering price of
the total number of shares of Preferred Stock and/or
equivalent preferred stock so to be offered and/or the
aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such
current market price, and the denominator of which
shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of
additional shares of Preferred Stock and/or equivalent
preferred stock to be offered for subscription
or purchase (or into which the convertible securities
so to be offered are initially convertible). In case
such subscription price may be paid by delivery of
consideration part or all of which may be in a form
other than cash, the value of such consideration shall
be as determined in good faith by the Board of
Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent
and shall be binding on the Rights Agent and the
holders of the Rights Shares of Preferred Stock owned
by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such
computation. Such adjustment shall be made
successively whenever such a record date is fixed, and
in the event that such rights or warrants are not so
issued, the Purchase Price shall be adjusted to be the
Purchase Price which would then be in effect if such
record date had not been fixed.
(b) In case the Company shall fix a re-
cord date for a distribution to all holders of
Preferred Stock (including any such distribution made
in connection with a consolidation or merger in which
the Company is the continuing corporation) of evidences
of indebtedness, cash (other than a regular quarterly
cash dividend out of the earnings or retained earnings
of the Company), assets (other than a dividend payable
in Preferred Stock, but including any dividend payable
in stock other than Preferred stock) or subscription
rights or warrants (exclud-
21
<PAGE>25
ing those referred to in Section 11(b) hereof), the
Purchase Price to be in effect after such record date
shall be determined by multiplying the Purchase
Price in effect immediately prior to such record date
by a fraction, the numerator of which shall be the
current market price (as determined pursuant to
Section 11(d) hereof) per share of Preferred Stock on
such record date, less the fair market value (as
determined in good faith by the Board of Directors of
the Company, whose determination shall be described in
a statement filed with the Rights Agent) of the portion
of the cash, assets or evidences of indebtedness so to
be distributed or of such subscription rights or
warrants applicable to a share of Preferred Stock and
the denominator of which shall be such current market
price (as determined pursuant to Section 11(d) hereof)
per share of Preferred Stock. Such adjustments shall
be made successively whenever such a record date is
fixed, and in the event that such distribution is not
so made, the Purchase Price shall be adjusted to be the
Purchase Price which would have been in effect if such
record date had not been fixed.
(d)(i) For the purpose of any
computation hereunder, other than computations
made pursuant to Section 11(a)(iii) hereof, the
"current market price" per share of Common Stock
on any date shall be deemed to be the average of
the daily closing prices per share of such Common
Stock for the thirty (30) consecutive Trading
Days (as such term is herein after defined)
immediately prior to such date, and for purposes
of computations made pursuant to Section 11(a)
(iii) hereof, 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 such Common Stock for the ten (10) consecutive
Trading Days immediately following such date;
provided, however, that in the event that
--------
the current market price per share of the Common
Stock is determined during a period following the
announcement by the issuer of such Common Stock
22
<PAGE>
<PAGE>26
of (A) 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 (B) any
subdivision, combination or reclassification of
such Common Stock, and prior to the expiration of
the requisite thirty (30) Trading Day or ten (10)
Trading Day period, as set forth above, after the
ex-dividend date for such dividend or
distribution, or the record date for such
subdivision, combination or reclassification,
then, and in each such case, the "current market
price" shall be properly adjusted to take into
account ex-dividend trading. The closing price
for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such
day, the average of the closing bid and asked
prices, regular way, in either case as reported in
the principal consolidated transaction reporting
system with respect to securities listed or
admitted to trading on the New York Stock Exchange
or, if the shares of Common Stock are not listed
or admitted to trading on the New York Stock
Exchange, as reported in the principal
consolidated transaction reporting system with
respect to securities listed on the principal
national securities exchange on which the 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 price or, if not so
quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported
by the National Association of Securities Dealers,
Inc. Automated Quotation System ("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 of Directors of the
Company shall be used. The term
23
<PAGE>
<PAGE>27
"Trading Day" shall mean a day on which the
principal national securities exchange on which
the shares of Common Stock are listed or admitted
to trading is open for 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.
(ii) For the purpose of any
computation hereunder, the "current market price"
per share of Preferred Stock shall be determined
in the same manner as set forth above for the
Common Stock in clause (i) of this Section 11(d)
(other than the last sentence thereof). If the
current market price per share of Preferred Stock
cannot be determined in the manner provided above
or if the Preferred Stock is not publicly held or
listed or traded in a manner described in clause
(i) of this Section 11(d), the "current market
price" per share of Preferred Stock shall be
conclusively deemed to be an amount equal to
100 (as such number may be appropriately adjusted
for such events as stock splits, stock dividends
and recapitalizations with respect to the Common
Stock occurring after the date of this Agreement)
multiplied by the current market price per share
of the Common Stock. If neither the Common Stock
nor the Preferred Stock is publicly held or so
listed or traded, "current market price" per share
of the preferred Stock shall mean the fair value
per share as determined in good faith by the Board
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. For all purposes of this Agreement, the
"current market price" of one one-hundredth of a
share of Preferred Stock
24
<PAGE>
<PAGE>28
shall be equal to the "current market price"
of one share of Preferred Stock divided by
100.
(e) Anything herein to the contrary
notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require
an increase or decrease of at least one percent (l%) in
the Purchase Price; provided, however, that any
--------
adjustments which by reason of this Section 11(e) are
not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All
calculations under this Section 11 shall be made to the
nearest cent or to the nearest ten-thousandth of a
share of Common Stock or other share or one-millionth
of a share of Preferred Stock, as the case may be.
Notwithstanding the first sentence of this Section
11(e), any adjustment required by this Section 11 shall
be made no later than the earlier of (i) three (3)
years from the date of the transaction which mandates
such adjustment, or (ii) the Expiration Date.
(f) If as a result of an adjustment
made pursuant to Section 11(a)(ii) or Section 13(a)
hereof, the holder of any Right thereafter exercised
shall become entitled to receive any shares of capital
stock other than Preferred Stock, thereafter the number
of such other shares so receivable upon exercise of any
Right and the Purchase Price thereof shall be subject
to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the
provisions with respect to the Preferred Stock
contained in Sections 11(a), (b), (c), (e), (g), (h),
(i), (j), (k) and (m), and the provisions of Sections
7, 9, 10, 13 and 14 hereof with respect to the
Preferred Stock shall apply on like terms to any such
other shares.
(g) All Rights originally issued by the
Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to
purchase at the adjusted Purchase Price, the number of
one one-hundredths of a share of Preferred Stock
purchasable from time to time hereunder upon exercise
of the Rights, all subject to further adjustment as
provided herein.
(h) Unless the Company shall have
exercised its election as provided in Section 11(i),
upon each adjustment of the Purchase Price as a result
of the calculations made in Sections 11(b) and (c),
each Right
25
<PAGE>
<PAGE>29
outstanding immediately prior to the making of such
adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number
of one one-hundredths of a share of Preferred Stock
(calculated to the nearest one-millionth) obtained by
(i) multiplying (x) the number of one one-hundredths of
a share covered by a Right immediately prior to this
adjustment, by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase
Price, and (ii) dividing the product so obtained by the
purchase Price in effect immediately after such
adjustment of the Purchase Price.
(i) The Company may elect on or after
the date of any adjustment of the Purchase Price to
adjust the number of Rights, in lieu of any adjustment
in the number of one one-hundredths of a share of
preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable
for the number of one one-hundredths of a share
of preferred Stock for which a Right was exercisable
immediately prior to such adjustment. Each Right held
of record prior to such adjustment of the number of
Rights shall become that number of Rights (calculated
to the nearest one-ten-thousandth) obtained by dividing
the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price
in effect immediately after adjustment of the Purchase
Price. The Company, shall make a public announcement
of its election to adjust the number of Rights,
indicating the record date for the adjustment, and, if
known at the time, the amount of the adjustment to be
made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but,
if the Rights Certificates have been issued, shall be
at least ten (10) days later than the date of the
public announcement. If Rights Certificates have been
issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as
promptly as practicable, cause to be distributed to
holders of record of Rights Certificates on such record
date Rights Certificates evidencing, subject to Section
14 hereof, the additional Rights to which such holders
shall be entitled as a result of such adjustment, or,
at the option of the Company, shall cause to be
distributed to such holders of record in substitution
and replacement for the Rights Certificates held by
such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new
Rights Certificates evidenc-
26
<PAGE>30
ing all the Rights to which such holders shall be
entitled after such adjustment. Rights Certificates so
to be distributed shall be issued, executed and
countersigned in the manner provided for herein (and
may bear, at the option of the Company, the adjusted
Purchase price) and shall be registered in the names of
the holders of record of Rights Certificates on the
record date specified in the public announcement.
(j) Irrespective of any adjustment or
change in the Purchase Price or the number of one one-
hundredths of a share of Preferred Stock issuable upon
the exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to
express the Purchase Price per one one-hundredth of a
share and the number of one one-hundredth of a share
which were expressed in the initial Rights Certificates
issued here under.
(k) Before taking any action that would
cause an adjustment reducing the Purchase Price below
the then stated value, if any, of the number of one
one-hundredths of a share of Preferred Stock issuable
upon exercise of the Rights, the Company shall take any
corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable
such number of one one-hundredths of a share of
Preferred Stock at such adjusted Purchase Price.
(l) In any case in which this Section
11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a
specified event, the Company may elect to defer until
the occurrence of such event the issuance to the holder
of any Right exercised after such record date the
number of one one-hundredths of a share of Preferred
Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and
above the number of one one-hundredths of a share of
Preferred Stock and other capital stock or securities
of the Company, if any, issuable upon such exercise
on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company
--------
shall deliver to such holder a due bill or other
appropriate instrument evidencing such holder's right
to receive such additional shares (fractional or
otherwise) or securities upon the occurrence of the
event requiring such adjustment.
27
<PAGE>
<PAGE>31
(m) Anything in this Section 11 to the
contrary notwithstanding, the Company shall be entitled
to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by
this Section 11, as and to the extent that in their
good faith judgment the Board of Directors of the
Company shall determine to be advisable in order that
any (i) consolidation or subdivision of the Preferred
Stock, (ii) issuance wholly for cash of any shares of
Preferred Stock at less than the current market price,
(iii) issuance wholly for cash of shares of Preferred
Stock or securities which by their terms are
convertible into or exchangeable for shares of
Preferred Stock, (iv) stock dividends or (v) issuance
of rights, options or warrants referred to in this
Section 11, hereafter made by the Company to holders of
its Preferred Stock shall not be taxable to such
shareholders.
(n) The Company covenants and agrees
that it shall not, at any time after the Distribution
Date, (i) consolidate with any other Person (other than
a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof), (ii) merge with or
into any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section
11(o) hereof), or (iii) sell or transfer (or permit any
Subsidiary to sell or transfer), in one transaction, or
a series of related transactions, assets or earning
power aggregating more than 50% of the assets or
earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries
in one or more transactions each of which complies with
Section 11(o) hereof), if (x) at the time of or
immediately after such consolidation, merger or sale
there are any rights, warrants or other instruments or
securities outstanding or agreements in effect which
would substantially diminish or otherwise eliminate the
benefits intended to be afforded by the Rights or (y)
prior to, simultaneously with or immediately after such
consolidation, merger or sale, the shareholders of the
Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(a) hereof
shall have received a distribution of Rights previously
owned by such Person or any of its Affiliates and
Associates.
28
<PAGE>
<PAGE>32
(o) The Company covenants and agrees
that, after the Distribution Date, it will not, except
as permitted by Section 23 or Section 26 hereof, take
(or permit any Subsidiary to take) any action if at the
time such action is taken it is reasonably foreseeable
that such action will diminish substantially or
otherwise eliminate the benefits intended to be
afforded by the Rights.
(p) Anything in this Agreement to the
contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration
Date and prior to the Distribution Date (i) declare a
dividend on the outstanding shares of Common Stock
payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Common Stock, or (iii) combine
the outstanding shares of Common Stock into a smaller
number of shares, the number of Rights associated with
each share of Common Stock then outstanding, or issued
or delivered thereafter but prior to the Distribution
Date, shall be proportionately adjusted so that the
number of Rights thereafter associated with each share
of Common Stock following any such event shall equal
the result obtained by multiplying the number of Rights
associated with each share of Common Stock immediately
prior to such event by a fraction the numerator which
shall be the total number of shares of Common Stock
outstanding immediately prior to the occurrence of the
event and the denominator of which shall be the total
number of shares of Common Stock outstanding
immediately following the occurrence of such event.
Section 12. Certificate of Adjusted Purchase
--------------------------------
Price or Number of Shares. Whenever an adjustment is
-------------------------
made as provided in Section 11 and Section 13 hereof,
the Company shall (a) promptly prepare a certificate
setting forth such adjustment and a brief statement of
the facts accounting for such adjustment, (b) promptly
file with the Rights Agent, and with each transfer
agent for the Preferred Stock and the Common Stock, a
copy of such certificate, and (c) mail a brief summary
thereof to each holder of a Rights Certificate (or, if
prior to the Distribution Date, to each holder of a
certificate representing shares of Common Stock) in
accordance with Section 25 hereof. The Rights Agent
shall be fully protected in relying on any such
certificate and on any adjustment therein contained.
29
<PAGE>
<PAGE>33
Section 13. Consolidation, Merger or Sale or
--------------------------------
Transfer of Assets or Earning Power.
-----------------------------------
(a) In the event that, following the
Stock Acquisition Date, directly or indirectly, (x) the
Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the
Company in a transaction which complies with Section
11(o) hereof), and the Company shall not be the
continuing or surviving corporation of such
consolidation or merger, (y) any person (other than a
Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) shall consolidate
with, or merge with or into, the Company, and the
Company shall be the continuing or surviving
corporation of such consolidation or merger and, in
connection with such consolidation or merger, all or
part of the outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities
of any other Person or cash or any other property, or
(z) the Company shall sell or otherwise
transfer (or one or more of its Subsidiaries shall sell
or otherwise transfer), in one transaction or a series
of related transactions, assets or earning power
aggregating more than 50% of the assets or earning
power of the Company and its Subsidiaries (taken as a
whole) to any Person or Persons (other than the Company
or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o)
hereof), then, and in each such case, proper provision
shall be made so that: (i) each holder of a Right,
except as provided in Section 7(e) thereof, 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,
nonassessable and freely tradeable shares of Common
Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens,
encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1)
multiplying the then current Purchase Price by the
number of one one-hundredths of a share of Preferred
Stock for which a Right is exercisable immediately
prior to the first occurrence of a Section 13 Event
(or, if a Section 11(a)(ii) Event has occurred prior to
the first occurrence of a Section 13 Event, multiplying
the number of such one one-hundredths of a share for
which a Right was exercisable immediately prior to the
first occurrence of a Section 11(a)(ii) Event by the
Purchase Price in effect immediately prior to such
first occurrence), and
30
<PAGE>
<PAGE>34
dividing that product (which, following the first
occurrence of a Section 13 Event, shall be referred to
as the "Purchase Price" for each Right and for all
purposes of this Agreement) by (2) 50% of the current
market price (determined pursuant to Section 11(d)(i)
hereof) per share of the Common Stock of such Principal
Party on the date of consummation of such Section 13
Event; (ii) such principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section
13 Event, all the obligations and duties of the Company
pursuant to this Agreement; (iii) the term "Company"
shall thereafter be deemed to refer to such Principal
Party, it being specifically intended that the
provisions of Section 11 hereof shall apply only to
such Principal Party following the first occurrence of
a Section 13 Event; (iv) such Principal Party shall
take such steps (including, but not limited to, the
reservation of a sufficient number of shares of its
Common stock) in connection with the consummation of
any such transaction as may be necessary to assure that
the provisions hereof shall thereafter be applicable,
as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction
described in clause (x) or (y) of the first
sentence of Section 13(a), the Person that is the
issuer of any securities into which shares of
Common Stock of the Company are converted in such
merger or consolidation, and if no securities are
so issued, the Person that is the other party to
such merger or consolidation; and
(ii) in the case of any
transaction described in clause (z) of the first
sentence of Section 13(a), the Person that is the
party receiving the greatest portion of the assets
or earning power transferred pursuant to such
transaction or transactions;
provided, however, that in any such case, (1) if the
--------
Common Stock of such Person is not at such time and has
not been continuously over the preceding twelve (12)
31
<PAGE>
<PAGE>35
month period registered under Section 12 of the
Exchange Act, and such Person is a direct or indirect
Subsidiary of another Person the Common Stock of which
is and has been so registered, "principal Party" shall
refer to such other person; and (2) in case such Person
is a Subsidiary, directly or indirectly of more than
one Person, the Common Stocks of two or more of which
are and have been so registered, "Principal Party"
shall refer to whichever of such Persons is the issuer
of the Common Stock having the greatest aggregate
market value.
(c) The Company shall not consummate
any such consolidation, merger, sale or transfer unless
the principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not
been issued or reserved for issuance to permit the
exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto the Company and
such principal Party shall have executed and delivered
to the Rights Agent a supplemental agreement providing
for the terms set forth in paragraphs (a) and (b) of
this Section 13 and further providing that, as soon as
practicable after the date of any consolidation, merger
or sale of assets mentioned in paragraph (a) of this
Section 13, the Principal Party will
(i) prepare and file a
registration statement under the Act, with respect
to the Rights and the securities purchasable upon
exercise of the Rights on an appropriate form, and
will use its best efforts to cause such
registration statement to (A) become effective as
soon as practicable after such filing and (B)
remain effective (with a prospectus at all times
meeting the requirements of the Act) until the
Expiration Date; and
(ii) will deliver to holders of
the Rights historical financial statements for the
principal Party and each of its Affiliates
which comply in all respects with the requirements
for registration on Form 10 under the Exchange
Act.
The provisions of this Section 13 shall similarly apply
to successive mergers or consolidations or sales or
other transfers. In the event that a Section 13 Event
shall occur at any time after the occurrence of a
Section
32
<PAGE>
<PAGE>36
11(a)(ii) Event, the Rights which have not theretofore
been exercised shall thereafter become exercisable in
the manner described in Section 13(a).
Section 14. Fractional Rights and Fractional
--------------------------------
Shares.
------
(a) The Company shall not be required to
issue fractions of Rights, except prior to the
Distribution Date as provided in Section 11(p) hereof,
or to distribute Rights Certificates which evidence
fractional Rights. In lieu of such fractional Rights,
there shall be paid to the registered holders of the
Rights Certificates with regard to which such
fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the
current market value of a whole Right. For purposes of
this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such
fractional Rights would have been otherwise issuable.
The closing price of the Rights for any day shall be
the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the
closing bid and asked prices, regular way, in either
case as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock
Exchange or, if the Rights are not listed or admitted
to trading on the New York Stock Exchange, as reported
in the principal consolidated transaction reporting
system with respect to securities listed on the
principal national securities exchange on which the
Rights are listed or admitted to trading, or if the
Rights are not listed or admitted to trading on any
national securities exchange, the last quoted price or,
if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as
reported by NASDAQ or such other system then in use or,
if on any such date the Rights are not quoted by any
such organization, the average of the closing bid and
asked prices as furnished by a professional market
maker making a market in the Rights selected by the
Board of Directors of the Company. If on any such date
no such market maker is making a market in the Rights
the fair value of the Rights on such date as determined
in good faith by the Board of Directors of the Company
shall be used.
33
<PAGE>
<PAGE>37
(b) The Company shall not be required
to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one
one-hundredth of a share of Preferred Stock) upon
exercise of the Rights or to distribute certificates
which evidence fractional shares of Preferred Stock
(other than fractions which are integral multiples of
one one-hundredth of a share of Preferred Stock). In
lieu of fractional shares of Preferred Stock that are
not integral multiples of one one-hundredth of a share
of Preferred Stock, the Company may pay to the
registered holders of Rights Certificates at the time
such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current
market value of one one-hundredth of a share of
Preferred Stock. For purposes of this Section 14(b),
the current market value of one one-hundredth of a
share of Preferred Stock shall be one one-hundredth of
the closing price of a share of Preferred Stock (as
determined pursuant to Section 11(d)(ii) hereof) for
the Trading Day immediately prior to the date of such
exercise.
(c) Following the occurrence of a
Triggering Event, the Company shall not be required to
issue fractions of shares of Common Stock upon exercise
of the Rights or to distribute certificates which
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 such Rights are exercised as herein provided an
amount in cash equal to the same fraction of the
current market value of one (l) share of Common Stock.
For purposes of this Section 14(c), 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)(i) hereof) for the Trading
Day immediately prior to the date of such exercise.
(d) The holder of a Right by the
acceptance of the Rights expressly waives his right to
receive any fractional Rights or any fractional shares
upon exercise of a Right, except as permitted by this
Section 14.
Section 15. Rights of Action. All rights of
----------------
action in respect of this Agreement are vested in the
respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any
registered holder of any Rights Certificate (or, prior
to the Distribution
34
<PAGE>
<PAGE>38
Date, of the Common Stock), without the consent of the
Rights Agent or of the holder of any other Rights
Certificate (or, prior to the Distribution Date, of the
Common Stock), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any
suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Rights
Certificate in the manner provided in such Rights
Certificate and in this Agreement. Without limiting the
foregoing or any remedies available to the holders
of Rights, it is specifically acknowledged that the
holders of Rights would not have an adequate remedy at
law for any breach of this Agreement and shall be
entitled to specific performance of the obligations
hereunder and injunctive relief against actual or
threatened violations of the obligations hereunder of
any person subject to this Agreement.
Section 16. Agreement of Rights Holders. Ev-
---------------------------
ery holder of a Right by accepting the same consents
and agrees with the Company and the Rights Agent and
with every other holder of a Right that:
(a) prior to the Distribution Date, the
Rights will be transferable only in connection with the
transfer of Common stock;
(b) after the Distribution Date, the
Rights Certificates are transferable only on the
registry books of the Rights Agent if surrendered
at the principal office or offices of the Rights Agent
designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and
with the appropriate forms and certificates fully
executed;
(c) subject to Section 6(a) and Section
7(f) hereof, the Company and the Rights Agent may deem
and treat the person in whose name a Rights Certificate
(or, prior to the Distribution Date, the associated
Common Stock certificate) is registered as the absolute
owner thereof and of the Rights evidenced thereby
(notwithstanding any notations of ownership or writing
on the Rights Certificates or the associated Common
Stock certificate made by anyone other than the Company
or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to
the last sentence of Section 7(e) hereof, shall be
required to be affected by any notice to the contrary;
and
35
<PAGE>
<PAGE>39
(d) notwithstanding anything in this
Agreement to the contrary, neither the Company nor the
Rights Agent shall have any liability to any holder of
a Right or other Person as a result of its inability to
perform any of its obligations under this Agreement by
reason of any preliminary or permanent injunction or
other order, decree or ruling issued by a court of
competent jurisdiction or by a governmental, regulatory
or administrative agency or commission, or any statute,
rule, regulation or executive order promulgated or
enacted by any governmental authority, prohibiting or
otherwise restraining performance of such obligation;
provided, however, the Company must use its best
--------
efforts to have any such order, decree or ruling lifted
or otherwise overturned as soon as possible.
Section 17. Rights Certificate Holder Not
-----------------------------
Deemed a 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 one one-hundredths of a share of
Preferred Stock or any other securities of the Company
which may at any time be issuable on the exercise of
the Rights represented there by, nor shall anything
contained herein or in any Rights Certificate be
construed to confer upon the holder of any Rights
Certificate, as such, any of the rights of a
stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive
notice of meetings or other actions affecting
stockholders (except as provided in Section 24 hereof),
or to receive dividends or subscription rights, or
otherwise, until the Right, or Rights evidenced by such
Rights Certificate shall have been exercised in
accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
--------------------------
(a) The Company agrees to pay to the Rights
Agent reasonable compensation for all services rendered
by it hereunder and, from time to time, on demand of
the Rights Agent, its reasonable expenses and counsel
fees and disbursements and other disbursements incurred
in the administration and execution of this Agreement
and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the
Rights Agent for, and to hold it harmless against, any
36
<PAGE>
<PAGE>40
loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part
of the Rights Agent, for anything done or omitted by
the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs
and expenses of defending against any claim of
liability in the premises.
(b) The Rights Agent shall be protected and
shall incur no liability for or in respect of any
action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance
upon any Rights Certificate or certificate for Common
Stock or for other securities of the Company,
instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice,
direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to
be signed, executed and, where necessary, verified or
acknowledged, by the proper Person or Persons.
Section 19. Merger or Consolidation or
--------------------------
Change of Name of Rights Agent.
------------------------------
(a) Any corporation into which the Rights
Agent or any successor Rights Agent may be merged or
with which it may be consolidated, or any corporation
resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a
party, or any corporation succeeding to the corporate
trust business of the Rights Agent or any successor
Rights Agent, shall be the successor to the Rights
Agent under this Agreement without the execution or
filing of any paper or any further act on the part of
any of the parties hereto; provided, however, that such
--------
corporation would be eligible for appointment as a
successor Rights Agent under the provisions of Section
21 hereof. In case at the time such successor Rights
Agent shall succeed to the agency created by this
Agreement, any of the Rights Certificates shall have
been countersigned but not delivered, any such
successor Rights Agent may adopt the countersignature
of a predecessor Rights Agent and deliver such Rights
Certificates so countersigned; and in case at that time
any of the Rights Certificates shall not have been
countersigned, any successor Rights Agent may
countersign such Rights Certificates either in the name
of the predecessor or in the name of the successor
Rights Agent; and in all such cases such Rights
Certificates shall have the full
37
<PAGE>
<PAGE>41
force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the
Rights Agent shall be changed and at such time any of
the Rights Certificates shall have been countersigned
but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver
Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have
been countersigned, the Rights Agent may countersign
such Rights Certificates either in its prior name or in
its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the
Rights Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The
----------------------
Rights Agent undertakes the duties and obligations
imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders
of Rights Certificates, by their acceptance thereof,
shall be bound:
(a) The Rights Agent may consult with legal
counsel (who may be legal counsel for the Company), and
the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in
accordance with such opinion.
(b) Whenever in the performance of its
duties under this Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter
(including, without limitation, the identity of any
Acquiring Person and the determination of "current
market price") be proved or established by the Company
prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a
certificate signed by the Chairman of the Board, the
President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and delivered to the Rights
Agent; and such certificate shall be full authorization
to the Rights Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement
in reliance upon such certificate.
38
<PAGE>
<PAGE>42
(c) The Rights Agent shall be liable
hereunder only for its own negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable
for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Rights
Certificates or be required to verify the same (except
as to its countersignature on such Rights
Certificates), but all such statements and recitals are
and shall be deemed to have been made by the Company
only.
(e) The Rights Agent shall not be under
any responsibility in respect of the validity of this
Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in
respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company
of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor shall it be
responsible for any adjustment required under the
provisions of Section 11 or Section 13 hereof or
responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of
facts that would require any such adjustment (except
with respect to the exercise of Rights evidenced by
Rights Certificates after actual notice of any such
adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common
Stock or Preferred Stock to be issued pursuant to this
Agreement or any Rights Certificate or as to whether
any shares of Common Stock or Preferred Stock will,
when so issued, be validly authorized and issued, fully
paid and nonassessable.
(f) The Company agrees that it will
perform, execute, acknowledge and deliver or cause to
be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances
as may reasonably be required by the Rights Agent for
the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized
and directed to accept instructions with respect to the
performance of its duties hereunder from the Chairman
of the Board, the President, any Vice President, the
Secre-
39
<PAGE>
<PAGE>43
tary, any Assistant Secretary, the Treasurer or any
Assistant Treasurer of the Company, and to apply to
such officers for advice or instructions in connection
with its duties, and it shall not be liable for any
action taken or suffered to be taken by it in good
faith in accordance with instructions of any such
officer.
(h) The Rights Agent and any stockholder,
director, officer or employee of the Rights Agent may
buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily
interested in any transaction in which the Company may
be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though
it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent from acting in
any other capacity for the Company or for any other
legal entity.
(i) The Rights Agent may execute and
exercise any of the rights or powers hereby vested in
it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent
shall not be answerable or accountable for any act, de-
fault, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct; provided,
--------
however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No provision of this Agreement shall
require the Rights Agent to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the
exercise of its rights if there shall be reasonable
grounds for believing that repayment of such funds or
adequate indemnification against such risk or liability
is not reasonably assured to it.
(k) If, with respect to any Right
Certificate surrendered to the Rights Agent for
exercise or transfer, the certificate attached to the
form of assignment or form of election to purchase, as
the case may be, has either not been completed or
indicates an affirmative response to clause 1 and/or 2
thereof, the Rights Agent shall not take any further
action with respect to such requested exercise of
transfer without first consulting with the Company.
40
<PAGE>44
Section 21. Change of Rights Agent. The
----------------------
Rights Agent or any successor Rights Agent may resign
and be discharged from its duties under this Agreement
upon thirty (30) days' notice in writing mailed to the
Company, and to each transfer agent of the Common Stock
and Preferred Stock, by registered or certified mail,
and to the holders of the Rights CertificateS by first-
class mail. The Company may remove the Rights Agent or
any successor Rights Agent upon thirty (30) days'
notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each
transfer agent of the Common Stock and Preferred Stock,
by registered or certified mail, and to the holders of
the Rights Certificates by first-class mail. If the
Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a
period of thirty (30) days after giving notice of such
removal or after it has been notified in writing of
such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of a Rights
Certificate (who shall, with such notice, submit his
Rights Certificate for inspection by the Company), then
any registered holder of any Rights Certificate may
apply to any court of competent jurisdiction for the
appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by
such a court, shall be a corporation organized and
doing business under the laws of the United States or
of the State of Missouri (or of any other state of the
United States so long as such corporation is authorized
to do business as a banking institution in the State of
Missouri), in good standing, having a principal office
in the State of Missouri, which is authorized under
such laws to exercise corporate trust powers and is
subject to supervision or examination by federal or
state authority and which has at the time of its
appointment as Rights Agent a combined capital and
surplus of at least $100,000,000. After appointment,
the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if
it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent
shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder,
and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment,
the Company shall file notice thereof in writing with
the predecessor
41
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<PAGE>45
Rights Agent and each transfer agent of the Common
Stock and the Preferred Stock, and mail a notice
thereof in writing to the registered holders of the
Rights Certificates. Failure to give any notice
provided for in this Section 21, however, or any defect
therein, shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case
may be.
Section 22. Issuance of New Rights
----------------------
Certificates. Notwithstanding any of the provisions of
------------
this Agreement or of the Rights to the contrary, the
Company may, at its option, issue new Rights
Certificates evidencing Rights in such form as may be
approved by its Board of Directors to reflect any
adjustment or change in the Purchase Price and the
number or kind or class of shares or other securities
or property purchasable under the Rights Certificates
made in accordance with the provisions of this
Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following
the Distribution Date and prior to the redemption or
expiration of the Rights, the Company (a) shall, with
respect to shares of Common Stock so issued or sold
pursuant to the exercise of stock options or under any
employee plan or arrangement, or upon the exercise,
conversion or exchange of securities hereinafter issued
by the Company, and (b) may, in any other case, if
deemed necessary or appropriate by the Board of
Directors of the Company, issue Rights Certificates
representing the appropriate number of Rights in
connection with such issuance or sale; provided,
--------
however, that (i) no such Rights Certificate shall be
issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a
significant risk of material adverse tax consequences
to the Company or the Person to whom such Rights
Certificate would be issued, and (ii) no such Rights
Certificate shall be issued if, and to the extent that,
appropriate adjustment shall otherwise have been made
in lieu of the issuance thereof.
Section 23. Redemption and Termination.
--------------------------
(a) The Board of Directors of the
Company may, at its option, at any time prior to the
earlier of (i) the close of business on the tenth day
following the Stock Acquisition Date or (ii) the Final
Expiration Date, redeem all but not less than all the
then outstanding Rights at a redemption price of $.025
per Right, as such
42
<PAGE>
<PAGE>46
amount may be appropriately adjusted to reflect any
stock split, stock dividend or similar transaction
occurring after the date hereof (such redemption price
being hereinafter referred to as the "Redemption
Price"); provided, however, that if, following the
--------
occurrence of a Stock Acquisition Date and following
the expiration of the right of redemption hereunder but
prior to any Triggering Event (i) a Person who is an
Acquiring Person shall have transferred or otherwise
disposed of a number of shares of Common Stock in one
transaction or series of transactions, not directly or
indirectly involving the Company or any of its
Subsidiaries, which did not result in the occurrence of
a Triggering Event such that such Person is thereafter
a Beneficial Owner of 10% or less of the outstanding
shares of Common Stock, and (ii) there are no other
Persons, immediately following the occurrence of the
event described in clause (i), who are Acquiring
Persons, then the right of redemption shall be
reinstated and thereafter be subject to the provisions
of this Section 23. Notwithstanding anything contained
in this Agreement to the contrary, the Rights shall not
be exercisable after the first occurrence of a Section
11(a)(ii) Event until such time as the Company's right
of redemption hereunder has expired.
(b) Immediately upon the action of the
Board of Directors of the Company ordering the
redemption of the Rights, evidence of which shall have
been filed with the Rights Agent and without any
further action and without any notice, the right to
exercise the Rights will terminate and the only right
thereafter of the holders of Rights shall be to receive
the Redemption Price for each Right so held. Promptly
after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give
notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such
notice to all such holders at each holder's last
address as it appears upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the
registry books of the Transfer Agent for the Common
Stock. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of
redemption will state the method by which the payment
of the Redemption Price will be made.
43
<PAGE>
<PAGE>47
Section 24. Notice of Certain Events.
------------------------
(a) In case the Company shall propose, at
any time after the Distribution Date, (i) to pay any
dividend payable in stock of any class to the holders
of Preferred Stock or to make any other distribution to
the holders of Preferred Stock (other than a regular
quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the
holders of Preferred Stock rights or warrants to
subscribe for or to purchase any additional shares of
Preferred Stock or shares of stock of any class or any
other securities, rights or options, or (iii) to effect
any reclassification of its Preferred Stock (other than
a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to
effect any consolidation or merger into or with any
other Person (other than a Subsidiary of the Company in
a transaction which complies with Section 11(o)
hereof), or to effect any sale or other transfer (or to
permit one or more of its Subsidiaries to effect any
sale or other transfer), in one transaction or a series
of related transactions, of more than 50% of the assets
or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person or Persons
(other than the Company and/or any of its Subsidiaries
in one or more transactions each of which complies with
Section 11(o) hereof), or (v) to effect the
liquidation, dissolution or winding up of the Company,
then, in each such case, the Company shall give to each
holder of a Rights Certificate, to the extent feasible
and in accordance with Section 25 hereof, a notice of
such proposed action, which shall specify the record
date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on
which such reclassification, consolidation, merger,
sale, transfer, liquidation, dissolution, or winding up
is to take place and the date of participation therein
by the holders of the shares of Preferred Stock if any
such date is to be fixed, and such notice shall be so
given in the case of any action covered by clause (i)
or (ii) above at least twenty (20) days prior to the
record date for determining holders of the shares of
Preferred Stock for purposes of such action, and in the
case of any such other action, at least twenty (20)
days prior to the date of the taking of such proposed
action or the date of participation therein by the
holders of the shares of Preferred Stock whichever
shall be the earlier.
44
<PAGE>
<PAGE>48
(b) In case any of the events set forth in
Section 11(a)(ii) hereof shall occur, then, in any such
case, (i) the Company shall as soon as practicable
thereafter give to each holder of a Rights Certificate,
to the extent feasible and in accordance with Section
25 hereof, a notice of the occurrence of such event,
which shall specify the event and the consequences of
the event to holders of Rights under Section 11(a)(ii)
hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter
to refer to Common Stock and/or, if appropriate, other
securities.
Section 25. Notices. Notices or demands
-------
authorized by this Agreement to be given or made by the
Rights Agent or by the holder of any Rights Certificate
to or on the Company shall be sufficiently given or
made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing
with the Rights Agent) as follows:
Anheuser-Busch Companies, Inc.
One Busch Place
St. Louis, Missouri 63118-1852
Attention: Corporate Secretary
Subject to the provisions of Section 21, any notice or
demand authorized by this Agreement to be given or made
by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
Centerre Trust Company of St. Louis
510 Locust Street
St. Louis, Missouri 63101
Attention: Corporate Trust Department
Notices or demands authorized by this Agreement to be
given or made by the Company or the Rights Agent to the
holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates
representing shares of Common Stock) shall be
sufficiently given or made if sent by first-class mail,
postage prepaid, addressed to such holder at the
address of such holder as shown on the registry books
of the Company.
45
<PAGE>
<PAGE>49
Section 26. Supplements and Amendments.
--------------------------
Prior to the Distribution Date and subject to the
penultimate sentence of this Section 26, the Company
and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement
without the approval of any holders of certificates
representing shares of Common Stock. From and after
the Distribution Date and subject to the penultimate
sentence of this Section 26, the Company and the Rights
Agent shall, if the Company so directs, supplement or
amend this Agreement without the approval of any
holders of Rights Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent
with any other provisions herein, (iii) to shorten or
lengthen any time period hereunder, or (iv) to change
or supplement the provisions hereunder in any manner
which the Company may deem necessary or desirable and
which shall not adversely affect the interests of the
holders of Rights Certificates; provided, this
--------
Agreement may not be supplemented or amended to
lengthen, pursuant to clause (iii) of this sentence,
(A) a time period relating to when the Rights may be
redeemed at such time as the Rights are not then
redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing
or clarifying the rights of, and/or the benefits to,
the holders of Rights. Upon the delivery of a
certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment
is in compliance with the terms of this Section 26, the
Rights Agent shall execute such supplement or
amendment. Notwithstanding anything contained in this
Agreement to the contrary, no supplement or amendment
shall be made which changes the Redemption Price, the
Final Expiration Date, the Purchase Price or the number
of one one-hundredths of a share of Preferred Stock for
which a Right is exercisable. Prior to the
Distribution Date, the interests of the holders of
Rights shall be deemed coincident with the interests of
the holders of Common Stock.
Section 27. Successors. All the covenants
----------
and provisions of this Agreement by or for the benefit
of the Company or the Rights Agent shall bind and inure
to the benefit of their respective successors and
assigns hereunder.
46
<PAGE>50
Section 28. Determinations and Actions by
-----------------------------
the Board of Directors, etc. For all purposes of this
---------------------------
Agreement, any calculation of the number of shares of
Common Stock outstanding at any particular time,
including for purposes of determining the particular
percentage of such outstanding shares of Common Stock
of which any Person is the Beneficial Owner, shall be
made in accordance with the last sentence of Rule 13d-
3(d)(1)(i) of the General Rules and Regulations under
the Exchange Act. The Board of Directors of the
Company (with, where specifically provided for herein,
the concurrence of the Continuing directors) shall have
the exclusive power and authority to administer this
Agreement 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 (i) interpret the provisions of this
Agreement, and (ii) make all determinations deemed
necessary or advisable for the administration of this
Agreement (including a determination to redeem or not
redeem the Rights or to amend the Agreement). All such
actions, calculations, interpretations and
determinations (including, for purposes of clause (y)
below, all omissions with respect to the foregoing)
which are done or made by the Board (with, where
specifically provided for herein, the concurrence of
the Continuing Directors) in good faith, shall (x) be
final, conclusive and binding on the Company, the
Rights Agent, the holders of the Rights and all other
parties, and (y) not subject the Board or the
Continuing Directors to any liability to the holders of
the Rights.
Section 29. Benefits of this Agreement.
--------------------------
Nothing in this Agreement shall be construed to give to
any Person other than the Company, the Rights Agent and
the registered holders of the Rights Certificates (and,
prior to the Distribution Date, registered holders of
the Common stock) any legal or equitable right, remedy
or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company,
the Rights Agent and the registered holders of the
Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common stock).
47
<PAGE>51
Section 30. Severability. If any term,
------------
provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected,
impaired or invalidated; provided, however, that
--------
notwithstanding anything in this Agreement to the
contrary, if any such term, provision, covenant or
restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith
judgment that severing the invalid language from this
Agreement would adversely affect the purpose or effect
of this Agreement, the right of redemption set forth in
Section 23 hereof shall be reinstated and shall not
expire until the close of business on the tenth day
following the date of such determination by the Board
of Directors.
Section 31. Governing Law. This
-------------
Agreement, each Right and each Rights Certificate
issued hereunder shall be deemed to be a contract made
under the laws of the State of Delaware and for all
purposes shall be governed by and construed in
accordance with the laws of such State applicable to
contracts made and to be performed entirely within such
State.
Section 32 Counterparts. This Agreement
------------
may be executed in any number of counterparts and each
of such counterparts shall for all purposes be deemed
to be an original, and all such counterparts shall
together constitute but one and the same instrument.
Section 33. Descriptive Headings.
--------------------
Descriptive headings of the several Sections of this
Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of
any of the provisions hereof.
48
<PAGE>
<PAGE>52
IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be duly executed and their
respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above
written.
Attest: ANHEUSER-BUSCH COMPANIES, INC.
By s/JOHN L. HAYWARD By s/AUGUST A. BUSCH III
--------------------- --------------------------
Name: John L. Hayward Name: August A. Busch III
Title: Vice President and Title: Chairman of the Board
Secretary and President
Attest: CENTERRE TRUST COMPANY OF
ST. LOUIS
By s/H. WHELAN By s/H. E. BRADFORD
--------------------- ---------------------------
Name: H. Whelan Name: H. E. Bradford
Title: Assistant Secretary Title: Vice President
49
<PAGE>
<PAGE>53
Exhibit A
---------
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND
RIGHTS OF SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
of
ANHEUSER-BUSCH COMPANIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, August A. Busch III, Chairman of the Board
and President, and John L. Hayward, Vice President and
Secretary, of Anheuser-Busch Companies, Inc., a
corporation organized and existing under the General
Corporation Law of the State of Delaware, in accordance
with the provisions of Section 103 thereof, DO HEREBY
CERTIFY:
That pursuant to the authority conferred upon
the Board of Directors by the Restated Certificate of
Incorporation of the said Corporation, the said Board of
Directors on December 18, 1985, adopted the following
resolution creating a series of four million (4,000,000)
shares of Preferred Stock designated as Series B Junior
Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested
in the Board of Directors of this Corporation in
accordance with the provisions of its Restated
Certificate of Incorporation, a series of Preferred Stock
of the Corporation be and it hereby is created and that
the designation and amount thereof, and the voting
powers, preferences and relative, participating, optional
and other special rights of the shares of such series,
and the qualifications, limitations or restrictions
thereof are as follows:
Section 1. Designation and Amount. The shares
of such series shall be designated as "Series B Junior
Participating Preferred Stock" (the "Series B Preferred
Stock") and the number of shares constituting such series
shall be 4,000,000.
Section 2. Dividends and Distributions.
(A) The holders of shares of Series B Preferred
Stock shall be entitled to receive, when, as and if
declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in
cash on the fifteenth day of January, April, July and
<PAGE>
<PAGE>54
October in each year (each such date being referred to
herein as a "Quarterly Dividend Payment Date"),
commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a
share of Series B Preferred Stock, in an amount per share
(rounded to the nearest cent) equal to the greater of (a)
$20 or (b) subject to the provision for adjustment
hereinafter set forth, 100 times the aggregate per share
amount of all cash dividends, and 100 times the aggregate
per share amount (payable in kind) of all non-cash
dividends or other distributions other than a dividend
payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification
or otherwise), declared on the Common Stock, par value $1
per share, of the Corporation (the "Common Stock") since
the immediately preceding Quarterly Dividend Payment
Date, or, with respect to the first Quarterly Dividend
Payment Date, since the first issuance of any share or
fractional of a share of Series B Preferred Stock. In
the event the Corporation shall at any time declare or
pay any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the amount to which holders of shares of Series
B Preferred Stock were entitled immediately prior to such
event under clause (b) the preceding sentence shall be
adjusted by multiplying such amount by a fraction the
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
The Corporation shall declare a dividend or
distribution on the Series B Preferred Stock as provided
in this paragraph (A) above immediately after it declares
a dividend or distribution on the Common Stock (other
than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution
shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and
the next subsequent Quarterly Dividend Payment Date, a
dividend of $20 per share on the Series B Preferred Stock
shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date.
2
<PAGE>
<PAGE>55
Dividends shall begin to accrue and be
cumulative on outstanding shares of Series B Preferred
Stock from the Quarterly Dividend Payment Date next
preceding the date of issue of such shares of Series B
Preferred Stock, unless the date of issue of such shares
is prior to the record date for the first Quarterly
Dividend Payment Date, in which case dividends on such
shares shall begin to accrue from the date of issue of
such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or Is a date after the record date
for the determination of holders of shares of Series B
Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in
either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not
bear interest. Dividends paid on the shares of Series B
Preferred Stock in an amount less than the total amount
of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share
basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the
determination of holders of shares of Series B Preferred
Stock entitled to receive payment of a dividend or
distribution declared thereon, which record date shall be
no more than 60 days prior to the date fixed for the
payment thereof.
Section 3. Voting Rights. The holders of
shares of Series B Preferred Stock shall have the
following voting rights:
(A) Subject to the provision for adjustment
hereinafter set forth, each share of Series B Preferred
Stock shall entitle the holder thereof to 100 votes on
all matters submitted to a vote of the stockholders of
the Corporation. In the event the Corporation shall at
any time declare or pay any dividend on Common Stock
payable in shares of Common Stock; or effect a
subdivision or combination of the outstanding shares of
Common Stock (by reclassificatiOn or otherwise) into a
greater or lesser number of shares of Common Stock, then
in each such case the number of votes per share to which
holders of shares of Series B Preferred Stock were
entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction the
numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the
denominator of which is
3
<PAGE>
<PAGE>56
the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) Except as otherwise provided herein or by
law, the holders of shares of Series B Preferred Stock
and the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote
of stockholders of the Corporation.
(C) (i) If at any time dividends on any Series
B Preferred Stock shall be in arrears in an amount equal
to six quarterly dividends thereon, the occurrence of
such contingency shall mark the beginning of a period
(herein called a "default period") which shall extend
until such time when all accrued and unpaid dividends for
all previous quarterly dividend periods and for the
current quarterly dividend period on all shares of Series
B Preferred Stock then outstanding shall have been
declared and paid or set apart for payment. During each
default period, the holders of Preferred Stock, voting as
a class, irrespective of series, shall have the right to
elect two Directors.
(ii) During any default period, such voting
right of the holders of Series B Preferred Stock may be
exercised initially at a special meeting called pursuant
to subparagraph (iii) of this Section 3(C) or at any
annual meeting of stockholders, and thereafter at annual
meetings of stockholders, provided that neither such
voting right nor the right of the holders of Preferred
Stock as hereinafter provided to increase in certain
cases the authorized number of Directors shall be exer-
cised unless the holders of 25% in number of shares of
Preferred Stock outstanding shall be present in person or
by proxy. The absence of a quorum of the holders of
Common Stock shall not affect the exercise by the holders
of Preferred Stock of such voting right. At any meeting
at which the holders of Preferred Stock shall exercise
such voting right initially during an existing default
period, they shall have the right, voting as a class, to
elect Directors to fill such vacancies, if any, in the
Board of Directors as may then exist up to two Directors
or, if such right is exercised at an annual meeting, to
elect two Directors. If the number which may be so
elected at any special meeting does not amount to the
required number, the holders of the Preferred Stock shall
have the right to make such increase in the number of
Directors as shall be necessary to permit the election by
4
<PAGE>
<PAGE>57
them of the required number. After the holders of the
Preferred Stock shall have exercised their right to elect
Directors in any default period and during the
continuance of such period, the number of Directors shall
not be increased or decreased except by vote of the
holders of Preferred Stock as herein provided.
(iii) Unless the holders of Preferred Stock
shall, during an existing default period, have previously
exercised their right to elect Directors, the Board of
Directors may order, or any stockholder or stockholders
owning in the aggregate not less than 10% of the total
number of shares of Preferred Stock outstanding,
irrespective of series, may request, the calling of
special meeting of the holders of Preferred Stock, which
meeting shall thereupon be called by the President, a
Vice President or the Secretary of the Corporation.
Notice of such meeting and of any annual meeting at which
holders of Preferred Stock are entitled to vote pursuant
to this paragraph (C)(iii) shall be given to each holder
of record of Preferred Stock by mailing a copy of such
notice to him at his last address as the same appears on
the books of the Corporation. Such meeting shall be
called for a time not earlier than 20 days and not later
than 60 days after such order or request or in default of
the calling of such meeting within 60 days after such
order or request, such meeting may be called on similar
notice by any stockholder or stockholders owning in the
aggregate, not less than 10% of the total number of
shares of Preferred Stock outstanding. Notwithstanding
the provisions of this paragraph (C)(iii), no such
special meeting shall be called during the period within
60 days immediately preceding the date fixed for the next
annual meeting of the stockholders.
(iv) In any default period, the holders of
Common Stock, and other classes of stock of the
Corporation if applicable, shall continue to be entitled
to elect the whole number of Directors until the holders
of Preferred Stock shall have exercised their right to
elect two Directors voting as a class, after the exercise
of which right (x) the Directors so elected by the
holders of Preferred Stock shall continue in office until
their successors shall have been elected by such holders
or until the expiration of the default period, and (y)
any vacancy in the Board of Directors may (except as
provided in paragraph (C)(ii) of this Section 3) be
filled by vote of a majority of the remaining Directors
theretofore
5
<PAGE>
<PAGE>58
elected by the holders of the class of stock which
elected the Director whose office shall have become
vacant. References in this paragraph (C) to Directors
elected by the holders of a particular class of stock
shall include Directors elected by such Directors to fill
vacancies as provided in clause (y) of the foregoing
sentence.
(v) Immediately upon the expiration of a
default period, (x) the right of the holders of Preferred
Stock as a class to elect Directors shall cease, (y) the
term of any Directors elected by the holders of Preferred
Stock as a class shall terminate, and (z) the number of
Directors shall be such number as may be provided for in
the by-laws irrespective of any increase pursuant to the
provisions of paragraph (C)(ii) of this Section 3 (such
number being subject, however, to change thereafter in
any manner provided by law or in the by-laws). Any va-
acancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding
sentence may be filled by a majority of the remaining
Directors.
(D) Except as set forth herein, holders of
Series B Preferred Stock shall have no special voting
rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of
Common Stock as set forth herein) for taking any
corporate action.
Section 4. Certain Restrictions.
(A) Whenever quarterly dividends or other
dividends or distributions payable on the Series B
Preferred Stock as provided in Section 2 are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of
Series B Preferred Stock outstanding shall have been paid
in full, the Corporation shall not
(i) declare or pay dividends on,
make any other distributions on, or redeem or
purchase or otherwise acquire for
consideration any shares of stock ranking
junior (either as to dividends or upon
liquidation, dissolution or winding up) to
the Series B Preferred Stock;
(ii) declare or pay dividends on or
make any other distributions on any shares
6
<PAGE>59
of stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred
Stock, except dividends paid ratably on the
Series B Preferred Stock and all such parity
stock on which dividends are payable or in
arrears in proportion to the total amounts to
which the holders of all such shares are then
entitled;
(iii) redeem or purchase or
otherwise acquire for consideration shares of
any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred
Stock, provided that the Corporation may at
any time redeem, purchase or otherwise
acquire shares of any such parity stock in
exchange for shares of any stock of the
Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or
winding up) to the Series B Preferred Stock;
or
(iv) purchase or otherwise
acquire for consideration any shares of
Series B Preferred Stock, any shares of stock
ranking on a parity with the Series B
Preferred Stock, except in accordance with a
purchase offer made in writing or by
publication (as determined by the Board of
Directors) to all holders of such shares upon
such terms as the Board of Directors, after
consideration of the respective annual
dividend rates and other relative rights and
preferences of the respective series and
classes, shall determine in good faith will
result in fair and equitable treatment among
the respective series or classes.
(B) The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise
acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under
paragraph (A) of this Section 4, purchase or otherwise
acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of
Series B Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the
acquisition
7
<PAGE>
<PAGE>60
thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred
Stock and may be reissued as part of a new series of
Preferred stock to be created by resolution or
resolutions of the Board of Directors, subject to the
conditions and restrictions on issuance set forth
herein.
Section 6. Liquidation, Dissolution or
Winding Up. Upon any voluntary liquidation,
dissolution or wind of the Corporation, no distribution
shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of
shares of Series B Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or
not declared, to the date of such payment, provided
that the holders of shares of Series B Preferred Stock
shall be entitled to receive an aggregate amount per
share, subject to the provision for adjustment
hereinafter set forth, equal to 100 times the aggregate
amount to be distributed per share to holders of Common
Stock, or (2) to the holders of stock ranking on a
parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except distributions made ratably on the Series
B Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation,
dissolution or winding up. In the event the
Corporation shall at any time declare or pay any
dividend on Common Stock payable in shares of Common
Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the aggregate amount to which holders of
shares of Series B Preferred Stock were entitled
immediately prior to such event under the proviso in
clause (1) of the preceding sentence shall be adjusted
by multiplying such amount by a fraction the numerator
of which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
Section 7. Consolidation, Merger, etc. In
case the Corporation shall enter into any consolidation,
8
<PAGE>
<PAGE>61
merger, combination or other transaction in which the
shares of Common Stock are exchanged for or changed
into other stock or securities, cash and/or any other
property, then in any such case the shares of Series B
Preferred Stock shall at the same time be similarly
exchanged or changed in an amount per share (subject to
the provision for adjustment hereinafter set forth)
equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in
kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged. In the
event the Corporation shall at any time declare or pay
any dividend on Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
Lesser number of shares of Common Stock, then in each
such case the amount set forth in the preceding
sentence with respect to the exchange or change of
shares of Series B Preferred Stock shall be adjusted by
multiplying such amount by a fraction the numerator of
which is the number of shares of Common Stock
outstanding immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of
Series B Preferred Stock shall not be redeemable.
Section 9. Ranking. The Series B Preferred
Stock shall rank pari passu to all other series of the
Corporation's Preferred Stock outstanding as of
December 27, 1985 as to the payment of dividends and
the distribution of assets.
Section 10. Amendment. The Certificate of
Incorporation of the Corporation shall not be amended
in any manner which would materially alter or change
the powers, preferences or special rights of the Series
B Preferred Stock so as to affect them adversely
without
9
<PAGE>
<PAGE>62
the affirmative vote of the holders of two-thirds or
more of the outstanding shares of Series B Preferred
Stock, voting together as a single class.
IN WITNESS WHEREOF, we have executed and
subscribed this Certificate and do affirm the foregoing
as true under the penalties of perjury this ----- day
of December, 1985.
-------------------------
August A. Busch III,
Chairman of the Board
and President
------------------------
John L. Hayward,
Vice President and
Secretary
10
<PAGE>
<PAGE>63
Exhibit B
---------
[Form of Rights Certificate]
Certificate No. R- --------- Rights
NOT EXERCISABLE AFTER DECEMBER 27, 1995 OR
EARLIER IF REDEEMED BY THE COMPANY. THE RIGHTS
ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $.025 PER RIGHT ON THE TERMS SET FORTH
IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN
ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE
RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF
SUCH RIGHTS MAY BECOME NULL AND VOID. [THE RIGHTS
REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME
AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE
OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED
IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS
RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED
HEREBY MAY BECOME NULL AND VOID IN THE
CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH
AGREEMENT.]*
Rights Certificate
ANHEUSER-BUSCH COMPANIES, INC.
This certifies that , or
registered assigns, is the registered owner of the
number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement,
dated as of December 18, 1985, amended as of July 23,
1986, and amended and re-
----------------------
* The portion of the legend in brackets shall be
inserted only if applicable and shall replace
the preceding sentence.
<PAGE>
<PAGE>64
stated as of December 17, 1986 (the "Rights
Agreement"), between Anheuser-Busch Companies, Inc., a
Delaware corporation (the "Company"), and Centerre
Trust Company of St. Louis, a trust company organized
under the State of Missouri (the "Rights Agent"), to
purchase from the Company at any time prior to 4:45
P.M. (St. Louis time) on December 27, 1995 at the
office or offices of the Rights Agent designated for
such purpose, or its successors as Rights Agent, one
one-hundredth of a fully paid, nonassessable share of
Series B Junior Participating Preferred Stock (the
"Preferred Stock") of the Company, at a purchase price
of $50 per one one-hundredth of a share (the "Pur-
chase Price"), upon presentation and surrender of this
Rights Certificate with the Form of Election to
Purchase and related Certificate duly executed. The
Purchase Price shall be paid, at the election of the
holder, in cash or shares of Common Stock of the
Company having an equivalent value. The number of
Rights evidenced by this Rights Certificate (and the
number of shares which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase
Price as of December 17, 1986, based on the Preferred
Stock as constituted at such date.
Upon the occurrence of a Section 11(a)(ii)
Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights
Certificate are beneficially owned by (i) an Acquiring
Person or an Affiliate or Associate of any such
Acquiring Person (as such terms are defined in the
Rights Agreement), (ii) a transferee of any such
Acquiring Person, Associate or Affiliate, or (iii)
under certain circumstances specified in the Rights
Agreement, a transferee of a person who, after such
transfer, became an Acquiring Person, or an Affiliate
or Associate of an Acquiring Person, such Rights shall
become null and void and no holder hereof shall have
any right with respect to such Rights from and after
the occurrence of such Section 11(a)(ii) Event.
As provided in the Rights Agreement, the
Purchase Price and the number and kind of shares of
Preferred Stock or other securities, which may be
purchased upon the exercise of the Rights evidenced by
this Rights Certificate are subject to modification and
adjustment upon the happening of certain events,
including Triggering Events.
2
<PAGE>
<PAGE>65
This Rights Certificate is subject to all of
the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part
hereof and to which Rights Agreement reference is
hereby made for a full description of the rights,
limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company
and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension
of the exercisability of such Rights under the specific
circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with or without
other Rights Certificates, upon surrender at the
principal office or offices of the Rights Agent
designated for such purpose, may be exchanged for
another Rights Certificate or Rights Certificates of
like tenor and date evidencing Rights entitling the
holder to purchase a like aggregate number of one one-
hundredths of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such
holder to purchase. If this Rights Certificate shall
be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights
Certificate or Rights Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights
Agreement, the Rights evidenced by this Certificate may
be redeemed by the Company at its option at a
redemption price of $.025 per Right at any time prior
to the earlier of the close of business on (i) the
tenth day following the Stock Acquisition Date (as such
time period may be extended pursuant to the Rights
Agreement), and (ii) the Final Expiration Date. After
the expiration of the redemption period, the Company's
right of redemption may be reinstated if an Acquiring
Person reduces his beneficial ownership to 10% or less
of the outstanding shares of Common Stock in a
transaction or series of transactions not involving the
Company.
No fractional shares of Preferred Stock will
be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions which are
integral multiples
3<PAGE>
<PAGE>66
of one one-hundredth of a share of Preferred Stock,
which may, at the election of the Company, be evidenced
by depositary receipts), but in lieu thereof a cash
payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate shall be
entitled to vote or receive dividends or be deemed for
any purpose the holder of shares of Preferred Stock or
of any other securities of the Company which may at any
time be issuable on the exercise hereof, nor shall
anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such,
any of the rights of a shareholder of the Company or
any right to vote for the election of directors or upon
any matter submitted to shareholders at any meeting
thereof, or to give or withhold consent to any
corporate action, or, to receive notice of meetings or
other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Rights
Certificate shall have been exercised as provided in
the Rights Agreement.
This Rights Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of ------------ --, 19--
ATTEST: ANHEUSER-BUSCH COMPANIES, INC.
------------------- By ---------------------------
Secretary Title:
Countersigned:
CENTERRE TRUST COMPANY OF ST. LOUIS
By --------------------------------
Authorized Signature
4
<PAGE>
<PAGE>67
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED ----------------------------------------------
hereby sells, assigns and 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: ---------------, 19--
--------------------------
Signature
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being
sold, assigned and transferred by or on behalf of a Person who is
or was an Acquiring Person or an Affiliate or Associate of any
such Acquiring Person (as such terms are defined pursuant to the
Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person
<PAGE>
<PAGE>68
who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ----------, 19 -- --------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature to the foregoing Assignment and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
<PAGE>69
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: ANHEUSER-BUSCH COMPANIES, INC.:
The undersigned hereby irrevocably elects to exercise
------------ Rights represented by this Rights Certificate to
purchase the shares of Preferred Stock issuable upon the exercise
of the Rights (or such other securities of the Company or of any
other person which may be issuable upon the exercise of the
Rights) and requests that certificates for such shares be issued
in the name of and delivered to:
Please insert social security
or other identifying number
----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
If such number of Rights shall not be all the Rights
evidenced by this Rights Certificate, a new Rights Certificate
for the balance of such Rights shall be registered in the name of
and delivered to:
Please insert social security
or other identifying number
----------------------------------------------------------------
(Please print name and address)
----------------------------------------------------------------
----------------------------------------------------------------
Dated:------------, 19--
--------------------------
Signature
<PAGE>
<PAGE>70
Signature Guaranteed:
Certificate
-----------
The undersigned hereby certifies by checking the
appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate
[ ] are [ ] are not being exercised by or on behalf of a Person
who is or was an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined pursuant to
the Rights Agreement);
(2) after due inquiry and to the best knowledge of the
undersigned, it [ ] did [ ] did not acquire the Rights evidenced
by this Rights Certificate from any Person who is, was or became
an Acquiring Person or an Affiliate or Associate of an Acquiring
Person.
Dated: ---------, 19-- ---------------------------
Signature
Signature Guaranteed:
NOTICE
------
The signature to the foregoing Election to Purchase and
Certificate must correspond to the name as written upon the face
of this Rights Certificate in every particular, without
alteration or enlargement or any change whatsoever.