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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-A/A
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FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
AMENDMENT NO. 2
THE PITTSTON COMPANY
(Exact name of Registrant as specified in its charter)
VIRGINIA 54-1317776
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1000 Virginia Center Parkway
Glen Allen, VA 23058-4229
(Address, including zip code, of principal executive offices)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
Pittston Brink's Group Rights to Purchase New York Stock Exchange
Series A Participating Cumulative
Preferred Stock
If this Form relates to the registration of a class of securities
pursuant to Section 12(b) of the Exchange Act and is effective pursuant to
General Instruction A.(c), please check the following box. |X|
If this Form relates to the registration of a class of securities
pursuant to Section 12(g) of the Exchange Act and is effective pursuant to
General Instruction A.(d), please check the following box. | |
Securities Act registration statement file number to which this form
relates:
________ (if applicable)
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
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1
Item 1. Description of Securities to be Registered.
For a description of the Pittston Brink's Group Rights ("Brink's
Rights") to be registered hereunder, reference is made to the Registration
Statement of The Pittston Company (the "Company") on Form 8-A filed on
February 26, 1996, as amended on August 11, 1997, which is incorporated by
reference.
Effective on January 14, 2000, the Company and BankBoston, N.A.
executed an Amended and Restated Rights Agreement (the "Amended Rights
Agreement"). The Amended Rights Agreement reflects the exchange by the Company
of Pittston Brink's Group Common Stock for each outstanding share of Pittston
BAX Group Common Stock and Pittston Minerals Group Common Stock and eliminates
Pittston BAX Group Rights and Pittston Minerals Group Rights as part of the
elimination of the Company's tracking stock structure. The only substantial
change made to the Brink's Rights by the Amended Rights Agreement is that the
price at which 1/1000 of a share of Series A Participating Cumulative
Preferred Stock can be purchased upon exercise of a Brink's Right is $60.00,
subject to adjustment as provided in the Amended Rights Agreement.
The Amended Rights Agreement is attached hereto as Exhibit 1, which
is incorporated herein by reference. The foregoing description of the Amended
Rights Agreement does not purport to be complete and is qualified in its
entirety by reference to that Exhibit.
Item 2. Exhibits.
1. Amended and Restated Rights Agreement dated as of January 14,
2000 between The Pittston Company and BankBoston, N.A., as
Rights Agent.
2
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the registrant has duly caused this registration
statement to be signed on its behalf by the undersigned, thereto duly
authorized.
THE PITTSTON COMPANY,
by
/s/ Austin F. Reed
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Date: January 14, 2000 Name: Austin F. Reed
Title: Vice President, General Counsel
and Secretary
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INDEX OF EXHIBITS
Exhibit
Number Title
------- -----
1. Amended and Restated Rights Agreement dated as of January
14, 2000 between the Pittston Company and BankBoston,
N.A., as Rights Agent.
EXHIBIT 1
CONFORMED COPY
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AMENDED AND RESTATED
RIGHTS AGREEMENT
Dated as of January 14, 2000
Between
THE PITTSTON COMPANY
And
BANKBOSTON, N.A.
As Rights Agent
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Table of Contents
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Page
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Section 1. Certain Definitions....................................... 2
Section 2. Appointment of Rights Agent............................... 10
Section 3. Issue of Right Certificates............................... 10
Section 4. Forms of Right Certificates............................... 12
Section 5. Execution, Countersignature and Registration.............. 12
Section 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen
Right Certificates..................................... 13
Section 7. Exercise of Rights; Expiration Date of Rights; Restriction
on Transfer of Rights.................................. 13
Section 8. Cancelation and Destruction of Right Certificates......... 15
Section 9. Reservation and Availability of Preferred Shares.......... 15
Section 10. Preferred Shares Record Date.............................. 16
Section 11. Adjustment of Number and Kind of Shares and the Purchase
Price.................................................. 17
Section 12. Certificate of Adjustment................................. 24
Section 13. Consolidation, Merger, Share Exchange or Sale or Transfer
of Major Part of Assets................................ 24
Section 14. Additional Covenants...................................... 28
Section 15. Fractional Rights and Fractional Shares................... 29
Section 16. Rights of Action.......................................... 30
Section 17. Transfer and Ownership of Rights and Right Certificate.... 30
Section 18. Right Certificate Holder Not Deemed a Shareholder......... 31
Section 19. Concerning the Rights Agent............................... 31
Section 20. Merger or Consolidation or Change of Rights Agent......... 31
Section 21. Duties of Rights Agent.................................... 32
Section 22. Change of Rights Agent.................................... 34
Section 23. Issuance of New Right Certificates........................ 35
Section 24. Redemption and Termination................................ 36
Section 25. Notice of Certain Events.................................. 36
Section 26. Notices................................................... 37
Section 27. Supplements and Amendments................................ 38
Section 28. Successors................................................ 38
Section 29. Benefits of this Rights Agreement; Determinations and
Actions by the Board of Directors, etc................. 38
Section 30. Severability.............................................. 39
Section 31. Governing Law............................................. 39
Section 32. Counterparts.............................................. 39
Section 33. Descriptive Headings...................................... 39
Exhibits
Exhibit A Form of Right Certificate
AMENDED AND RESTATED RIGHTS AGREEMENT dated as of
January 14, 2000, between THE PITTSTON COMPANY, a Virginia
corporation (the "Company"), and BANKBOSTON, N.A., as Rights
Agent (the "Rights Agent").
On September 11, 1987 (the "Rights Dividend Declaration Date"),
the Board of Directors of the Company adopted a shareholder rights plan
governed by the terms of a rights agreement (as amended as of December 12,
1988, the "Original Agreement") and distributed one right (a "Common
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
September 25, 1987 (the "Record Date"), and authorized the issuance of one
Common Right for each share of Common Stock issued between the Record Date
and the date hereof.
On May 7, 1993, the Board of Directors of the Company adopted
amendments to the Original Agreement (as amended, the "Amended Agreement")
and, contingent upon and simultaneously with the distribution of Pittston
Minerals Group Common Stock ("Minerals Stock") to holders of the Common
Stock on the close of business on July 26, 1993, pursuant to such
amendments (i) authorized and declared a dividend distribution of one
Pittston Minerals Group Right for each share of Minerals Stock and (ii)
redesignated each Common Right as a Pittston Services Group Right (a
"Services Right").
On September 15, 1995, the Board of Directors of the Company
adopted amendments to the Amended Agreement and contingent upon and
simultaneously with (i) the redesignation of Pittston Services Group Common
Stock, par value $1.00 per share, of the Company ("Services Stock") as
Brink's Stock (as defined herein) and (ii) the distribution of Pittston BAX
Group Common Stock ("BAX Stock") to holders of Services Stock on the close
of business on January 19, 1996, redesignated each Services Right as a
Pittston Brink's Group Right (a "Right") and authorized and declared a
distribution of one Pittston Burlington Group Right for each share of BAX
Stock.
On December 4, 1999, the Board of Directors of the Company
adopted amendments to the Amended Agreement (as amended, the "Rights
Agreement") contingent upon and simultaneously with the exchange of Brink's
Stock for each outstanding share of BAX Stock and Minerals Stock effective
on January 14, 2000 (the "Effective Date").
Each Right initially represents the right to purchase one
one-thousandth (1/1000th) of a Series A Preferred Share, each such
Preferred Share having the powers, rights and preferences set forth in the
Company's Restated Articles of Incorporation, upon the terms and subject to
the conditions hereinafter set forth.
2
Accordingly, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Rights
Agreement, the following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which, alone
or together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of more than 15% of the total Voting Rights of all the
Common Shares then outstanding (provided however that such person shall be
deemed to be an Acquiring Person only on the Close of Business on the tenth
calendar day (or sooner if so determined by the Board) following such time
as the Board learns that such Person's Beneficial Ownership exceeds 15% of
the total Voting Rights of all the Common Shares then outstanding) but
shall not include (a) the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any of its Subsidiaries, or any
Person holding Common Shares for or pursuant to the terms of any such
employee benefit plan or (b) any such Person who has become and is such a
Beneficial Owner solely because (i) of a change in the aggregate number of
Common Shares outstanding since the last date on which such Person acquired
Beneficial Ownership of any Common Shares or (ii) it acquired such
Beneficial Ownership in the good faith belief that such acquisition would
not cause such Beneficial Ownership to exceed 15% of the total Voting
Rights of all the Common Shares then outstanding. Notwithstanding clause
(b)(ii) of the prior sentence, if any Person that is excluded from the
definition of an Acquiring Person due to such clause (b)(ii) does not
reduce its percentage of Beneficial Ownership of Common Shares to 15% or
less of the total Voting Rights of all the Common Shares then outstanding
by the Close of Business on the fifth Business Day after notice from the
Company (the date of notice being the first day) that such Person's
Beneficial Ownership of Common Shares so exceeds 15% of such total Voting
Rights, such Person shall, at the end of such five Business Day period,
become an Acquiring Person (and such clause (b)(ii) shall no longer apply
to such Person). For purposes of this definition, the determination whether
any Person acted in "good faith" shall be conclusively determined by the
Board of Directors of the Company."
(b) "Affiliate" and "Associate", when used with reference to any
Person, 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 in effect on the date of this Rights Agreement.
(c) "Affiliate Merger" shall have the meaning set forth in clause
(i) of Section 11(e) of this Rights Agreement.
(d) 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 beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has (A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding (written or oral), or upon
the exercise of conversion rights,
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exchange rights, rights (other than Rights issuable under this Rights
Agreement), warrants or options, or otherwise; provided, however, that
a Person shall not be deemed the Beneficial Owner of, or to
beneficially own, securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange thereunder; or (B) the right to vote pursuant
to any agreement, arrangement or understanding (written or oral);
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, any security if the agreement,
arrangement or understanding (written or oral) to vote such security
(1) arises solely from a revocable proxy given to such Person in
response to a public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regulations under the
Exchange Act and (2) is not also then reportable 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 with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (written or oral), for the purpose of acquiring,
holding, voting (except pursuant to a revocable proxy as described in
clause (B) of subparagraph (ii) of this paragraph (d)) or disposing of
any securities of the Company; provided, however, that,
notwithstanding any provision of this Section 1(e), any Person engaged
in business as an underwriter of securities who acquires any
securities of the Company through such Person's participation in good
faith in a firm commitment underwriting registered under the
Securities Act shall not be deemed the "Beneficial Owner" of, or to
"beneficially own", such securities until the expiration of 40 days
after the date of acquisition.
(e) "Book Value" when used with reference to Common Shares issued
by any Person shall mean the amount of equity of such Person applicable to
each Common Share, determined (i) in accordance with generally accepted
accounting principles in effect on the date as of which such Book Value is
to be determined, (ii) using all the consolidated assets and all the
consolidated liabilities of such Person on the date as of which such Book
Value is to be determined, except that no value shall be included in such
assets for goodwill arising from consummation of a Business Combination,
and (iii) after giving effect to (A) the exercise of all rights, options
and warrants to purchase such Common Shares (other than the Rights), and
the conversion of all securities convertible into such Common Shares, at an
exercise or conversion price, per Common Share, which is less than such
Book Value before giving effect to such exercise or conversion, (B) all
dividends and other distributions on the capital stock of such Person
declared prior to the date as of which such Book Value is to be determined
and to be paid or made after such date, and (C) any other agreement,
arrangement or understanding (written or oral), or transaction or other
action prior to the date as of which such Book Value is to be determined
which would have the effect of thereafter reducing such Book Value.
(f) "Brink's Stock" shall mean the Pittston Brink's Group Common
Stock, par value $1.00 per share, of the Company.
(g) "Business Combination" shall have the meaning set forth in
Section 13(a) of this Rights Agreement.
4
(h) "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by
law or executive order to close.
(i) "Close of Business" on any given date shall mean 5 p.m., New
York City time, on such date; provided, however, that if such date is not a
Business Day, "Close of Business" shall mean 5 p.m., New York City time, on
the next succeeding Business Day.
(j) "Common Shares" when used with reference to the Company prior
to a Business Combination shall mean shares of Brink's Stock or any other
shares of capital stock of the Company into which Brink's Stock shall be
reclassified or changed; provided, however, that "Common Shares" shall mean
shares of Brink's Stock (or any other shares of capital stock into which
Brink's Stock shall be reclassified or changed) whenever a determination of
whether a Person shall have become the Beneficial Owner of, or shall have
made a tender or exchange offer for, Common Shares representing a specified
percentage of the total Voting Rights of all the Common Shares then
outstanding is required to be made herein. "Common Shares" when used with
reference to any Person (other than the Company prior to a Business
Combination) shall mean shares of capital stock of such Person (if such
Person is a corporation) of any class or series, or units of equity
interests in such Person (if such Person is not a corporation) of any class
or series, the terms of which do not limit (as a fixed amount and not
merely in proportional terms) the amount of dividends or income payable or
distributable on such class or series or the amount of assets distributable
on such class or series upon any voluntary or involuntary liquidation,
dissolution or winding up of such Person and do not provide that such class
or series is subject to redemption at the option of such Person, or any
shares of capital stock or units of equity interests into which the
foregoing shall be reclassified or changed; provided, however, that if at
any time there shall be more than one such class or series of capital stock
or equity interests of such Person, "Common Shares" of such Person shall
include all such classes and series substantially in the proportion of the
total number of shares or other units of each such class or series
outstanding at such time.
(k) "Common Stock" shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(l) "Company" shall have the meaning set forth in the heading of
this Rights Agreement; provided, however, that if there is a Business
Combination, "Company" shall have the meaning set forth in Section 13(b) of
this Rights Agreement.
(m) The term "control", with respect to any Person, shall mean
the power to direct the management and policies of such Person, directly or
indirectly, by or through stock ownership, agency or otherwise, or pursuant
to or in connection with an agreement, arrangement or understanding
(written or oral) with one or more other Persons by or through stock
ownership, agency or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
(n) "Disinterested Director" shall mean (i) any member of the
Board of Directors of the Company who was a member of the Board of
Directors of the Company prior to the Share Acquisition Date, and (ii) any
member of the Board of Directors of the Company who was recommended for
election by, or was elected to fill a vacancy and
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received the affirmative vote of, a majority of the Disinterested Directors
at the time on the Board of Directors of the Company.
(o) "Distribution Date" shall have the meaning set forth in
Section 3(a) of this Rights Agreement.
(p) "Effective Date" shall have the meaning set forth in the
fourth introductory paragraph of this Rights Agreement.
(q) "Equivalent Shares" shall mean any Preferred Shares and any
other class or series of capital stock of the Company which is entitled to
participate in dividends and other distributions, including distributions
upon the liquidation, dissolution or winding up of the Company, on a
proportional basis with Brink's Stock. In calculating the number of any
class or series of Equivalent Shares for purposes of Section 11 of this
Rights Agreement, the number of shares, or fractions of a share, of such
class or series of capital stock that is entitled to the same dividend or
distribution as a whole share of Brink's Stock shall be deemed to be one
share.
(r) "Exchange Act" shall mean the Securities Exchange Act of
1934, as in effect on the date in question, unless otherwise specifically
provided in this Rights Agreement.
(s) "Expiration Date" shall have the meaning set forth in Section
7(a) of this Rights Agreement.
(t) "Major Part" when used with reference to the assets of the
Company and its Subsidiaries as of any date shall mean assets (i) having a
fair market value aggregating 50% or more of the total fair market value of
all the assets of the Company and its Subsidiaries (taken as a whole) as of
the date in question, (ii) accounting for 50% or more of the total value
(net of depreciation and amortization) of all the assets of the Company and
its Subsidiaries (taken as a whole), as would be shown on a consolidated or
combined balance sheet of the Company and its Subsidiaries as of the date
in question, prepared in accordance with generally accepted accounting
principles then in effect, or (iii) accounting for 50% or more of the total
amount of net income of the Company and its Subsidiaries (taken as a
whole), as would be shown on a consolidated or combined statement of income
of the Company and its Subsidiaries for the period of 12 months ending on
the last day of the Company's monthly accounting period next preceding the
date in question, prepared in accordance with generally accepted accounting
principles then in effect.
(u) "Market Value" when used with reference to Common Shares or
Equivalent Shares on any date shall be deemed to be the average of the
daily closing prices, per share, of such Common Shares or Equivalent Shares
for the period which is the shorter of (1) 30 consecutive Trading Days
immediately prior to the date in question or (2) the consecutive Trading
Days beginning on the date of the first public announcement of the event
requiring a determination of the Market Value and ending on the Trading Day
immediately prior to the record date of such event; provided, however, that
in the event that the Market Value of such Common Shares or Equivalent
Shares is to be determined in whole or in part during a period following
the announcement by the issuer of such Common Shares or Equivalent Shares
of any dividend, distribution or other action of the type described in
paragraph (a), (b), (c) or (d) of Section 11 of this Rights Agreement that
would require an adjustment thereunder, then, and in each such case, the
Market Value of such Common Shares or Equivalent Shares shall be
6
appropriately adjusted to reflect the effect of such action on the market
price of such Common Shares or Equivalent Shares. The closing price for
each Trading Day shall be the last sale price, regular way, or, in case no
such sale takes place on such Trading 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 a security listed
or admitted to trading on a national securities exchange or, if such
security is not listed or admitted to trading on any national securities
exchange, the last quoted price or, if not so quoted, the average of the
high bid and low asked prices in the over-the-counter market, as reported
by the National Association of Securities Dealers, Inc. Automated
Quotations System ("NASDAQ") or such other system then in use, or, if on
any such Trading Day the applicable securities 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 shares of such
securities selected by the Board of Directors of the Company. If on any
such Trading Day no market maker is making a market in such securities, the
fair value of such securities on such Trading Day shall mean the fair value
of such securities 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, the holders
of Rights and all other Persons).
(v) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(w) "Preferred Shares" shall mean the Series A Preferred Shares.
Any reference in this Rights Agreement to Preferred Shares shall be deemed
to include any authorized fraction of a Preferred Share, unless the context
otherwise requires.
(x) "Principal Party" shall mean the Surviving Person in a
Business Combination; provided, however, that if such Surviving Person is a
direct or indirect Subsidiary of any other Person, "Principal Party" shall
mean the Person which is the ultimate parent of such Surviving Person and
which is not itself a Subsidiary of another Person. In the event ultimate
control of such Surviving Person is shared by two or more Persons,
"Principal Party" shall mean that Person that is immediately controlled by
such two or more Persons.
(y) "Purchase Price" with respect to each Brink's Right shall
mean $60.00, as such amount may from time to time be adjusted as provided
herein, and shall be payable in lawful money of the United States of
America. All references herein to the Purchase Price shall mean the
Purchase Price as in effect at the time in question.
(z) "Record Date" shall have the meaning set forth in the first
introductory paragraph of this Rights Agreement.
(aa) "Redemption Date" shall mean the time when the Rights are
ordered to be redeemed by the Board of Directors of the Company as provided
in Section 24(a) of this Rights Agreement.
(bb) "Redemption Price" shall mean the price required to be paid
upon the redemption of the Rights as provided in Section 24 of this Rights
Agreement.
(cc) "Registered Common Shares" shall mean Common Shares which
are, as of the date of consummation of a Business Combination, and have
been continuously registered under Section 12 of the Exchange Act during
the preceding 12 months.
7
(dd) "Right Certificates" shall have the meaning set forth in
Section 3(a) of this Rights Agreement.
(ee) "Rights" shall have the meaning set forth in the third
introductory paragraph of this Rights Agreement.
(ff) "Securities Act" shall mean the Securities Act of 1933, as
in effect on the date in question, unless otherwise specifically provided
in this Rights Agreement.
(gg) "Series A Preferred Shares" shall mean the Series A
Participating Cumulative Preferred Stock, par value $10 per share, of the
Company which the Board of Directors of the Company has heretofore
established.
(hh) "Share Acquisition Date" shall mean the first date of public
disclosure by the Company or an Acquiring Person that an Acquiring Person
has become an Acquiring Person.
(ii) "Subsidiary" shall mean a Person, a majority of the total
outstanding Voting Rights of which is owned, directly or indirectly, by
another Person or by such other Person and one or more other Subsidiaries
of such other Person.
(jj) "Surviving Person" shall mean (1) the Person which is the
continuing or surviving Person in a consolidation or merger specified in
clause (i) or (ii) of Section 13(a) of this Rights Agreement or (2) the
Person to which the Major Part of the assets of the Company and its
Subsidiaries are sold, leased, exchanged or otherwise transferred or
disposed of in a transaction specified in clause (iii) of Section 13(a) of
this Rights Agreement; provided, however, that if the Major Part of the
assets of the Company and its Subsidiaries are sold, leased, exchanged or
otherwise transferred or disposed of in one or more related transactions
specified in clause (iii) of Section 13(a) of this Rights Agreement to more
than one Person, the "Surviving Person" in such case shall mean the Person
that acquired assets of the Company and/or its Subsidiaries with the
greatest fair market value in such transaction or transactions.
(kk) "Trading Day" shall mean a day on which the principal
national securities exchange (or principal recognized foreign stock
exchange, as the case may be) on which any shares or Rights, as the case
may be, are listed or admitted to trading is open for the transaction of
business or, if the shares or Rights in question are not listed or admitted
to trading on any national securities exchange (or recognized foreign stock
exchange, as the case may be), a Business Day.
(ll) "Triggering Event" shall have the meaning set forth in
clause (ii) of Section 11(e) of this Rights Agreement.
(mm) "Voting Rights" when used with reference to the capital
stock of, or units of equity interests in, any Person shall mean the right
under ordinary circumstances (and not merely upon the happening of a
contingency) to vote in the election of directors of such Person (if such
Person is a corporation) or to participate in the management and control of
such Person (if such Person is not a corporation).
Section 2. Appointment of Rights Agent. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby accepts
such appointment. The Company may from time to time appoint one or more
co-Rights Agents as it may deem necessary
8
or desirable (the term "Rights Agent" being used herein to refer,
collectively, to the Rights Agent together with any such co-Rights Agents),
upon ten (10) days prior written notice to the Rights Agent. Failure to
give the notice provided for in this Section 2, however, or any defect
therein shall not affect the legality or validity of the appointment of any
one or more co-Rights Agents. In the event the Company appoints one or more
co-Rights Agents, the respective duties of the Rights Agent and any
co-Rights Agents shall be as the Company shall determine, however, the
Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such co-Rights Agent.
Section 3. Issue of Right Certificates. (a) Until the earlier of
(i) such time that a Person has become an Acquiring Person or (ii) on such
date, if any, as may be designated by the Board of Directors of the Company
following the commencement of, or first public disclosure of an intent to
commence, 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 of its Subsidiaries, or any Person holding Common Shares for or
pursuant to the terms of any such employee benefit plan) for outstanding
Common Shares, if upon consummation of such tender or exchange offer such
Person could be the Beneficial Owner of more than 15% of the total Voting
Rights of all the outstanding Common Shares (including any such date which
is after the date of this Rights Agreement and prior to the issuance of the
Rights) (the Close of Business on the earlier of such dates being herein
referred to as the "Distribution Date"), (x) the Rights will be evidenced
by the certificates for Brink's Stock registered in the names of the
holders thereof (which certificates for Brink's Stock shall also be deemed
to be certificates for the Rights) and not by separate certificates, and
(y) the Rights, including the right to receive certificates as herein
provided, will be transferable only in connection with the transfer of
Common Shares. As soon as practicable after the Distribution Date, the
Rights Agent will send, by first-class, insured, postage prepaid mail, to
each record holder of Brink's 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 A hereto (the "Right Certificates"), evidencing one Right for each
share of Brink's Stock so held. As of and after the Distribution Date, the
Rights will be evidenced solely by such Right Certificates.
(b) Until the earliest of the Distribution Date, the Redemption
Date or the Expiration Date, the surrender for transfer of any of the
certificates for the Common Shares in respect of which Rights have been
issued shall also constitute the transfer of the Rights associated with the
Common Shares represented by such certificate.
(c) Rights shall be issued in respect of all Common Shares which
are issued after the Effective Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Expiration Date. Certificates
representing Common Shares shall also be deemed to be certificates for the
Rights, and shall bear the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights
Agreement dated as of January 14, 2000 (the "Rights Agreement"),
between The Pittston Company and BankBoston, N.A., as Rights Agent,
the terms of which are hereby incorporated herein by reference and a
copy of which is on file at the principal executive offices of The
Pittston Company. The term "Rights Agreement" as used herein includes
each amendment thereto or supplement thereof made from time to time,
the terms of each of which are incorporated herein by reference and a
copy of each of which is on file as hereinabove stated. Under certain
circumstances, as
9
set forth in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by this
certificate. The Pittston Company will mail to the holder of this
certificate a copy of the Rights Agreement without charge after
receipt of a written request therefor. Under no circumstances shall
Rights evidenced by this certificate be transferred to any Person who
is or becomes an Acquiring Person or an Affiliate or Associate thereof
(as such terms are defined in the Rights Agreement) and any such
purported transfer shall be, and shall render such Rights, null and
void.
Until the Distribution Date the Rights associated with the Common
Shares represented by such certificates shall be evidenced by such
certificates alone, and the surrender for transfer of any such certificate
shall also constitute the transfer of the Rights associated with the Common
Shares represented thereby.
Section 4. Forms of Right Certificates. The Right Certificates
(and the forms of assignment and the forms of election to purchase to be
printed on the reverse thereof) shall be in substantially the forms set
forth as Exhibit A 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 Rights 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 Sections 11 and 23 hereof, the Right Certificates, whenever
issued, shall be dated as of the Record Date, and on their face shall
entitle the holders thereof to purchase such number of Preferred Shares as
shall be set forth therein for the Purchase Price set forth therein.
Section 5. Execution, Countersignature and Registration. (a) The
Right Certificates shall be executed on behalf of the Company by the
Chairman of the Board, the President or any Vice President of the Company,
either manually or by facsimile signature, and 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 Right Certificate shall be manually countersigned
by the Rights Agent and shall not be valid or obligatory for any purpose
unless so countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and
delivery by the Company, such Right Certificates may nevertheless be
countersigned by the Rights Agent, and issued and delivered by the Company,
with the same force and effect as though the person who signed such Right
Certificates had not ceased to be such officer of the Company; and any
Right Certificate may be signed on behalf of the Company by any person who,
at the actual date of the execution of such Right Certificate, shall be a
proper officer of the Company to sign such Right Certificate, although at
the date of the execution of this Rights Agreement any such person was not
such an officer of the Company.
(b) Following the Distribution Date, the Rights Agent will keep
or cause to be kept, at its office in New York, New York, books for
registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the
Right Certificates, the number of Rights evidenced by each of the Right
Certificates, the certificate number of each of the Right Certificates and
the date of each of the Right Certificates.
10
Section 6. Transfer, Split-up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates. (a)
Subject to the provisions of Section 7(e) and Section 15 hereof, at any
time after the Distribution Date, and at or prior to the Close of Business
on the earlier of the Redemption Date or the Expiration Date, any Right
Certificate or Certificates may be transferred, split-up, combined or
exchanged for another Right Certificate or Certificates, entitling the
registered holder to purchase a like number of Preferred Shares as the
Right Certificate or Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split-up, combine or
exchange any Right Certificate shall make such request in writing delivered
to the Rights Agent, and shall surrender the Right Certificate or
Certificates to be transferred, split-up, combined or exchanged at the
principal office of the Rights Agent. Thereupon the Rights Agent shall,
subject to Section 7(e) and Section 15 hereof, countersign and deliver to
the Person entitled thereto a Right Certificate or 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 Right
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 valid Right Certificate, and, in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to them, and,
at the Company's request, reimbursement to the Company and the Rights Agent
of all reasonable expenses incidental thereto, and upon surrender to the
Rights Agent and cancelation of the Right Certificate if mutilated, the
Company will make a new Right Certificate of like tenor and deliver such
new Right Certificate to the Rights Agents for delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Expiration Date of Rights;
Restriction on Transfer of Rights. (a) Each Right shall entitle the
registered holder thereof, upon the exercise thereof as provided herein, to
purchase, for the Purchase Price, at any time after the earlier of the
Distribution Date or the occurrence of a Triggering Event and at or prior
to the earlier of (i) the Close of Business on September 25, 2007 (the
Close of Business on such date being herein referred to as the "Expiration
Date") or (ii) the Redemption Date, one one-thousandth (1/1000th) of a
Preferred Share, subject to adjustment from time to time as provided in
Sections 11 and 13 of this Rights Agreement.
(b) The registered holder of any Right Certificate may exercise
the Rights evidenced thereby (except as otherwise provided herein) in whole
or in part at any time after the Distribution Date upon surrender of the
Right Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent at the office of the Rights
Agent in New York, New York, together with payment of the Purchase Price
for such one one-thousandth (1/1000th) of a Preferred Share as to which the
Rights are exercised, at or prior to the earlier of (i) the Expiration Date
or (ii) the Redemption Date.
(c) Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase duly executed, accompanied by
payment of the Purchase Price for the Preferred Shares to be purchased
together with an amount equal to any applicable transfer tax, in lawful
money of the United States of America, in cash or by certified check or
money order payable to the order of the Company, the Rights Agent shall
thereupon promptly (i) requisition from any transfer agent of the Preferred
Shares
11
(or make available, if the Rights Agent is the transfer agent) certificates
for the number of Preferred Shares to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests,
(ii) when appropriate, requisition from the Company the amount of cash to
be paid in lieu of issuance of fractional shares in accordance with Section
15 hereof, (iii) promptly after receipt of such certificates, cause the
same to be delivered to or upon the order of the registered holder of such
Right Certificate, registered in such name or names as may be designated by
such holder, and (iv) when appropriate, after receipt promptly deliver such
cash to or upon the order of the registered holder of such Right
Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right
Certificate evidencing Rights equivalent to the Rights remaining
unexercised shall be issued by the Rights Agent and delivered to the
registered holder of such Right Certificate or to his duly authorized
assigns, subject to the provisions of Section 15 hereof.
(e) Notwithstanding anything in this Agreement to the contrary,
Rights, including Rights evidenced by certificates for Common Shares, shall
not at any time be transferable to an Acquiring Person or any Affiliate or
Associate of an Acquiring Person or to any Person who subsequently becomes
an Acquiring Person or Affiliate or Associate of an Acquiring Person,
although at the time of the purported transfer such Person was not an
Acquiring Person or an Affiliate or Associate thereof. Any attempt to
transfer Rights to any such Person shall be null and void as of the date of
the purported transfer. Any Right which has been the subject of any such
purported transfer shall be null and void, and thereafter may not be
exercised by any Person (including any subsequent transferee) for Preferred
Shares or capital stock of the Company pursuant to any provision hereof.
The Company may require (or cause the Rights Agent or any transfer agent of
the Company to require) any Person who submits a Right Certificate (or a
certificate representing Common Shares which evidences, or but for the
provisions of this Section 7(e) would evidence, Rights) for transfer on the
registry books or to exercise the Rights represented thereby to establish
to the reasonable satisfaction of the Company that such Rights have not
been the subject of any purported transfer in violation of the provision of
this Section 7(e). The Company shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) are complied with, but shall have
no liability to any holder of Right Certificates or any other Person as a
result of its failure to make any determinations with respect to an
Acquiring Person or its Affiliates or Associates hereunder.
(f) Notwithstanding anything in this Rights Agreement to the
contrary, neither the Rights Agent nor the Company shall be obligated to
undertake any action with respect to a registered holder of any Right
Certificates 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 Right 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. Cancelation and Destruction of Right Certificates. All
Right Certificates surrendered for the purposes of exercise, transfer,
split-up, combination or exchange shall, if surrendered to the Company or
to any of its agents, be delivered to the Rights Agent for cancelation or
in canceled form, or, if surrendered to the Rights Agent, shall be canceled
by it, and no Right Certificates shall be issued in lieu thereof except as
12
expressly permitted by any of the provisions of this Rights Agreement. The
Company shall deliver to the Rights Agent for cancelation and retirement,
and the Rights Agent shall so cancel and retire, any Right Certificate
purchased or acquired by the Company. The Rights Agent shall deliver all
canceled Right Certificates to the Company, or shall, at the written
request of the Company, destroy such canceled Right Certificates, and in
such case shall deliver a certificate of destruction thereof to the
Company.
Section 9. Reservation and Availability of Preferred Shares. (a)
The Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued Preferred Shares, free from
preemptive rights or any right of first refusal, a number of Preferred
Shares sufficient to permit the exercise in full of all outstanding Rights.
(b) The Company covenants and agrees that it will take all such
action as may be necessary to ensure that all Preferred Shares delivered
upon exercise of Rights shall, at the time of delivery of the certificates
for such Preferred Shares (subject to payment of the Purchase Price), be
duly and validly authorized and issued and fully paid and non-assessable
shares.
(c) So long as the Preferred Shares issuable upon the exercise of
Rights are to be listed on any national securities exchange, the Company
covenants and agrees to use its best efforts to cause, from and after such
time as the Rights become exercisable, all Preferred Shares reserved for
such issuance to be listed on such exchange upon official notice of
issuance upon such exercise.
(d) 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
Right Certificates or of any Preferred Shares upon the exercise of the
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 Right
Certificates to a Person other than, or in respect of the issuance or
delivery of certificates for the Preferred Shares in a name other than that
of, the registered holder of the Right Certificate evidencing Rights
surrendered for exercise or to issue or deliver any certificates for
Preferred Shares upon the exercise of any Rights until any such tax shall
have been paid (any such tax being payable by the holder of such Right
Certificate at the time of surrender) or until it has been established to
the Company's satisfaction that no such tax is due.
(e) In the event that there shall not be sufficient authorized
but unissued Preferred Shares to permit the exercise or exchange of Rights
in accordance with Section 11, the Company covenants and agrees that it
will take all such action as may be necessary to authorize additional
Preferred Shares for issuance upon the exercise or exchange of Rights
pursuant to Section 11; provided, however, that if the Company is unable to
cause the authorization of additional Preferred Shares, then the Company
shall, or in lieu of seeking any such authorization, the Company may, to
the extent necessary and permitted by applicable law and any agreements or
instruments in effect prior to the Distribution Date to which it is a
party, (i) upon surrender of a Right, pay cash equal to the Purchase Price
in lieu of issuing Preferred Shares and requiring payment therefor, (ii)
upon due exercise of a Right and payment of the Purchase Price for each
Preferred Share as to which such Right is exercised, issue equity
securities having a value equal to the value of the Preferred Shares which
otherwise would have been issuable pursuant to Section 11, which value
shall be determined by a nationally recognized investment banking firm
selected by the Board of Directors of the Company or (iii) upon due
13
exercise of a Right and payment of the Purchase Price for each Preferred
Share as to which such Right is exercised, distribute a combination of
Preferred Shares, cash and/or other equity and/or debt securities having an
aggregate value equal to the value of the Preferred Shares which otherwise
would have been issuable pursuant to Section 11, which value shall be
determined by a nationally recognized investment banking firm selected by
the Board of Directors of the Company. To the extent that any legal or
contractual restrictions (pursuant to agreements or instruments in effect
prior to the Distribution Date to which it is party) prevent the Company
from paying the full amount payable in accordance with the foregoing
sentence, the Company shall pay to holders of the Rights as to which such
payments are being made all amounts which are not then restricted on a pro
rata basis as such payments become permissible under such legal or
contractual restrictions until such payments have been paid in full.
Section 10. Preferred Shares Record Date. Each Person in whose
name any certificate for Preferred Shares is issued upon the exercise of
Rights shall for all purposes be deemed to have become the holder of record
of the Preferred Shares represented thereby on, and such certificate shall
be dated, the date upon which the Right Certificate evidencing such Rights
was duly surrendered and payment of the Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Preferred Shares transfer
books of the Company are closed, such person shall be deemed to have become
the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the Preferred Shares transfer
books of the Company are open.
Section 11. Adjustment of Number and Kind of Shares and the
Purchase Price. The number and kind of shares subject to purchase upon the
exercise of each Right and the Purchase Price are subject to adjustment
from time to time as provided in this Section 11.
(a) In the event at any time after the date of this Rights
Agreement the Company shall (i) declare a dividend, or make a distribution,
on any class of its Common Shares payable in Common Shares, (ii) subdivide
(by stock split or otherwise) or split any class of its outstanding Common
Shares into a larger number of Common Shares or (iii) combine (by reverse
stock split or otherwise) or consolidate any class of its outstanding
Common Shares into a smaller number of Common Shares, then, in each such
event, (1) the number of Preferred Shares issuable upon exercise of each
Right at the time of the record date for such dividend or distribution or
the effective date of such subdivision or combination, shall be adjusted so
that the number of Preferred Shares thereafter issuable upon exercise of
such Right shall equal the result obtained by multiplying the number of
Preferred Shares issuable upon exercise of each Right at such time by a
fraction, the numerator of which shall be the total number of Rights
outstanding immediately prior to such time and the denominator of which
shall be the total number of Rights outstanding immediately following such
time, and (2) the Purchase Price in effect at such time shall be adjusted
so that the Purchase Price thereafter shall equal the result obtained by
multiplying the Purchase Price in effect immediately prior to such time by
the fraction referred to in the preceding clause (1).
(b) In the event at any time after the date of this Rights
Agreement the Company shall (i) declare a dividend, or make a distribution,
on any series of its outstanding Preferred Shares payable in Preferred
Shares, (ii) subdivide (by stock split or otherwise) or split any series of
its outstanding Preferred Shares into a larger number of Preferred Shares,
(iii) combine (by a reverse stock split or otherwise) or consolidate any
series of its outstanding Preferred Shares into a smaller number of
Preferred Shares or
14
(iv) issue any shares of its capital stock in a reclassification or change
of any series of its outstanding Preferred Shares (including any such
reclassification or change in connection with a merger in which the Company
is the continuing or surviving corporation), then in each such event, the
number and kind of shares of capital stock issuable upon the exercise of
each Right at the time of the record date for such dividend or distribution
or the effective date of such subdivision, combination or reclassification
shall be adjusted so that the holder of any Right exercised after such time
shall be entitled to receive, for the Purchase Price, the aggregate number
and kind of shares of capital stock which such holder would have owned and
been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification if such holder had exercised such Right
immediately prior to such time.
(c) If at any time after the date of this Rights Agreement the
Company shall fix a record date for the issuance of rights, options or
warrants to all holders of any class of Common Shares or of any class or
series of Equivalent Shares entitling such holders (for a period expiring
within 45 calendar days after such record date) to subscribe for or
purchase Common Shares or Equivalent Shares (or securities convertible into
Common Shares or Equivalent Shares) at a price per share (or having a
conversion price per share, if a security convertible into Common Shares or
Equivalent Shares) less than the Market Value of such Common Shares or
Equivalent Shares on such record date, then, in each such case, each Right
outstanding immediately prior to such record date shall thereafter evidence
the right to purchase, for the Purchase Price, that number of one
one-thousandths (1/1000ths) of a Preferred Share obtained by multiplying
the number of one one-thousandths (1/1000ths) of a Preferred Share issuable
upon exercise of a Right immediately prior to such record date by a
fraction, the numerator of which shall be the number of Common Shares and
Equivalent Shares (if any) outstanding on such record date plus the number
of additional Common Shares or Equivalent Shares, as the case may be, to be
offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible) and the denominator
of which shall be the total number of Common Shares and Equivalent Shares
(if any) outstanding on such record date plus the number of Common Shares
or Equivalent Shares, as the case may be, which the aggregate offering
price of the total number of Common Shares or Equivalent Shares, as the
case may be, so to be offered (and/or the aggregate initial conversion
price of the convertible securities so to be offered) would purchase at
such Market Value. In case such subscription price may be paid in a
consideration, part or all of which shall be in a form other than cash, the
value of such consideration shall be as determined in good faith by the
Board of Directors of the Company, whose determination shall be described
in a statement filed with the Rights Agent. Common Shares and Equivalent
Shares owned by or held for the account of the Company or any Subsidiary of
the Company shall not be deemed outstanding for the purpose of any such
computation. Such adjustment shall be made successively whenever such a
record date is fixed; and in the event that such rights, options or
warrants are not so issued, each Right shall be adjusted to evidence the
right to receive that number of one one-thousandths (1/1000ths) of a
Preferred Share which such Right would have entitled the holder to receive,
for the Purchase Price, if such record date had not been fixed.
(d) If at any time after the date of this Rights Agreement the
Company shall fix a record date for the making of a distribution to all
holders of any class of Common Shares or of any class or series of
Equivalent Shares (including any such distribution made in connection with
a merger in which the Company is the continuing or surviving corporation or
in connection with a statutory share exchange with the Company after which
the Company is not a Subsidiary of any Acquiring Person or any Associate or
Affiliate of any Acquiring Person) of cash (other than a regular periodic
cash dividend at
15
a rate not in excess of 125% of the rate of the last regular cash dividend
theretofore paid on the class of Common Shares, evidences of indebtedness,
assets, securities (other than Common Shares or Preferred Shares) or
subscription rights, options or warrants (excluding those referred to in
Section 11(c)), then, in each such case, each Right outstanding immediately
prior to such record date shall thereafter evidence the right to purchase,
for the Purchase Price, that number of one one-thousandths (1/1000ths) of a
Preferred Share obtained by multiplying the number of one one-thousandths
(1/1000ths) of a Preferred Share issuable upon exercise of such Right
immediately prior to such record date by a fraction, the numerator of which
shall be the Market Value of such Common Shares or Equivalent Shares on the
record date and the denominator of which shall be the Market Value of such
Common Shares or Equivalent Shares 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, evidences of indebtedness,
assets or securities so to be distributed or of such subscription rights,
options or warrants applicable to one Common Share or Equivalent Share, as
the case may be. Such adjustments shall be made successively whenever such
a record date is fixed; and in the event that such distribution is not so
made, each Right shall be adjusted to evidence the right to receive that
number of one one-thousandths (1/1000ths) of a Preferred Share which such
Right would have entitled the holder to receive, for the Purchase Price, if
such record date had not been fixed.
(e) (i) If any Acquiring Person or any Affiliate or Associate of
any Acquiring Person, at any time after the date of this Rights 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 all the Common Shares shall
remain outstanding and unchanged, or shall effect a statutory share
exchange with the Company after which the Company is not a Subsidiary of
any Acquiring Person or any Affiliate or Associate of any Acquiring Person
(such merger, share exchange or combination being herein referred to as an
"Affiliate Merger") then, in each such case, proper provision shall be made
so that each holder of a Right, except as provided in Section 7(e) hereof
and below, shall thereafter have a right to receive, upon exercise thereof
for the Purchase Price in accordance with the terms of this Rights
Agreement, such number of Common Shares as shall equal the result obtained
by multiplying the Purchase Price by a fraction, the numerator of which is
the number of one one-thousandths (1/1000ths) of a Preferred Share for
which such Right is then exercisable and the denominator of which is 50% of
the Market Value of the Common Shares on the date of the occurrence of such
merger or combination. The Company shall not consummate any Affiliate
Merger unless upon such consummation it shall have sufficient authorized
Common Shares that have not been issued or reserved for issuance to permit
the exercise in full of the Rights in accordance with this Section 11(e)(i)
and unless prior thereto a registration statement under the Securities Act
on an appropriate form, with respect to the Common Shares purchasable upon
exercise of the Rights, shall be effective under the Securities Act. The
Company covenants and agrees to use its best efforts to:
(A) cause a registration statement under the Securities Act on an
appropriate form with respect to the Common Shares purchasable upon
exercise of the Rights, to remain effective (with a prospectus at all
times meeting the requirements of the Securities Act) until the
Expiration Date;
16
(B) qualify or register the Common Shares purchasable upon
exercise of the Rights under the blue sky laws of such jurisdictions
as may be necessary or appropriate; and
(C) list the Common Shares purchasable upon the exercise of the
Rights on each national securities exchange on which the Common Shares
were listed prior to the consummation of such Affiliate Merger.
(ii) Upon a Person becoming an Acquiring Person (such event being
herein referred to as a "Triggering Event"), proper provision shall be made
so that each holder of a Right, except as provided in Section 7(e), shall
thereafter have a right to receive, upon exercise thereof for the Purchase
Price in accordance with the terms of this Rights Agreement, such number of
thousandths (1/1,000s) of a Preferred Share as shall equal the result
obtained by multiplying the Purchase Price by a fraction, the numerator of
which is the number of thousandths (1/1,000s) of a Preferred Share for
which a Right is then exercisable and the denominator of which is 50% of
the Market Value of the Common Shares on the date on which a Person becomes
an Acquiring Person. As soon as practicable after a Person becomes an
Acquiring Person (provided the Company shall not have elected to make the
exchange permitted by Section 11(e)(iii)(A) for all outstanding Rights),
the Company covenants and agrees to use its best efforts to:
(1) prepare and file a registration statement under the
Securities Act, on an appropriate form, with respect to the Preferred
Shares purchasable upon exercise of the Rights;
(2) cause such registration statement to become effective as soon
as practicable after such filing;
(3) cause such registration statement to remain effective (with a
prospectus at all times meeting the requirements of the Securities
Act) until the Expiration Date; and
(4) qualify or register the Preferred Shares purchasable upon
exercise of the Rights under the blue sky or securities laws of such
jurisdictions as may be necessary or appropriate.
The Company may temporarily suspend, for a period of time not to
exceed 90 calendar days after the date set forth in the immediately
preceding sentence, the exercisability of the Rights in order to prepare
and file such registration statement and permit it to become effective.
Upon any such suspension, the Company shall issue a public announcement
stating that the exercisability of the Rights has been temporarily
suspended, as well as a public announcement at such time as the suspension
is no longer in effect.
(iii)(A) The Board of Directors of the Company may, at its
option, at any time after a Person becomes an Acquiring Person, mandatorily
exchange all or part of the then outstanding and exercisable Rights (which
shall not include Rights that shall have become null and void and
nontransferable pursuant to the provisions of Section 7(e)) for
consideration per Right consisting of either (x) one-half of the securities
that would be issuable at such time upon the exercise of one Right in
accordance with Section 11(a), 11(b), 11(c), 11(e)(ii) or, if applicable,
Section 9(e)(ii) or (iii) or, (y) if applicable, the cash consideration
specified in Section 9(e)(i) (the consideration issuable per Right pursuant
to this Section 11(e)(iii)(A) being the "Exchange Consideration"). The
Board
17
of Directors of the Company may, at its option, issue, in substitution for
Preferred Shares, Common Shares in an amount per Preferred Share equal to
the Brink's Formula Number (each as defined in the Company's Restated
Articles of Incorporation) if there are sufficient authorized but unissued
Common Shares. If the Board of Directors of the Company elects to exchange
all or part of the Rights for the Exchange Consideration pursuant to this
Section 11(e)(iii)(A) prior to the physical distribution of the Right
Certificates, the Corporation may distribute the Exchange Consideration in
lieu of distributing Right Certificates, in which case for purposes of this
Rights Agreement holders of Rights shall be deemed to have simultaneously
received and surrendered for exchange Right Certificates on the date of
such distribution.
(B) Any action of the Board of Directors of the Company ordering
the exchange of any Rights pursuant to Section 11(e)(iii)(A) shall be
irrevocable and, immediately upon the taking of such action and without any
further action and without any notice, the right to exercise any such Right
pursuant to Section 11(e)(ii) shall terminate and the only right thereafter
of a holder of such Right shall be to receive the Exchange Consideration in
exchange for each such Right held by such holder or, if the Exchange
Consideration shall not have been paid or issued, to exercise any such
Right pursuant to Section 13. The Company shall promptly give public notice
of any such exchange; provided, however, that the failure to give, or any
defect in, such notice shall not affect the validity of such exchange. The
Company promptly shall mail a notice of any such exchange to all holders of
such Rights at their last addresses as they appear upon the registry books
of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Shares. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not
the holder receives the notice. Each such notice of exchange will state the
method by which the exchange of the Rights for the Exchange Consideration
will be effected and, in the event of any partial exchange, the number of
Rights which will be exchanged. Any partial exchange shall be effected pro
rata based on the number of Rights (other than Rights which shall have
become null and void and nontransferable pursuant to the provisions of
Section 7(e)) held by each holder of Rights.
(iv) If an event occurs which would require an adjustment under
both subparagraph (e)(i) or (e)(ii) of this Section 11 and paragraph (a),
(b), (c) or (d) of this Section 11, the adjustment provided for in
paragraph (a), (b), (c) or (d) of this Section 11 shall be in addition to,
and shall be made prior to, any adjustment required pursuant to
subparagraph (e)(i) or (e)(ii) of this Section 11; provided, however, that
if a single event occurs that represents both an Affiliate Merger or
Triggering Event and a Business Combination, the Rights exercisable upon
such event shall be exercisable only in a manner set forth in Section 13(a)
of this Rights Agreement and no adjustment shall be made pursuant to any
paragraph of this Section 11.
(f) All calculations under this Section 11 shall be made to the
nearest hundred-thousandth of a share.
(g) If as a result of an adjustment made pursuant to Section
11(b) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of any class of capital stock of the Company
other than Preferred Shares, thereafter the number of such other shares so
receivable upon exercise of any Right shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Preferred Shares contained in
paragraphs (a) through (e), inclusive, of this Section 11 and the
provisions of Sections 7, 9, 10 and
18
13 hereof with respect to the Preferred Shares shall apply on like terms to
any such other shares.
(h) All Rights originally issued by the Company subsequent to any
adjustment made to the amount of Preferred Shares or other capital stock
relating to a Right shall evidence the right to purchase, for the Purchase
Price, the adjusted number and kind of shares of capital stock purchasable
from time to time hereunder upon exercise of the Rights, all subject to
further adjustment as provided herein.
(i) Irrespective of any adjustment or change in the Purchase
Price or the number of Preferred Shares or number or kind of other shares
of capital stock issuable upon the exercise of the Rights, the Right
Certificates theretofore and thereafter issued may continue to express the
terms which were expressed in the initial Right Certificates issued
hereunder.
(j) In any case in which this Section 11 shall require that an
adjustment 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 issuing
to the holder of any Right exercised after such record date the Preferred
Shares and/or other shares of capital stock or securities of the Company,
if any, issuable upon such exercise over and above the Preferred Shares
and/or other shares of capital stock or securities of the Company, if any,
issuable before giving effect to such adjustment; provided, however, that
the Company shall deliver to such holder a due bill or other appropriate
instrument evidencing such holder's right to receive such additional shares
upon the occurrence of the event requiring such adjustment.
(k) After the occurrence of an Affiliate Merger, the number of
Common Shares thereafter receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred
Shares contained in Sections 7, 9, 10, 11 and 13 hereof.
Section 12. Certificate of Adjustment. Whenever an adjustment is
made as provided in Section 11 or 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 Shares
a copy of such certificate and (c) mail a brief summary thereof to each
holder of a Right Certificate in accordance with Section 26 hereof. The
Rights Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained.
Section 13. Consolidation, Merger, Share Exchange or Sale or
Transfer of Major Part of Assets. (a) In the event that, following the
Distribution Date, directly or indirectly, any transactions specified in
the following clauses (i), (ii) or (iii) hereof (each such transaction
being herein referred to as a "Business Combination") shall be consummated:
(i) the Company shall consolidate with, or merge with and into,
any other Person;
(ii) any Person shall merge with and into the Company and in
connection with such merger, all or part of the Common Shares shall be
changed into or exchanged for capital stock or other securities of any
other Person or cash or any
19
other property or the Company shall enter into a statutory share
exchange with any Person after which the Company is a Subsidiary of
such Person or any Affiliate or Associate of such Person; or
(iii) the Company shall sell, lease, exchange or otherwise
transfer or dispose of (or one or more of its Subsidiaries shall sell,
lease, exchange or otherwise transfer or dispose of), in one or more
transactions, the Major Part of the assets of the Company and its
Subsidiaries (taken as a whole) to any other Person or Persons,
then, in each such case, proper provision shall be made so that each holder
of a valid Right shall thereafter have the right to receive, upon the
exercise thereof for the Purchase Price in accordance with the terms of
this Rights Agreement, the securities specified below:
(A) If the Principal Party in such Business Combination has
Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof at the
Purchase Price in accordance with the terms of this Rights Agreement,
such number of Registered Common Shares of such Principal Party, free
and clear of all liens, encumbrances or other adverse claims, as shall
be equal to the result obtained by multiplying the Purchase Price by a
fraction, the numerator of which shall be the number of one
one-thousandths (1/1000ths) of a Preferred Share for which a Right was
exercisable immediately prior to consummation of such Business
Combination and the denominator of which shall be 50% of the Market
Value of each Registered Common Share of such Principal Party on the
date of such Business Combination.
(B) If the Principal Party in such Business Combination does not
have Registered Common Shares outstanding, each Right shall thereafter
represent the right to receive, upon the exercise thereof at the
Purchase Price in accordance with the terms of this Rights Agreement,
at the election of the holder of such Right at the time of the
exercise thereof:
(1) such number of Common Shares of the Surviving Person in
such Business Combination as shall be equal to the result
obtained by multiplying the Purchase Price by a fraction, the
numerator of which shall be the number of one one-thousandths
(1/1000ths) of a Preferred Share for which a Right was
exercisable immediately prior to the consummation of such
Business Combination and the denominator of which shall be 50% of
the Book Value of each Common Share of such Surviving Person
immediately after giving effect to such Business Combination; or
(2) such number of Common Shares of the Principal Party in
such Business Combination (if the Principal Party is not also the
Surviving Person in such Business Combination) as shall be equal
to the result obtained by multiplying the Purchase Price by a
fraction, the numerator of which shall be the number of one
one-thousandths (1/1000ths) of a Preferred Share for which a
Right was exercisable immediately prior to the consummation of
such Business Combination and the denominator of which shall be
50% of the Book Value of each Common Share of the Principal Party
immediately after giving effect to such Business Combination; or
20
(3) if the Principal Party in such Business Combination is
an Affiliate of one or more Persons which has Registered Common
Shares outstanding, such number of Registered Common Shares of
whichever of such Affiliates of the Principal Party has
Registered Common Shares with the greatest aggregate Market Value
on the date of consummation of such Business Combination as shall
be equal to the result obtained by multiplying the Purchase Price
by a fraction, the numerator of which shall be the number of one
one-thousandths (1/1000ths) of a Preferred Share for which a
Right was exercisable immediately prior to the consummation of
such Business Combination and the denominator of which shall be
50% of the Market Value of each Registered Common Share of such
Affiliate on the date of such Business Combination.
All Common Shares of any Person for which any Right may be exercised after
consummation of a Business Combination as provided in this Section 13(a)
shall, when issued upon exercise thereof in accordance with this Rights
Agreement, be validly issued, fully paid and nonassessable and free of
preemptive rights, rights of first refusal or any other restrictions or
limitations on the transfer or ownership thereof.
(b) After consummation of any Business Combination (i) each
issuer of Common Shares for which Rights may be exercised as set forth in
paragraph (a) of this Section 13 shall be liable for, and shall assume, by
virtue of such Business Combination, all the obligations and duties of the
Company pursuant to this Rights Agreement, (ii) the term "Company" shall
thereafter be deemed to refer to such issuer, (iii) each such issuer shall
take such steps in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly
as reasonably may be, in relation to its Common Shares thereafter
deliverable upon the exercise of the Rights, and (iv) the number of Common
Shares of each such issuer thereafter receivable upon exercise of any Right
shall be subject to adjustment from time to time in a manner and on terms
as nearly equivalent as practicable to the provisions with respect to the
Preferred Shares contained in Sections 7, 9, 10, 11 and 13 hereof.
(c) The Company shall not consummate any Business Combination
unless each issuer of Common Shares for which Rights may be exercised, as
set forth in paragraph (a) of this Section 13, shall have sufficient
authorized Common Shares that have not been issued or reserved for issuance
to permit the exercise in full of the Rights in accordance with this
Section 13 and unless prior thereto:
(i) a registration statement under the Securities Act on an
appropriate form, with respect to the Rights and the Common
Shares of such issuer purchasable upon exercise of the Rights,
shall be effective under the Securities Act; and
(ii) the Company and each such issuer shall have:
(A) executed and delivered to the Rights Agent a
supplemental agreement providing for the obligation of such
issuer to issue Common Shares upon the exercise of Rights in
accordance with the terms set forth in paragraphs (a) and
(b) of this Section 13 and further providing that such
issuer, at its own expense, will:
(I) use its best efforts to cause a registration
statement under the Securities Act on an appropriate
form, with respect to
21
the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights, to remain
effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the
Expiration Date;
(II) use its best efforts to qualify or register
the Rights and the Common Shares of such issuer
purchasable upon exercise of the Rights under the blue
sky or securities laws of such jurisdictions as may be
necessary or appropriate; and
(III) use its best efforts to list the Rights and
the Common Shares purchasable upon exercise of the
Rights on each national securities exchange on which
the Common Shares were listed prior to the consummation
of the Business Combination or, if the Common Shares
were not listed on a national securities exchange prior
to the consummation of the Business Combination, on a
national securities exchange;
(B) furnished to the Rights Agent an opinion of
independent counsel stating that such supplemental agreement
is a valid, binding and enforceable agreement of such
issuer; and
(C) filed with the Rights Agent a certificate of a
nationally recognized firm of independent accountants
setting forth the number of Common Shares of such issuer
which may be purchased upon the exercise of each Right after
the consummation of such Business Combination.
(d) In the event a Business Combination shall be consummated at
any time after the occurrence of an Affiliate Merger or a Triggering Event,
the Rights that have not been exercised prior to such time shall thereafter
become exercisable in the manner set forth in paragraph (a) of this Section
13.
Section 14. Additional Covenants. (a) Notwithstanding any other
provision of this Rights Agreement, no adjustment to the number of
Preferred Shares (or fractions of a share) or other shares of capital stock
for which a Right is exercisable or the number of Rights outstanding or
associated with each Common Share or any similar or other adjustment shall
be made or be effective if such adjustment would have the effect of
reducing or limiting the benefits the holders of the Rights would have had
absent such adjustment, including, without limitation, the benefits under
Section 11 and Section 13 hereof, unless the terms of this Rights Agreement
are amended so as to preserve such benefits.
(b) The Company covenants and agrees that it shall not effect any
Business Combination or Affiliate Merger if at the time of, or immediately
after such Business Combination or Affiliate Merger, there are any rights,
options, warrants or other instruments of any Person which is a party to
such Business Combination or Affiliate Merger outstanding which would
eliminate or diminish the benefits intended to be afforded by the Rights.
(c) In the event the nature of the organization of any Person
shall preclude or limit the acquisition of Common Shares of such Person
upon exercise of the Rights as required by Section 13(a) hereof as a result
of a Business Combination, it shall be a condition to such Business
Combination that such Person shall take such steps
22
(including, but not limited to, a reorganization) as may be necessary to
assure that the benefits intended to be derived under Section 13 hereof
upon the exercise of the Rights are assured to the holders thereof.
Section 15. Fractional Rights and Fractional Shares. (a) The
Company shall not be required to issue fractions of Rights or to distribute
Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the
Right Certificates with regard to which such fractional Rights would
otherwise be issuable, an amount in cash equal to the same fraction of the
current market value of a whole Right. For the purposes of this Section
15(a), the current market value of a whole Right shall be the closing price
of the Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The closing
price for any day shall be the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to Rights listed or
admitted to trading on a national securities exchange or, if the Rights are
not listed or admitted to trading on any national securities exchange, the
last quoted price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by NASDAQ or such
other system then in use or, if on any such date the Rights are not quoted
by any such organization, the average of the closing bid and asked prices
as furnished by a professional market maker making a market in the Rights
selected by the Board of Directors of the Company. If on any such date no
such market maker is making a market in the Rights, the fair value of the
Rights on such date as determined in good faith by the Board of Directors
of the Company shall be used.
(b) The Company may, but shall not be required to, issue
fractions of shares upon exercise of the Rights or to distribute
certificates which evidence fractional shares. In lieu of fractional
shares, the Company may elect to (i) utilize a depositary arrangement as
provided by the terms of the Preferred Shares or (ii) in the case of a
fraction of a share other than one one-thousandth (1/1000th) of a share or
any integral multiple thereof, pay to the registered holders of Right
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 Preferred Share, if any are outstanding and publicly traded (or the
current market value of one Common Share in the event that the Preferred
Shares are not outstanding and publicly traded). For purposes of this
Section 15(b), the current market value of a Preferred Share (or Common
Share) shall be the closing price of a Preferred Share (or Common Share)
(as determined pursuant to the second sentence of Section 1(u) of this
Rights Agreement) for the Trading Day immediately prior to the date of such
exercise.
(c) The holder of a Right by the acceptance of the Rights
expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise of a Right.
Section 16. Rights of Action. (a) All rights of action in respect
of this Rights Agreement are vested in the respective registered holders of
the Right Certificates (and, prior to the Distribution Date, the registered
holders of the Common Shares); and any registered holder of any Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
without the consent of the Rights Agent or of the holder of any other Right
Certificate (or, prior to the Distribution Date, of the Common Shares),
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
23
right to exercise the Rights evidenced by such Right Certificate in the
manner provided in such Right Certificate and in this Rights 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 Rights Agreement
and shall be entitled to specific performance of the obligations of any
Person under, and injunctive relief against actual or threatened violations
of the obligations of any Person subject to, this Rights Agreement.
(b) Any holder of Rights who prevails in an action to enforce the
provisions of this Rights Agreement shall be entitled to recover the
reasonable costs and expenses, including attorneys' fees, incurred in such
action.
Section 17. Transfer and Ownership of Rights and Right
Certificates. (a) Prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Shares.
(b) After the Distribution Date, the Right Certificates will be
transferable, subject to Section 7(e) hereof, only on the registry books of
the Rights Agent if surrendered at the principal office of the Rights
Agent, duly endorsed or accompanied by a proper instrument of transfer.
(c) The Company and the Rights Agent may deem and treat the
Person in whose name a Right Certificate (or, prior to the Distribution
Date, the associated Common Shares certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any notations of ownership or writing on the Right Certificates or the
associated certificate for Common Shares made by anyone other than the
Company or the Rights Agent) for all purposes whatsoever, and neither the
Company nor the Rights Agent shall be affected by any notice to the
contrary.
Section 18. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote or
receive dividends or be deemed, for any purpose, the holder of the
Preferred Shares or of any other securities of the Company which may at any
time be issuable on the exercise of the Rights represented thereby, nor
shall anything contained herein or in any Right Certificate be construed to
confer upon the holder of any Right Certificate, as such, any of the rights
of a shareholder of the Company, including, without limitation, any right
to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions
affecting shareholders (except as provided in Section 25 hereof), or to
receive dividends or other distributions or subscription rights, or
otherwise, until the Right or Rights evidenced by such Right Certificate
shall have been exercised in accordance with the provisions hereof.
Section 19. 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 other disbursements
incurred in the administration and execution of this Rights Agreement and
the exercise and performance of its duties hereunder. The Company also
agrees to indemnify the Rights Agent for, and to hold it harmless against,
any loss, liability, or expense, incurred without gross negligence, bad
faith or wilful 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 Rights Agreement,
24
including the costs and expenses of defending against any claim of
liability arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it
in connection with its administration of this Rights Agreement in reliance
upon any Right Certificate or certificate for Common Shares 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 20. Merger or Consolidation or Change 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 stock transfer or corporate trust business of the Rights
Agent or any successor Rights Agent, shall be the successor to the Rights
Agent under this Rights Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto, provided
that such corporation would be eligible for appointment as a successor
Rights Agent under the provisions of Section 22 hereof. In case, at the
time such successor Rights Agent shall succeed to the agency created by
this Rights Agreement, any of the Right Certificates shall have been
countersigned but not delivered, any such successor Rights Agent may adopt
the countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent
may countersign such Right Certificates either in the name of the
predecessor Rights Agent or in the name of the successor Rights Agent; and
in all such cases such Right Certificates shall have the full force
provided in the Right Certificates and in this Rights Agreement.
(b) In case at any time the name of the Rights Agent shall be
changed and at such time any of the Right Certificates shall have been
countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall
not have been countersigned, the Rights Agent may countersign such Right
Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in
the Right Certificates and in this Rights Agreement.
Section 21. Duties of Rights Agent. The Rights Agent undertakes
the duties and obligations imposed by this Rights Agreement upon the
following terms and conditions, by all of which the Company and the holders
of Right 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 Rights
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person) be proved or
25
established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the
Board, the President, the Chief Financial Officer, a Vice President, the
Treasurer or the 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 Rights Agreement in reliance upon such certificate.
(c) The Rights Agent shall be liable hereunder only for its own
gross negligence, bad faith or wilful 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 Rights Agreement or
in the Right Certificates (except as to its countersignature thereof) or be
required to verify the same, but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Rights 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 Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Rights Agreement
or in any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 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 Right 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 Preferred Shares or Common Shares to be issued pursuant
to this Rights Agreement or any Right Certificate or as to whether any
Preferred Shares or Common Shares 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 Rights Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chairman of the Board, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties and it
shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully and freely as though it
were not the Rights Agent under this Rights Agreement. Nothing
26
herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct provided reasonable care was
exercised in the selection and continued employment thereof.
(j) ANYTHING IN THIS AGREEMENT TO THE CONTRARY NOTWITHSTANDING,
IN NO EVENT SHALL THE RIGHTS AGENT BE LIABLE FOR SPECIAL, INDIRECT OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER (INCLUDING, BUT NOT
LIMITED TO, LOST PROFITS), EVEN IF THE RIGHTS AGENT HAS BEEN ADVISED OF THE
LIKELIHOOD OF SUCH LOSS OR DAMAGE AND REGARDLESS OF THE FORM OF ACTION.
Section 22. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under
this Rights Agreement upon 30 days' notice in writing mailed to the Company
and to each transfer agent of the Common Shares and the Preferred Shares by
registered or certified mail, and to the holders of the Right Certificates
by first-class mail. The Company may remove the Rights Agent or any
successor Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each
transfer agent of the Common Shares and the Preferred Shares by registered
or certified mail, and to the holders of the Right Certificates by
first-class mail. If the Rights Agent shall resign or be removed or shall
otherwise become incapable of acting, the Company shall appoint a successor
to the Rights Agent. If the Company shall fail to make such appointment
within a period of 30 days after giving notice of such removal or after it
has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right
Certificate (who shall, with such notice, submit his Right Certificate for
inspection by the Company), then the registered holder of any Right
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 any
state of the United States, in good standing, having an office in the State
of New York, which is authorized under the laws of the State of New York
and the rules of the New York Stock Exchange to exercise stock transfer or
corporate trust powers and is subject to supervision or examination by
Federal or state authority and which has at the time of its appointment as
Rights Agent a combined capital and surplus of at least $50,000,000. After
appointment, the successor Rights Agent shall be vested with the same
powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor
Rights Agent shall deliver and transfer to the successor Rights Agent any
property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not
later than the effective date of any such appointment, the Company shall
file notice thereof in writing with the predecessor Rights Agent and each
transfer agent of the Common Shares and the Preferred Shares, and mail a
notice thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section 22,
however, or any defect therein shall not affect the legality or validity of
the resignation or removal of the Rights Agent or the appointment of the
successor Rights Agent, as the case may be.
27
Section 23. Issuance of New Right Certificates. Notwithstanding
any of the provisions of this Rights Agreement or of the Rights to the
contrary, the Company may, at its option, issue new Right Certificates
evidencing Rights in such form as may be approved by its Board of Directors
to reflect any adjustment or change made in accordance with the provisions
of this Rights Agreement. In addition, in connection with the issuance or
sale of Common Shares following the Distribution Date and prior to the
earlier of the Redemption Date or the Expiration Date, the Company (a)
shall, with respect to Common Shares 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, notes or
debentures 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
Right Certificates representing the appropriate number of Rights in
connection with such issuance or sale; provided, however, that (i) no such
Right 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 Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate
adjustment shall otherwise have been made in lieu of the issuance thereof.
Section 24. Redemption and Termination. (a) The Board of
Directors of the Company may, at its option, at any time prior to the
earliest of (i) such time as a Person becomes an Acquiring Person or (ii)
the Expiration Date, order the redemption of all, but not less than all,
the then outstanding Rights at a Redemption Price of $.01 per Right (which
may, in the discretion of the Board of Directors of the Company, in lieu of
cash be paid with securities deemed by the Board of Directors, in the
exercise of its sole discretion, to be equivalent in value thereto);
provided, however, that immediately upon and after the date that an
Acquiring Person becomes an Acquiring Person, the Rights may be redeemed
only if the Board of Directors of the Company, with the concurrence of a
majority of the Disinterested Directors then in office, determines that
such redemption is, in their judgment, in the best interests of the Company
and its shareholders.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights, 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. Within ten calendar days after the action
of the Board of Directors of the Company ordering the redemption of the
Rights, the Company shall give notice of such redemption to the holders of
the then outstanding Rights by mailing such notice to all such holders at
their last addresses as they appear upon the registry books of the Rights
Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Each such notice of redemption will
state the method by which the payment of the Redemption Price will be made.
The notice, if mailed in the manner herein provided, shall be conclusively
presumed to have been duly given, whether or not the holder of Rights
receives such notice. In any case, failure to give such notice by mail, or
any defect in the notice, to any particular holder of Rights shall not
affect the sufficiency of the notice to other holders of Rights.
Section 25. Notice of Certain Events. (a) In case the Company
shall propose (i) to take any action of the type described in paragraph
(a), (b), (c) or (d) of Section 11 hereof that would require an adjustment
thereunder, (ii) to effect any Business Combination or (iii) to effect the
liquidation, dissolution or winding up of the Company, then, in such case,
the Company shall give to each holder of a Right Certificate, in accordance
with Section 26 hereof, a notice of such proposed action, which shall
specify
28
any record date for the purposes of determining any participation therein
by the holders of the Preferred Shares, or the date on which such action is
to take place and the date of any participation therein by the holders of
the Preferred Shares, if any such date is to be fixed, and such notice
shall be so given at least 20 days prior to any such record date, the
taking of such action or the date of participation therein by the holders
of the Preferred Shares, whichever shall be the earliest.
(b) In case an Affiliate Merger or Triggering Event shall occur,
then, in any such case, the Company shall as soon as practicable thereafter
give to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of the occurrence of such Affiliate Merger or Triggering
Event, which shall specify the Affiliate Merger and the Triggering Event
and the consequences of such Affiliate Merger or Triggering Event to
holders of Rights under Section 11(e) hereof.
Section 26. Notices. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any
Right 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:
The Pittston Company
P.O. Box 4229
1000 Virginia Center Parkway
Glen Allen, VA 23058-4229
Attention: Secretary
Subject to the provisions of Section 22 hereof, any notice or demand
authorized by this Rights Agreement to be given or made by the Company or
by the holder of any Right 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:
BankBoston, N.A.
c/o Equiserve Limited Partnership
150 Royall Street
Canton, MA 02021
Attention: Client Administrations
Notices or demands authorized by this Rights Agreement to be given or made
by the Company or the Rights Agent to any holder of a Right Certificate
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 Rights Agent or, prior to the Distribution Date,
on the registry books of the transfer agent for the Common Shares.
Section 27. Supplements and Amendments. At any time prior to the
Distribution Date and subject to the last sentence of this Section 27, the
Company and the Rights Agent shall, if the Company so directs, supplement
or amend any provision of this Rights Agreement (including, without
limitation, the date on which the Distribution Date shall occur) without
the approval of any holder of the Rights. From and after the Distribution
Date and subject to applicable law, the Company and the Rights Agent shall,
if the Company so directs, amend this Rights Agreement without the approval
of any
29
holders of Right Certificates (i) to cure any ambiguity or to correct or
supplement any provision contained herein which may be defective or
inconsistent with any other provision of this Rights Agreement, or (ii) to
make any other provisions in regard to matters or questions arising
hereunder which the Company may deem necessary or desirable and which shall
not adversely affect the interests of the holders of Right Certificates
(other than an Acquiring Person or an Affiliate or Associate of an
Acquiring Person). Upon the delivery of a certificate from an appropriate
officer of the Company which states that a proposed supplement or amendment
to this Rights Agreement is in compliance with the provisions of this
Section 27, the Rights Agent shall execute such supplement or amendment.
Notwithstanding anything contained in this Rights Agreement to the
contrary, (1) at any time when there shall be an Acquiring Person, this
Rights Agreement may be supplemented or amended only if the Board of
Directors of the Company, with the concurrence of a majority of the
Disinterested Directors then in office, determines that such supplement or
amendment is in their judgment in the best interests of the Company and its
shareholders and (2) no supplement or amendment to this Rights Agreement
shall be made which reduces the Redemption Price or provides for an earlier
Expiration Date.
Section 28. Successors. All the covenants and provisions of this
Rights Agreement by or for the benefit of the Company or the Rights Agent
shall bind and inure to the benefit of their respective successors and
assigns hereunder.
Section 29. Benefits of this Rights Agreement; Determinations and
Actions by the Board of Directors, etc. (a) Nothing in this Rights
Agreement shall be construed to give to any persons or corporation other
than the Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares) any
legal or equitable right, remedy or claim under this Rights Agreement; but
this Rights Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the registered holders of the Right
Certificates (and, prior to the Distribution Date, the Common Shares).
(b) The Board of Directors of the Company (with, where
specifically provided for herein, the concurrence of a majority of the
Disinterested Directors then in office) shall have the exclusive power and
authority to administer this Rights Agreement and to exercise all rights
and power specifically granted to the Board of Directors of the Company
(with, where specifically provided for herein, the concurrence of a
majority of the Disinterested Directors then in office) or to the Company,
or as may be necessary or advisable in the administration of this Rights
Agreement, including, without limitation, the right and power to (i)
interpret the provisions of this Rights Agreement, and (ii) make all
determinations deemed necessary or advisable for the administration of this
Rights Agreement (including, without limitation, a determination to redeem
or not redeem the Rights or to amend this Rights Agreement and a
determination of whether a Triggering Event has occurred). 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 of Directors of the Company (with,
where specifically provided for herein, the concurrence of a majority of
the Disinterested Directors then in office) 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 of
Directors of the Company or the Disinterested Directors to any liability to
the holders of the Rights.
Section 30. Severability. If any term, provision, covenant or
restriction of this Rights Agreement is held by a court of competent
jurisdiction or other authority to
30
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Rights Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated.
Section 31. Governing Law. This Rights Agreement and each Right
Certificate issued hereunder shall be deemed to be a contract made under
the laws of the Commonwealth of Virginia and for all purposes shall be
governed by and construed in accordance with the laws of such Commonwealth
applicable to contracts to be made and performed entirely within such
Commonwealth; provided, however, that the provisions of Sections 19, 20, 21
and 22 of this Rights Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Section 32. Counterparts. This Rights 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.
31
Section 33. Descriptive Headings. Descriptive headings of the
several Sections of this Rights Agreement are inserted for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Rights
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.
THE PITTSTON COMPANY,
by
/s/ Austin F. Reed
----------------------
Name: Austin F. Reed
Title: Vice President
Attest:
by
/s/ Tracy R. Foard
-----------------------------
Name: Tracy R. Foard
Title: Assistant Secretary
BANKBOSTON, N.A., as Rights Agent,
by
/s/ Tyler Haynes
----------------------------
Name: Tyler Haynes
Title: Administration Manager
by
/s/ Neil Nolan
-----------------------------
Name: Neil Nolan
Title: Account Manager
EXHIBIT A
TO THE RIGHTS AGREEMENT
[Form of Right Certificate]
Certificate No. BRR- ___________________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 25, 2007, OR EARLIER IF REDEEMED. THE
RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT
$.01 PER RIGHT, ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER
NO CIRCUMSTANCES MAY THIS RIGHT CERTIFICATE OR THE RIGHTS EVIDENCED BY
THIS RIGHT CERTIFICATE BE TRANSFERRED TO AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS EACH SUCH TERM IS
DEFINED IN THE RIGHTS AGREEMENT) OR TO ANY PERSON WHO SUBSEQUENTLY
BECOMES SUCH A PERSON AND ANY PURPORTED TRANSFER OF RIGHTS TO ANY SUCH
PERSON SHALL BE, AND SHALL RENDER THE RIGHTS PURPORTED TO BE
TRANSFERRED, NULL AND VOID.
Pittston Brink's Group Rights Certificate
THE PITTSTON COMPANY
This certifies that
, or registered assigns, is the registered owner of the
number of Pittston Brink's Group Rights (the "Rights") set forth above,
each of which entitles the owner thereof, subject to the terms, provisions
and conditions of the Amended and Restated Rights Agreement dated as of
January 14, 2000 (the "Rights Agreement"), between the Pittston Company, a
Virginia corporation (the "Company"), and BankBoston, N.A., as Rights Agent
(the "Rights Agent"), unless the Rights evidenced hereby shall have been
previously redeemed, to purchase from the Company at any time after the
Distribution Date (as defined in the Rights Agreement) and prior to 5:00
p.m., New York City time, on September 25, 2007 (the "Expiration Date"), at
the principal office of the Rights Agent, or its successors as Rights
Agent, in New York, New York, one one-thousandth (1/1000th) of a fully
paid, nonassessable share of Series A Participating Cumulative Preferred
Stock, par value $10 per share, of the Company (the "Preferred Shares"), at
a purchase price of $60.00 per one one-thousandth (1/1000th) of a share
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed.
The Purchase Price and the number and kind of shares which may be
purchased upon exercise of each Right evidenced by this Right Certificate,
as set forth above, are the Purchase Price and the number and kind of
shares which may be so purchased as of January 14, 2000. As provided in the
Rights Agreement, the Purchase Price and the number and kind of shares
which may be purchased upon the exercise of each Right evidenced by this
Right Certificate are subject to modification and adjustment upon the
happening of certain events.
Under no circumstances may this Right Certificate or the Rights
evidenced by this Right Certificate be transferred to an Acquiring Person
or an Affiliate or Associate of an Acquiring Person (as each such term is
defined in the Rights Agreement) or to any Person who subsequently becomes
such a Person and any purported transfer of Rights to any such Person shall
be, and shall render the Rights purported to be transferred, null and void.
2
This Right Certificate is subject to all 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 reference to the Rights Agreement 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 Right Certificates. Copies of the Rights Agreement are on file at the
above-mentioned office of the Rights Agent and are also available from the
Company upon written request.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal stock transfer or corporate trust office of the
Rights Agent, may be exchanged for another Right Certificate or Right
Certificates of like tenor and date evidencing Rights entitling the holder
to purchase a like aggregate number and kind of shares as the Rights
evidenced by the Right Certificate or Right Certificates surrendered shall
have entitled such holder to purchase. If this Right Certificate shall be
exercised in part, the holder shall be entitled to receive upon surrender
hereof another Right Certificate or Right Certificates for the number of
whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights
evidenced by this Right Certificate may be redeemed by the Company at its
option at a redemption price (in cash or securities deemed by the Board of
Directors to be equivalent in value) of $.01 per Right at any time prior to
the earliest of (i) such time as a Person becomes an Acquiring Person or
(ii) the Expiration Date; provided, however, that after there shall be an
Acquiring Person the Rights may be redeemed only if a majority of the
Disinterested Directors determines that such redemption is in the best
interests of the Company (all terms as defined in the Rights Agreement).
The Company may, but shall not be required to, issue fractions of
Preferred Shares or distribute certificates which evidence fractions of
Preferred Shares upon the exercise of any Right or Rights evidenced hereby.
In lieu of issuing fractional shares, the Company may elect to make a cash
payment as provided in the Rights Agreement or to issue certificates or
utilize a depository arrangement as provided in the terms of the Preferred
Shares.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred
Shares 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, including, without
limitation, 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 other distributions or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
certificate shall have been exercised as provided in accordance with the
provisions of the Rights Agreement.
3
This Right 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:
THE PITTSTON COMPANY,
by
-------------------------------
Name:
Title:
Attest:
by
------------------------------
Name:
Title:
Countersigned:
BANKBOSTON, N.A., as Rights Agent,
by
------------------------------
Authorized Signature
4
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if
such holder desires to transfer the Rights
represented by this Right Certificate.)
FOR VALUE RECEIVED _____________________________________
hereby sells, assigns and transfers unto _______________________________
- ---------------------------------------------------------------------------
(Please print name and address of transferee)
- ---------------------------------------------------------------------------
this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
____________________ Attorney, to transfer the within Right Certificate on
the books of the within-named Company, with full power of substitution.
Dated: ___________________, 200_
-------------------------------------------------
Signature
Signature Guaranteed:
5
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Right 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 in the Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Right Certificate
from any Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: , 200_
-------------------------------------------------
Signature
Signature Guaranteed:
NOTICE
The signature on the foregoing Form of Assignment and Certificate must
correspond to the name as written upon the face of this Right Certificate
in every particular, without alteration or enlargement or any change
whatsoever.