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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report
(Date of earliest event reported)
March 17, 1998
ABM INDUSTRIES INCORPORATED
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(Exact name of registrant as specified in its charter)
Delaware 1-8929 94-1369354
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(State of incorporation ) (Commission File Number) (IRS Employer Identification
No.)
160 Pacific Avenue
Suite 222
San Francisco, CA 94111
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(Address of principal executive (Zip Code)
offices)
(415) 733-4000
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(Registrant's telephone number,
including area code)
50 Fremont St., 26th Floor, San Francisco, CA 94105
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
The rights issued pursuant to the current stockholders rights
plan adopted in 1988 by ABM Industries Incorporated, a Delaware corporation (the
"Company"), will expire by their terms at the close of business on April 22,
1998. On March 17, 1998, the Board of Directors of the Company approved a
replacement stockholders rights plan and, pursuant to which, declared a dividend
of one right (a "Right") for each outstanding share of common stock, par value
$.01 per share ("Common Stock"), of the Company held of record at the close of
business on April 22, 1998, (the "Record Time"), or issued thereafter and prior
to the Separation Time (as hereinafter defined) and thereafter pursuant to
options and convertible or exchangeable securities outstanding at the Separation
Time. The Rights will be issued pursuant to a Rights Agreement, dated as of
March 17, 1998 (the "Rights Agreement"), between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent (the "Rights Agent"). Each Right
entitles its registered holder to purchase from the Company, after the
Separation Time, one one-thousandth of a share of Participating Preferred Stock,
par value $.01 per share ("Preferred Stock"), for $175.00 (the "Exercise
Price"), subject to adjustment. The Preferred Stock is designed so that each one
one-thousandth of a share of Preferred Stock has economic and voting terms
similar to those of one share of Common Stock.
The Rights will be evidenced by the Common Stock certificates
until the close of business on the earlier of (either, the "Separation Time")
(i) the tenth business day (or such later date as the Board of Directors of the
Company may from time to time fix by resolution adopted prior to the Separation
Time that would otherwise have occurred) after the date on which any Person (as
defined in the Rights Agreement) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring Person, as
defined below, and (ii) the first date (the "Flip-in Date") of public
announcement by the Company or an Acquiring Person that a Person has become an
Acquiring Person; provided that if the foregoing results in the Separation Time
being prior to the Record Time, the Separation Time shall be the Record Time;
and provided further that if a tender or exchange offer referred to in clause
(i) is cancelled, terminated or otherwise withdrawn prior to the Separation Time
without the purchase of any shares of stock pursuant thereto, such offer shall
be deemed never to have been made.
An Acquiring Person is any Person having Beneficial Ownership (as
defined in the Rights Agreement) of 20% or more of the outstanding shares of
Voting Stock, which term shall not include (i) the Company, any wholly-owned
subsidiary of the Company or any employee stock ownership or other employee
benefit plan of the Company or any wholly-owned subsidiary of the Company, (ii)
any person who is the Beneficial Owner of 20% or more of the outstanding Voting
Stock as of the date of the Rights Agreement or who shall become the Beneficial
Owner of 20% or more of the outstanding Voting Stock solely as a result of an
acquisition of Voting Stock by the Company, until such time as such Person
acquires additional Voting Stock, other than through a dividend or stock split,
(iii) any Person who Beneficially Owns shares of Voting Stock consisting solely
of (A) shares of Voting Stock acquired pursuant to the grant or exercise of an
option granted by the Company in connection with an agreement to merge with, or
acquire, the Company at a time at which there is no Acquiring Person, (B) shares
of Voting Stock owned by such Person and its Affiliates and Associates at the
time of such grant and (C) shares of Voting Stock, amounting to less than 1% of
the outstanding Voting Stock,
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acquired by Affiliates and Associates of such Person after the time of such
grant, or (iv) Theodore Rosenberg and Sydney J. Rosenberg, individually and as
members of a group, and any trust or foundation to which either Theodore
Rosenberg or Sydney J. Rosenberg has transferred or may transfer shares of
Common Stock, and any Person who acquires shares of Common Stock from Theodore
Rosenberg, Sydney J. Rosenberg, or any such trust or foundation by gift,
inheritance or in a transaction in which no consideration is exchanged.
Notwithstanding the foregoing, if the Board of Directors of the Company
determines in good faith that a Person who would otherwise be an "Acquiring
Person," as defined pursuant to the foregoing, has become such inadvertently,
and such Person divests as promptly as practicable a sufficient number of shares
of Common Stock so that such Person would no longer be an "Acquiring Person," as
defined pursuant to such foregoing, then such Person shall not be deemed to be
an "Acquiring Person" for any purposes of the Rights Agreement. "Voting Stock"
means shares of capital stock of the Company entitled to vote generally in the
election of directors.
The Rights Agreement provides that, until the Separation Time,
the Rights will be transferred with and only with the Common Stock. Common Stock
certificates issued after the Record Time but prior to the Separation Time shall
evidence one Right for each share of Common Stock represented thereby and shall
contain a legend incorporating by reference the terms of the Rights Agreement
(as such may be amended from time to time). Notwithstanding the absence of the
legend, certificates evidencing shares of Common Stock outstanding at the Record
Time shall also evidence one Right for each share of Common Stock evidenced
thereby. Promptly following the Separation Time, separate certificates
evidencing the Rights ("Rights Certificates") will be mailed to holders of
record of Common Stock at the Separation Time.
The Rights will not be exercisable until the Business Day (as
defined in the Rights Agreement) following the Separation Time. The Rights will
expire on the earliest of (i) the Exchange Time (as defined below), (ii) the
close of business on April 22, 2008, (iii) the date on which the Rights are
redeemed as described below and (iv) upon the merger of the Company into another
corporation pursuant to an agreement entered into when there is no Acquiring
Person (in any such case, the "Expiration Time").
The Exercise Price and the number of Rights outstanding, or in
certain circumstances the securities purchasable upon exercise of the Rights,
are subject to adjustment from time to time to prevent dilution in the event of
a Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Time a Flip-in Date
occurs, the Company shall take such action as shall be necessary to ensure and
provide that each Right (other than Rights Beneficially Owned by the Acquiring
Person or any affiliate or associate thereof, which Rights shall become void)
shall constitute the right to purchase from the Company, upon the exercise
thereof in accordance with the terms of the Rights Agreement, that number of
shares of Common Stock or Preferred Stock of the Company having an aggregate
Market Price (as defined in the Rights Agreement), on the date of the public
announcement of an Acquiring Person's
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becoming such (the "Stock Acquisition Date") that gave rise to the Flip-in Date,
equal to twice the Exercise Price for an amount in cash equal to the then
current Exercise Price.
In addition, the Board of Directors of the Company may, at its
option, at any time after a Flip-in Date and prior to the time that an Acquiring
Person becomes the Beneficial Owner of more than 50% of the outstanding shares
of Voting Stock, elect to exchange all or part of the then outstanding Rights
(other than Rights Beneficially Owned by the Acquiring Person or any affiliate
or associate thereof, which Rights become void) for shares of Common Stock at an
exchange ratio of one share of Common Stock per Right, appropriately adjusted to
reflect any stock split, stock dividend or similar transaction occurring after
the date of the Separation Time (the "Exchange Ratio"). Immediately upon such
action by the Board of Directors (the "Exchange Time"), the right to exercise
the Rights will terminate and each Right will thereafter represent only the
right to receive a number of shares of Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated to issue shares of
Common Stock upon exercise of or in exchange for Rights, the Company, at its
option, may substitute therefor shares of Preferred Stock, at a ratio of one
one-thousandth of a share of Preferred Stock for each share of Common Stock so
issuable.
In the event that prior to the Expiration Time the Company enters
into, consummates or permits to occur a transaction or series of transactions
after the time an Acquiring Person has become such in which, directly or
indirectly, (i) the Company shall consolidate or merge or participate in a
binding share exchange with any other Person if, at the time of the
consolidation, merger or share exchange or at the time the Company enters into
an agreement with respect to such consolidation, merger or share exchange, the
Acquiring Person controls the Board of Directors of the Company, or (ii) the
Company shall sell or otherwise transfer (or one or more of its subsidiaries
shall sell or otherwise transfer) directly or by sale of stock, assets or
control of assets (A) aggregating more than 50% of the assets (measured by
either book value or fair market value) as of the end of the most recently
completed fiscal year or (B) generating more than 50% of the operating income or
cash flow during the most recently completed fiscal year, of the Company and its
subsidiaries (taken as a whole) to any other Person (other than the Company or
one or more of its wholly owned subsidiaries) or to two or more such Persons
which are affiliated or otherwise acting in concert, if, at the time of such
sale or transfer of assets or at the time the Company (or any such subsidiary)
enters into an agreement with respect to such sale or transfer, the Acquiring
Person controls the Board of Directors of the Company, then any such
transactions or events shall constitute a "Flip-over Transaction or Event" under
the Rights Agreement.
The Company shall take such action as shall be necessary to
ensure, and shall not enter into, consummate or permit to occur , such Flip-over
Transaction or Event until it shall have duly entered into a binding and
enforceable supplemental agreement with the Person engaging in such Flip-over
Transaction or Event or the parent corporation thereof (the "Flip-over Entity"),
for the benefit of the holders of the Rights, providing, that upon consummation
or occurrence of the Flip-over Transaction or Event (i) each Right shall
thereafter constitute the right to purchase from the Flip-over Entity, upon
exercise thereof in accordance with the terms of
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the Rights Agreement, that number of shares of common stock of the Flip-over
Entity having an aggregate Market Price on the date of consummation or
occurrence of such Flip-over Transaction or Event equal to twice the Exercise
Price for an amount in cash equal to the then current Exercise Price and (ii)
the Flip-over Entity shall thereafter be liable for, and shall assume, by virtue
of such Flip-over Transaction or Event and such supplemental agreement, all the
obligations and duties of the Company pursuant to the Rights Agreement, but the
Company's obligations under the Rights Agreement will not be discharged and will
continue in full. For purposes of the foregoing description, the term "Acquiring
Person" shall include any Acquiring Person and its Affiliates and Associates and
others with whom it is acting in concert counted together as a single Person.
The Board of Directors of the Company may, at its option, at any
time prior to the close of business on the Flip-in Date, redeem all (but not
less than all) the then outstanding Rights at a price of $.01 per Right (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to redeem the Rights,
without any further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership
of Rights, have no rights as stockholders of the Company, including without
limitation, the right to vote or to receive dividends.
The Rights have certain anti-takeover effects and can cause
substantial dilution to a person or group that acquires 20% of more of the
Common Stock on terms not approved by the Board of Directors of the Company. The
Rights should not, however, interfere with any merger or other business
combination that the Board finds to be in the best interests of the Company and
its stockholders because the Rights can be redeemed by the Board on or prior to
the close of business on the Flip-in Date, before the consummation of such
transaction.
As of April 16, 1998, there were approximately 21,119,930 shares
of Common Stock issued and outstanding. As long as the Rights are attached to
the Common Stock, the Company will issue one Right with each new share of Common
Stock so that all such shares will have Rights attached.
The foregoing description of the Rights is qualified in its
entirety by reference to the Rights Agreement and the other exhibits
incorporated by reference below.
ITEM 7. EXHIBITS.
(4.1) Rights Agreement, dated as of March 17, 1998 (the "Rights
Agreement"), between ABM Industries Incorporated and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent, including the
forms of Rights Certificate and of Election to Exercise,
included in Exhibit A to the Rights Agreement and the form of
Certificate of Designation and Terms of Participating Preferred
Stock of the Company, included in Exhibit B to the Rights
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Agreement (incorporated herein by reference to Exhibit (1) to
the Registrant's Registration Statement on Form 8-A dated March
18, 1998).
(99.1) Press release, dated March 17, 1998, issued by the Company.
(99.2) Form of Letter to Stockholders, together with Summary of Rights
Plan.
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SIGNATURE
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 thereunto duly authorized.
ABM INDUSTRIES INCORPORATED
By: /s/ William W. Steele
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Name: William W. Steele
Title: President and Chief
Executive Officer
Dated: April 17, 1998
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(4.1) Rights Agreement, dated as of March 17, 1998 (the "Rights
Agreement"), between ABM Industries Incorporated and
ChaseMellon Shareholder Services, L.L.C., as Rights Agent,
including the forms of Rights Certificate and of Election to
Exercise, included in Exhibit A to the Rights Agreement and
the form of Certificate of Designation and Terms of
Participating Preferred Stock of the Company, included in
Exhibit B to the Rights Agreement (incorporated herein by
reference to Exhibit (1) to Registrant's Registration
Statement on Form 8-A dated March 18, 1998).
(99.1) Press Release, dated March 17, 1998, issued by the Company
(99.2) Form of Letter to Stockholders, together with Summary of
Rights Plan
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EXHIBIT 99.1
[ABM Industries Incorporated LOGO]
For more information, please contact our Vice President PRESS RELEASE
& General Counsel, Harry H. Kahn, Esq. At 415/597-4500.
ABM INDUSTRIES INCORPORATED
ADOPTS STOCKHOLDER RIGHTS PLAN
SAN FRANCISCO, March 17, 1998 - The board of directors of ABM Industries
Incorporated (NYSE:ABM) today adopted a new Stockholder Rights Plan, and has
declared a dividend of one right for each outstanding share of ABM common
stock, payable to stockholders of record as of the close of business on April
22, 1998. The rights to be issued in this dividend are to replace the rights,
currently attached to all shares of ABM common stock, which expire on April 22,
1998.
The rights plan is intended to protect ABM and its stockholders against
unfair or coercive takeover tactics and offers which may not provide adequate
value to the stockholders. The rights plan was not adopted in response to any
known effort to acquire control of ABM, and is similar to stockholder
protection plans adopted by many other companies.
The rights will trade automatically with the common stock, and will not be
exercisable until it is announced that a person or group (an "Acquiring
Person") has acquired 20% or more of ABM's voting stock, or commences a tender
offer will result in such person or group owning 20% or more of ABM's voting
stock. Thereafter, separate rights certificates will be distributed, and each
right will entitle its holder to purchase, for an exercise price of One Hundred
and Seventy-Five Dollars ($175.00), participating preferred stock having
economic and voting terms similar to one share of common stock.
Upon the announcement that any person or group has become an Acquiring
Person, each right will entitle all stockholders other than the Acquiring
Person to purchase, at the exercise price, a number of ABM common shares having
a market value of twice the exercise price. These stockholders would also be
entitled to purchase an equivalent number of shares at the exercise price if
the Acquiring Person were to control the ABM Board of directors and cause the
Company to enter into certain mergers or other transactions. In addition, if
any Acquiring Person acquires between 20% and 50% of ABM's voting stock, the
ABM board of directors may, at its option, exchange one share of ABM's common
stock for each right held by all stockholders other than the Acquiring Person.
The present or future holdings of ABM common stock by Sydney Rosenberg,
Theodore Rosenberg, their personal trusts and/or certain related persons, will
not trigger the rights plan, or make the rights nonredeemable or exercisable
and separately tradable.
The rights should not interfere with a transaction that the board of
directors determines is in the best interest of ABM and its stockholders,
because the rights may be redeemed by the board for $0.01 per share at any time
prior to a person or group becoming an Acquiring Person.
The rights plan does not in any way weaken ABM's financial strength or
interfere with its business in any other way. The issuance of the rights has no
dilutive effect, will not affect reported earnings per share, is not taxable to
ABM or its stockholders, and will not change the way in which ABM shares are
traded. A letter from the Company summarizing the new rights plan is being
mailed to ABM stockholders.
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New York Stock Exchange Symbol: ABM
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EXHIBIT 99.2
[LETTERHEAD OF ABM INDUSTRIES INCORPORATED]
April 22, 1998
To our Stockholders:
As previously announced, your Board of Directors has adopted a
Stockholder Rights Plan. The Plan provides for a dividend distribution to
stockholders of record on April 22, 1998 of Rights to purchase shares of a new
series of Preferred Stock (or, in certain circumstances, Common Stock or other
consideration), exercisable upon the occurrence of certain takeover events. We
are enclosing a summary description outlining the principal terms of the Plan,
which we urge you to read carefully. The Rights replace the rights attached to
the Common Stock that were originally distributed pursuant to the Stockholder
Rights Plan adopted by your Board of Directors on April 11, 1988 and that are
expiring today.
The Plan was not adopted in response to any specific effort to
acquire control of ABM and we are not aware of any such effort. After careful
consideration, however, your Board of Directors believes that the Plan is a
reasonable and prudent response to the risks posed to stockholder interests in
the event that you or the Company are confronted with coercive or unfair
takeover tactics or a tender offer at an inadequate price. The Plan contains
provisions to protect you in the event of an unsolicited offer to acquire ABM,
including offers that do not treat all stockholders equally, the acquisition in
the open market of shares constituting control without offering fair value to
all stockholders, and other coercive or unfair takeover tactics that could
impair the Board's ability to represent your interests fully and which the Board
believes are not in the best interests of stockholders.
More than 2,000 other U.S. corporations have considered it
prudent to adopt stockholder protection plans similar to the Plan adopted by
your Board. The Plan is not intended to prevent an acquisition of ABM on terms
that are favorable and fair to all stockholders and will not be used for that
purpose. The Plan is designed to deal with the very serious problem of
unilateral actions by hostile acquirers that are calculated to deprive ABM's
Board and its stockholders of their ability to determine the destiny of the
Company. However, the mere declaration of the Rights dividend should not affect
any prospective offeror willing to make an all cash offer at a full and fair
price, or to negotiate with your Board of Directors, and certainly will not
interfere with a merger or other business combination transaction that your
Board of Directors approves as fair and as constituting a recognition of full
value to the stockholders. The Rights Plan excludes from its operation Theodore
Rosenberg, Sydney J. Rosenberg, their personal trusts, and certain related
persons, who currently own in the aggregate approximately 22.3% of ABM's Common
Stock. As a result, their present and future holdings of Common Stock will not
trigger the Rights Plan or make the Rights nonredeemable or exercisable and
separately tradable.
Issuance of the Rights will not weaken ABM's financial strength, will
not affect its reported earnings per share, is not taxable to you or the Company
and will not change the way in which the Company's shares are traded. As
described in the attached summary, the Rights will
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only become exercisable if and when an event arises which triggers their
effectiveness. They will then operate to protect stockholders against being
deprived of their right to share in the full measure of ABM's long-term
potential.
In declaring the Rights dividend, we have expressed our confidence in
your Company's future and our determination that you, our stockholders, be given
every opportunity to participate fully in that future.
On behalf of the Board of Directors,
Martinn H. Mandles
Chairman of the Board
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ABM INDUSTRIES INCORPORATED
SUMMARY OF RIGHTS PLAN
The following Summary is not complete and is qualified in its entirety
by reference to the Rights Agreement, a copy of which may be obtained without
charge from ABM Corporate Communications, P.O. Box 193224, San Francisco,
California 94119.
ISSUANCE AND
TRANSFER OF RIGHTS;
RIGHTS CERTIFICATES: The Board declares a dividend of one
Right for each share of Common Stock outstanding.
Prior to the Separation Time referred to below, the
Rights are evidenced by and trade with the Common
Stock and are not exercisable. After the Separation
Time, the Company will mail Rights Certificates to
stockholders, together with instructions regarding
exercise of the Rights and other appropriate
information, and the Rights will become
transferable apart from the Common Stock.
SEPARATION TIME: Rights separate from the Common Stock and become
exercisable following the earlier of (i) the date
of the Flip-in trigger referred to below or (ii)
the tenth business day (or such later date as the
Board may decide) after any person (a broadly
defined term) announces its intention to commence a
tender or exchange offer that would result in such
person acquiring beneficial ownership (a broadly
defined term) of a total of 20% or more of the
Company's Common Stock.
EXERCISE OF RIGHTS: After the Separation Time, each Right entitles the
holder to purchase, for the exercise price referred
to below, one one-thousandth of a share of
Participating Preferred Stock. (The Participating
Preferred Stock is designed so that each one
one-thousandth of a share has economic and voting
terms similar to those of one share of Common
Stock.)
The exercise price is initially set at $175.00 and
will be subject to certain customary antidilution
provisions (the "Exercise Price").
"FLIP-IN" TRIGGER: If any person acquires beneficial ownership of 20%
or more of the outstanding Common Stock (an
"Acquiring Person"), then on that date (or such
date other date as the Board may decide):
(i) Rights owned by the Acquiring Person
or transferees thereof will
automatically be void; and
(ii) each other Right will automatically
become a right (in addition to any
other rights provided for in the
Rights
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agreement) to buy, for the Exercise
Price, that number of shares of
Common Stock or Participating
Preferred Stock having a market
value of twice the Exercise Price.
EXCLUDED PERSONS: Excluded from the definition of Acquiring Person
are the Company, any subsidiary, any of their
employee plans and Theodore Rosenberg and Sydney J.
Rosenberg, individually and jointly, and certain
related persons. The Board also has the discretion
to exclude a person who becomes an Acquiring Person
inadvertently if such person promptly divests
enough Common Stock to drop below the percentage
threshold.
EXCHANGE OPTION: If an Acquiring Person acquires beneficial
ownership of between 20% and 50% of the outstanding
Common Stock, the Board may, at is option, require
any outstanding Rights (other than those owned by
the Acquiring Person) to be exchanged for one share
of Common Stock or one one-thousandth of a share of
Participating Preferred Stock in lieu of allowing
such Rights to be exercised.
"FLIP-OVER" TRIGGER: After any person or group becomes an Acquiring
Person, the Company may not consolidate or merge
with, or sell or otherwise transfer 50% or more of
its assets or earning power to any person if at the
time the Acquiring Person controls the Board,
unless provision is duly made so that each
outstanding Right would thereafter become a right
to buy, for the Exercise Price, that number of
shares of common stock of such other person having
a market value of twice the Exercise Price.
REDEMPTION: The Rights may be redeemed by the Board, at any
time until a "Flip-in" trigger has occurred, at a
Redemption Price of $0.01 per Right.
POWER TO AMEND: The Board may amend the Plan in any respect until a
"Flip-in" trigger has occurred. Thereafter, the
Board may amend the Plan in any respect not
adversely affecting the interests of the Rights
holders.
DIVIDEND OR
VOTING RIGHTS: Rights will not have any dividend, voting or other
rights of stockholders.
EXPIRATION: The rights will expire ten years from the date of
their issuance, unless sooner redeemed, exchanged
or exercised.
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