The purpose of the Shareholder Rights Plan is to ensure, to the extent possible, that stockholders of the Company are treated fairly in connection with any bid to acquire control of the Company. The Shareholder Rights Plan ensures that, in the context of a bid for control of the Company through an acquisition of shares of Common Stock of the Company, the Board has sufficient time to explore and develop alternatives for maximizing stockholder value, to provide adequate time for competing bids to emerge, to ensure that stockholders have an equal opportunity to participate in such a bid and to give stockholders adequate time to properly assess the bid and lessen the pressure to tender that is typically encountered by stockholders of companies that are subject to takeover bids. The Shareholder Rights Plan in no way prohibits a takeover bid for the Company in a transaction that is fair and in the best interests of all of the Company’s stockholders. The rights of stockholders to seek a change in the management of the Company or to influence or promote action of management in a particular manner will not be affected by the Shareholder Rights Plan. The approval of the Shareholder Rights Plan does not affect the duty of a director to act honestly and in good faith with a view to the best interests of the Company and its stockholders.
SUMMARY OF THE SHAREHOLDER RIGHTS PLAN
The following is a summary of certain material terms of the Shareholder Rights Plan. The summary is qualified in its entirety by reference to the full text of the Shareholder Rights Plan, which is attached as Appendix “A”: to this Proxy Statement. Copies of the Shareholder Rights Plan are also available upon request to the Company. Stockholders are urged to read the Shareholder Rights Plan carefully prior to determining whether or not to vote in favor of approving the Shareholder Rights Plan.
Issuance of Rights
Under the Shareholder Rights Plan, the Company shall issue one right (a “Right”) in respect of each share of Common Stock outstanding on the date the Shareholder Rights Plan is adopted (the “Record Date”) and one Right in respect of each Common Share which may be issued between the Record Date and the date that is the earlier of (i) the close of business on the tenth Business Day after the Stock Acquisition Date (or, if the tenth Business Day after the Stock Acquisition Date occurs before the Record Date, the close of business on the Record Date), or (ii) the close of business on the tenth Business Day (or such later date as the Board shall determine) after the date that a tender or exchange offer by any Person (other than the Company, any Subsidiary of the Company, any employee benefit plan or compensation plan of the Company or of any Subsidiary of the Company, or any Person organized, appointed, or established by the Company for or pursuant to the terms of any such employee benefit or compensation plan) is first published or sent or given within the meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person would become an Acquiring Person (the earlier of (i) and (ii) being herein referred to as the “Distribution Date”).
Exercise Price and Adjustment of Exercise Price and Number of Rights
Each Right will entitle the holder thereof, from and after the Distribution Date and prior to the Expiration Date (as defined therein), to purchase, for an exercise price to be determined by the Board in the best interest of the Company’s stockholders (the “Exercise Price”), one share of Common Stock. The Exercise Price and the number of the Rights outstanding are subject to adjustment if, after the Record Date and prior to the Expiration Date, the Company performs certain actions that customarily trigger adjustments, including declaring or paying a dividend on its Common Shares; subdividing or changing the number of outstanding Common Stock into a greater number of Common Stock; combining or changing the number of outstanding Common Stock into a smaller number of Common Stock; or issuing any Common Stock at a purchase price less than the Exercise Price.
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Exercise of Rights and Transferability
Until the Distribution Date, the Rights shall not be exercisable and each Right will be evidenced by the certificate for the associated one share of Common Stock and will be transferable only together with, and will be transferred by a transfer of, such associated Common Stock. From and after the Distribution Date and prior to the expiration of the Right, the Rights shall be exercisable and the registration and transfer of the Rights shall be separate from and independent of Common Stock.
Promptly following the Distribution Date, the rights agent to be designated by the Board (the “Rights Agent”) will send to each holder of record of Common Stock as of the Distribution Date or who subsequently becomes a holder of record of Common Stock upon the exercise of rights attaching to convertible securities outstanding at the Stock Acquisition Date, a rights certificate (the “Rights Certificate”) representing one Right for each share of Common Stock. The Rights may be exercised in whole or in part on any business day after the Distribution Date and prior to the expiration thereof by submitting to the Rights Agent, the Rights Certificate together with an election to exercise such Rights and payment of the Exercise Price for each Right being exercised. Upon receipt of the foregoing, the Rights Agent will direct the Company’s transfer agent to issue stock certificates to the holders exercising their Rights, representing one share of Common Stock for each Right exercised.
Acquisition Event
Subject to the terms of the Shareholder Rights Plan, in the event any person shall become an Acquiring Person, then, the Company will take such action as to ensure each holder of a Right will thereafter have the right to receive, upon exercise, Common Stock (or, in certain circumstances, cash, property, or other securities of the Company) having a value equal to two times the exercise price of the Right.
Acquiring Person shall become null and void without any further action, and any holder of such Rights shall not have any right whatsoever to exercise such Rights under the Shareholder Rights Plan and shall not have thereafter any right whatsoever with respect to such Rights.
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Acquiring Person
Acquiring Person means shall mean any Person who or which, together with all Affiliates and Associates of such Person, shall be the Beneficial Owner of ten percent or more of the shares of Common Stock then outstanding, but shall not include (i) the Company; (ii) any Subsidiary of the Company; (iii) any employee benefit plan of the Company, or of any Subsidiary of the Company, or any Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan; (iv) any Person who becomes the Beneficial Owner of ten percent or more of the shares of Common Stock then outstanding as a result of a reduction in the number of shares of Common Stock outstanding due to the repurchase of shares of Common Stock by the Company unless and until such Person, after becoming aware that such Person has become the Beneficial Owner of ten percent or more of the then-outstanding shares of Common Stock, acquires beneficial ownership of additional shares of Common Stock representing one percent or more of the shares of Common Stock then outstanding; (v) any Person which beneficially owns ten percent or more of the shares of Common Stock outstanding on the date hereof, unless and until such time as such Person together with its Affiliates and Associates, directly or indirectly, becomes the Beneficial Owner of fifteen percent or more of the shares of Common Stock then outstanding, in which event such Person shall immediately become an Acquiring Person; and (vi) any Person who has reported or is required to report such ownership (but less than fifteen percent) on Schedule 13G under the Exchange Act (or any comparable or successor report) or on Schedule 13D under the Exchange Act (or any comparable or successor report) which Schedule 13D does not state any intention to or reserve the right to control or influence the management or policies of the Company or engage in any of the actions specified in Item 4 of such schedule (other than the disposition of the Common Stock) and, within ten Business Days of being requested by the Company to advise it regarding the same, certifies to the Company that such Person acquired shares of Common Stock in excess of 9.99% inadvertently or without knowledge of the terms of the Rights and who or which, together with all Affiliates and Associates, thereafter within ten Business Days following such certification reduces such Person’s, together with its Affiliates’ and Associates’ Beneficial Ownership to less than ten percent of the shares of Common Stock then outstanding; provided, however, that (x) if the Person requested to so certify fails to do so within ten Business Days or breaches or violates such certification, then such Person shall become an Acquiring Person immediately after such ten Business Day period or such breach or violation or (y) if the Person together with its Affiliates and Associates fails to reduce such Person’s, together with its Affiliate’s and Associate’s, Beneficial Ownership to less than ten percent within ten Business Days following such certification, then such Person shall become an Acquiring Person immediately after such ten Business Day period.
Rights Holders Not Stockholders
No holder of any Rights or Rights Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the holder of any Common Share or any other share or security of the Company which may at any time be issuable on the exercise of the Rights, nor shall the Rights Agreement nor any Rights Certificate be construed or deemed or confer upon the holder of any Right or Rights Certificate any of the rights, titles, benefits or privileges of a holder of Common Shares or any other shares or securities of the Company or any right to vote at any meeting of stockholders of the Company or to receive notice of any meeting or other action affecting any holder of Common Shares or any other shares or securities of the Company.
Redemption and Waiver
The Board may, at its option, at any time prior to the earlier of (i) the close of business on the tenth Business Day following the Stock Acquisition Date (or, if the Stock Acquisition Date occurred prior to the Record Date, the close of business on the tenth Business Day following the Record Date), or (ii) the Final Expiration Date, redeem all, but not less than all, of the then-outstanding Rights at a per Right redemption price to be determined at the time the Shareholder Rights Plan is adopted, as such amount may be appropriately adjusted to reflect any stock split, stock dividend, or similar transaction (the “Redemption Price”). The Company may, at its option, pay the Redemption Price in cash, shares of Common Stock, or any other form of consideration deemed appropriate by the Board.
Supplements and Amendments
Prior to the Distribution Date, the Company and the Rights Agent may supplement or amend any provision of the Shareholder Rights Plan without the approval of any holders of shares of Common Stock. From and after the Distribution Date, the Company and the Rights Agent may supplement or amend the Shareholder Rights Plan without the approval of any holders of Rights Certificates in order (i) to cure any ambiguity, (ii) to correct or supplement any provision contained herein that may be defective or inconsistent with any other provisions herein, (iii) to shorten or lengthen any time period hereunder or (iv) to change or supplement the provisions in the Shareholder Rights Agreement in any manner that the Company may deem necessary or desirable and that shall not adversely affect the interests of the holders of Rights Certificates (other than an Acquiring Person or an affiliate or associate of an Acquiring Person).
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Confirmation by Stockholders
If the Shareholder Rights Plan is approved by the Company’s stockholders the Shareholder Rights Plan will take effect immediately upon adoption by the Board. If the Shareholder Rights Plan is not approved by the Company’s stockholders, the Shareholder Rights Plan will not be adopted by the Board and the Shareholder Rights Plan will not become effective.
The Board reserves the right to alter any terms of or not to proceed with the Shareholder Rights Plan at any time prior to the Company’s Meeting in the event that the Board determines, in light of subsequent developments, that to do so is in the best interests of the Company and its stockholders.
Vote Required
To approve the Shareholder Rights Plan, a majority of the votes cast by stockholders of the Company present or represented by proxy at the Annual Meeting must be voted FOR the approval of the Shareholder Rights Plan. Abstentions and broker non-votes will not be counted in determining the number of votes necessary for approval of the Shareholder Rights Plan.
The Board recommends a vote FOR the approval of the Shareholder Rights Plan.
