UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of Earliest Event Reported):
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February 3, 2015
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Metalico, Inc.
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(Exact name of registrant as specified in its charter)
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Delaware
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001-32453
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52-2169780
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(State or other jurisdiction
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(Commission
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(I.R.S. Employer
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of incorporation)
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File Number)
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Identification No.)
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186 North Ave. East, Cranford, New Jersey
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07016
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(Address of principal executive offices)
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(Zip Code)
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Registrants telephone number, including area code:
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(908) 497-9610
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Not Applicable
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Former name or former address, if changed since last report
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any
of the following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01 Entry into a Material Definitive Agreement.
On February 3, 2015, Metalico, Inc. (the "Company") entered into a Rights Agreement dated as of such date (as the same may be supplemented or amended from time to time, the "Rights Agreement"), between the Company and Corporate Stock Transfer, Inc., as Rights Agent (the "Rights Agent"). On February 3, 2015, the Board of Directors of the Company also authorized and declared a dividend of one preferred stock purchase right (a "Right") for each share of common stock, par value $0.001 per share (the "Common Stock"), of the Company outstanding as of the close of business on February 17, 2015 (the "Record Date"). Each Right entitles the registered holder to purchase from the Company one one-thousandth (subject to adjustment) of a share of Series A Junior Participating Preferred Stock (a "Preferred Stock Unit"), par value $0.001 per share (the "Series A Preferred Stock"), of the Company at a price of $1.65 (as the same may be adjusted, the "Purchase Price") and upon the terms and conditions set forth in the Rights Agreement. The description and terms of the Rights are set forth in more detail in the Rights Agreement.
Until the close of business on the earlier of (i) the tenth business day after the first date of a public announcement that a person or group of affiliated or associated persons has become the Beneficial Owner (as defined in the Rights Agreement) of 15% or more of the shares of Common Stock then outstanding on or after February 3, 2015 (such person, an "Acquiring Person") (other than any Exempt Person (as defined in the Rights Agreement)) or (ii) the tenth business day (or such later date as may be determined by action of the Board of Directors prior to such time as any person or group of affiliated or associated persons becomes an Acquiring Person) after the date of the commencement by any person of, or the first public announcement of the intention of such person to commence, a tender or exchange offer the consummation of which would result in any person becoming the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding (including for purposes of both clause (i) and (ii), any such date that is after the date of the Rights Agreement and prior to the issuance of the Rights) (the earlier of such dates being called the "Distribution Date"), the Rights will be evidenced by the Common Stock certificates.
The Rights Agreement provides that, from the Record Date and until the Distribution Date (or earlier redemption or expiration of the Rights), the Rights will be transferable only in connection with the transfer of Common Stock. From the Record Date and until the Distribution Date (or earlier redemption or expiration of the Rights), the surrender for transfer of any certificate for Common Stock (or book-entry shares of Common Stock), with or without a copy of the Summary of Rights (as defined in the Rights Agreement), will also constitute the transfer of the Rights associated with the shares of Common Stock represented by such certificate (or registered in book-entry form). As soon as practicable after the Distribution Date, the Company will send or caused to be sent to each record holder of Common Stock as of the close of business on the Distribution Date (other than any Acquiring Person or any person affiliated or associated with such Acquiring Person) a separate certificate substantially in the form of Exhibit B to the Rights Agreement (a "Right Certificate"), evidencing one Right for each share of Common Stock held by such record holder. As of and after the Distribution Date, the Rights will be evidenced solely by such Right Certificates.
The Rights Agreement is effective as of February 3, 2015. The Rights will be exercisable on the Distribution Date. Thereafter, a registered holder of any Right Certificate (other than those representing Rights that have become null and void or that have been exchanged as described below) may, subject to the terms of the Rights Agreement, exercise the Rights evidenced thereby in whole or in part upon surrender of the Right Certificate to the Rights Agent, together with payment of the Purchase Price for each Preferred Stock Unit (or other securities, cash or assets, as the case may be) as to which the Rights are exercised, at any time which is both after the Distribution Date and prior to the earliest to occur of (i) the close of business on February 3, 2016; (ii) the time at which the Rights are redeemed as provided in the Rights Agreement; (iii) the closing of any merger or other acquisition transaction involving the Company pursuant to an agreement of the type described in the Rights Agreement at which time the Rights are terminated; or (iv) the time at which such Rights are exchanged as provided in the Rights Agreement.
To prevent dilution, the Purchase Price payable upon exercise of the Rights, and the number of shares of Series A Preferred Stock (or other securities, cash or assets, as the case may be) issuable upon exercise of the Rights (or, in certain circumstances at the election of the Company, the number of Rights outstanding), are subject to adjustment from time to time (i) in the event of a stock dividend on, or a subdivision, combination or reclassification of, the Series A Preferred Stock; (ii) upon the grant to holders of the Series A Preferred Stock of certain rights, options or warrants to subscribe for or purchase Series A Preferred Stock or securities convertible into Series A Preferred Stock at a price per share of Series A Preferred Stock (or, if a security convertible into shares of Series A Preferred Stock, a conversion price per share) less than the then-current per share market price of the Series A Preferred Stock on such grant date; or (iii) upon the distribution to holders of the Series A Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends or dividends payable in Series A Preferred Stock) or subscription rights or warrants (other than those referred to in clause (ii) above). With certain exceptions, no adjustment in the Purchase Price will be required until cumulative adjustments require an adjustment of at least 1% in such Purchase Price.
The number of outstanding Rights associated with each share of Common Stock is also subject to adjustment in the event the Company (i) declares or pays any dividend on the Common Stock payable in Common Stock or (ii) effects a subdivision, combination or consolidation of the Common Stock into a greater or lesser number of shares of Common Stock at any time after the date of the Rights Agreement and prior to the Distribution Date (or earlier redemption or expiration of the Rights).
No fractional shares of Series A Preferred Stock will be issued (other than fractions which are integral multiples of one one-thousandth of a share of Series A Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts), and, in lieu thereof, the Company will pay to the holders of Right Certificates at the time such Rights are exercised or exchanged for shares of Series A Preferred Stock an amount in cash based on the market value of a share of Series A Preferred Stock on the trading day immediately prior to the date of such exercise or exchange.
Until a Right is exercised or exchanged in accordance with the provisions of the Rights Agreement, the holder thereof, as such, will have no rights as a stockholder of the Company, including, without limitation, the right to vote for the election of directors or upon any matter submitted to stockholders of the Company or to receive dividends or subscription rights.
The shares of Series A Preferred Stock purchasable upon exercise of the Rights will not be redeemable. Further, each share of Series A Preferred Stock will be entitled, when, as and if declared by the Board of Directors of the Company out of funds legally available for the purpose, to a minimum preferential quarterly dividend payment equal to the greater of (i) $1.00 per share or (b) 1,000 times the aggregate per share amount of all cash dividends, and 1,000 times the aggregate per share amount of all non-cash dividends declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date (as defined in Exhibit A to the Rights Agreement). Each share of Series A Preferred Stock will entitle its holder to 1,000 votes on all matters upon which the holders of the Common Stock are entitled to vote. The Series A Preferred Stock will vote together with the Common Stock. In the event of any liquidation, dissolution or winding up of the Company, the holders of the Series A Preferred Stock will be entitled to a minimum preferential liquidation payment of $10.00 per share (plus an amount equal to accrued and unpaid dividends), but will be entitled to receive an aggregate amount per share equal to 1,000 times the aggregate amount distributed per share to holders of Common Stock. Finally, in the event of any merger, consolidation or other transaction in which shares of Common Stock are converted into or exchanged for other stock, securities, cash or property, each share of Series A Preferred Stock will be similarly converted into or exchanged for an amount per share equal to 1,000 times the aggregate amount of stock, securities, cash or property, as the case may be, into which or for which each share of Common Stock was converted or exchanged. These rights are protected by customary antidilution provisions.
In the event that any person or group of affiliated or associated persons becomes an Acquiring Person, subject to certain limited exceptions set forth in the Rights Agreement, each holder of a Right, other than Rights beneficially owned by the Acquiring Person (which will thereupon become null and void), will thereafter have the right to receive upon exercise of a Right and payment of the then-current Purchase Price, in lieu of shares of Series A Preferred Stock, that number of shares of Common Stock having a market value of two times the Purchase Price. If there is an insufficient number of authorized but unissued shares of Common Stock to permit the exercise in full of the Rights, debt, equity or assets (or a combination thereof) of the Company may be issued in lieu of Common Stock and the Purchase Price may be adjusted.
In the event that, after a person or group of affiliated or associated persons becomes an Acquiring Person, the Company is acquired in a merger or other business combination transaction or 50% or more of its consolidated assets or earning power are sold (each such event, a "Merger, Consolidation or Sale Event"), proper provision will be made so that each holder of a Right (other than Rights beneficially owned by an Acquiring Person, any affiliate or associate of any Acquiring Person or a transferee of any Acquiring Person, in each case, as provided in the Rights Agreement, which Rights will have become null and void) will thereafter have the right to receive upon the exercise of a Right and payment of the then-current Purchase Price, that number of shares of common stock of the person with whom the Company has engaged in the foregoing Merger, Consolidation or Sale Event (or its parent) that at the time of such transaction have a market value of two times the Purchase Price.
Additionally, at any time after any person or group of affiliated or associated persons becomes an Acquiring Person and prior to the acquisition by such person or group of persons of 50% or more of the outstanding shares of Common Stock or the occurrence of a Merger, Consolidation or Sale Event, the Board of Directors of the Company may exchange the Rights (other than Rights that have not become effective or that have become null and void pursuant to the Rights Agreement), in whole or in part, at an exchange ratio of one share of Common Stock (or Preferred Stock Unit or other preferred stock equivalent in value thereto) per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date of the Rights Agreement. The exchange of the Rights by the Board of Directors of the Company may be made effective at such time, on such basis and with such conditions as the Board of Directors in its sole discretion may establish.
At any time prior to the time a person or group of affiliated or associated persons first becomes an Acquiring Person, the Board of Directors of the Company may redeem the Rights in whole, but not in part, at a redemption price of $0.001 per Right, appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring after the date of the Rights Agreement (the "Redemption Price"). The redemption of the Rights may be made effective at such time, on such basis and with such conditions as the Board of Directors in its sole discretion may establish. Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and the only right of the holders of the Rights will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may in its sole and absolute discretion (except (i) as provided in the Rights Agreement and (ii) with respect to the Redemption Price) supplement or amend the Rights Agreement in any respect without the approval of any holders of Rights. After the Rights are no longer redeemable, the Company may (except (i) as provided in the Rights Agreement and (ii) with respect to the Redemption Price) supplement or amend the Rights Agreement in any respect that does not adversely affect the interests of holders of the Rights (other than an Acquiring Person or an affiliate or associate of an Acquiring Person).
A copy of the Form of Certificate of Designation of Series A Junior Participating Preferred Stock of the Company is filed as Exhibit 3.3 to this Form 8-K and a copy of the Rights Agreement is filed as Exhibit 4.2 to this Form 8-K, and a copy of the press release relating to the adoption of the Rights Agreement is filed as Exhibit 99.1 to this Form 8-K. The foregoing summary description of the Rights Agreement and the terms of the Series A Preferred Stock is qualified in its entirety by reference, respectively, to the Rights Agreement filed as Exhibit 4.2 hereto and the Form of Certificate of Designation of Series A Junior Participating Preferred Stock filed as Exhibit 3.3 hereto.
Item 3.03 Material Modifications to Rights of Security Holders.
The information set forth under "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
(a)(i) On February 3, 2015, the Company amended its Fourth Amended and Restated Certificate of Incorporation effective immediately upon its filing of the Certificate of Designation for the Series A Junior Participating Preferred Stock with the Secretary of State of the State of Delaware on that date. See "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K for a description of the rights and preferences of the Series A Junior Participating Preferred Stock. A copy of the Form of Certificate of Designation is attached as Exhibit 3.3 to this Current Report on Form 8-K and incorporated herein by reference.
(ii) On February 3, 2015, the Board of Directors amended the Company’s bylaws. The amendment eliminates certain provisions enabling the holders of record of at least 20% of the outstanding shares of Common Stock of the Company (measured on a "net long" basis) to request a special stockholders meeting. In addition, the amendment provides that board vacancies and newly created directorships shall be filled by the vote of a majority of directors then in office, and may no longer be filled by an election at an annual meeting of the stockholders or a special meeting of the stockholders called for that purpose. The amended and restated bylaws, after giving effect to this amendment, are attached as Exhibit 3.2 to this Current Report on Form 8-K and incorporated herein by reference.
Item 8.01 Other Events.
On February 4, 2015, the Company issued a press release announcing that the Company has adopted the Rights Agreement described under "Item 1.01 Entry into a Material Definitive Agreement" of this Current Report on Form 8-K . A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference. The attached press release can also be accessed on the Company’s website at www.metalico.com.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
3.2 Fifth Amended and Restated Bylaws of Metalico, Inc.
3.3 Form of Certificate of Designation for the Series A Junior Participating Preferred Stock of Metalico, Inc.
4.2 Rights Agreement, dated as of February 3, 2015, between Metalico, Inc. and Corporation Stock Transfer, Inc., as Rights Agent.
99.1 Press Release dated February 4, 2015
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Metalico, Inc.
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February 3, 2015
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By:
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/s/ Carlos E. Aguero
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Name: Carlos E. Aguero
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Title: Chairman, President and Chief Executive Officer
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Exhibit Index
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Exhibit No.
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Description
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3.2
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Fifth Amended and Restated Bylaws of Metalico, Inc.
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3.3
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Certificate of Designation for the Series A Junior Participating Preferred Stock of Metalico, Inc.
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4.2
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Rights Agreement, dated as of February 3, 2015, between Metalico, Inc. and Corporation Stock Transfer, Inc., as Rights Agent.
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99.1
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Press Release issued February 4, 2015
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Exhibit 3.2
METALICO, INC.
FIFTH AMENDED AND RESTATED BYLAWS
ARTICLE ONE
OFFICES
Section 1.1. Registered Office. The registered office of Metalico, Inc., a Delaware
corporation (the Corporation), shall be located in the City of Dover, County of Kent,
State of Delaware.
Section 1.2. Other Offices. The Corporation may also have offices at such other
places, either within or without the State of Delaware, as the Board of Directors of the
Corporation (the Board of Directors) may from time to time determine or as the business
of the Corporation may require.
ARTICLE TWO
MEETINGS OF STOCKHOLDERS
Section 2.1. Place. All annual meetings of stockholders shall be held at such place,
if any, within or without the State of Delaware, as may be designated by the Board of Directors and
stated in the notice of the meeting. Special meetings of stockholders may be held at such place,
if any, within or without the State of Delaware, and at such time as shall be stated in the notice
of the meeting.
Section 2.2. Annual Meetings. Annual meetings of stockholders shall be held on such
date and at such time fixed, from time to time, by the Board of Directors at which the stockholders
shall elect a board of directors and transact such other business as may properly be brought before
the meeting.
Section 2.3. Special Meetings. A special meeting of stockholders may be called at any
time by the Board of Directors, the Chairman of the Board (herein called the Chairman), a
Vice Chairman of the Board, the Chief Executive Officer or the President or otherwise as provided
by the General Corporation Law of the State of Delaware (the General Corporation Law) or
the Certificate of Incorporation of the Corporation, as amended from time to time (the
Certificate of Incorporation), but, subject to this Section 2.3, special meetings of
stockholders may not be called by any other person. Any such special meeting shall be held on such
date and at such time and place, if any, designated by the Board of Directors. Except as otherwise
provided in these Bylaws, business transacted at any special meeting of stockholders shall be
limited to the purpose or purposes stated in the notice of meeting.
Section 2.4. Notice and Waiver of Notice. Written or printed notice stating the
place, if any, day and hour of the meeting, the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the
record date for determining the stockholders entitled to vote at the meeting (if such state is
different from the record date for stockholders entitled to notice of the meeting), and the purpose
or purposes for which the meeting is called shall be delivered not less than ten (10) nor more than
sixty (60) days before the day of the meeting, either personally or by first-class mail, by or at
the direction of the Board of Directors, the President, the Secretary of the Corporation (the
Secretary), or the officer calling the meeting, to each stockholder of record entitled to
vote at such meeting as of the record date for determining stockholders entitled to notice of the
meeting. If the notice is mailed, such notice shall be deemed to be delivered when deposited in
the United States mail addressed to the stockholder at his or her address as it appears on the
stock transfer books of the Corporation, with postage thereon prepaid. If the adjournment is for
more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of
record entitled to vote at the meeting. If after the adjournment a new record date for
determination of stockholders entitled to vote is fixed for the adjourned meeting, the Board of
Directors shall fix as the record date for determining stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for determination of stockholders
entitled to vote at the adjourned meeting, and shall give notice of the adjourned meeting to each
stockholder of record as of the record date so fixed for notice of such adjourned meeting. Notice
need not be given to any stockholder who submits a written or electronic waiver of notice by him
before or after the time stated therein. Attendance of a person at a meeting of stockholders shall
constitute a waiver of notice of such meeting, except when a stockholder attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at,
nor the purpose of, any regular or special meeting of the stockholders need be specified in any
waiver of notice.
Section 2.5. Notice of Stockholder Business and Nominations.
(A) Annual Meetings of Stockholders.
(1) Nominations of persons for election to the Board of Directors and the proposal of
other business to be considered by the stockholders may be made at an annual meeting of
stockholders only (a) pursuant to the Corporations notice of meeting (or any supplement
thereto), (b) by or at the direction of the Board of Directors or any committee thereof or
(c) by any stockholder of the Corporation who was a stockholder of record of the Corporation
at the time the notice provided for in this Section 2.5 is delivered to the Secretary, who
is entitled to vote at the meeting and who complies with the notice procedures set forth in
this Section 2.5.
(2) For any nominations or other business to be properly brought before an annual
meeting by a stockholder pursuant to clause (c) of paragraph (A)(1) of this Section 2.5, the
stockholder must have given timely notice thereof in writing to the Secretary and any such
proposed business (other than the nominations of persons for election to the Board of
Directors) must constitute a proper matter for stockholder action. To be timely, a
stockholders notice shall be delivered to the Secretary at the principal executive offices
of the Corporation not later than the close of business on the ninetieth (90th) day, nor
earlier than the close of business on the one hundred twentieth (120th) day, prior to the
first anniversary of the preceding years annual meeting (provided, however, that in the
event that the date of the annual meeting is more than thirty (30) days before or more than
seventy (70) days after such anniversary date, notice by the stockholder must be so
delivered not earlier than the close of business on the one hundred twentieth (120th) day
prior to such annual meeting and not later than the close of business on the later of the
ninetieth (90th) day prior to such annual meeting or the tenth (10th) day following the day
on which public announcement of the date of such meeting is first made by the Corporation).
In no event shall the public announcement of an adjournment or postponement of an annual
meeting commence a new time period (or extend any time period) for the giving of a
stockholders notice as described above. Such stockholders notice shall set forth: (a) as
to each person whom the stockholder proposes to nominate for election as a director (i) all
information relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise required, in each
case pursuant to and in accordance with Section 14(a) of the Securities Exchange Act of
1934, as amended (the Exchange Act) and the rules and regulations promulgated
thereunder, and (ii) such persons written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; (b) as to any other business that the
stockholder proposes to bring before the meeting, a brief description of the business
desired to be brought before the meeting, the text of the proposal or business to be acted
upon (including the text of any resolutions proposed for consideration and in the event that
such business includes a proposal to amend the Bylaws of the Corporation, the language of
the proposed amendment), the reasons for conducting such business at the meeting and any
material interest in such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the
beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name
and address of such stockholder, as they appear on the Corporations books, and of such
beneficial owner, (ii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially and of record by such stockholder and such
beneficial owner, (iii) a description of any agreement, arrangement or understanding with
respect to the nomination or proposal between or among such stockholder and/or such
beneficial owner, any of their respective affiliates or associates, and any others acting in
concert with any of the foregoing, including, in the case of a nomination, the nominee, (iv)
a description of any agreement, arrangement or understanding (including any derivative or
short positions, profit interests, options, warrants, convertible securities, stock
appreciation or similar rights, hedging transactions, and borrowed or loaned shares) that
has been entered into as of the date of the stockholders notice by, or on behalf of, such
stockholder and such beneficial owners, whether or not such instrument or right shall be
subject to settlement in underlying shares of capital stock of the Corporation, the effect
or intent of which is to mitigate loss to, manage risk or benefit of share price changes
for, or increase or decrease the voting power of, such stockholder or such beneficial owner,
with respect to securities of the Corporation, (v) a representation that the stockholder is
a holder of record of stock of the Corporation entitled to vote at such meeting and intends
to appear in person or by proxy at the meeting to propose such business or nomination, (vi)
a representation whether the stockholder or the beneficial owner, if any, intends or is part
of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of
at least the percentage of the Corporations outstanding capital stock required to approve
or adopt the proposal or elect the nominee and/or (b) otherwise to solicit proxies or votes
from stockholders in support of such proposal or nomination, and (vii) any other information
relating to such stockholder and beneficial owner, if any, required to be disclosed in a
proxy statement or other filings required to be made in connection with solicitations of
proxies for, as applicable, the proposal and/or for the election of directors in an election
contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules
and regulations promulgated thereunder. The foregoing notice requirements of this
paragraph (A) of this Section 2.5 shall be deemed satisfied by a stockholder with respect to
business other than a nomination if the stockholder has notified the Corporation of his, her
or its intention to present a proposal at an annual meeting in compliance with applicable
rules and regulations promulgated under the Exchange Act and such stockholders proposal has
been included in a proxy statement that has been prepared by the Corporation to solicit
proxies for such annual meeting. The Corporation may require any proposed nominee to
furnish such other information as the Corporation may reasonably require to determine the
eligibility of such proposed nominee to serve as a director of the Corporation.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section
2.5 to the contrary, in the event that the number of directors to be elected to the Board of
Directors of the Corporation at the annual meeting is increased effective after the time
period for which nominations would otherwise be due under paragraph (A)(2) of this Section
2.5 and there is no public announcement by the Corporation naming the nominees for the
additional directorships at least one hundred (100) days prior to the first anniversary of
the preceding years annual meeting, a stockholders notice required by this Section 2.5
shall also be considered timely, but only with respect to nominees for the additional
directorships, if it shall be delivered to the Secretary at the principal executive offices
of the Corporation not later than the close of business on the tenth (10th) day following
the day on which such public announcement is first made by the Corporation.
(B) Special Meetings of Stockholders. Only such business shall be conducted at a
special meeting of stockholders as shall have been brought before the meeting pursuant to the
Corporations notice of meeting. Nominations of persons for election to the Board of Directors may
be made at a special meeting of stockholders at which directors are to be elected pursuant to the
Corporations notice of meeting (1) by or at the direction of the Board of Directors or any
committee thereof or (2) provided that the Board of Directors has determined that directors shall
be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at
the time the notice provided for in this Section 2.5 is delivered to the Secretary of the
Corporation, who is entitled to vote at the meeting and upon such election and who complies with
the notice procedures set forth in this Section 2.5. In the event the Corporation calls a special
meeting of stockholders for the purpose of electing one or more directors to the Board of
Directors, any such stockholder entitled to vote in such election of directors may nominate a
person or persons (as the case may be) for election to such position(s) as specified in the
Corporations notice of meeting, if the stockholders notice required by paragraph (A)(2) of this
Section 2.5 shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the one hundred twentieth (120th) day prior
to such special meeting and not later than the close of business on the later of the ninetieth
(90th) day prior to such special meeting or the tenth (10th) day following the day on which public
announcement is first made of the date of the special meeting and of the nominees proposed by the
Board of Directors to be elected at such meeting. In no event shall the public announcement of an
adjournment or postponement of a special meeting commence a new time period (or extend any time
period) for the giving of a stockholders notice as described above.
(C) General.
(1) Except as otherwise expressly provided in any applicable rule or regulation
promulgated under the Exchange Act, only such persons who are nominated in accordance with
the procedures set forth in this Section 2.5 shall be eligible to be elected at an annual or
special meeting of stockholders of the Corporation to serve as directors and only such
business shall be conducted at a meeting of stockholders as shall have been brought before
the meeting in accordance with the procedures set forth in this Section 2.5. Except as
otherwise provided by law, the chairman of the meeting as set forth in Section 2.6 shall
have the power and duty (a) to determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may be, in accordance with the
procedures set forth in this Section 2.5 (including whether the stockholder or beneficial
owner, if any, on whose behalf the nomination or proposal is made solicited (or is part of a
group which solicited) or did not so solicit, as the case may be, proxies or votes in
support of such stockholders nominee or proposal in compliance with such stockholders
representation as required by clause (A)(2)(c)(vi) of this Section 2.5) and (b) if any
proposed nomination or business was not made or proposed in compliance with this Section
2.5, to declare that such nomination shall be disregarded or that such proposed business
shall not be considered. Notwithstanding the foregoing provisions of this Section 2.5,
unless otherwise required by law, if the stockholder (or a qualified representative of the
stockholder) does not appear at the annual or special meeting of stockholders of the
Corporation to present a nomination or proposed business, such nomination shall be
disregarded and such proposed business shall not be considered, notwithstanding that proxies
in respect of such vote may have been received by the Corporation. For purposes of this
Section 2.5, to be considered a qualified representative of the stockholder, a person must
be a duly authorized officer, manager or partner of such stockholder or must be authorized
by a writing executed by such stockholder or an electronic transmission delivered by such
stockholder to act for such stockholder as proxy at the meeting of stockholders and such
person must produce such writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of stockholders.
(2) For purposes of this Section 2.5, public announcement shall include disclosure in
a press release reported by the Dow Jones News Service, Associated Press or other national
news service or in a document publicly filed by the Corporation with the Securities and
Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act and the rules
and regulations promulgated thereunder.
(3) In addition to the provisions of this Section 2.5, a stockholder shall also comply
with all applicable requirements of the Exchange Act and the rules and regulations
promulgated thereunder with respect to the matters set forth in this Section 2.5; provided,
however, that any references in these Bylaws to the Exchange Act or the rules and
regulations promulgated thereunder are not intended to and shall not limit any requirements
applicable to nominations or proposals as to any other business to be considered pursuant to
this Section 2.5 (including paragraphs (A)(1)(c) and (B) hereof), and compliance with
paragraphs (A)(1)(c) and (B) of this Section 2.5 shall be the exclusive means for a
stockholder to make nominations or submit other business (other than, as provided in the
penultimate sentences of paragraphs (A)(2) and (B) hereof, business or nominations brought
properly under and in compliance with Rule 14a-8 or Rule 14a-11 of the Exchange Act, as such
Rules may be amended from time to time). Nothing in this Section 2.5 shall be deemed to
affect any rights (a) of stockholders to request inclusion of proposals or nominations in
the Corporations proxy statement pursuant to applicable rules and regulations promulgated
under the Exchange Act or (b) of the holders of any series of Preferred Stock to elect
directors pursuant to any applicable provisions of the Certificate of Incorporation.
Section 2.6. Conduct of Meetings. The Chairman of the Board (or in his or her
absence, the President or such other designee of the Board) shall preside over meetings of
stockholders. The date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting shall be announced at the meeting by the person
presiding over the meeting. The Board of Directors may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with such rules and regulations as adopted by the Board of Directors, the
person presiding over any meeting of stockholders shall have the right and authority to convene and
(for any or no reason) to recess and/or adjourn the meeting, to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such presiding person, are
appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether
adopted by the Board of Directors or prescribed by the presiding person of the meeting, may
include, without limitation, the following: (i) the establishment of an agenda or order of business
for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of
those present; (iii) limitations on attendance at or participation in the meeting to stockholders
entitled to vote at the meeting, their duly authorized and constituted proxies or such other
persons as the presiding person of the meeting shall determine; (iv) restrictions on entry to the
meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted
to questions or comments by participants. The presiding person at any meeting of stockholders, in
addition to making any other determinations that may be appropriate to the conduct of the meeting,
shall, if the facts warrant, determine and declare to the meeting that a matter or business was not
properly brought before the meeting and if such presiding person should so determine, such
presiding person shall so declare to the meeting and any such matter or business not properly
brought before the meeting shall not be transacted or considered. Unless and to the extent
determined by the Board of Directors or the person presiding over the meeting, meetings of
stockholders shall not be required to be held in accordance with the rules of parliamentary
procedure.
Section 2.7. Quorum. The holders of a majority of the shares entitled to vote,
represented in person or by proxy, shall constitute a quorum at meetings of stockholders except as
otherwise provided in the Certificate of Incorporation. If, however, a quorum shall not be present
or represented at any meeting of the stockholders, the stockholders present in person or
represented by proxy shall have the power to adjourn the meeting from time to time, without notice
other than announcement at the meeting (subject to Section 2.4 hereinabove), until a quorum shall
be present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted that might have been transacted at the meeting as
originally notified and called. The stockholders present at a duly organized meeting may continue
to transact business notwithstanding the withdrawal of some stockholders prior to adjournment, but
in no event shall a quorum consist of the holders of less than one-third (1/3) of the shares
entitled to vote and thus represented at such meeting.
Section 2.8. Vote Required for Stockholder Action.
(A) When a quorum is present at any meeting of stockholders, the affirmative vote of the
holders of a majority in voting power of the stock entitled to vote on the matter (other than the
election of directors and the frequency of the stockholder advisory vote with respect to executive
compensation) present in person or represented by proxy shall decide any question brought before
such meeting, unless the question is one upon which by express provision of the General Corporation
Law, the Certificate of Incorporation, these Bylaws or the rules and regulations of any stock
exchange applicable to the Corporation or applicable law, a different vote is required, in which
case such express provision shall govern and control the decision of such question.
(B) Except as otherwise required by law, the Certificate of Incorporation or these Bylaws,
directors shall be elected by a plurality of the votes of the shares present in person or
represented by proxy at a meeting at which a quorum is present and voting for nominees in the
election of directors.
(C) Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, any
advisory vote pursuant to the Exchange Act on the frequency of the stockholder advisory vote with
respect to executive compensation shall be decided by a plurality of the votes of the shares
present in person or represented by proxy at the meeting and entitled to vote thereon.
Section 2.9. Voting of Shares. Each outstanding share, regardless of class, shall be
entitled to vote on each matter submitted to a vote at a meeting of stockholders, except to the
extent that the voting rights of the shares of any class are limited or denied by the Certificate
of Incorporation or the General Corporation Law.
Section 2.10. Proxies. A stockholder may vote in person or by proxy executed in
writing by the stockholder or by his or her duly authorized attorney-in-fact. No proxy shall be
voted or acted upon after three (3) years from the date of its execution unless otherwise provided
in the proxy. Each proxy shall be revocable unless expressly provided therein to be irrevocable,
and unless otherwise made irrevocable by law.
Section 2.11. Stockholder List. The officer or agent having charge of the
Corporations stock transfer books shall make, at least ten (10) days before each meeting of
stockholders, a complete list of the stockholders entitled to vote at such meeting (provided,
however, if the record date for determining the stockholders entitled to vote is less than ten (10)
days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of
the tenth day before the meeting date), arranged in alphabetical order, with the address of, and
the number and class and series, if any, of shares held by each. Such list shall be open to the
examination of any stockholder, for any purpose germane to the meeting, at least ten day (10) prior
to the meeting (i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of meeting, or (ii) during
ordinary business hours at the principal place of business of the corporation. If the meeting is
to be held at a place, then a list of stockholders entitled to vote at the meeting shall be
produced and kept at the time and place of the meeting during the whole time thereof and may be
examined by any stockholder who is present. If the meeting is to be held solely by means of remote
communication, then the list shall also be open to the examination of any stockholder during the
whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of meeting. The stock ledger of the
Corporation shall be prima facie evidence as to who are the stockholders entitled to examine such
list or transfer book or to vote at any such meeting of stockholders. Failure to comply with the
requirements of this Section shall not affect the validity of any action taken at such meeting.
Section 2.12. Action Without Meeting.
(A) Any action which may be taken at any meeting of stockholders may be taken without a
meeting and without prior notice if written consents setting forth the action so taken are signed
by the holders of the outstanding shares having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted.
(B) In order that the Corporation may determine the stockholders entitled to consent to
corporate action in writing without a meeting, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record date is adopted
by the Board of Directors, and which date shall not be more than 10 days after the date upon which
the resolution fixing the record date is adopted by the Board of Directors. Any stockholder of
record seeking to have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to fix a record date.
The Board of Directors shall promptly, but in all events within 10 days after the date on which
such a request is received, adopt a resolution fixing the record date (unless a record date has
previously been fixed by the Board of Directors pursuant to the first sentence of this Section
2.12(B)). If no record date has been fixed by the Board of Directors pursuant to the first
sentence of this Section 2.12(B) or otherwise within 10 days of the date on which such a written
request is received, the record date for determining stockholders entitled to consent to corporate
action in writing without a meeting, when no prior action by the Board of Directors is required by
applicable law, shall be the first date after the expiration of such 10-day time period on which a
signed written consent setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its principal place of
business or an officer or agent of the Corporation having custody of the book in which proceedings
of meetings of stockholders are recorded. Delivery made to the Corporations registered office
shall be by hand or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of Directors is required by
law, the record date for determining stockholders entitled to consent to corporate action in
writing without a meeting shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action.
(C) In the event of the delivery, in the manner provided by this Section 2.12 and applicable
law, to the Corporation of a written consent or consents purporting to authorize or take corporate
action and/or related revocations (such written consent or consents together with any related
revocations is referred to in this section as a Consent), the Secretary shall provide for
the safekeeping of such Consent and shall immediately appoint duly qualified and independent
inspectors to: (i) conduct promptly such reasonable ministerial review as such inspectors deem
necessary or appropriate for the purpose of ascertaining the sufficiency and validity of such
Consent and all matters incident thereto, including whether holders of shares having the requisite
voting power to authorize or take the action specified in the Consent have given consent; and (ii)
deliver to the Secretary a written report regarding the foregoing. For the purpose of permitting
the inspector or inspectors to perform such review, no action by written consent and without a
meeting shall be effective until such inspector or inspectors have completed their review,
determined that the requisite number of valid and unrevoked Consents delivered to the Corporation
in accordance with this Section 2.12 and applicable law have been obtained to authorize or take the
action specified in the Consents, and certified such determination for entry in the records of the
Corporation kept for the purpose of recording the proceedings of meetings of stockholders. If after
such investigation and report the Secretary shall determine that the Consent is valid and that
holders of shares having the requisite voting power to authorize or take the action specified in
the Consent have given consent, that fact shall be certified on the records of the Corporation kept
for the purpose of recording the proceedings of meetings of stockholders, and the Consent shall be
filed in such records, at which time the Consent shall become effective as stockholder action.
Nothing contained in this Section 2.12 shall in any way be construed to suggest or imply that the
Board of Directors or any stockholder shall not be entitled to contest the validity of any Consent
or revocation thereof, whether before or after such certification by the independent inspector or
inspectors, or to take any other action (including, without limitation, the commencement,
prosecution or defense of any litigation with respect thereto, and the seeking of injunctive relief
in such litigation).
(D) If the consents of all stockholders entitled to vote have not been solicited in writing
and if the unanimous written consent of all such stockholders shall not have been received, the
Secretary shall give prompt notice of any corporate action approved by the stockholders without a
meeting to those stockholders entitled thereto. This notice shall be given in the manner specified
in Section 2.4 above and in accordance with Section 228 of the General Corporation Law.
Section 2.13. Fixing Record Date.
(A) In order that the Corporation may determine the stockholders entitled to notice of any
meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date,
which record date shall not precede the date upon which the resolution fixing the record date is
adopted by the Board of Directors, and which record date shall, unless otherwise required by law,
not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the
Board of Directors so fixes a date, such date shall also be the record date for determining the
stockholders entitled to vote at such meeting unless the Board of Directors determines, at the time
it fixes such record date, that a later date on or before the date of the meeting shall be the date
for making such determination. If no record date is fixed by the Board of Directors, the record
date for determining stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the day next preceding the day on which notice is given, or,
if notice is waived, at the close of business on the day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the
Board of Directors may fix a new record date for determination of stockholders entitled to vote at
the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled
to notice of such adjourned meeting the same or an earlier date as that fixed for determination of
stockholders entitled to vote in accordance herewith at the adjourned meeting.
(B) In order that the Corporation may determine the stockholders entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock or for the purpose of any other
lawful action, the Board of Directors may fix a record date, which shall not be more than sixty
(60) days prior to such other action. If no such record date is fixed, the record date for
determining stockholders for any such purpose shall be at the close of business on the day on which
the Board of Directors adopts the resolution relating thereto.
Section 2.14. Inspectors of Elections. The Board of Directors in advance of any
meeting may, but need not, appoint one or more inspectors of election to act at the meeting or any
adjournment thereof. If no inspector is appointed, the person presiding at the meeting may, but
need not, appoint one or more inspectors. In case any person who may be appointed as an inspector
fails to appear or act, the vacancy may be filled by the Board of Directors in advance of the
meeting, or at the meeting by the person presiding thereat. The inspectors, if any, shall
determine the number of shares of stock outstanding and the voting power of each, the shares of
stock represented at the meeting, the existence of a quorum, the validity and effect of proxies,
and shall receive votes, ballots and consents, hear and determine all challenges and questions
arising in connection with the right to vote, count and tabulate votes, ballots and consents,
determine the result, and do such acts as are proper to conduct the election or vote with fairness
to all stockholders. On the request of the person presiding at the meeting, the inspector or
inspectors shall make a report in writing of any challenge, question or matter determined by him or
them, and execute a certificate of any fact found by him or them.
ARTICLE THREE
DIRECTORS
Section 3.1. Number, Election and Term. The number of directors of the Corporation
shall be fixed from time to time, within the limits specified by the Certificate of Incorporation,
by resolution of the Board of Directors; provided, however, no directors term shall be shortened
by reason of a resolution reducing the number of directors. The directors shall be elected at the
annual or special meeting of the stockholders, except as provided in Section 2.5(B) above, and each
director elected shall hold office for the term for which he is elected and until his or her
successor is duly elected and qualified. Directors need not be residents of the State of Delaware,
stockholders of the Corporation, or citizens of the United States. Unless provided otherwise by
law, any director may be removed at any time, with or without cause, at a special meeting of the
stockholders called for that purpose.
Section 3.2. Procedures for Nomination by the Board of Directors. Nominations by the
Board of Directors of persons for election as directors shall be made in accordance with such
procedures and policies as the Board of Directors may adopt.
Section 3.3. Vacancies. A director may resign at any time by giving written or
electronic notice to the Board of Directors or the Chairman of the Board. Such resignation shall
take effect at the date of receipt of such notice or at any later time specified therein; and,
unless otherwise specified therein, the acceptance of such resignation shall not be necessary to
make it effective. Any vacancy occurring in the Board of Directors and any directorship to be
filled by reason of an increase in the size of the Board of Directors shall be filled by the
affirmative vote of a majority of the current directors though less than a quorum of the Board of
Directors. A director elected to fill a vacancy shall be elected for the unexpired term of his or
her predecessor in office, or until the next election of one or more directors by stockholders if
the vacancy is caused by an increase in the number of directors.
Section 3.4. Place of Meetings. Meetings of the Board of Directors, regular or
special, may be held either within or without the State of Delaware.
Section 3.5. Annual Meeting. The first meeting of each newly elected Board of
Directors shall be held, without call or notice, immediately following each annual meeting of
stockholders.
Section 3.6. Regular Meetings. Regular meetings of the Board of Directors may also be
held without notice at such time and at such place, if any, as shall from time to time be
determined by the Board of Directors.
Section 3.7. Special Meetings and Notice. Special meetings of the Board of Directors
may be called by the Chairman, if any, or the President and shall be called by the Secretary on the
written request of any two directors. Written notice of special meetings of the Board of Directors
shall be given to each director at least forty-eight (48) hours (twenty-four (24) hours in the case
of telephonic meetings) before the meeting. Except as required by statute, neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need
be specified in the notice of such meeting. Notices to directors shall be in writing and delivered
personally or mailed to the directors at their addresses appearing on the books of the Corporation.
Notice by mail shall be deemed to be given at the time when the same shall be received. Notice to
directors may also be given personally or by telephone, email or other means of electronic
transmission not less than twenty-four (24) hours before the date and hour of the meeting.
Whenever any notice is required to be given to any director, a waiver thereof in writing or by
electronic transmission by the person or persons entitled to such notice, whether before or after
the time stated therein, shall be equivalent to the giving of such notice. Attendance of a
director at a meeting shall constitute a waiver of notice of such meeting, except when a director
attends for the express purpose of objecting to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
Section 3.8. Quorum and Required Vote. A majority of the directors shall constitute a
quorum for the transaction of business and the act of the majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors, unless a greater
number is required by the Certificate of Incorporation or the General Corporation Law. If a quorum
shall not be present at any meeting of the Board of Directors, the directors present thereat may
adjourn the meeting from time to time, without notice other than announcement at the meeting, until
a quorum shall be present. At such adjourned meeting at which a quorum shall be present, any
business may be transacted that might have been transacted at the meeting as originally notified
and called.
Section 3.9. Action Without Meeting. Any action required or permitted to be taken at
a meeting of the Board of Directors or committee thereof may be taken without a meeting if all of
the members of the Board of Directors or the committee, as the case may be, consent thereto in
accordance with applicable law and such consent shall have the same force and effect as a unanimous
vote at a meeting.
Section 3.10. Telephone Meetings. Directors and committee members may participate in
and hold a meeting by means of conference telephone or other communications equipment by means of
which all persons participating in the meeting can hear each other. Participation in such a
meeting shall constitute presence in person at the meeting, except where a person participates in
the meeting for the express purpose of objecting to the transaction of any business on the ground
the meeting is not lawfully called or convened.
Section 3.11. Committees. The Board of Directors, by resolution adopted by a majority
of the whole Board of Directors, may designate from among its members an executive committee, an
audit committee, a compensation committee, and one or more other committees, each of which, to the
extent provided in such resolution, shall have and may exercise all of the authority of the Board
of Directors in the business and affairs of the Corporation except where the action of the full
Board of Directors is required by statute or the charter of such committee. Every committee
appointed by the Board of Directors may, unless the Board of Directors provides otherwise and
except as otherwise provided by law, fix its own rules of procedure and hold its meetings in
accordance with such rules. Each committee shall keep regular minutes of its proceedings and
report the same to the Board of Directors when required.
Section 3.12. Compensation of Directors. The directors may be paid their expenses, if
any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for
attendance at each meeting of the Board of Directors or a stated salary as director. No such
payment shall preclude any director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 3.13. Chairman of the Board. The Board of Directors may, in its discretion,
choose a chairman of the board who shall preside at meetings of the stockholders and of the
directors and shall be an ex officio member of all standing committees. The Chairman of the Board
shall have such other powers and shall perform such other duties as shall be designated by the
Board of Directors. The Chairman of the Board shall be a member of the Board of Directors but no
other officers of the Corporation need be a director. The Chairman of the Board shall serve until
his or her successor is chosen and qualified, but he may be removed at any time by the affirmative
vote of a majority of the Board of Directors.
ARTICLE FOUR
OFFICERS
Section 4.1. Positions. The officers of the Corporation shall consist of a President,
a Secretary and a Treasurer, and, if elected by the Board of Directors by resolution, a Chairman of
the Board and one or more Executive Vice Presidents, Senior Vice Presidents, and Vice Presidents.
Any two or more offices may be held by the same person.
Section 4.2. Election of Specified Officers by Board. The Board of Directors shall
elect the officers of the Corporation from time to time.
Section 4.3. Election or Appointment of Other Officers. Such other officers and
assistant officers and agents as may be deemed necessary may be elected or appointed by the Board
of Directors, or, unless otherwise specified herein, appointed by the Chairman of the Board. The
Board of Directors shall be advised of appointments by the Chairman at or before the next scheduled
Board of Directors meeting.
Section 4.4. Salaries. The salaries of all officers of the Corporation to be elected
by the Board of Directors pursuant to Article Four, Section 4.2 hereof shall be fixed from time to
time by the Board of Directors or pursuant to its discretion. The salaries of all other elected or
appointed officers of the Corporation shall be fixed from time to time by the Chairman of the Board
or pursuant to his or her direction.
Section 4.5. Term. Each officer of the Corporation shall hold office until his or her
successor is duly elected and qualified or until such officers earlier resignation or removal.
Any officer or agent elected or appointed by the Board of Directors or the Chairman of the Board
may be removed, with or without cause, by the Board of Directors whenever in its judgment the best
interests of the Corporation will be served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed. Any officers or agents appointed by the
President of the Corporation pursuant to Section 4.3 of this Article Four may also be removed from
such officer positions by the President, with or without cause. Any vacancy occurring in any
office of the Corporation by death, resignation, removal or otherwise shall be filled by the Board
of Directors, or, in the case of an officer appointed by the President of the Corporation, by the
President or the Board of Directors.
Section 4.6. President. The President shall be the Chief Executive Officer of the
Corporation, shall have general and active management of the business of the Corporation and shall
see that all orders and resolutions of the Board of Directors are carried into effect. In the
absence of the Chairman of the Board or in the event the Board of Directors shall not have
designated a Chairman of the Board, the President shall preside at meetings of the stockholders and
the Board of Directors.
Section 4.7. Vice Presidents. The Vice Presidents in the order of their seniority,
unless otherwise determined by the Board of Directors, shall, in the absence or disability of the
President, perform the duties and exercise the powers of the President. They shall perform such
other duties and have such other powers as the Board of Directors shall prescribe or as the
President may from time to time delegate.
Section 4.8. Secretary. The Secretary shall attend all meetings of the Board of
Directors and all meetings of the stockholders and record all the proceedings of the meetings of
the stockholders and of the Board of Directors in a book to be kept for that purpose and shall
perform like duties for the standing committees when required. He or she shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board of Directors or
President, under whose supervision he or she shall be. The Secretary shall keep in safe custody
the seal of the Corporation and, when authorized by the Board of Directors, affix the same to any
instrument requiring it.
Section 4.9. Treasurer. The Treasurer shall have the custody of corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the
Board of Directors, taking proper vouchers for such disbursements, and shall render to the
President and the Board of Directors at its regular meetings or when the Board of Directors so
requires an account of all his or her transactions as treasurer and of the financial condition of
the Corporation.
Section 4.10. Authority and Other Duties. All officers of the Corporation shall be
subject to the supervision and direction of the Board of Directors and, in addition to the
foregoing authority and duties, all officers of the Corporation shall respectively have such
authority and perform such other duties in the management of the business of the Corporation as may
be designated from time to time by the Board of Directors. Unless prohibited by a resolution
approved by the affirmative vote of a majority of the directors present, an officer elected or
appointed by the Board of Directors may, without the approval of the Board of Directors, delegate
some or all of the duties and powers of his or her office to other persons.
ARTICLE FIVE
CERTIFICATES FOR SHARES
Section 5.1. Issue of Certificates. The shares of the Corporation shall be
represented by certificates, provided that the Board of Directors of the Corporation may provide by
resolution or resolutions that some or all of any or all classes or series of its stock shall be
uncertificated shares. Any such resolution shall not apply to shares represented by a certificate
until such certificate is surrendered to the Corporation. Every holder of stock represented by
certificates shall be entitled to have a certificate signed by, or in the name of the Corporation
by the chairman or vice-chairman of the Board of Directors, or the President or Vice President, and
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the
Corporation, representing the number of shares registered in certificate form.
Section 5.2. Legends for Preferences and Restrictions on Transfer.
(A) If the Corporation shall be authorized to issue more than one class of stock or more than
one series of any class, the powers, designations, preferences and relative, participating,
optional, or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights shall be set forth in full or
summarized on the face or back of the certificate which the Corporation shall issue to represent
such class or series of stock, provided that, except as otherwise provided by law, in lieu of the
foregoing requirements, there may be set forth on the face or back of the certificate which the
Corporation shall issue to represent such class or series of stock, a statement that the
Corporation will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional, or other special rights of each
class of stock or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights.
(B) A written restriction on the transfer or registration of transfer of a security of the
Corporation, if permitted by law and noted conspicuously on the certificate representing the
security, may be enforced against the holder of the restricted security, or any successor or
transferee of the holder, including an executor, administrator, trustee, guardian or other
fiduciary entrusted with like responsibility for the person or estate of the holder. Unless noted
conspicuously on the certificate representing the security, a restriction, even though permitted by
law, is ineffective except against a person with actual knowledge of the restriction. If the
Corporation issues any shares that are not registered under the Securities Act of 1933, as amended,
and registered or qualified under the applicable state securities laws, the transfer of any such
shares shall be restricted substantially in accordance with the following legend:
THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
UNDER ANY APPLICABLE STATE LAW. THEY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR PLEDGED WITHOUT (1) REGISTRATION UNDER THE SECURITIES ACT OF 1933 AND ANY
APPLICABLE STATE LAW, OR (2) AT HOLDERS EXPENSE, AN OPINION (SATISFACTORY TO THE
CORPORATION) OF COUNSEL (SATISFACTORY TO THE CORPORATION) THAT REGISTRATION IS NOT
REQUIRED.
Section 5.3. Facsimile Signatures. Any and all signatures on the certificate may be a
facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile
signature has been placed upon such certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date of the issue.
Section 5.4. Lost Certificates. The Corporation may issue a new certificate or
certificates of stock or uncertificated shares in place of any certificate theretofore issued by
it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of
the lost, stolen, or destroyed certificate, or his or her legal representative to give the
Corporation a bond sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the issuance of such
new certificate or certificates or uncertificated shares.
Section 5.5. Transfer of Shares. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate or certificates or uncertificated shares to the person
entitled thereto, cancel the old certificate and record the transaction upon its books.
Section 5.6. Registered Stockholders. The Corporation shall be entitled to recognize
the exclusive rights of a person registered on its books as the owner of shares to receive
dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other
claim to or interest in such share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise provided by the laws of the State
of Delaware.
ARTICLE SIX
INDEMNIFICATION
Section 6.1. Indemnification of Directors And Officers. The Corporation shall
indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any director or officer of the Corporation who was or is made
or is threatened to be made a party or is otherwise involved in any action, suit or proceeding,
whether civil, criminal, administrative or investigative (a proceeding) by reason of the
fact that he or she, or a person for whom he or she is the legal representative, is or was a
director, officer, employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably incurred by such
person in connection with any such action, suit, or proceeding. The Corporation shall be required
to indemnify a person in connection with a proceeding initiated by such person only if the
proceeding was authorized by the Board of the Corporation.
Section 6.2. Indemnification of Others. The Corporation shall have the power to
indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently
exists or may hereafter be amended, any employee or agent of the Corporation who was or is made or
is threatened to be made a party or is otherwise involved in any action, suit or proceeding by
reason of the fact that he or she, or a person for whom he or she is the legal representative, is
or was an employee or agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another Corporation or of a partnership,
joint venture, trust, enterprise or non-profit entity, including service with respect to employee
benefit plans, against all liability and loss suffered and expenses reasonably incurred by such
person in connection with any such action, suit, or proceeding.
Section 6.3. Prepayment of Expenses. The Corporation shall pay the expenses incurred
by any officer or director of the Corporation, and may pay the expenses incurred by any employee or
agent of the Corporation, in defending any proceeding in advance of its final disposition;
provided, however, that the payment of expenses incurred by a person in advance of the final
disposition of the proceeding shall be made only upon receipt of an undertaking by the person to
repay all amounts advanced if it should be ultimately determined that the person is not entitled to
be indemnified under this Article 6 or otherwise.
Section 6.4. Determination; Claim. If a claim for indemnification or payment of
expenses under this Article 6 is not paid in full within sixty days after a written claim therefor
has been received by the Corporation the claimant may file suit to recover the unpaid amount of
such claim and, if successful in whole or in part, shall be entitled to be paid the expense of
prosecuting such claim to the fullest extent permitted by applicable law. In any such action the
Corporation shall have the burden of proving that the claimant was not entitled to the requested
indemnification or payment of expenses under applicable law.
Section 6.5. Non-Exclusivity of Rights. The rights conferred on any person by this
Article 6 shall not be exclusive of any other rights which such person may have or hereafter
acquire under any statute, provision of the Certificate of Incorporation, these Bylaws, agreement,
vote of stockholders or disinterested directors or otherwise.
Section 6.6. Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any liability asserted
against him or her and incurred by him or her in any such capacity, or arising out of his or her
status as such, whether or not the Corporation would have the power to indemnify him or her against
such liability under the provisions of the General Corporation Law.
Section 6.7. Other Indemnification. The Corporations obligation, if any, to
indemnify any person who was or is serving at its request as a director, officer, employee or agent
of another Corporation, partnership, joint venture, trust, enterprise or non-profit entity shall be
reduced by any amount such person may collect as indemnification from such other corporation,
partnership, joint venture, trust, enterprise or non-profit enterprise.
Section 6.8 Amendment or Repeal. Any repeal or modification of the foregoing
provisions of this Article 6 shall not adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such repeal or
modification.
ARTICLE SEVEN
GENERAL PROVISIONS
Section 7.1. Dividends. The Board of Directors may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares in cash, property, or its own shares
pursuant to law and subject to the provisions of the Certificate of Incorporation.
Section 7.2. Reserves. The Board of Directors may by resolution create a reserve or
reserves out of earned surplus for any proper purpose or purposes, and may abolish any such reserve
in the same manner.
Section 7.3. Checks. All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or such other person or persons as the Board of
Directors may from time to time designate.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall end on the last
day of December of each year, unless otherwise fixed by resolution of the Board of Directors.
Section 7.5. Seal. The corporate seal, if one is adopted by the Board of Directors,
shall have inscribed thereon the name and state of incorporation of the Corporation. The seal may
be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner
reproduced.
Section 7.6. Voting Securities Held by the Corporation. Unless otherwise ordered by
the Board of Directors, powers of attorney, proxies, waivers of notice of meeting, consents and
other instruments relating to securities owned by the Corporation may be executed in the name and
on behalf of the Corporation by the Chairman of the Board, the President, or any Vice President of
the Corporation, and any such officer may, in the name of and on behalf of the Corporation, take
all such action as such officer may deem advisable to vote in person or by proxy at any meeting of
security holders of other corporations, limited liability companies or other entities in which the
Corporation may hold securities, and at any such meeting such officer shall possess and may
exercise any and all rights and powers incident to the ownership of such securities that the
Corporation might have possessed and exercised if it had been present. The Board of Directors may
from time to time confer like powers upon any other person or persons.
Section 7.7 Execution of Instruments. All deeds, mortgages, bonds, checks, contracts
and other instruments pertaining to the business and affairs of the Corporation shall be signed on
behalf of the Corporation by the Chairman of the Board, the President or any Vice President of the
Corporation, or by such other person or persons as may be designated from time to time by the Board
of Directors. If a document must be executed by persons holding different offices or functions and
one person holds such offices or exercises such functions, that person may execute the document in
more than one capacity if the document indicates each such capacity.
ARTICLE EIGHT
AMENDMENTS OF BYLAWS
These Bylaws may be altered, amended or repealed or new Bylaws may be adopted at any meeting
of the Board of Directors at which a quorum is present, by the affirmative vote of a majority of
the directors present at such meeting.
As adopted February 3, 2015
Exhibit 3.3
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
METALICO, INC.
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
METALICO, INC., a corporation organized and existing under the laws of the State of Delaware
(the Corporation), in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That pursuant to the authority vested in the Board of Directors of the Corporation (the
Board of Directors) in accordance with the provisions of the Fourth Amended and Restated
Certificate of Incorporation of the said Corporation (the Certificate of Incorporation),
the said Board of Directors on February 3, 2015 adopted the following resolution creating a series
of 300,000 shares of Preferred Stock designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of
the Certificate of Incorporation, a series of Preferred Stock, par
value $0.001 per share, of the Corporation be and hereby is created,
and that the designation and number of shares thereof and the voting
and other powers, preferences and relative, participating, optional
or other rights of the shares of such series and the qualifications,
limitations and restrictions thereof are as follows:
Series A Junior Participating Preferred Stock
1. Designation and Amount. There shall be a series of Preferred Stock that shall be
designated as Series A Junior Participating Preferred Stock, and the number of shares
constituting such series shall be 300,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, however, that no decrease shall reduce the number
of shares of Series A Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of outstanding rights,
options or warrants or upon conversion of outstanding securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any class or
series of stock of the Corporation ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock, in preference to the holders of shares of any class or series of
stock of the Corporation ranking junior to the Series A Junior Participating Preferred Stock in
respect thereof, shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in cash on the last day
of March, June, September and December, in each year (each such date being referred to herein as a
Quarterly Dividend Payment Date), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a)
$1.00 or (b) the Adjustment Number (as defined below) times the aggregate per share amount of all
cash dividends, and the Adjustment Number times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in shares of Common
Stock, par value $0.001 per share, of the Corporation (the Common Stock), or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), in each
case declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred Stock. The Adjustment
Number shall initially be 1,000. In the event the Corporation shall at any time after
February 3, 2015 (i) declare and pay any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock).
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment Date; in which
case dividends on such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Junior Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which record date
shall be no more than 60 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to a number of votes equal to the Adjustment Number on all matters submitted to a vote of
the stockholders of the Corporation. Except as otherwise provided herein, in another certificate of
designation authorizing a series of Preferred Stock or as required by law, the holders of shares of
Series A Junior Participating Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as required by law, by Section 3(C) and by Section 10 hereof, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
(C) If, at the time of any annual meeting of stockholders for the election of directors, the
equivalent of six quarterly dividends (whether or not consecutive) payable on any share or shares
of Series A Junior Participating Preferred Stock are in default, the number of directors
constituting the Board of Directors shall be increased by two. In addition to voting together with
the holders of Common Stock for the election of other directors of the Corporation, the holders of
record of the Series A Junior Participating Preferred Stock, voting separately as a class to the
exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at
each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A
Junior Participating Preferred Stock have been paid or declared and set apart for payment prior
thereto, to vote for the election of two directors of the Corporation, the holders of any Series A
Junior Participating Preferred Stock being entitled to cast a number of votes per share of Series A
Junior Participating Preferred Stock as is specified in paragraph (A) of this Section 3. Each such
additional director shall serve until the next annual meeting of stockholders for the election of
directors, or until his successor shall be elected and shall qualify, or until his right to hold
such office terminates pursuant to the provisions of this Section 3(C). Until the default in
payments of all dividends which permitted the election of said directors shall cease to exist, any
director who shall have been so elected pursuant to the provisions of this Section 3(C) may be
removed at any time, without cause, only by the affirmative vote of the holders of the shares of
Series A Junior Participating Preferred Stock at the time entitled to cast a majority of the votes
entitled to be cast for the election of any such director at a special meeting of such holders
called for that purpose, and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of the Series A Junior Participating
Preferred Stock shall be divested of the foregoing special voting rights, subject to revesting in
the event of each and every subsequent like default in payments of dividends. Upon the termination
of the foregoing special voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall forthwith terminate, and the number
of directors constituting the Board of Directors shall be reduced by two. The voting rights
granted by this Section 3(C) shall be in addition to any other voting rights granted to the holders
of the Series A Junior Participating Preferred Stock in this Section 3.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock
other than (A) such redemptions or purchases that may be deemed to occur upon the exercise of stock
options, warrants or similar rights or grant, vesting or lapse of restrictions on the grant of any
other performance shares, restricted stock, restricted stock units or other equity awards to the
extent that such shares represent all or a portion of (x) the exercise or purchase price of such
options, warrants or similar rights or other equity awards and (y) the amount of withholding taxes
owed by the recipient of such award in respect of such grant, exercise, vesting or lapse of
restrictions; and (B) the repurchase, redemption, or other acquisition or retirement for value of
any such shares from employees, former employees, directors, former directors, consultants or
former consultants of the Corporation or their respective estate, spouse, former spouse or family
member, pursuant to the terms of the agreements pursuant to which such shares were acquired;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such shares are then
entitled; or
(iii) purchase or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of Series A Junior
Participating Preferred Stock, or to such holders and holders of any such shares ranking on a
parity therewith, upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series and
classes, shall determine will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after
the acquisition thereof. All such shares shall upon their retirement become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to any conditions and
restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding
up of the Corporation, voluntary or otherwise, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have received an amount per share
(the Series A Liquidation Preference) equal to the greater of (i) $10.00 plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, and (ii) the Adjustment Number times the per share amount of all cash and
other property to be distributed in respect of the Common Stock upon such liquidation, dissolution
or winding up of the Corporation.
(B) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation preferences of all other classes
and series of stock of the Corporation, if any, that rank on a parity with the Series A Junior
Participating Preferred Stock in respect thereof, then the assets available for such distribution
shall be distributed ratably to the holders of the Series A Junior Participating Preferred Stock
and the holders of such parity shares in proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation into or with another entity nor the
merger or consolidation of any other entity into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6.
7. Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the outstanding shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment Number times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged.
8. No Redemption. Shares of Series A Junior Participating Preferred Stock shall not be
subject to redemption by the Corporation.
9. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other
series of Preferred Stock as to the payment of dividends and as to the distribution of assets upon
liquidation, dissolution or winding up, unless the terms of any such series shall provide
otherwise, and shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A Junior Participating Preferred Stock
are outstanding, the Certificate of Incorporation of the Corporation shall not be amended, by
merger, consolidation or otherwise, which would materially alter or change the powers, preferences
or special rights of the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of
Series A Junior Participating Preferred Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such holders fractional
shares, to exercise voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Junior Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned has executed this Certificate this 3rd day of February,
2015.
METALICO, INC.
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By:
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/s/ Michael J. Drury |
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Name:
Title:
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Michael J. Drury
Executive Vice President and
Chief Operating Officer |
Exhibit 4.2
RIGHTS AGREEMENT
Rights Agreement, dated as of February 3, 2015 (Agreement), between METALICO, INC.,
a Delaware corporation (the Company), and CORPORATE STOCK TRANSFER, INC., as Rights Agent
(the Rights Agent).
The Board of Directors of the Company has adopted resolutions creating a series of preferred
stock designated as Series A Junior Participating Preferred Stock and authorized and declared a
dividend of one preferred share purchase right (a Right) for each share of Common Stock
(as hereinafter defined) outstanding as of the Close of Business (as defined below) on February 17,
2015 (the Record Date), each Right initially representing the right to purchase one
one-thousandth (subject to adjustment) of a share of Preferred Stock (as hereinafter defined), upon
the terms and subject to the conditions herein set forth, and has further authorized and directed
the issuance of one Right (subject to adjustment as provided herein) with respect to each share of
Common Stock that shall become outstanding between the Record Date and the earlier of the
Distribution Date and the Expiration Date (as such terms are hereinafter defined);
provided, however, that Rights may be issued with respect to shares of Common Stock
that shall become outstanding after the Distribution Date and prior to the Expiration Date in
accordance with Section 22.
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 Agreement, the following terms
have the meaning indicated:
(a) Acquiring Person shall mean any Person (as such term is hereinafter defined) who
or which shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the
shares of Common Stock then outstanding, but shall not include an Exempt Person (as such term is
hereinafter defined); provided, however, that
(i) if the Board of Directors of the Company determines that a Person who would otherwise be
an Acquiring Person became the Beneficial Owner of a number of shares of Common Stock such that
the Person would otherwise qualify as an Acquiring Person inadvertently (including, without
limitation, because (A) such Person was unaware that it beneficially owned that number of shares of
Common Stock that would otherwise cause such Person to be an Acquiring Person or (B) such Person
was aware of the extent of its Beneficial Ownership of Common Stock but had no actual knowledge of
the consequences of such Beneficial Ownership under this Agreement) and without any intention of
obtaining, changing or influencing control of the Company, then such Person shall not be deemed to
be or to have become an Acquiring Person for any purposes of this Agreement unless and until such
Person shall have failed to divest itself, as soon as practicable (as determined by the Board of
Directors of the Company), of Beneficial Ownership of a sufficient number of shares of Common Stock
so that such Person would no longer otherwise qualify as an Acquiring Person;
(ii) if, as of the date hereof or prior to the first public announcement of the adoption of
this Agreement, any Person is or becomes the Beneficial Owner of 15% or more of the shares of
Common Stock outstanding, such Person shall not be deemed to be or to become an Acquiring Person
unless and until such time as such Person shall, after the first public announcement of the
adoption of this Agreement, become the Beneficial Owner of any additional shares of Common Stock
(other than pursuant to a dividend or distribution paid or made by the Company on the outstanding
Common Stock or pursuant to a split or subdivision of the outstanding Common Stock), unless, upon
becoming the Beneficial Owner of such additional shares of Common Stock, such Person is not then
the Beneficial Owner of 15% or more of the shares of Common Stock then outstanding;
(iii) no Person shall become an Acquiring Person solely as a result of any unilateral grant
of any security by the Company or through the exercise of any options, warrants, rights or similar
interests (including restricted stock) granted by the Company to its directors, officers and
employees;
(iv) no Person shall become an Acquiring Person solely as the result of an acquisition of
shares of Common Stock by the Company which, by reducing the number of shares of Common Stock
outstanding, increases the proportion of the shares of Common Stock beneficially owned by such
Person to 15% or more of the Common Stock then outstanding; provided, however, that
if a Person shall become the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding by reason of such share acquisitions by the Company and shall thereafter become the
Beneficial Owner of any additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Stock or pursuant to a split or
subdivision of the outstanding Common Stock), then such Person shall be deemed to be an Acquiring
Person unless upon becoming the Beneficial Owner of such additional shares of Common Stock such
Person does not beneficially own 15% or more of the shares of Common Stock then outstanding; and
(v) no Person shall become an Acquiring Person solely as the result of the acquisition by
such Person of Beneficial Ownership of shares of Common Stock from an individual who, on the later
of the date hereof or the first public announcement of this Agreement, is the Beneficial Owner of
15% or more of the Common Stock then outstanding if such shares of Common Stock are received by
such Person upon such individuals death pursuant to such individuals will or pursuant to a
charitable trust created by such individual for estate planning purposes; provided,
however, that such Person shall become an Acquiring Person at the time such Person
becomes the Beneficial Owner of any additional shares of Common Stock (other than pursuant to a
dividend or distribution paid or made by the Company on the outstanding Common Stock or pursuant to
a split or subdivision of the outstanding Common Stock), unless, upon becoming the Beneficial Owner
of such additional shares of Common Stock, such Person is not then the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding.
With respect to any Person, for all purposes of this Agreement, any calculation of the number of
shares of Common Stock outstanding at any particular time, including for purposes of determining
the particular percentage of the outstanding shares of Common Stock of which any such Person is the
Beneficial Owner, shall include the number of shares of Common Stock not outstanding at the time of
such calculation that such Person is otherwise deemed to beneficially own for purposes of this
Agreement, but the number of shares of Common Stock not outstanding that such Person is otherwise
deemed to beneficially own for purposes of this Agreement shall not be included for the purpose of
computing the percentage of the outstanding shares of Common Stock beneficially owned by any other
Person (unless such other Person is also otherwise deemed to beneficially own for purposes of this
Agreement such shares of Common Stock not outstanding).
(b) Affiliate and Associate shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
(c) A Person shall be deemed the Beneficial Owner of, shall be deemed to have
Beneficial Ownership of and shall be deemed to beneficially own any securities:
(i) which such Person or any of its Related Persons is deemed to beneficially own, directly or
indirectly, within the meaning of Rule l3d-3 of the General Rules and Regulations under the
Exchange Act;
(ii) which such Person or any of its Related Persons has (A) the right or obligation to
acquire (whether such right is exercisable, or such obligation is required to be performed,
immediately or only after the passage of time, in compliance with regulatory requirements, upon the
satisfaction of conditions (whether or not within the control of such Person) or otherwise)
pursuant to any agreement, arrangement or understanding (whether or not in writing) (other than
customary agreements with and between underwriters and selling group members with respect to a bona
fide public offering of securities), or upon the exercise of conversion rights, exchange rights,
rights (other than the Rights), warrants or options, or otherwise; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to beneficially own,
(w) securities tendered pursuant to a tender or exchange offer made by or on behalf of such Person
(or any of its Related Persons) until such tendered securities are accepted for purchase, (x)
securities which such Person has a right to acquire upon the exercise of Rights at any time prior
to the time that any Person becomes an Acquiring Person, (y) securities issuable upon the exercise
of Rights from and after the time that any Person becomes an Acquiring Person if such Rights were
acquired by such first Person (or any Related Person thereof) prior to the Distribution Date or
pursuant to Section 3(a) or Section 22 hereof (Original Rights) or pursuant to Section
11(i) or Section 11(n) with respect to an adjustment to Original Rights, or (z) securities which
such Person (or any of its Related Persons) may acquire, does or do acquire or may be deemed to
have the right to acquire, pursuant to any merger or other acquisition agreement between the
Company and such Person (or one or more of its Related Persons) if such agreement has been approved
by the Board of Directors of the Company prior to such Persons becoming an Acquiring Person; or
(B) the right to vote pursuant to any agreement, arrangement or understanding (whether or not in
writing); provided, further, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, any security by reason of such agreement, arrangement or understanding
if the agreement, arrangement or understanding to vote such security (1) arises solely from a
revocable proxy or consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(iii) which are beneficially owned, directly or indirectly, by any other Person (or any
Related Person thereof)) and with respect to which such first Person (or any of its Related
Persons) has any agreement, arrangement or understanding (whether or not in writing) (other than
customary agreements with and between underwriters and selling group members with respect to a bona
fide public offering of securities) for the purpose of acquiring, holding, voting (except to the
extent contemplated by the proviso to Section 1(c)(ii)(B)) or disposing of such securities of the
Company;
provided, however, that no Person who is an officer, director or employee of an
Exempt Person shall be deemed, solely by reason of such Persons status or authority as such, to be
the Beneficial Owner of, to have Beneficial Ownership of or to beneficially own any
securities that are beneficially owned (as defined in this Section l(c)), including, without
limitation, in a fiduciary capacity, by an Exempt Person or by any other such officer, director or
employee of an Exempt Person.
(d) Book Entry shall mean an uncertificated book entry for the Common Stock.
(e) Business Day shall mean any day other than a Saturday, a Sunday or a day on
which banking institutions in the State of New York or the city in which the principal office of
the Rights Agent is located are authorized or obligated by law or executive order to close.
(f) Certificate of Incorporation shall mean the Fourth Amended and Restated
Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of
Delaware on June 24, 2008, as heretofore amended, and as the same may be amended and restated from
time to time.
(g) Close of Business on any given date shall mean 5:00 P.M., New York City time, on
such date; provided, however, that if such date is not a Business Day it shall mean
5:00 P.M., New York City time, on the next succeeding Business Day.
(h) Common Stock when used with reference to the Company or without reference shall
mean the Common Stock, presently par value $0.001 per share of the Company. Common Stock when
used with reference to any Person other than the Company shall mean the common stock (or, in the
case of any entity other than a corporation, the equivalent equity interest) with the greatest
voting power of such other Person or, if such other Person is a Subsidiary of another Person, the
Person or Persons which ultimately control such first-mentioned Person.
(i) Common Stock Equivalents shall have the meaning set forth in Section 11(a)(iii)
hereof.
(j) Company shall have the meaning set forth in the recitals hereto.
(k) Current Value shall have the meaning set forth in Section 11(a)(iii) hereof.
(l) Distribution Date shall have the meaning set forth in Section 3(a) hereof.
(m) Equivalent Preferred Shares shall have the meaning set forth in Section 11(b)
hereof.
(n) Exchange Act shall mean the Securities Exchange Act of 1934, as amended.
(o) Exempt Person shall mean (1) the Company, (2) any Subsidiary (as such term is
hereinafter defined) of the Company, in each case including, without limitation, in its fiduciary
capacity, (3) any employee benefit plan of the Company or of any Subsidiary of the Company, or (4)
any entity or trustee holding (or acting in a fiduciary capacity in respect of) Common Stock for or
pursuant to the terms of any employee benefit plan of the Company or any Subsidiary or for the
purpose of funding any such plan or funding other employee benefits for employees of the Company or
of any Subsidiary of the Company.
(p) Exchange Ratio shall have the meaning set forth in Section 24 hereof.
(q) Expiration Date shall have the meaning set forth in Section 7(a) hereof.
(r) Final Expiration Date shall have the meaning set forth in Section 7(a) hereof.
(s) Flip-In Event shall have the meaning set forth in Section 11(a)(ii) hereof.
(t) NASDAQ shall mean The NASDAQ Stock Market.
(u) New York Stock Exchange shall mean the New York Stock Exchange, Inc.
(v) NYSE MKT shall mean the NYSE MKT LLC, the stock exchange on which the Companys
shares of Common Stock are listed.
(w) Person shall mean any individual, firm, corporation, partnership, limited
liability company, trust or other entity, and shall include any successor (by merger or otherwise)
to such entity.
(x) Preferred Stock shall mean the Series A Junior Participating Preferred Stock,
par value $0.001 per share, of the Company having the rights and preferences set forth in the Form
of Certificate of Designation attached to this Agreement as Exhibit A.
(y) Principal Party shall have the meaning set forth in Section 13(b) hereof.
(z) Purchase Price shall have the meaning set forth in Section 7(b) hereof.
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(aa)
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Record Date shall have the meaning set forth in the recitals hereto. |
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(bb)
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Redemption Date shall have the meaning set forth in Section 7 hereof. |
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(cc)
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Redemption Price shall have the meaning set forth in Section 23 hereof. |
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(dd) Related Person shall mean, as to any Person, any Affiliate or Associate of such
Person.
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(ee)
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Right shall have the meaning set forth in the recitals hereto. |
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(ff)
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Right Certificate shall have the meaning set forth in Section 3 hereof. |
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(gg)
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Rights Agent shall have the meaning set forth in the recitals hereto. |
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(hh)
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Securities Act shall mean the Securities Act of 1933, as amended. |
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(ii)
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Security shall have the meaning set forth in Section 11(d)(i) hereof. |
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(jj) Section 11(a)(ii) Trigger Date shall have the meaning set forth in Section
11(a)(iii) hereof.
(kk) Spread shall have the meaning set forth in Section 11(a)(iii) hereof.
(ll) Stock Acquisition Date shall mean the first date of public announcement (which,
for purposes of this definition, shall include, without limitation, a report filed pursuant to
Section 13(d) of the Exchange Act) by the Company or an Acquiring Person that an Acquiring Person
has become such, or such earlier date as a majority of the Board of Directors of the Company shall
become aware of the existence of an Acquiring Person.
(mm) Subsidiary of any Person shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power sufficient to elect a majority
of the board of directors or other persons performing similar functions are beneficially owned,
directly or indirectly, by such Person, and any corporation or other entity that is otherwise
controlled by such Person.
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(nn)
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Substitution Period shall have the meaning set forth in Section 11(a)(iii) hereof. |
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(oo)
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Summary of Rights shall have the meaning set forth in Section 3 hereof. |
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(pp)
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Trading Day shall have the meaning set forth in Section 11(d)(i) hereof. |
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(qq)
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Trust shall have the meaning set forth in Section 24(a) hereof. |
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(rr)
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Trust Agreement shall have the meaning set forth in Section 24(a) hereof. |
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Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as agent for the Company and the holders of the Rights (who, in accordance with Section 3
hereof, shall prior to the Distribution Date be the holders of Common Stock) in accordance with the
terms and conditions hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or desirable (the term
Rights Agent being used herein to refer, collectively, to the Rights Agent together with any such
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.
Section 3. Issue of Right Certificates.
(a) Until the Close of Business on the earlier of (i) the tenth Business Day after the Stock
Acquisition Date or (ii) the tenth Business Day (or such later date as may be determined by action
of the Board of Directors of the Company prior to such time as any Person becomes an Acquiring
Person) after the date of the commencement by any Person (other than an Exempt Person) of, or of
the first public announcement of the intention of such Person (other than an Exempt Person) to
commence, a tender or exchange offer the consummation of which would result in any Person (other
than an Exempt Person) having beneficial ownership or becoming the Beneficial Owner of 15% or more
of the shares of Common Stock then outstanding (the earlier of such dates being herein referred to
as the Distribution Date, provided, however, that if either of such dates
occurs after the date of this Agreement and on or prior to the Record Date, then the Distribution
Date shall be the Record Date), (x) the Rights will be evidenced (subject to the provisions of
Sections 3(b) and 3(c) hereof) by the certificates representing the Common Stock registered in the
names of the holders thereof (or by Book Entry shares in respect of such Common Stock) and not by
separate Right Certificates, and (y) the Rights will be transferable only in connection with the
transfer of Common Stock. As soon as practicable after the Distribution Date, the Company will
prepare and execute, the Rights Agent will countersign and the Company will send or cause to be
sent (and the Rights Agent will, if requested, send) by first-class, insured, postage-prepaid mail,
to each record holder of Common Stock as of the Close of Business on the Distribution Date (other
than any Acquiring Person or any Related Person thereof), at the address of such holder shown on
the records of the Company, a Right Certificate, in substantially the form of Exhibit B
hereto (a Right Certificate), evidencing one Right (subject to adjustment as provided
herein) for each share of Common Stock so held. As of the Distribution Date, the Rights will be
evidenced solely by such Right Certificates.
(b) On the Record Date, or as soon as practicable thereafter, the Company will send a copy of
a Summary of Rights to Purchase Shares of Preferred Stock, in substantially the form of Exhibit
C hereto (the Summary of Rights), by first-class, postage-prepaid mail, to each
record holder of Common Stock as of the Close of Business on the Record Date (other than any
Acquiring Person or any Related Person thereof), at the address of such holder shown on the records
of the Company. With respect to certificates representing Common Stock (or Book Entry shares of
Common Stock), from the Record Date to the Distribution Date (or, if earlier, the Expiration Date),
the Rights will be evidenced by such certificates registered in the names of the holders thereof
(or such Book Entry shares) together with the Summary of Rights. From the Record Date to the
Distribution Date (or, if earlier, the Expiration Date), the surrender for transfer of any
certificate representing Common Stock (or any Book Entry shares of Common Stock), with or without a
copy of the Summary of Rights, shall also constitute the transfer of the Rights associated with the
Common Stock represented thereby.
(c) Rights shall, without any further action, be issued in respect of all shares of Common
Stock issued or disposed of by the Company after the Record Date but prior to the earlier of the
Distribution Date and the Expiration Date, or in certain circumstances provided in Section 22
hereof, after the Distribution Date. Certificates issued for Common Stock after the Record Date
but prior to the earlier of the Distribution Date and the Expiration Date, or in certain
circumstances provided in Section 22 hereof, after the Distribution Date shall have impressed on,
printed on, written on or otherwise affixed to them the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in a Rights Agreement between METALICO,
INC. (the Company) and CORPORATE STOCK TRANSFER, INC., as
Rights Agent, dated as of February 3, 2015 and as amended from time
to time (the Rights Agreement), 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 Company. Under
certain circumstances, as set forth in the Rights Agreement, such
Rights will be evidenced by separate certificates and will no longer
be evidenced by this certificate. The 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
certain circumstances, as set forth in the Rights Agreement, Rights
beneficially owned by or transferred to any Person who is or becomes
an Acquiring Person or a Related Person of an Acquiring Person (as
such terms are defined in the Rights Agreement) and certain
transferees thereof will become null and void and will no longer be
transferable.
With respect to any Book Entry shares of Common Stock, such legend shall be included in a notice to
the record holder of such shares in accordance with applicable law. With respect to such
certificates containing the foregoing legend, or any notice of the foregoing legend delivered to
holders of Book Entry shares, until the Distribution Date (or, if earlier, the Expiration Date) the
Rights associated with the Common Stock represented by such certificates or Book Entry shares shall
be evidenced by such certificates or Book Entry shares alone, and the surrender for transfer of any
such certificate or Book Entry share, except as otherwise provided herein, shall also constitute
the transfer of the Rights associated with the Common Stock represented thereby. In the event that
the Company purchases or otherwise acquires any Common Stock after the Record Date but prior to the
Distribution Date (or, if earlier, the Expiration Date), any Rights associated with such Common
Stock shall be deemed canceled and retired so that the Company shall not be entitled to exercise
any Rights associated with the Common Stock which are no longer outstanding.
Notwithstanding this paragraph (c), neither the omission of a legend nor the failure to
deliver the notice of such legend required hereby shall affect the enforceability of any part of
this Agreement or the rights of any holder of the Rights.
Section 4. Form of Right Certificates. The Right Certificates (and the forms of
election to purchase shares and of assignment to be printed on the reverse thereof) shall be
substantially in the form set forth in Exhibit B hereto and may have such marks of
identification or designation and such legends, summaries or endorsements printed thereon as the
Company may deem appropriate and as are not inconsistent with the provisions of this Agreement, or
as may be required to comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or interdealer quotation system on
which the Rights may from time to time be listed or quoted, or to conform to usage. Subject to the
provisions of this Agreement, the Right Certificates shall entitle the holders thereof to purchase
such number of one one-thousandths of a share of Preferred Stock as shall be set forth therein at
the Purchase Price, but the number of such one one-thousandths of a share of Preferred Stock and
the Purchase Price shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company by the President of the
Company, either manually or by facsimile signature, shall have affixed thereto the Companys seal
or a facsimile thereof and shall be attested by the Secretary of the Company, either manually or by
facsimile signature. The Right Certificates shall be manually or by facsimile countersigned by the
Rights Agent and shall not be valid for any purpose unless 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, nevertheless, may be countersigned by the Rights Agent and issued and
delivered by the Company with the same force and effect as though the Person who signed such 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 Agreement any such Person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to be kept, at an
office or agency designated for such purpose, 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 on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates; Uncertificated Rights.
(a) Subject to the provisions of this Agreement, at any time after the Distribution Date and
prior to the Expiration Date, any Right Certificate or Right Certificates (other than the Right
Certificates representing Rights that have become null and void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24 hereof) may be transferred, split up,
combined or exchanged for another Right Certificate or Right Certificates, entitling the registered
holder to purchase a like number of one one-thousandths of a share of Preferred Stock as the Right
Certificate or Right Certificates surrendered then entitled such holder to purchase. Any
registered holder desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights Agent, and shall
surrender the Right Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the office or agency of the Rights Agent designated for such purpose. Thereupon the
Rights Agent shall countersign and deliver to the Person entitled thereto a Right Certificate or
Right 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) Subject to the provisions of this Agreement, at any time after the Distribution Date and
prior to the Expiration Date, upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and, at the Companys request, reimbursement to the Company and the Rights
Agent of all reasonable expenses incidental thereto, and upon surrender to the Rights Agent and
cancellation of the Right Certificate if mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for delivery to the registered holder in lieu of the
Right Certificate so lost, stolen, destroyed or mutilated.
(c) Notwithstanding any other provision hereof, the Company and the Rights Agent may amend
this Agreement to provide for uncertificated Rights in addition to or in place of Rights evidenced
by Right Certificates, to the extent permitted by applicable law.
Section 7. Exercise of Rights, Purchase Price; Expiration Date of Rights.
(a) Except as otherwise provided herein, the Rights shall become exercisable on the
Distribution Date, and thereafter the registered holder of any Right Certificate (other than Right
Certificates representing Rights that have become null and void pursuant to Section 11(a)(ii)
hereof or that have been exchanged pursuant to Section 24 hereof) may, subject to Section 11(a)(ii)
hereof and except as otherwise provided herein, exercise the Rights evidenced thereby in whole or
in part 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 or agency of the Rights Agent
designated for such purpose, together with payment of the aggregate Purchase Price with respect to
the total number of one one-thousandths of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which the Rights are exercised, at any time which is both
after the Distribution Date and prior to the time (the Expiration Date) that is the
earliest of (i) the Close of Business on February 3, 2016 (the Final Expiration
Date), (ii) the time at which the Rights are redeemed as provided in Section 23
hereof (the Redemption Date), (iii) the closing of any merger or other acquisition
transaction involving the Company pursuant to an agreement of the type described in Sections
1(c)(ii)(A)(z) and 13(f) at which time the Rights are terminated, or (iv) the time at which such
Rights are exchanged as provided in Section 24 hereof.
(b) The purchase price (the Purchase Price) shall be initially $1.65 for each one
one-thousandth of a share of Preferred Stock purchasable upon the exercise of a Right. The
Purchase Price and the number of one one-thousandths of a share of Preferred Stock or other
securities or property to be acquired upon exercise of a Right shall be subject to adjustment from
time to time as provided in Sections 11 and 13 hereof and shall be payable in lawful money of the
United States of America in accordance with paragraph (c) of this Section 7.
(c) Except as otherwise provided herein, upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to purchase duly executed, accompanied by payment of
the aggregate Purchase Price for the shares of Preferred Stock (or other securities, cash or other
assets, as the case may be) to be purchased and an amount equal to any applicable transfer tax
required to be paid by the holder of such Right Certificate in accordance with Section 9 hereof, in
cash or by certified check, cashiers check or money order payable to the order of the Company, the
Rights Agent shall thereupon promptly (i) (A) requisition from any transfer agent of the Preferred
Stock, or make available if the Rights Agent is the transfer agent for the Preferred Stock,
certificates for the number of shares of Preferred Stock to be purchased, and the Company hereby
irrevocably authorizes its transfer agent to comply with all such requests, or (B) requisition from
a depositary agent appointed by the Company depositary receipts representing interests in such
number of one one-thousandths of a share of Preferred Stock as are to be purchased (in which case
certificates for the Preferred Stock represented by such receipts shall be deposited by the
transfer agent with the depositary agent), and the Company hereby directs any such depositary agent
to comply with such request, (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 14 hereof, (iii)
promptly after receipt of such certificates or depositary receipts, cause the same to be delivered
to or upon the order of the registered holder of such 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) Except as otherwise provided herein, in case the registered holder of any Right
Certificate shall exercise less than all of the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the exercisable Rights remaining unexercised shall be issued by the
Rights Agent to the registered holder of such Right Certificate or to his duly authorized assigns,
subject to the provisions of Section 14 hereof.
(e) Notwithstanding anything in this Agreement to the contrary, neither the Rights Agent nor
the Company shall be obligated to undertake any action with respect to a registered holder of
Rights upon the occurrence of any purported transfer or exercise of Rights pursuant to Section 6
hereof or this Section 7 unless such registered holder shall have (i) completed and signed the
certificate contained in the form of assignment or form of election to purchase set forth on the
reverse side of the Right Certificate surrendered for such transfer or exercise and (ii) provided
such additional evidence of the identity of the Beneficial Owner (or former Beneficial Owner)
thereof as the Company shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, and any
Right Certificate representing Rights that have become null and void pursuant to Section 11(a)(ii)
surrendered for any purposes shall, if surrendered to the Company or to any of its agents, be
delivered to the Rights Agent for cancellation or in canceled form, or, if surrendered to the
Rights Agent, shall be canceled by it, and no Right Certificates shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Agreement. The Company shall
deliver to the Rights Agent for cancellation and retirement, and the Rights Agent shall so cancel
and retire, any other Right Certificate purchased or acquired by the Company otherwise than upon
the exercise thereof. 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. Availability of Shares of Preferred Stock.
(a) The Company covenants and agrees that it will cause to be reserved and kept available out
of its authorized and unissued shares of Preferred Stock or any shares of Preferred Stock held in
its treasury, free from preemptive rights or any right of first refusal, the number of shares of
Preferred Stock that will be sufficient to permit the exercise in full of all outstanding Rights.
(b) So long as the shares of Preferred Stock issuable upon the exercise of Rights may be
listed or admitted to trading on any national securities exchange, the Company shall use its best
efforts to cause, from and after such time as the Rights become exercisable, all shares reserved
for such issuance to be listed or admitted to trading on such exchange upon official notice of
issuance upon such exercise.
(c) From and after such time as the Rights become exercisable, the Company shall use its best
efforts, if then necessary to permit the issuance of shares of Preferred Stock upon the exercise of
Rights, to register and qualify such shares of Preferred Stock under the Securities Act and any
applicable state securities or Blue Sky laws (to the extent exemptions therefrom are not
available), cause such registration statement and qualifications to become effective as soon as
possible after such filing and keep such registration and qualifications effective (with a
prospectus at all times meeting the requirements of the Securities Act) until the earlier of the
date as of which the Rights are no longer exercisable for such securities and the Expiration Date.
The Company may temporarily suspend, for a period of time not to exceed 90 days, the exercisability
of the Rights in order to prepare and file a registration statement under the Securities Act and
permit it to become effective. Upon any such suspension, the Company shall issue a public
announcement stating that the exercisability of the Rights has been temporarily suspended, as well
as a public announcement at such time as the suspension is no longer in effect. Notwithstanding
any provision of this Agreement to the contrary, the Rights shall not be exercisable in any
jurisdiction unless the requisite qualification in such jurisdiction shall have been obtained and
until a registration statement under the Securities Act shall have been declared effective, unless
an exemption therefrom is available.
(d) The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all shares of Preferred Stock (or other securities of the Company) delivered upon
exercise of Rights shall, at the time of delivery of the certificates therefor (subject to payment
of the Purchase Price), be duly and validly authorized and issued and fully paid and nonassessable
shares.
(e) The Company further covenants and agrees that it will pay when due and payable any and all
federal and state transfer taxes and charges which may be payable in respect of the issuance or
delivery of the Right Certificates or of any shares of Preferred Stock (or other securities of the
Company) upon the exercise of Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of Right Certificates to a
Person other than, or the issuance or delivery of certificates or depositary receipts for the
Preferred Stock (or other securities of the Company) 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 or depositary receipts for Preferred Stock (or other securities of the Company)
upon the exercise of any Rights until any such tax shall have been paid (any such tax being payable
by that holder of such Right Certificate at the time of surrender) or until it has been established
to the Companys reasonable satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each Person in whose name any certificate
for Preferred Stock is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the shares of Preferred Stock (or other securities of the Company)
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 Stock transfer books of the Company are
closed, such Person shall be deemed to have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on which the Preferred Stock transfer
books of the Company are open. Prior to the exercise of the Rights evidenced thereby, the holder
of a Right Certificate shall not be entitled to any rights of a holder of Preferred Stock for which
the Rights shall be exercisable, including, without limitation, the right to vote or to receive
dividends or other distributions, and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares and Number of
Rights. The Purchase Price, the number of shares of Preferred Stock or other securities or
property purchasable upon exercise of each Right and the number of Rights outstanding are subject
to adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of this Agreement (A)
declare and pay a dividend on the Preferred Stock payable in shares of Preferred Stock, (B)
subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a
smaller number of shares of Preferred Stock or (D) issue any shares of its capital stock in a
reclassification of the Preferred Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the number and kind of shares of capital stock issuable
upon exercise of a Right as of the record date for such dividend or the effective date of such
subdivision, combination or reclassification shall be proportionately adjusted so that the holder
of any Right exercised after such time shall be entitled to receive the aggregate number and kind
of shares of capital stock which, if such Right had been exercised immediately prior to such date
and at a time when the Preferred Stock transfer books of the Company were open, the holder would
have owned upon such exercise and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification.
(ii) Subject to Section 24 of this Agreement, in the event any Person becomes an Acquiring
Person (the first occurrence of such event being referred to hereinafter as the Flip-In
Event), then (A) the Purchase Price shall be adjusted to be the Purchase Price in effect
immediately prior to the Flip-In Event multiplied by the number of one one-thousandths of a share
of Preferred Stock for which a Right was exercisable immediately prior to such Flip-In Event,
whether or not such Right was then exercisable, and (B) each holder of a Right, except as otherwise
provided in this Section 11(a)(ii) and Section 11(a)(iii) hereof, shall thereafter have the right
to receive, upon exercise thereof at a price equal to the Purchase Price (as so adjusted), in
accordance with the terms of this Agreement and in lieu of shares of Preferred Stock, such number
of shares of Common Stock as shall equal the result obtained by dividing the Purchase Price (as so
adjusted) by 50% of the current per share market price of the Common Stock (determined pursuant to
Section 11(d) hereof) on the date of such Flip-In Event; provided, however, that
the Purchase Price (as so adjusted) and the number of shares of Common Stock so receivable upon
exercise of a Right shall, following the Flip-In Event, be subject to further adjustment as
appropriate in accordance with Section 11(f) hereof. Notwithstanding anything in this Agreement to
the contrary, however, from and after the Flip-In Event, any Rights that are beneficially owned by
(x) any Acquiring Person (or any Related Person thereof), (y) a transferee of any Acquiring Person
(or of any such Related Person) who becomes a transferee after the Flip-In Event or (z) a
transferee of any Acquiring Person (or of any such Related Person) who became a transferee prior to
or concurrently with the Flip-In Event pursuant to either (I) a transfer (whether or not for
consideration) from the Acquiring Person to holders of its equity securities or to any Person with
whom it has any continuing agreement, arrangement or understanding (whether or not in writing)
regarding the transferred Rights or (II) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has the purpose or effect of
avoiding the provisions of this paragraph, and subsequent transferees, either direct transferees or
transferees through one or more intermediate transferees, of such Persons, shall be null and void
without any further action and any holder of such Rights shall thereafter have no rights whatsoever
with respect to such Rights under any provision of this Agreement. The Company shall use all
reasonable efforts to ensure that the provisions of this Section 11(a)(ii) are complied with, but
shall have no liability to any holder of Right Certificates or other Person as a result of its
failure to make any determinations with respect to an Acquiring Person, its Related Persons or its
or their transferees hereunder. From and after the Flip-In Event, no Right Certificate shall be
issued pursuant to Section 3 or Section 6 hereof that represents Rights that are or have become
null and void pursuant to the provisions of this paragraph, and any Right Certificate delivered to
the Rights Agent that represents Rights that are or have become null and void pursuant to the
provisions of this paragraph shall be canceled. From and after the occurrence of an event
specified in Section 13(a) hereof, any Rights that theretofore have not been exercised pursuant to
this Section 11(a)(ii) shall thereafter be exercisable only in accordance with Section 13 and not
pursuant to this Section 11(a)(ii).
(iii) The Company may at its option substitute for a share of Common Stock issuable upon the
exercise of Rights in accordance with the foregoing subparagraph (ii) a number of shares of
Preferred Stock or fraction thereof such that the current per share market price of one share of
Preferred Stock multiplied by such number or fraction is equal to the current per share market
price of one share of Common Stock. In the event that there shall not be sufficient shares of
Common Stock issued but not outstanding or authorized but unissued to permit the exercise in full
of the Rights in accordance with the foregoing subparagraph (ii), the Board of Directors of the
Company shall, with respect to such deficiency, to the extent permitted by applicable law and any
material agreements then in effect to which the Company is a party, (A) determine the excess (such
excess, the Spread) of (1) the value of the shares of Common Stock issuable upon the
exercise of a Right in accordance with the foregoing subparagraph (ii) (the Current
Value) over (2) the Purchase Price (as adjusted in accordance with the foregoing subparagraph
(ii)), and (B) with respect to each Right (other than Rights which have become null and void
pursuant to the foregoing subparagraph (ii)), make adequate provision to substitute for the shares
of Common Stock issuable in accordance with the foregoing subparagraph (ii) upon exercise of the
Right and payment of the Purchase Price (as adjusted in accordance therewith), (1) cash, (2) a
reduction in such Purchase Price, (3) shares of Preferred Stock or other equity securities of the
Company (including, without limitation, shares or fractions of shares of preferred stock which, by
virtue of having dividend, voting and liquidation rights substantially comparable to those of the
shares of Common Stock are deemed by the Board of Directors of the Company to have substantially
the same value as the shares of Common Stock (such shares of Preferred Stock and shares or
fractions of shares of preferred stock or other equity securities are hereinafter referred to as
Common Stock Equivalents), and when used with reference to any Person other than the
Company, shall have a correlative meaning in respect of such Persons Common Stock), (4) debt
securities of the Company, (5) other assets, or (6) any combination of the foregoing, having a
value which, when added to the value of the shares of Common Stock issued upon exercise of such
Right, shall have an aggregate value equal to the Current Value (less the amount of any reduction
in such Purchase Price), where such aggregate value has been determined by the Board of Directors
of the Company; provided, however, that if the Company shall not make adequate
provision to deliver value pursuant to clause (B) above within thirty (30) days following the
Flip-In Event (the date of the Flip-In Event being the Section 11(a)(ii) Trigger Date),
then the Company shall be obligated to deliver, to the extent permitted by applicable law and any
material agreements then in effect to which the Company is a party, upon the surrender for exercise
of a Right and without requiring payment of such Purchase Price, shares of Common Stock (to the
extent available), and then, if necessary, such number or fractions of shares of Preferred Stock
(to the extent available) and then, if necessary, cash, which shares and/or cash have an aggregate
value equal to the Spread. If, upon the occurrence of the Flip-In Event, the Board of Directors of
the Company shall determine that it is likely that sufficient additional shares of Common Stock
could be authorized for issuance upon exercise in full of the Rights, then, if the Board of
Directors of the Company so elects, the thirty (30) day period set forth above may be extended to
the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date,
in order that the Company may seek stockholder approval for the authorization of such additional
shares (such thirty (30) day period, as it may be extended, is herein called the Substitution
Period). To the extent that the Company determines that some action need be taken pursuant to
the second and/or third sentence of this Section 11(a)(iii), the Company (x) shall provide, subject
to Section 11(a)(ii) hereof and the last sentence of this Section 11(a)(iii) hereof, that such
action shall apply uniformly to all outstanding Rights and (y) may suspend the exercisability of
the Rights until the expiration of the Substitution Period in order to seek any authorization of
additional shares and/or to decide the appropriate form of distribution to be made pursuant to such
second sentence and to determine the value thereof. In the event of any such suspension, the
Company shall issue a public announcement stating that the exercisability of the Rights has been
temporarily suspended, as well as a public announcement at such time as the suspension is no longer
in effect. For purposes of this Section 11(a)(iii), the per share value of the shares of Common
Stock shall be the current per share market price (as determined pursuant to Section 11(d)(i)) on
the Section 11(a)(ii) Trigger Date and the per share or fractional value of any Common Stock
Equivalent shall also be deemed to equal such current per share market price of the Common Stock.
The Board of Directors of the Company may, but shall not be required to, establish procedures to
allocate the right to receive shares of Common Stock upon the exercise of the Rights among the
holders of Rights pursuant to this Section 11(a)(iii).
(b) In case the Company shall fix a record date for the issuance of rights, options or
warrants to all holders of Preferred Stock entitling them (for a period expiring within 45 calendar
days after such record date) to subscribe for or purchase Preferred Stock (or shares having the
same rights, privileges and preferences as the Preferred Stock (Equivalent Preferred
Shares)) or securities convertible into Preferred Stock or Equivalent Preferred Shares at a
price per share of Preferred Stock or Equivalent Preferred Shares (or having a conversion price per
share, if a security convertible into shares of Preferred Stock or Equivalent Preferred Shares)
less than the then current per share market price of the Preferred Stock (determined pursuant to
Section 11(d) hereof) on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately prior to such
record date by a fraction, the numerator of which shall be the number of shares of Preferred Stock
and Equivalent Preferred Shares outstanding on such record date plus the number of shares of
Preferred Stock and Equivalent Preferred Shares which the aggregate offering price of the total
number of shares of Preferred Stock and/or Equivalent Preferred Shares so to be offered (and/or the
aggregate initial conversion price of the convertible securities so to be offered) would purchase
at such current market price, and the denominator of which shall be the number of shares of
Preferred Stock and Equivalent Preferred Shares outstanding on such record date plus the number of
additional shares of Preferred Stock and/or Equivalent Preferred Shares to be offered for
subscription or purchase (or into which the convertible securities so to be offered are initially
convertible); provided, however, that in no event shall the consideration to be
paid upon the exercise of one Right be less than the aggregate par value of the shares of capital
stock of the Company issuable upon exercise of one Right. In case such subscription price may be
paid in consideration part or all of which shall be in a form other than cash, the value of such
consideration shall be as determined by the Board of Directors of the Company, whose determination
shall be described in a statement filed with the Rights Agent. Shares of Preferred Stock and
Equivalent Preferred Shares owned by or held for the account of the Company shall not be deemed
outstanding for the purpose of any such computation. Such adjustment shall be made successively
whenever such a record date is fixed; and in the event that such rights, options or warrants are
not so issued, the Purchase Price shall be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a distribution to all
holders of the Preferred Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing or surviving corporation) of
evidences of indebtedness or assets (other than a regular quarterly cash dividend or a dividend
payable in Preferred Stock) or subscription rights or warrants (excluding those referred to in
Section 11(b) hereof), the Purchase Price to be in effect after such record date shall be
determined by multiplying the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share market price of the Preferred
Stock (determined pursuant to Section 11(d) hereof) on such record date, less the fair market value
(as determined 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 assets or evidences of indebtedness so
to be distributed or of such subscription rights or warrants applicable to one share of Preferred
Stock, and the denominator of which shall be such current per share market price (determined
pursuant to Section 11(d) hereof) of the Preferred Stock; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be less than the
aggregate par value of the shares of capital stock of the Company to be issued upon exercise of one
Right. Such adjustments shall be made successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not been fixed.
(d) (i) Except as otherwise provided herein, for the purpose of any computation hereunder, the
current per share market price of any security (a Security for the purpose of this
Section 11(d)(i)) on any date shall be deemed to be the average of the daily closing prices per
share of such Security for the 30 consecutive Trading Days (as such term is hereinafter defined)
immediately prior to such date; provided, however, that in the event that the
current per share market price of the Security is determined during a period following the
announcement by the issuer of such Security of (A) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into such shares, or (B) any
subdivision, combination or reclassification of such Security, and prior to the expiration of 30
Trading Days after the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such case, the current per
share market price shall be appropriately adjusted to reflect the current market price per share
equivalent of such Security. The closing price for each day shall be the last sale price, regular
way, or, in case no such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported by the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the NYSE MKT, the New York Stock
Exchange or NASDAQ or, if the Security is not listed or admitted to trading on the NYSE MKT, the
New York Stock Exchange or NASDAQ, as reported in the principal consolidated transaction reporting
system with respect to securities listed on the principal national securities exchange on which the
Security is listed or admitted to trading or, if the Security is not listed on a national
securities exchange, the last quoted price or, if not so quoted, the average of the high and low
asked prices in the over-the-counter market as reported by any system then in use, or, if not so
quoted, the average of the closing bid and asked prices as furnished by a professional market maker
making a market in the Security selected by the Board of Directors of the Company. The term
Trading Day shall mean a day on which the principal national securities exchange on which
the Security is listed or admitted to trading is open for the transaction of business or, if the
Security is not listed or admitted to trading on any national securities exchange, a Business Day.
(ii) For the purpose of any computation hereunder, if the Preferred Stock is publicly traded,
the current per share market price of the Preferred Stock shall be determined in accordance with
the method set forth in Section 11(d)(i). If the Preferred Stock is not publicly traded but the
Common Stock is publicly traded, the current per share market price of the Preferred Stock shall
be conclusively deemed to be the current per share market price of the Common Stock as determined
pursuant to Section 11(d)(i) multiplied by the then applicable Adjustment Number (as defined in and
determined in accordance with the Certificate of Designation for the Preferred Stock). If neither
the Common Stock nor the Preferred Stock is publicly traded, current per share market price shall
mean the fair value per share as determined by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
(e) No adjustment in the Purchase Price shall be required unless such adjustment would require
an increase or decrease of at least 1% in the Purchase Price; provided, however,
that any adjustments which by reason of this Section 11(e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All calculations under this
Section 11 shall be made to the nearest cent or to the nearest one hundred-thousandth of a share of
Preferred Stock or one-hundredth of a share of Common Stock or other share or security as the case
may be. Notwithstanding the first sentence of this Section 11(e), any adjustment required by this
Section 11 shall be made no later than the earlier of (i) three (3) years from the date of the
transaction which requires such adjustment and (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a) hereof, the holder of any
Right thereafter exercised shall become entitled to receive any shares of capital stock of the
Company other than the Preferred Stock, thereafter the Purchase Price and the number of such other
shares so receivable upon exercise of a Right shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the provisions with respect to the
Preferred Stock contained in Sections 11(a), 11(b), 11(c), 11(e), 11(h), 11(i) and 11(m) hereof, as
applicable, and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any adjustment made to the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the
number of one one-thousandths of a share of Preferred Stock purchasable from time to time hereunder
upon exercise of the Rights, all subject to further adjustment as provided herein.
(h) Unless the Company shall have exercised its election as provided in Section 11(i), upon
each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and
11(c), each Right outstanding immediately prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase Price, that number of one one-thousandths
of a share of Preferred Stock (calculated to the nearest one hundred-thousandth of a share of
Preferred Stock) obtained by (i) multiplying (x) the number of one one-thousandths of a share
purchasable upon the exercise of a Right immediately prior to such adjustment by (y) the Purchase
Price in effect immediately prior to such adjustment and (ii) dividing the product so obtained by
the Purchase Price in effect immediately after such adjustment.
(i) The Company may elect on or after the date of any adjustment of the Purchase Price
pursuant to Sections 11(b) or 11(c) hereof to adjust the number of Rights, in substitution for any
adjustment in the number of one one-thousandths of a share of Preferred Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after such adjustment of the number of Rights
shall be exercisable for the number of one one-thousandths of a share of Preferred Stock for which
a Right was exercisable immediately prior to such adjustment. Each Right held of record prior to
such adjustment of the number of Rights shall become that number of Rights (calculated to the
nearest one-hundredth) obtained by dividing the Purchase Price in effect immediately prior to
adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its election to adjust the
number of Rights, indicating the record date for the adjustment, and, if known at the time, the
amount of the adjustment to be made. Such record date may be the date on which the Purchase Price
is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at
least 10 days later than the date of the public announcement. If Right Certificates have been
issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company
may, as promptly as practicable, cause to be distributed to holders of record of Right Certificates
on such record date Right Certificates evidencing, subject to Section 14 hereof, the additional
Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of
the Company, shall cause to be distributed to such holders of record in substitution and
replacement for the Right Certificates held by such holders prior to the date of adjustment, and
upon surrender thereof, if required by the Company, new Right Certificates evidencing all the
Rights to which such holders shall be entitled after such adjustment. Right Certificates to be so
distributed shall be issued, executed and countersigned in the manner provided for herein and shall
be registered in the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or the number of one
one-thousandths of a share of Preferred Stock issuable upon the exercise of a Right, the Right
Certificates theretofore and thereafter issued may continue to express the Purchase Price and the
number of one one-thousandths of a share of Preferred Stock which were expressed in the initial
Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the Purchase Price below
the then par value, if any, of the fraction of Preferred Stock or other shares of capital stock
issuable upon exercise of a Right, the Company shall take any corporate action which may, in the
opinion of its counsel, be necessary in order that the Company may validly and legally issue fully
paid and nonassessable shares of Preferred Stock or other such shares at such adjusted Purchase
Price.
(l) In any case in which this Section 11 shall require that an adjustment in the Purchase
Price be made effective as of a record date for a specified event, the Company may elect to defer
until the occurrence of such event issuing to the holder of any Right exercised after such record
date the Preferred Stock and other capital stock or securities of the Company, if any, issuable
upon such exercise over and above the Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to
such adjustment; provided, however, that the Company shall deliver to such holder a
due bill or other appropriate instrument evidencing such holders right to receive such additional
shares upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the Company shall be entitled
to make such adjustments in the Purchase Price, in addition to those adjustments expressly required
by this Section 11, as and to the extent that it in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Preferred Stock, issuance wholly
for cash of any shares of Preferred Stock at less than the current market price, issuance wholly
for cash of Preferred Stock or securities which by their terms are convertible into or exchangeable
for Preferred Stock, dividends on Preferred Stock payable in shares of Preferred Stock or issuance
of rights, options or warrants referred to hereinabove in Section 11(b), hereafter made by the
Company to holders of its Preferred Stock shall not be taxable to such stockholders. Further, the
Company shall be entitled to make any adjustments in the Purchase Price, or to refrain from making
any adjustments in the Purchase Price, that it in its good faith discretion shall determine is
necessary in order to prevent any transaction from being taxable under Section 305 of the Internal
Revenue Code of 1986, as amended (including, for the avoidance of doubt, resulting from an
adjustment or a failure to adjust such Purchase Price), or otherwise.
(n) Anything in this Agreement to the contrary notwithstanding, in the event that at any time
after the date of this Agreement and prior to the Distribution Date (or, if earlier, the Expiration
Date), the Company shall (i) declare and pay any dividend on the Common Stock payable in Common
Stock, or (ii) effect a subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of a dividend payable in Common Stock) into a greater
or lesser number of shares of Common Stock, then, in each such case, the number of Rights
associated with each share of Common Stock then outstanding, or issued or delivered thereafter,
shall be proportionately adjusted so that the number of Rights thereafter associated with each
share of Common Stock following any such event shall equal the result obtained by multiplying the
number of Rights associated with each share of Common Stock immediately prior to such event by a
fraction the numerator of which shall be the total number of shares of Common Stock outstanding
immediately prior to the occurrence of the event and the denominator of which shall be the total
number of shares of Common Stock outstanding immediately following the occurrence of such event.
(o) The Company agrees that, after the earlier of the Distribution Date or the Stock
Acquisition Date, it will not, except as permitted by Sections 23, 24 or 27 hereof, take (or permit
any Subsidiary to take) any action if at the time such action is taken it is reasonably foreseeable
that such action will diminish substantially or eliminate the benefits intended to be afforded by
the Rights.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made as provided in Section 11 or 13 hereof, the Company shall promptly (a) prepare a
certificate setting forth such adjustment, and a brief statement of the facts accounting for such
adjustment, (b) file with the Rights Agent and with each transfer agent for the Common Stock and
the Preferred Stock a copy of such certificate and (c) mail a brief summary thereof to each holder
of a Right Certificate in accordance with Section 25 hereof (if so required under Section 25
hereof). Notwithstanding the foregoing sentence, the failure of the Company to make such
certification or give such notice shall not affect the validity of such adjustment or the force or
effect of the requirement for such adjustment. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained and shall not be deemed to
have knowledge of any such adjustment unless and until it shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
(a) In the event, directly or indirectly, at any time after the Flip-In Event (i) the Company
shall consolidate with or shall merge into any other Person, (ii) any Person shall merge with and
into the Company and the Company shall be the continuing or surviving corporation of such merger
and, in connection with such merger, all or part of the Common Stock shall be changed into or
exchanged for stock or other securities of any other Person (or of the Company) or cash or any
other property, or (iii) the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one or more transactions, assets or earning
power aggregating 50% or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to any other Person (other than the Company or one or more wholly-owned
Subsidiaries of the Company), then upon the first occurrence of such event, proper provision shall
be made so that: (A) each holder of a Right (other than Rights which have become null and void
pursuant to Section 11(a)(ii) hereof) shall thereafter have the right to receive, upon the exercise
thereof at the Purchase Price (as theretofore adjusted in accordance with Section 11(a)(ii)
hereof), in accordance with the terms of this Agreement and in lieu of shares of Preferred Stock or
Common Stock of the Company, such number of validly authorized and issued, fully paid,
non-assessable and freely tradeable shares of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances, rights of first refusal or other
adverse claims, as shall equal the result obtained by dividing the Purchase Price (as theretofore
adjusted in accordance with Section 11(a)(ii) hereof) by 50% of the current per share market price
of the Common Stock of such Principal Party (determined pursuant to Section 11(d) hereof) on the
date of consummation of such consolidation, merger, sale or transfer; provided,
however, that the Purchase Price (as theretofore adjusted in accordance with Section
11(a)(ii) hereof) and the number of shares of Common Stock of such Principal Party so receivable
upon exercise of a Right shall be subject to further adjustment as appropriate in accordance with
Section 11(f) hereof to reflect any events occurring in respect of the Common Stock of such
Principal Party after the occurrence of such consolidation, merger, sale or transfer; (B) such
Principal Party shall thereafter be liable for, and shall assume, by virtue of such consolidation,
merger, sale or transfer, all the obligations and duties of the Company pursuant to this Agreement;
(C) the term Company shall thereafter be deemed to refer to such Principal Party; and (D) such
Principal Party shall take such steps (including, but not limited to, the reservation of a
sufficient number of its shares of Common Stock in accordance with Section 9 hereof) in connection
with such consummation of any such transaction as may be necessary to assure that the provisions
hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to the shares of
its Common Stock thereafter deliverable upon the exercise of the Rights; provided that, upon the
subsequent occurrence of any consolidation, merger, sale or transfer of assets or other
extraordinary transaction in respect of such Principal Party, each holder of a Right shall
thereupon be entitled to receive, upon exercise of a Right and payment of the Purchase Price as
provided in this Section 13(a), such cash, shares, rights, warrants and other property which such
holder would have been entitled to receive had such holder, at the time of such transaction, owned
the Common Stock of the Principal Party receivable upon the exercise of a Right pursuant to this
Section 13(a), and such Principal Party shall take such steps (including, but not limited to,
reservation of shares of stock) as may be necessary to permit the subsequent exercise of the Rights
in accordance with the terms hereof for such cash, shares, rights, warrants and other property.
(b) Principal Party shall mean:
(i) in the case of any transaction described in (i) or (ii) of the first sentence of Section
13(a) hereof: (A) the Person that is the issuer of the securities into which the shares of Common
Stock are converted in such merger or consolidation, or, if there is more than one such issuer, the
issuer of the shares of Common Stock of which have the greatest aggregate market value of shares
outstanding, or (B) if no securities are so issued, (x) the Person that is the other party to the
merger, if such Person survives said merger, or, if there is more than one such Person, the Person
the shares of Common Stock of which have the greatest aggregate market value of shares outstanding
or (y) if the Person that is the other party to the merger does not survive the merger, the Person
that does survive the merger (including the Company if it survives) or (z) the Person resulting
from the consolidation; and
(ii) in the case of any transaction described in (iii) of the first sentence of Section 13(a)
hereof, the Person that is the party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or earning power cannot
be determined, whichever of such Persons is the issuer of Common Stock having the greatest
aggregate market value of shares outstanding;
provided, however, that in any such case described in the foregoing clause (b)(i)
or (b)(ii), if the Common Stock of such Person is not at such time or has not been continuously
over the preceding 12-month period registered under Section 12 of the Exchange Act, then (1) if
such Person is a direct or indirect Subsidiary of another Person the Common Stock of which is and
has been so registered, the term Principal Party shall refer to such other Person, or (2) if such
Person is a Subsidiary, directly or indirectly, of more than one Person, the Common Stock of all of
which is and has been so registered, the term Principal Party shall refer to whichever of such
Persons is the issuer of Common Stock having the greatest aggregate market value of shares
outstanding, or (3) if such Person is owned, directly or indirectly, by a joint venture formed by
two or more Persons that are not owned, directly or indirectly, by the same Person, the rules set
forth in clauses (1) and (2) above shall apply to each of the owners having an interest in the
venture as if the Person owned by the joint venture was a Subsidiary of both or all of such joint
venturers, and the Principal Party in each such case shall bear the obligations set forth in this
Section 13 in the same ratio as its interest in such Person bears to the total of such interests.
(c) The Company shall not consummate any consolidation, merger, sale or transfer referred to
in Section 13(a) hereof unless prior thereto the Company and the Principal Party involved therein
shall have executed and delivered to the Rights Agent an agreement confirming that the requirements
of Sections 13(a) and (b) hereof shall promptly be performed in accordance with their terms and
that such consolidation, merger, sale or transfer of assets shall not result in a default by the
Principal Party under this Agreement as the same shall have been assumed by the Principal Party
pursuant to Sections 13(a) and (b) hereof and providing that, as soon as practicable after
executing such agreement pursuant to this Section 13, the Principal Party will:
(i) prepare and file a registration statement under the Securities Act, if necessary, with
respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate
form, use its best efforts to cause such registration statement to become effective as soon as
practicable after such filing and use its best efforts to cause such registration statement to
remain effective (with a prospectus at all times meeting the requirements of the Securities Act)
until the Expiration Date and similarly comply with applicable state securities laws;
(ii) use its best efforts, if the Common Stock of the Principal Party shall be listed or
admitted to trading on the NYSE MKT, the New York Stock Exchange, NASDAQ or on another national
securities exchange, to list or admit to trading (or continue the listing of) the Rights and the
securities purchasable upon exercise of the Rights on the New York Stock Exchange or such
securities exchange, or, if the Common Stock of the Principal Party shall not be listed or admitted
to trading on the NYSE MKT, the New York Stock Exchange, NASDAQ or a national securities exchange,
to cause the Rights and the securities receivable upon exercise of the Rights to be authorized for
quotation on any other system then in use;
(iii) deliver to holders of the Rights historical financial statements for the Principal Party
which comply in all respects with the requirements for registration on Form 10 (or any successor
form) under the Exchange Act; and
(iv) obtain waivers of any rights of first refusal or preemptive rights in respect of the
Common Stock of the Principal Party subject to purchase upon exercise of outstanding Rights.
(d) In case the Principal Party has a provision in any of its authorized securities or in its
certificate of incorporation or by-laws or other instrument governing its affairs, which provision
would have the effect of (i) causing such Principal Party to issue (other than to holders of Rights
pursuant to this Section 13), in connection with, or as a consequence of, the consummation of a
transaction referred to in this Section 13, shares of Common Stock or Common Stock Equivalents of
such Principal Party at less than the then current market price per share thereof (determined
pursuant to Section 11(d) hereof) or securities exercisable for, or convertible into, Common Stock
or Common Stock Equivalents of such Principal Party at less than such then current market price, or
(ii) providing for any special payment, tax or similar provision in connection with the issuance of
the Common Stock of such Principal Party pursuant to the provisions of Section 13, then, in such
event, the Company hereby agrees with each holder of Rights that it shall not consummate any such
transaction unless prior thereto the Company and such Principal Party shall have executed and
delivered to the Rights Agent a supplemental agreement providing that the provision in question of
such Principal Party shall have been canceled, waived or amended, or that the authorized securities
shall be redeemed, so that the applicable provision will have no effect in connection with, or as a
consequence of, the consummation of the proposed transaction.
(e) The Company covenants and agrees that it shall not, at any time after the Flip-In Event,
enter into any transaction of the type described in clauses (i) through (iii) of Section 13(a)
hereof if (i) at the time of or immediately after such consolidation, merger, sale, transfer or
other transaction there are any rights, warrants or other instruments or securities outstanding or
agreements in effect which would substantially diminish or otherwise eliminate the benefits
intended to be afforded by the Rights, (ii) prior to, simultaneously with or immediately after such
consolidation, merger, sale, transfer or other transaction, the stockholders of the Person who
constitutes, or would constitute, the Principal Party for purposes of Section 13(b) hereof shall
have received a distribution of Rights previously owned by such Person or any of its Related
Persons or (iii) the form or nature of organization of the Principal Party would preclude or limit
the exercisability of the Rights.
(f) Notwithstanding anything contained herein to the contrary, in the event of any merger or
other acquisition transaction involving the Company pursuant to a merger or other acquisition
agreement between the Company and any Person (or one or more of its Related Persons) which
agreement has been approved by the Board of Directors of the Company prior to any Person becoming
an Acquiring Person, this Agreement and the rights of holders of Rights hereunder shall be
terminated in accordance with Section 7(a).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights (except prior to the
Distribution Date in accordance with Section 11(n) hereof) 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 14(a), the current market value of a whole Right
shall be the closing price of the Rights for the Trading Day immediately prior to the date on which
such fractional Rights would have been otherwise issuable. The closing price for any day shall be
the last sale price, regular way, or, in case no such sale takes place on such day, the average of
the closing bid and asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or admitted to trading
on the NYSE MKT, the New York Stock Exchange or NASDAQ or, if the Rights are not listed or admitted
to trading on the NYSE MKT, the New York Stock Exchange or NASDAQ, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Rights are listed or admitted to trading or, if the
Rights are not listed or admitted to trading on any national securities exchange, the last quoted
price or, if not so quoted, the average of the high bid and low asked prices in the
over-the-counter market, as reported by any 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 by the Board of Directors of the
Company shall be used.
(b) The Company shall not be required to issue fractions of shares of Preferred Stock (other
than fractions which are integral multiples of one one-thousandth of a share of Preferred Stock) or
to distribute certificates which evidence fractional shares of Preferred Stock (other than
fractions which are integral multiples of one one-thousandth of a share of Preferred Stock) upon
the exercise or exchange of Rights. Interests in fractions of shares of Preferred Stock in
integral multiples of one one-thousandth of a share of Preferred Stock may, at the election of the
Company, be evidenced by depositary receipts, pursuant to an appropriate agreement between the
Company and a depositary selected by it; provided that such agreement shall provide that the
holders of such depositary receipts shall have all the rights, privileges and preferences to which
they are entitled as beneficial owners of the Preferred Stock represented by such depositary
receipts. In lieu of fractional shares of Preferred Stock that are not integral multiples of one
one-thousandth of a share of Preferred Stock, the Company shall pay to the registered holders of
Right Certificates at the time such Rights are exercised or exchanged as herein provided an amount
in cash equal to the same fraction of the current market value of a whole share of Preferred Stock
(as determined in accordance with Section 14(a) hereof) for the Trading Day immediately prior to
the date of such exercise or exchange.
(c) The Company shall not be required to issue fractions of shares of Common Stock or to
distribute certificates which evidence fractional shares of Common Stock upon the exercise or
exchange of Rights. In lieu of such fractional shares of Common Stock, the Company shall pay to
the registered holders of the Right Certificates with regard to which such fractional shares of
Common Stock would otherwise be issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For purposes of this Section 14(c), the
current market value of one share of Common Stock for which a Right is exercisable shall be deemed
to be the closing price of one share of Common Stock (as determined in accordance with Section
11(d)(i) hereof), for the Trading Day immediately prior to the date of such exercise.
(d) The holder of a Right by the acceptance of the Right expressly waives his right to receive
any fractional Rights or any fractional shares upon exercise or exchange of a Right (except as
provided above).
Section 15. Rights of Action. All rights of action in respect of this Agreement,
excepting the rights of action given to the Rights Agent under Section 18 hereof, are vested in the
respective registered holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Stock); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Stock), without the consent of the Rights Agent or of
the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common
Stock), on his own behalf and for his own benefit, may enforce, and may institute and maintain any
suit, action or proceeding against the Company to enforce, or otherwise act in respect of, his
right to exercise the Rights evidenced by such Right Certificate (or, prior to the Distribution
Date, such Common Stock) in the manner provided therein and in this Agreement. Without limiting
the foregoing or any remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any breach of this
Agreement and will be entitled to specific performance of the obligations under, and injunctive
relief against actual or threatened violations of, the obligations of any Person subject to this
Agreement.
Section 16. Agreement of Right Holders. Every holder of a Right, by accepting the
same, consents and agrees with the Company and the Rights Agent and with every other holder of a
Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in connection with
the transfer of the Common Stock;
(b) after the Distribution Date, the Right Certificates are transferable only on the registry
books of the Rights Agent if surrendered at the office or agency of the Rights Agent designated for
such purpose, duly endorsed or accompanied by a proper instrument of transfer and with appropriate
forms and certificates properly completed and duly executed; and
(c) the Company and the Rights Agent may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the Common Stock certificate (or Book Entry shares
in respect of Common Stock)) 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 Common Stock certificate (or notices provided to holders of Book Entry shares of Common
Stock) made by anyone other than the Company or the Rights Agent) for all purposes whatsoever, and
neither the Company nor the Rights Agent, subject to Section 7(e) hereof, shall be affected by any
notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a Stockholder. No holder, as such, of
any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Stock or any other securities of the Company which may at any time be
issuable on the exercise or exchange of the Rights represented thereby, nor shall anything
contained herein or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a stockholder of the Company or any right to vote for
the election of directors or upon any matter submitted to stockholders at any meeting thereof, or
to give or withhold consent to any corporate action, or to receive notice of meetings or other
actions affecting stockholders (except as provided in this Agreement), or to receive dividends or
subscription rights, or otherwise, until the Rights evidenced by such Right Certificate shall have
been exercised or exchanged in accordance with the provisions hereof.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable compensation for all services
rendered by it hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder. The Company also agrees
to indemnify the Rights Agent for, and to hold it harmless against, any loss, liability or expense,
incurred without gross negligence, bad faith or willful misconduct on the part of the Rights Agent,
for anything done or omitted by the Rights Agent in connection with the acceptance and
administration of this Agreement, including the costs and expenses of defending against any claim
of liability arising therefrom, directly or indirectly.
(b) The Rights Agent shall be protected and shall incur no liability for, or in respect of any
action taken, suffered or omitted by it in connection with, its administration of this Agreement in
reliance upon any Right Certificate or certificate representing the Preferred Stock, the Common
Stock or any other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent, certificate, statement or
other paper or document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper Person or Persons, or otherwise upon the advice
of counsel as set forth in Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent.
(a) Any entity into which the Rights Agent or any successor Rights Agent may be merged or with
which it may be consolidated, or any entity resulting from any merger or consolidation to which the
Rights Agent or any successor Rights Agent shall be a party, or any entity succeeding to the stock
transfer or corporate trust powers of the Rights Agent or any successor Rights Agent, shall be the
successor to the Rights Agent under this Agreement without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided that such entity would be
eligible for appointment as a successor Rights Agent under the provisions of Section 21 hereof. In
case at the time such successor Rights Agent shall succeed to the agency created by this Agreement,
any of the 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 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 Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions, by all of which the
Company and the holders of 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 Agreement the Rights Agent shall deem
it necessary or desirable that any fact or matter be proved or established by the Company prior to
taking or suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by the President and 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 Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder to the Company and any other Person only for
its own gross negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the statements of fact or
recitals contained in this Agreement or in the Right Certificates (except 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
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 Agreement or in any Right Certificate; nor shall it be
responsible for any change in the exercisability of the Rights (including the Rights becoming null
and void pursuant to Section 11(a)(ii) hereof) or any adjustment in the terms of the Rights
provided for in Sections 3, 11, 13, 23 and 24, or the ascertaining of the existence of facts that
would require any such change or adjustment (except with respect to the exercise of Rights
evidenced by Right Certificates after receipt of a certificate furnished pursuant to Section 12,
describing such change or adjustment); nor shall it by any act hereunder be deemed to make any
representation or warranty as to the authorization or reservation of any shares of Preferred Stock
or other securities to be issued pursuant to this Agreement or any Right Certificate or as to
whether any shares of Preferred Stock or other securities will, when issued, be validly authorized
and issued, fully paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts, instruments and
assurances as may reasonably be required by the Rights Agent for the carrying out or performing by
the Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept instructions with respect to
the performance of its duties hereunder from any person reasonably believed by the Rights Agent to
be one of the President or the Secretary 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 by it in good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by the Rights Agent for written
instructions from the Company may, at the option of the Rights Agent, set forth in writing any
action proposed to be taken or omitted by the Rights Agent under this Agreement and the date on
and/or after which such action shall be taken or such omission shall be effective. The Rights
Agent shall not be liable for any action taken by, or omission of, the Rights Agent in accordance
with a proposal included in any such application on or after the date specified in such application
(which date shall not be less than five Business Days after the date any officer of the Company
actually receives such application unless any such officer shall have consented in writing to an
earlier date) unless, prior to taking any such action (or the effective date in the case of an
omission), the Rights Agent shall have received written instructions in response to such
application specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or employee of the Rights Agent
may buy, sell or deal in any of the Rights or other securities of the Company or become pecuniarily
interested in any transaction in which the Company may be interested, or contract with or lend
money to the Company or otherwise act as fully and freely as though it were not Rights Agent under
this Agreement. Nothing herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or powers hereby vested in it
or perform any duty hereunder either itself or by or through its attorneys or agents, and the
Rights Agent shall not be answerable or accountable for any act, 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) If, with respect to any Right Certificate surrendered to the Rights Agent for exercise or
transfer, the certificate contained in the form of assignment or the form of election to purchase
set forth on the reverse thereof, as the case may be, has not been completed to certify the holder
is not an Acquiring Person (or a Related Person thereof) or a transferee thereof, the Rights Agent
shall not take any further action with respect to such requested exercise or transfer without first
consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any successor Rights Agent
may resign and be discharged from its duties under this Agreement upon 30 days notice in writing
mailed to the Company and to each transfer agent of the Common Stock or Preferred Stock by
registered or certified mail, and, following the Distribution Date, 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 Stock or Preferred Stock by registered or
certified mail, and, following the Distribution Date, 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 an entity organized and doing business under the laws of the United States or the laws of
any state of the United States or the District of Columbia, in good standing, having an office in
the State of Delaware or the State of New York, which is authorized under such laws to exercise
corporate trust or stock transfer 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 million. 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 mail notice thereof in writing to
the predecessor Rights Agent and each transfer agent of the Common Stock or Preferred Stock, and,
following the Distribution Date, mail a notice thereof in writing to the registered holders of the
Right Certificates. Failure to give any notice provided for in this Section 21, however, or any
defect therein, shall not affect the legality or validity of the resignation or removal of the
Rights Agent or the appointment of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
Certificates evidencing Rights in such forms as may be approved by its Board of Directors of the
Company to reflect any adjustment or change in the Purchase Price and the number or kind or class
of shares or other securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement. In addition, in connection with the issuance or
sale of Common Stock following the Distribution Date and prior to the Expiration Date, the Company
may with respect to shares of Common Stock so issued or sold (i) pursuant to the exercise of stock
options, (ii) under any employee plan or arrangement, (iii) upon the exercise, conversion or
exchange of securities, notes or debentures issued by the Company or (iv) pursuant to a contractual
obligation of the Company, in each case existing prior to the Distribution Date, issue Rights
Certificates representing the appropriate number of Rights in connection with such issuance or
sale.
Section 23. Redemption.
(a) The Board of Directors of the Company may, at any time prior to the Flip-In Event, redeem
all but not less than all the then outstanding Rights at a redemption price of $0.001 per Right,
appropriately adjusted to reflect any stock split, stock dividend or similar transaction occurring
in respect of the Common Stock after the date hereof (the redemption price being hereinafter
referred to as the Redemption Price). The redemption of the Rights may be made effective
at such time, on such basis and with such conditions as the Board of Directors of the Company in
its sole discretion may establish. The Redemption Price shall be payable, at the option of the
Company, in cash, shares of Common Stock or such other form of consideration as the Board of
Directors of the Company shall determine.
(b) Immediately upon the action of the Board of Directors of the Company ordering the
redemption of the Rights pursuant to paragraph (a) of this Section 23 (or at such later time as the
Board of Directors of the Company may establish for the effectiveness of such redemption), and
without any further action and without any notice, the right to exercise the Rights will terminate
and the only right thereafter of the holders of Rights shall be to receive the Redemption Price.
The Company shall promptly give public notice of any such redemption; provided,
however, that the failure to give, or any defect in, any such notice shall not affect the
validity of such redemption. Within 10 days after such action of the Board of Directors of the
Company ordering the redemption of the Rights (or such later time as the Board of Directors of the
Company may establish for the effectiveness of such redemption), the Company shall mail a notice of
redemption to all the holders of the then outstanding Rights at their last addresses as they appear
upon the registry books of the Rights Agent or, prior to the Distribution Date, on the registry
books of the transfer agent for the Common Stock. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice. Each such notice of
redemption shall state the method by which the payment of the Redemption Price will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any time after the Flip-In
Event, exchange all or part of the then outstanding Rights (which shall not include Rights that
have become null and void pursuant to the provisions of Section 11(a)(ii) hereof) for shares of
Common Stock at an exchange ratio of one share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring in respect of the Common
Stock, after the date hereof (such amount per Right being hereinafter referred to as the
Exchange Ratio). Notwithstanding the foregoing, the Board of Directors of the Company
shall not be empowered to effect such exchange at any time after an Acquiring Person shall have
become the Beneficial Owner of 50% or more of the shares of the Common Stock then outstanding.
From and after the occurrence of an event specified in Section 13(a) hereof, any Rights that
theretofore have not been exchanged pursuant to this Section 24(a) shall thereafter be exercisable
only in accordance with Section 13 and may not be exchanged pursuant to this Section 24(a). The
exchange of the Rights by the Board of Directors of the Company may be made effective at such time,
on such basis and with such conditions as the Board of Directors of the Company in its sole
discretion may establish. Prior to effecting an exchange pursuant to this Section 24, the Board of
Directors of the Company may direct the Company to enter into a Trust Agreement in such form and
with such terms as the Board of Directors of the Company shall then approve (the Trust
Agreement). If the Board of Directors of the Company so directs, the Company shall enter into
the Trust Agreement and shall issue to the trust created by such agreement (the Trust)
all of the shares of Common Stock (or such other consideration) issuable pursuant to the exchange,
and all Persons entitled to receive shares (or such other consideration) pursuant to the exchange
shall be entitled to receive such shares (or such other consideration) (and any dividends or
distributions made thereon after the date on which such shares are deposited in the Trust) only
from the Trust and solely upon compliance with the relevant terms and provisions of the Trust
Agreement.
(b) Immediately upon the effectiveness of the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to paragraph (a) of this Section 24 and without any
further action and without any notice, the right to exercise such Rights shall terminate and the
only right thereafter of a holder of such Rights shall be to receive that number of shares of
Common Stock (or such other consideration contemplated by Section 24(c) hereof) equal to the number
of such Rights held by such holder multiplied by the Exchange Ratio. The Company shall promptly
give public notice of any such exchange; provided, however, that the failure to
give, or any defect in, such notice shall not affect the validity of such exchange. The Company
shall promptly mail a notice of any such exchange to all of the holders of the Rights so exchanged
at their last addresses as they appear upon the registry books of the Rights Agent. Any notice
which is mailed in the manner herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the method by which the exchange of
the shares of Common Stock (or such other consideration) for Rights will be effected and, in the
event of any partial exchange, the number of Rights which will be exchanged. Any partial exchange
shall be effected pro rata based on the number of Rights (other than Rights which have become null
and void pursuant to the provisions of Section 11(a)(ii) hereof) held by each holder of Rights.
(c) The Company may at its option substitute, and, in the event that there shall not be
sufficient shares of Common Stock issued but not outstanding or authorized but unissued to permit
an exchange of Rights for Common Stock as contemplated in accordance with this Section 24, the
Company shall substitute to the extent of such insufficiency, for each share of Common Stock that
would otherwise be issuable upon exchange of a Right, a number of shares of Preferred Stock or
fraction thereof (or Equivalent Preferred Shares, as such term is defined in Section 11(b)) such
that the current per share market price (determined pursuant to Section 11(d) hereof) of one share
of Preferred Stock (or Equivalent Preferred Share) multiplied by such number or fraction is equal
to the current per share market price of one share of Common Stock (determined pursuant to Section
11(d) hereof) as of the date of such exchange.
Section 25. Notice of Certain Events.
(a) In case the Company shall at any time after the earlier of the Distribution Date or the
Stock Acquisition Date propose (i) to pay any dividend payable in stock of any class to the holders
of its Preferred Stock or to make any other distribution to the holders of its Preferred Stock
(other than a regular quarterly cash dividend), (ii) to offer to the holders of its Preferred Stock
rights or warrants to subscribe for or to purchase any additional shares of Preferred Stock or
shares of stock of any class or any other securities, rights or options, (iii) to effect any
reclassification of its Preferred Stock (other than a reclassification involving only the
subdivision or combination of outstanding Preferred Stock), (iv) to effect the liquidation,
dissolution or winding up of the Company, or (v) to pay any dividend on the Common Stock payable in
Common Stock or to effect a subdivision, combination or consolidation of the Common Stock (by
reclassification or otherwise than by payment of dividends in Common Stock), then, in each such
case, the Company shall give to each holder of a Right Certificate, in accordance with Section 26
hereof, a notice of such proposed action, which shall specify the record date for the purposes of
such dividend or distribution or offering of rights or warrants, or the date on which such
liquidation, dissolution, winding up, reclassification, subdivision, combination or consolidation
is to take place and the date of participation therein by the holders of the Common Stock and/or
Preferred Stock, if any such date is to be fixed, and such notice shall be so given in the case of
any action covered by clause (i) or (ii) above at least 10 days prior to the record date for
determining holders of the Preferred Stock for purposes of such action, and in the case of any such
other action, at least 10 days prior to the date of the taking of such proposed action or the date
of participation therein by the holders of the Common Stock and/or Preferred Stock, whichever shall
be the earlier. The failure to give notice required by this Section 25 or any defect therein shall
not affect the legality or validity of the action taken by the Company or the vote upon any such
action.
(b) In case any event described in Section 11(a)(ii) or Section 13 shall occur then the
Company shall as soon as practicable thereafter give to each holder of a Right Certificate (or if
occurring prior to the Distribution Date, the holders of the Common Stock) in accordance with
Section 26 hereof, a notice of the occurrence of such event, which notice shall describe such event
and the consequences of such event to holders of Rights under Section 11(a)(ii) and Section 13
hereof, and all references in the preceding paragraph to Preferred Stock shall be deemed thereafter
to refer to Common Stock and/or, if appropriate, other securities.
Section 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:
METALICO, INC.
186 North Avenue East
Cranford, New Jersey 07016
Attention: Arnold S. Graber, Esq.
With a copy to (which shall not constitute notice)
LOWENSTEIN SANDLER LLP
65 Livingston Avenue
Roseland, New Jersey 07068
Attention: Steven M. Skolnick, Esq.
Subject to the provisions of Section 21 hereof, any notice or demand authorized by this 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:
CORPORATE STOCK TRANSFER, INC.
3200 Cherry Creek Dr. South
Suite 430
Denver, Colorado 80209
Attention: Dan Bell
Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any 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 Company.
Section 27. Supplements and Amendments. Except as provided in the penultimate
sentence of this Section 27, for so long as the Rights are then redeemable, the Company may in its
sole and absolute discretion, and the Rights Agent shall if the Company so directs, supplement or
amend any provision of this Agreement in any respect without the approval of any holders of the
Rights. At any time when the Rights are no longer redeemable, except as provided in the
penultimate sentence of this Section 27, the Company may, and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the approval of any holders of
Rights, provided that no such supplement or amendment may (a) adversely affect the
interests of the holders of Rights as such (other than an Acquiring Person or a Related Person
thereof), (b) cause this Agreement again to become amendable other than in accordance with this
sentence or (c) cause the Rights again to become redeemable. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall be made which changes the
Redemption Price. Upon the delivery of a certificate from an appropriate officer of the Company
which states that the supplement or amendment is in compliance with the terms of this Section 27,
the Rights Agent shall execute such supplement or amendment, provided that any supplement or
amendment that does not amend Sections 18, 19, 20 or 21 hereof or this Section 27 in a manner
adverse to the Rights Agent shall become effective immediately upon execution by the Company,
whether or not also executed by the Rights Agent.
Section 28. Successors. All the covenants and provisions of this Agreement by or for
the benefit of the Company or the Rights Agent shall bind and inure to the benefit of their
respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement shall be construed
to give to any Person other than the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the Common Stock) any legal or equitable
right, remedy or claim under this Agreement; but this Agreement shall be for the sole and exclusive
benefit of the Company, the Rights Agent and the registered holders of the Right Certificates (and,
prior to the Distribution Date, the Common Stock).
Section 30. Determinations and Actions by the Board of Directors. The Board of
Directors of the Company shall have the exclusive power and authority to administer this Agreement
and to exercise the rights and powers specifically granted to the Board of Directors of the Company
or to the Company, or as may be necessary or advisable in the administration of this Agreement,
including, without limitation, the right and power to (i) interpret the provisions of this
Agreement and (ii) make all determinations deemed necessary or advisable for the administration of
this Agreement (including, without limitation, a determination to redeem or not redeem the Rights
or to amend or not amend this Agreement). All such actions, calculations, interpretations and
determinations that are done or made by the Board of Directors of the Company shall be final,
conclusive and binding on the Company, the Rights Agent, the holders of the Rights, as such, and
all other parties.
Section 31. Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of Delaware and for all purposes
shall be governed by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State.
Section 33. Counterparts. This Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to be an original, and
all such counterparts shall together constitute but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the several Sections of
this Agreement are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, all as
of the day and year first above written.
METALICO, INC.
By:
Name: Michael J. Drury
Title: Executive Vice President
CORPORATE STOCK TRANSFER, INC.,
as Rights Agent
By:
Name:
Title:
Exhibit A
FORM OF
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
METALICO, INC.
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
METALICO, INC., a corporation organized and existing under the laws of the State of Delaware
(the Corporation), in accordance with the provisions of Section 103 thereof, DOES HEREBY
CERTIFY:
That pursuant to the authority vested in the Board of Directors of the Corporation (the
Board of Directors) in accordance with the provisions of the Fourth Amended and Restated
Certificate of Incorporation of the said Corporation (the Certificate of Incorporation),
the said Board of Directors on February 3, 2015 adopted the following resolution creating a series
of 300,000 shares of Preferred Stock designated as Series A Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of
the Certificate of Incorporation, a series of Preferred Stock, par
value $0.001 per share, of the Corporation be and hereby is created,
and that the designation and number of shares thereof and the voting
and other powers, preferences and relative, participating, optional
or other rights of the shares of such series and the qualifications,
limitations and restrictions thereof are as follows:
Series A Junior Participating Preferred Stock
1. Designation and Amount. There shall be a series of Preferred Stock that shall be
designated as Series A Junior Participating Preferred Stock, and the number of shares
constituting such series shall be 300,000. Such number of shares may be increased or decreased by
resolution of the Board of Directors; provided, however, that no decrease shall reduce the number
of shares of Series A Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of outstanding rights,
options or warrants or upon conversion of outstanding securities issued by the Corporation.
2. Dividends and Distributions.
(A) Subject to the prior and superior rights of the holders of any shares of any class or
series of stock of the Corporation ranking prior and superior to the shares of Series A Junior
Participating Preferred Stock with respect to dividends, the holders of shares of Series A Junior
Participating Preferred Stock, in preference to the holders of shares of any class or series of
stock of the Corporation ranking junior to the Series A Junior Participating Preferred Stock in
respect thereof, shall be entitled to receive, when, as and if declared by the Board of Directors
out of funds legally available for the purpose, quarterly dividends payable in cash on the last day
of March, June, September and December, in each year (each such date being referred to herein as a
Quarterly Dividend Payment Date), commencing on the first Quarterly Dividend Payment Date
after the first issuance of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to the greater of (a)
$1.00 or (b) the Adjustment Number (as defined below) times the aggregate per share amount of all
cash dividends, and the Adjustment Number times the aggregate per share amount (payable in kind) of
all non-cash dividends or other distributions other than a dividend payable in shares of Common
Stock, par value $0.001 per share, of the Corporation (the Common Stock), or a
subdivision of the outstanding shares of Common Stock (by reclassification or otherwise), in each
case declared on the Common Stock since the immediately preceding Quarterly Dividend Payment Date,
or, with respect to the first Quarterly Dividend Payment Date, since the first issuance of any
share or fraction of a share of Series A Junior Participating Preferred Stock. The Adjustment
Number shall initially be 1,000. In the event the Corporation shall at any time after
February 3, 2015 (i) declare and pay any dividend on Common Stock payable in shares of Common
Stock, (ii) subdivide the outstanding Common Stock or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the Adjustment Number in effect immediately
prior to such event shall be adjusted by multiplying such Adjustment Number by a fraction the
numerator of which is the number of shares of Common Stock outstanding immediately after such event
and the denominator of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the Series A Junior
Participating Preferred Stock as provided in paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable in shares of Common
Stock).
(C) Dividends shall begin to accrue and be cumulative on outstanding shares of Series A Junior
Participating Preferred Stock from the Quarterly Dividend Payment Date next preceding the date of
issue of such shares of Series A Junior Participating Preferred Stock, unless the date of issue of
such shares is prior to the record date for the first Quarterly Dividend Payment Date; in which
case dividends on such shares shall begin to accrue from the date of issue of such shares, or
unless the date of issue is a Quarterly Dividend Payment Date or is a date after the record date
for the determination of holders of shares of Series A Junior Participating Preferred Stock
entitled to receive a quarterly dividend and before such Quarterly Dividend Payment Date, in either
of which events such dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear interest. Dividends paid on the shares
of Series A Junior Participating Preferred Stock in an amount less than the total amount of such
dividends at the time accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding. The Board of Directors may fix
a record date for the determination of holders of shares of Series A Junior Participating Preferred
Stock entitled to receive payment of a dividend or distribution declared thereon, which record date
shall be no more than 60 days prior to the date fixed for the payment thereof.
3. Voting Rights. The holders of shares of Series A Junior Participating Preferred Stock
shall have the following voting rights:
(A) Each share of Series A Junior Participating Preferred Stock shall entitle the holder
thereof to a number of votes equal to the Adjustment Number on all matters submitted to a vote of
the stockholders of the Corporation. Except as otherwise provided herein, in another certificate of
designation authorizing a series of Preferred Stock or as required by law, the holders of shares of
Series A Junior Participating Preferred Stock and the holders of shares of Common Stock and any
other capital stock of the Corporation having general voting rights shall vote together as one
class on all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as required by law, by Section 3(C) and by Section 10 hereof, holders of Series A
Junior Participating Preferred Stock shall have no special voting rights and their consent shall
not be required (except to the extent they are entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
(C) If, at the time of any annual meeting of stockholders for the election of directors, the
equivalent of six quarterly dividends (whether or not consecutive) payable on any share or shares
of Series A Junior Participating Preferred Stock are in default, the number of directors
constituting the Board of Directors shall be increased by two. In addition to voting together with
the holders of Common Stock for the election of other directors of the Corporation, the holders of
record of the Series A Junior Participating Preferred Stock, voting separately as a class to the
exclusion of the holders of Common Stock, shall be entitled at said meeting of stockholders (and at
each subsequent annual meeting of stockholders), unless all dividends in arrears on the Series A
Junior Participating Preferred Stock have been paid or declared and set apart for payment prior
thereto, to vote for the election of two directors of the Corporation, the holders of any Series A
Junior Participating Preferred Stock being entitled to cast a number of votes per share of Series A
Junior Participating Preferred Stock as is specified in paragraph (A) of this Section 3. Each such
additional director shall serve until the next annual meeting of stockholders for the election of
directors, or until his successor shall be elected and shall qualify, or until his right to hold
such office terminates pursuant to the provisions of this Section 3(C). Until the default in
payments of all dividends which permitted the election of said directors shall cease to exist, any
director who shall have been so elected pursuant to the provisions of this Section 3(C) may be
removed at any time, without cause, only by the affirmative vote of the holders of the shares of
Series A Junior Participating Preferred Stock at the time entitled to cast a majority of the votes
entitled to be cast for the election of any such director at a special meeting of such holders
called for that purpose, and any vacancy thereby created may be filled by the vote of such holders.
If and when such default shall cease to exist, the holders of the Series A Junior Participating
Preferred Stock shall be divested of the foregoing special voting rights, subject to revesting in
the event of each and every subsequent like default in payments of dividends. Upon the termination
of the foregoing special voting rights, the terms of office of all persons who may have been
elected directors pursuant to said special voting rights shall forthwith terminate, and the number
of directors constituting the Board of Directors shall be reduced by two. The voting rights
granted by this Section 3(C) shall be in addition to any other voting rights granted to the holders
of the Series A Junior Participating Preferred Stock in this Section 3.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions payable on the Series A
Junior Participating Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on shares of Series A
Junior Participating Preferred Stock outstanding shall have been paid in full, the Corporation
shall not:
(i) declare or pay dividends on, make any other distributions on, or redeem or purchase or
otherwise acquire for consideration any shares of stock ranking junior (either as to dividends or
upon liquidation, dissolution or winding up) to the Series A Junior Participating Preferred Stock
other than (A) such redemptions or purchases that may be deemed to occur upon the exercise of stock
options, warrants or similar rights or grant, vesting or lapse of restrictions on the grant of any
other performance shares, restricted stock, restricted stock units or other equity awards to the
extent that such shares represent all or a portion of (x) the exercise or purchase price of such
options, warrants or similar rights or other equity awards and (y) the amount of withholding taxes
owed by the recipient of such award in respect of such grant, exercise, vesting or lapse of
restrictions; and (B) the repurchase, redemption, or other acquisition or retirement for value of
any such shares from employees, former employees, directors, former directors, consultants or
former consultants of the Corporation or their respective estate, spouse, former spouse or family
member, pursuant to the terms of the agreements pursuant to which such shares were acquired;
(ii) declare or pay dividends on or make any other distributions on any shares of stock
ranking on a parity (either as to dividends or upon liquidation, dissolution or winding up) with
the Series A Junior Participating Preferred Stock, except dividends paid ratably on the Series A
Junior Participating Preferred Stock and all such parity stock on which dividends are payable or in
arrears in proportion to the total amounts to which the holders of all such shares are then
entitled; or
(iii) purchase or otherwise acquire for consideration any shares of Series A Junior
Participating Preferred Stock, or any shares of stock ranking on a parity with the Series A Junior
Participating Preferred Stock, except in accordance with a purchase offer made in writing or by
publication (as determined by the Board of Directors) to all holders of Series A Junior
Participating Preferred Stock, or to such holders and holders of any such shares ranking on a
parity therewith, upon such terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the respective series and
classes, shall determine will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation to purchase or
otherwise acquire for consideration any shares of stock of the Corporation unless the Corporation
could, under paragraph (A) of this Section 4, purchase or otherwise acquire such shares at such
time and in such manner.
5. Reacquired Shares. Any shares of Series A Junior Participating Preferred Stock purchased
or otherwise acquired by the Corporation in any manner whatsoever shall be retired promptly after
the acquisition thereof. All such shares shall upon their retirement become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to any conditions and
restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up. (A) Upon any liquidation, dissolution or winding
up of the Corporation, voluntary or otherwise, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation, dissolution or winding
up) to the Series A Junior Participating Preferred Stock unless, prior thereto, the holders of
shares of Series A Junior Participating Preferred Stock shall have received an amount per share
(the Series A Liquidation Preference) equal to the greater of (i) $10.00 plus an amount
equal to accrued and unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, and (ii) the Adjustment Number times the per share amount of all cash and
other property to be distributed in respect of the Common Stock upon such liquidation, dissolution
or winding up of the Corporation.
(B) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation preferences of all other classes
and series of stock of the Corporation, if any, that rank on a parity with the Series A Junior
Participating Preferred Stock in respect thereof, then the assets available for such distribution
shall be distributed ratably to the holders of the Series A Junior Participating Preferred Stock
and the holders of such parity shares in proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation into or with another entity nor the
merger or consolidation of any other entity into or with the Corporation shall be deemed to be a
liquidation, dissolution or winding up of the Corporation within the meaning of this Section 6.
7. Consolidation, Merger, Etc. In case the Corporation shall enter into any consolidation,
merger, combination or other transaction in which the outstanding shares of Common Stock are
exchanged for or changed into other stock or securities, cash and/or any other property, then in
any such case each share of Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment Number times the
aggregate amount of stock, securities, cash and/or any other property (payable in kind), as the
case may be, into which or for which each share of Common Stock is changed or exchanged.
8. No Redemption. Shares of Series A Junior Participating Preferred Stock shall not be
subject to redemption by the Corporation.
9. Ranking. The Series A Junior Participating Preferred Stock shall rank junior to all other
series of Preferred Stock as to the payment of dividends and as to the distribution of assets upon
liquidation, dissolution or winding up, unless the terms of any such series shall provide
otherwise, and shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A Junior Participating Preferred Stock
are outstanding, the Certificate of Incorporation of the Corporation shall not be amended, by
merger, consolidation or otherwise, which would materially alter or change the powers, preferences
or special rights of the Series A Junior Participating Preferred Stock so as to affect them
adversely without the affirmative vote of the holders of two-thirds of the outstanding shares of
Series A Junior Participating Preferred Stock, voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock may be issued in
fractions of a share that shall entitle the holder, in proportion to such holders fractional
shares, to exercise voting rights, receive dividends, participate in distributions and to have the
benefit of all other rights of holders of Series A Junior Participating Preferred Stock.
1
IN WITNESS WHEREOF, the undersigned has executed this Certificate this day of
, 2015.
METALICO, INC.
By:
Name: Carlos E. Agüero
Title: President
Exhibit B
Form of Right Certificate
Certificate No. R-
NOT EXERCISABLE AFTER FEBRUARY 3, 2016 OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION OR EXCHANGE
IN ACCORDANCE WITH THE TERMS OF THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR BECOMES
AN ACQUIRING PERSON OR A RELATED PERSON OF AN ACQUIRING PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR CERTAIN
TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
RIGHT CERTIFICATE
METALICO, INC.
This certifies that or registered assigns, is the registered
owner of the number of Rights set forth above, each of which entitles the owner thereof, subject to
the terms, provisions and conditions of the Rights Agreement, dated as of February 3, 2015, as the
same may be amended from time to time (the Rights Agreement), between METALICO, INC., a
Delaware corporation (the Company), and CORPORATE STOCK TRANSFER, INC., as Rights Agent
(the Rights Agent), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to 5:00 P.M., New York City time, on
the Expiration Date (as such term is defined in the Rights Agreement) at the office or agency of
the Rights Agent designated for such purpose, or of its successor as Rights Agent, [one]
one-thousandth of a fully paid non-assessable share of Series A Junior Participating Preferred
Stock, par value $0.001 per share (the Preferred Stock), of the Company at a purchase
price of $[1.65] per one one-thousandth of a share of Preferred Stock (the Purchase
Price), upon presentation and surrender of this Right Certificate with the Form of Election to
Purchase duly executed. The number of Rights evidenced by this Rights Certificate (and the number
of one one-thousandths of a share of Preferred Stock which may be purchased upon exercise hereof)
set forth above, and the Purchase Price set forth above, are the number and Purchase Price as of
[February 3, 2015], based on the Preferred Stock as constituted at such date. As provided in the
Rights Agreement, the Purchase Price, the number of one one-thousandths of a share of Preferred
Stock (or other securities or property) which may be purchased upon the exercise of the Rights and
the number of Rights evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events.
This Right Certificate is subject to all of the terms, provisions and conditions of the Rights
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which Rights Agreement reference is hereby made for a full description of
the rights, limitations of rights, obligations, duties and immunities hereunder of the Rights
Agent, the Company and the holders of the Right Certificates. Copies of the Rights Agreement are
on file at the principal executive offices of the Company and the above-mentioned office or agency
of the Rights Agent. The Company will mail to the holder of this Right Certificate a copy of the
Rights Agreement without charge after receipt of a written request therefor.
This Right Certificate, with or without other Right Certificates, upon surrender at the office
or agency of the Rights Agent designated for such purpose, 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 of shares of Preferred Stock 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 Certificate
(i) may be redeemed by the Company at a redemption price of $0.001 per Right or (ii) may be
exchanged in whole or in part for shares of the Companys Common Stock, par value $0.001 per share,
or shares of Preferred Stock.
No fractional shares of Preferred Stock or Common Stock will be issued upon the exercise or
exchange of any Right or Rights evidenced hereby (other than fractions of Preferred Stock which are
integral multiples of one one-thousandth of a share of Preferred Stock, which may, at the election
of the Company, be evidenced by depository receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends
or be deemed for any purpose the holder of the Preferred Stock or of any other securities of the
Company which may at any time be issuable on the exercise or exchange hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon the holder hereof, as such,
any of the rights of a stockholder of the Company or any right to vote for the election of
directors or upon any matter submitted to stockholders at any meeting thereof, or to give or
withhold consent to any corporate action, or to receive notice of meetings or other actions
affecting stockholders (except as provided in the Rights Agreement) or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by this Right Certificate
shall have been exercised or exchanged as provided in the Rights Agreement.
2
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 , 201 .
METALICO, INC.
By:
Name: Carlos E. Agüero
Title: President
ATTEST:
[Name]
[Title]
Countersigned:
CORPORATE STOCK TRANSFER, INC., as Rights Agent
By:
Name:
Title:
Form of Reverse Side of Right Certificate
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
(Please print name and address of transferee)
Rights represented by this Right Certificate, together with all right, title and interest
therein, and does hereby irrevocably constitute and appoint
Attorney, to transfer said Rights on the books of the within-named Company, with full power of
substitution.
Dated:
Signature
Signature Guaranteed:
Signatures must be guaranteed by a bank, trust company, broker, dealer or other eligible
institution participating in a recognized signature guarantee medallion program.
....................................................................................................
..........
(To be completed)
The undersigned hereby certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by, were not acquired by the undersigned from, and are not being assigned to any
Person who is, was or subsequently became an Acquiring Person or a Related Person of an Acquiring
Person (as such terms are defined in the Rights Agreement).
Signature
3
Form of Reverse Side of Right Certificate continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate)
To METALICO, INC.:
The undersigned hereby irrevocably elects to exercise Rights represented by this
Right Certificate to purchase the shares of Preferred Stock (or other securities or property)
issuable upon the exercise of such Rights and requests that certificates for such shares of
Preferred Stock (or such other securities) be issued in the name of:
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining of such Rights shall be registered in the name of and
delivered to:
Please insert social security
or other identifying number
(Please print name and address)
Dated:
Signature
(Signature must conform to holder specified on Right Certificate)
Signature Guaranteed:
Signature must be guaranteed by a bank, trust company, broker, dealer or other eligible
institution participating in a recognized signature guarantee medallion program.
4
Form of Reverse Side of Right Certificate continued
(To be completed)
The undersigned certifies that the Rights evidenced by this Right Certificate are not
beneficially owned by, and were not acquired by the undersigned from, any Person who is, was or
subsequently became an Acquiring Person or a Related Person of an Acquiring Person (as such terms
are defined in the Rights Agreement).
Signature
NOTICE
The signature in the Form of Assignment or Form of Election to Purchase, as the case may be,
must conform to the name as written upon the face of this Right Certificate in every particular,
without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or the Form of
Election to Purchase, as the case may be, is not completed, such Assignment or Election to Purchase
will not be honored.
Exhibit C
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT,
RIGHTS BENEFICIALLY OWNED BY OR TRANSFERRED TO ANY PERSON WHO IS OR
BECOMES AN ACQUIRING PERSON OR A RELATED PERSON OF AN ACQUIRING
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND
CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO
LONGER BE TRANSFERABLE.
SUMMARY OF RIGHTS TO PURCHASE
SHARES OF PREFERRED STOCK OF
METALICO, INC.
On February 3, 2015, the Board of Directors of METALICO, INC. (the Company) declared
a dividend of one preferred share purchase right (a Right) for each outstanding share of
common stock, par value $0.001 per share, of the Company (the Common Stock). The
dividend is payable on February 17, 2015 (the Record Date) to the stockholders of record
on that date. Each Right entitles the registered holder to purchase from the Company one
one-thousandth of a share of Series A Junior Participating Preferred Stock, par value $0.001 per
share, of the Company (the Preferred Stock) at a price of $1.65 per one one-thousandth of
a share of Preferred Stock (the Purchase Price), subject to adjustment. The description
and terms of the Rights are set forth in a Rights Agreement dated as of February 3, 2015, as the
same may be amended from time to time (the Rights Agreement), between the Company and
CORPORATE STOCK TRANSFER, INC., as Rights Agent (the Rights Agent).
From the Record Date and until the earlier to occur of (i) 10 business days following a public
announcement that a person or group of affiliated or associated persons (with certain exceptions,
collectively, an Acquiring Person) has acquired beneficial ownership of 15% or more of
the outstanding shares of Common Stock or (ii) 10 business days (or such later date as may be
determined by action of the Board of Directors of the Company prior to such time as any person or
group becomes an Acquiring Person) following the commencement of, or announcement of an intention
to make, a tender offer or exchange offer by any person (with certain exceptions) the consummation
of which would result in the beneficial ownership by a person or group of 15% or more of the
outstanding shares of Common Stock (the earlier of such dates being called the Distribution
Date), the Rights will be evidenced, with respect to any of the Common Stock certificates, by
such Common Stock certificate together with this Summary of Rights.
The Rights Agreement provides that, until the Distribution Date (or earlier expiration of the
Rights), the Rights will be transferred with and only with the Common Stock. Until the
Distribution Date (or earlier expiration of the Rights), new Common Stock certificates issued after
the Record Date upon transfer or new issuances of Common Stock will contain a notation
incorporating the Rights Agreement by reference. From the Record Date and until the Distribution
Date (or earlier expiration of the Rights), the surrender for transfer of any certificates for
shares of Common Stock (or book entry shares of Common Stock), even without such notation or a copy
of this Summary of Rights, will also constitute the transfer of the Rights associated with the
shares of Common Stock represented by such certificate or registered in book-entry form. As soon
as practicable following the Distribution Date, separate certificates evidencing the Rights
(Right Certificates) will be mailed to holders of record of the Common Stock as of the
close of business on the Distribution Date and such separate Right Certificates alone will evidence
the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will expire on
February 3, 2016 (the Final Expiration Date), unless the Final Expiration Date is
advanced or extended or unless the Rights are earlier redeemed or exchanged by the Company, in each
case as described below, or upon the occurrence of certain transactions.
To prevent dilution, the Purchase Price payable upon exercise of the Rights, and the number of
shares of Preferred Stock or other securities or property issuable upon exercise of the Rights (or,
in certain circumstances at the election of the Company, the number of Rights outstanding), are
subject to adjustment from time to time (i) in the event of a stock dividend on, or a subdivision,
combination or reclassification of, the Preferred Stock, (ii) upon the grant to holders of the
Preferred Stock of certain rights or warrants to subscribe for or purchase Preferred Stock at a
price, or securities convertible into Preferred Stock with a conversion price, less than the
then-current market price of the Preferred Stock or (iii) upon the distribution to holders of the
Preferred Stock of evidences of indebtedness or assets (excluding regular periodic cash dividends
or dividends payable in Preferred Stock) or of subscription rights or warrants (other than those
referred to above). With certain exceptions, no adjustment in the Purchase Price will be required
until cumulative adjustments require an adjustment of at least 1% in such Purchase Price.
The number of outstanding Rights associated with each share of Common Stock is subject to
adjustment in the event of a stock dividend on the Common Stock payable in shares of Common Stock
or subdivisions, consolidations or combinations of the Common Stock occurring, in any such case,
prior to the Distribution Date.
Shares of Preferred Stock purchasable upon exercise of the Rights will not be redeemable.
Each share of Preferred Stock will be entitled, when, as and if declared, to a minimum preferential
quarterly dividend payment of the greater of (a) $1.00 per share, and (b) an amount equal to 1,000
times the dividend declared per share of Common Stock. In the event of liquidation, dissolution or
winding up of the Company, the holders of the Preferred Stock will be entitled to a minimum
preferential payment of the greater of (a) $10.00 per share (plus any accrued but unpaid
dividends), and (b) an amount equal to 1,000 times the payment made per share of Common Stock.
Each share of Preferred Stock will have 1,000 votes, voting together with the Common Stock.
Finally, in the event of any merger, consolidation or other transaction in which outstanding shares
of Common Stock are converted or exchanged, each share of Preferred Stock will be entitled to
receive 1,000 times the amount received per share of Common Stock. These rights are protected by
customary antidilution provisions.
In the event that any person or group becomes an Acquiring Person, each holder of a Right,
other than Rights beneficially owned by the Acquiring Person (which will thereupon become null and
void), will thereafter have the right to receive upon exercise of a Right that number of shares of
Common Stock having a market value of two times the purchase price of the Right. If there is an
insufficient number of authorized but unissued shares of Common Stock to permit the exercise in
full of the Rights, debt, equity or assets (or a combination thereof) of the Company may be issued
in lieu of Common Stock and the Purchase Price may be adjusted.
In the event that, after a person or group has become an Acquiring Person, the Company is
acquired in a merger or other business combination transaction or 50% or more of its consolidated
assets or earning power are sold, proper provisions will be made so that each holder of a Right
(other than Rights beneficially owned by an Acquiring Person which will have become null and void)
will thereafter have the right to receive upon the exercise of a Right that number of shares of
common stock of the person with whom the Company has engaged in the foregoing transaction (or its
parent) that at the time of such transaction have a market value of two times the purchase price of
the Right.
At any time after any person or group becomes an Acquiring Person and prior to the earlier of
one of the events described in the previous paragraph or the acquisition by such Acquiring Person
of 50% or more of the outstanding shares of Common Stock, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such Acquiring Person which will have become null
and void), in whole or in part, for shares of Common Stock or Preferred Stock (or a series of the
Companys preferred stock having equivalent rights, preferences and privileges), at an exchange
ratio of one share of Common Stock, or a fractional share of Preferred Stock (or other preferred
stock) equivalent in value thereto, per Right.
No fractional shares of Preferred Stock or Common Stock will be issued (other than fractions
of shares of Preferred Stock which are integral multiples of one one-thousandth of a share of
Preferred Stock, which may, at the election of the Company, be evidenced by depositary receipts),
and in lieu thereof an adjustment in cash will be made based on the current market price of the
Preferred Stock or the Common Stock.
At any time prior to the time an Acquiring Person becomes such, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of $0.001 per Right (the
Redemption Price) payable, at the option of the Company, in cash, shares of Common Stock
or such other form of consideration as the Board of Directors of the Company shall determine. The
redemption of the Rights may be made effective at such time, on such basis and with such conditions
as the Board of Directors of the Company in its sole discretion may establish. Immediately upon
any redemption of the Rights, the right to exercise the Rights will terminate and the only right of
the holders of Rights will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may, except with respect to the
Redemption Price, amend the Rights Agreement in any manner. After the Rights are no longer
redeemable, the Company may, except with respect to the Redemption Price, amend the Rights
Agreement in any manner that does not adversely affect the interests of holders of the Rights
(other than the rights of any Acquiring Person).
Until a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote or to receive
dividends.
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Registration Statement on Form 8-A dated [February [ ], 2015]. A copy of the
Rights Agreement is available free of charge from the Company. This summary description of the
Rights does not purport to be complete and is qualified in its entirety by reference to the Rights
Agreement, as the same may be amended from time to time, which is hereby incorporated herein by
reference.
5
Exhibit 99.1
FOR IMMEDIATE RELEASE
METALICO APPROVES RIGHTS PLAN
CRANFORD, NJ, February 4, 2015 Metalico, Inc. (NYSE MKT: MEA) has announced that it has
adopted a Stockholder Rights Plan to enhance the interests of the Companys shareholders.
Metalicos Board of Directors declared a dividend of one right on each outstanding share of
Metalicos common stock to implement the Rights Plan. The Plan is designed to assure that all of
the Companys stockholders receive fair and equal treatment in the event of any proposed takeover
of the Company and to guard against tactics to gain control of the Company without paying all
stockholders a premium for that control.
The Rights Plan is not intended to deter offers that are fair and otherwise in the best interests
of the Companys stockholders. The Plan will not prevent a takeover, but should encourage any
individual or group seeking to acquire the Company to negotiate with its Board of Directors.
Pursuant to the Rights Plan, the Company is issuing one preferred share purchase right for each
outstanding share of common stock at the close of business on February 17, 2015. Initially, the
rights will not be exercisable and will trade with the Companys shares of common stock.
Under the Rights Plan, the rights will generally become exercisable only if a person or group
acquires beneficial ownership of 15% or more of Metalicos common stock in a transaction not
approved by the Board of Directors. In that situation, each holder of a right (other than the
acquiring person, whose rights will become null and void and will not be exercisable) will be
entitled to purchase, at the then-current purchase price as defined in the Rights Plan, additional
shares of common stock having a value of twice the purchase price of the right. In addition, if
Metalico is acquired in a merger or other business combination after an unapproved party acquires
more than 15% of Metalicos common stock, each holder of a right would be entitled to purchase, at
the then-current purchase price under the Plan, shares of the acquiring companys stock having a
value of twice the purchase price of the right.
Metalicos Board of Directors may redeem the rights for a nominal amount at any time before an
event that causes the rights to become exercisable. The Rights Plan is scheduled to expire February
3, 2016.
Metalico has filed a Form 8-K and will file a Form 8-A with the United States Securities and
Exchange Commission containing additional information regarding the terms and conditions of the
Rights Plan. The stockholders of Metalico will also receive information regarding the Rights Plan.
About Metalico
Metalico, Inc. is a holding company with operations in ferrous and non-ferrous scrap metal
recycling. The Company operates recycling facilities in New York, Pennsylvania, Ohio, West
Virginia, New Jersey, Texas, and Mississippi. Metalicos common stock is traded on the NYSE MKT
under the symbol MEA.
Forward-looking Statements
This news release contains forward-looking statements made pursuant to the safe harbor provisions
of the Private Securities Litigation Reform Act of 1995. These statements may contain statements
that do not relate strictly to historical or current facts. Forward-looking statements include
statements with respect to Metalicos beliefs, plans, objectives, goals, expectations,
anticipations, assumptions, estimates, intentions, and future performance, and involve known and
unknown risks, uncertainties and other factors, which may be beyond Metalicos control, and which
may cause Metalicos actual results, performance or achievements to be materially different from
future results, performance, expectations or achievements expressed or implied by such
forward-looking statements. Factors that could cause such material difference are discussed in
more detail in the Companys most recent Annual Report on Form 10-K and other filings with the
Securities and Exchange Commission. All statements other than statements of historical fact are
statements that could be forward-looking statements. Metalico assumes no obligation to update the
information contained in this news release.
Contact: Metalico, Inc.
Carlos E. Agüero
Michael J. Drury
info@metalico.com
186 North Avenue East
Cranford, NJ 07016
(908) 497-9610
Fax: (908) 497-1097
www.metalico.com
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