Exhibit 2
FIRST AMENDMENT TO AMENDED AND RESTATED RIGHTS AGREEMENT
THIS FIRST AMENDMENT, dated as of April 9, 2002 (this "Amendment"), to
Amended and Restated Rights Agreement, dated as of August 22, 2001 (as amended
herein and as may be further amended, restated, supplemented or otherwise
modified from time to time, the "Rights Agreement"), between THQ Inc., a
Delaware corporation (the "Company"), and Computershare Investor Services, LLC a
Delaware limited liability company (the "Rights Agent"). Capitalized terms used
in this Amendment shall have the meanings ascribed to them in the Rights
Agreement.
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement which, among other things, governs the terms and conditions under
which Rights are exercisable by the holders of Common Stock;
WHEREAS, the board of directors (the "Board") of the Company has
declared that a 50% stock dividend on the issued shares of the Company's common
stock, $.01 par value (the "Common Stock"), is to be distributed on, or as soon
as practicable after, April 9, 2002 to stockholders of record as of the close of
business on March 26, 2002, such stock dividend being declared for purposes of
effecting a three-for-two split of the Common Stock without amendment to the
Certificate of Incorporation of the Company and without effecting any change in
the par value of the existing issued or outstanding shares of Common Stock; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may
from time to time supplement or amend the Rights Agreement in accordance with
the provisions of Section 27 thereof.
NOW, THEREFORE, in consideration of the premises and mutual agreements
hereinafter set forth, the parties hereto agree as follows:
1. Amendment of Section 7(b). Section 7(b) of the Rights Agreement
is hereby amended and restated in its entirety as follows:
"The Purchase Price for each one-one thousandth (1/1000) of a share of
Preferred Stock purchasable upon the exercise of a Right shall be $100.00 as of
April 9, 2002 (the "Purchase Price"), shall be subject to adjustment from time
to time as provided in Sections 11 and 13(a) hereof, and shall be payable in
accordance with paragraph (c) below."
2. Amendment of the Rights Certificate. The Rights Certificate
attached to the Rights Agreement as Exhibit B is hereby amended
by deleting such exhibit in its entirety and inserting in lieu
thereof Exhibit B attached hereto.
3. Amendment of the Summary of Rights. The Summary of Rights to
Purchase Preferred Stock attached to the Rights Agreement as
Exhibit C is hereby amended by deleting such exhibit in its
entirety and inserting in lieu thereof Exhibit C attached hereto.
4. Effectiveness. This Amendment shall be deemed effective upon the
execution hereof. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise
unaffected hereby.
5. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Delaware.
7
6. Counterparts. This Amendment may be executed in any number of
counterparts, and each of such counterparts shall be deemed to be
an original, and all such counterparts shall together constitute
but one and the same agreement.
* * * *
8
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to the Amended and Restated Rights Agreement to be duly executed, all as of the
date and year first above written.
THQ INC.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx
Chairman of the Board, Chief
Executive Officer and President
COMPUTERSHARE INVESTOR SERVICES, LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Manager - Client Services
Signature Page
EXHIBIT B
RIGHTS CERTIFICATE
FORM OF RIGHTS CERTIFICATE
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER JUNE 21, 2010 OR EARLIER IF REDEEMED OR EXCHANGED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT
$0.001 PER RIGHT, AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY
OWNED BY AN ACQUIRING PERSON (AS SUCH TERM IS DEFINED IN THE AMENDED AND
RESTATED RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME
NULL AND VOID. [THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
AMENDED AND RESTATED RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND
THE RIGHTS EVIDENCED HEREBY MAY BECOME NULL AND VOID IN THE CIRCUMSTANCES
SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.]*
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* The portion of the legend in brackets shall be inserted only if applicable and
shall replace the preceding sentence.
RIGHTS CERTIFICATE
THQ 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
Amended and Restated Rights Agreement, dated as of August 22, 2001 (as amended
by the First Amendment to Amended and Restated Rights Agreement, dated as of
April 9, 2002, and as may be further amended, restated, supplemented or
otherwise modified from time to time, the "Amended and Restated Rights
Agreement"), between the Company and the Rights Agent and its successors, to
purchase from the Company at any time prior to 5:00 P.M. (Los Angeles time) on
June 21, 2010 at the office(s) of the Rights Agent designated for such purpose,
or its successors as Rights Agent, one-one thousandth (1/1000) of a fully paid,
nonassessable share of Series A Junior Participating Preferred Stock, par value
$.01 per share (the "Preferred Stock"), of the Company, at a purchase price of
$100.00 per one-one thousandth (1/1000) of a share (the "Purchase Price"), upon
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate duly executed. The number of Rights
evidenced by this Rights Certificate (and the number of shares which may be
purchased upon exercise thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase Price as of ______________,
based on the Preferred Stock as constituted at such date. The Company reserves
the right to require prior to the occurrence of a Triggering Event (as such term
is defined in the Amended and Restated Rights Agreement) that, upon any exercise
of Rights, a number of Rights be exercised so that only whole shares of
Preferred Stock will be issued.
Upon the occurrence of a Section 11(a)(ii) Event (as such term is
defined in the Amended and Restated Rights Agreement), if the Rights evidenced
by this Rights Certificate are beneficially owned by (i) an Acquiring Person or
an Affiliate or Associate of any such Acquiring Person (as such terms are
defined in the Amended and Restated Rights Agreement), (ii) a transferee of any
such Acquiring Person, Associate or Affiliate, or (iii) under certain
circumstances specified in the Amended and Restated Rights Agreement, a
transferee of a person who, after such transfer, became an Acquiring Person or
an Affiliate or Associate of such Person, such Rights shall become null and void
and no holder hereof shall have any right with respect to such Rights from and
after the occurrence of such Section 11(a)(ii) Event.
As provided in the Amended and Restated Rights Agreement, the Purchase
Price and the number and kind of shares of Preferred Stock or other securities
that may be purchased upon the exercise of the Rights evidenced by this Rights
Certificate are subject to modification and adjustment upon the happening of
certain events, including Triggering Events.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Amended and Restated Rights Agreement, which terms, provisions
and conditions are hereby incorporated herein by reference and made a part
hereof and to which Amended and Restated Rights Agreement reference is hereby
made for a full description of the rights, limitations of rights, obligations,
duties and immunities hereunder of the Rights Agent, the Company and the holders
of the Rights Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific circumstances
set forth in the Amended and Restated Rights Agreement. Copies of the Amended
and Restated Rights Agreement are on file at the office of the Rights Agent and
are also available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the principal office(s) of the Rights Agent designated for such
purpose, may be exchanged for another Rights Certificate or Rights Certificates
of like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of one-one thousandth (1/1000) of a share of Preferred Stock as
the Rights evidenced by the Rights Certificates surrendered shall have entitled
such holder to purchase. If this Rights Certificate shall
be exercised in part, the holder shall be entitled to receive upon surrender
hereof another Rights Certificate or Rights Certificates for the number of whole
Rights not exercised.
Subject to the provisions of the Amended and Restated Rights Agreement,
the Rights evidenced by this Certificate may, in each case at the option of the
Company, be (i) redeemed by the Company at its option at a redemption price of
$0.001 per Right or (ii) exchanged in whole or in part for shares of Common
Stock or other securities of the Company. Immediately upon the action of the
Board of Directors of the Company authorizing redemption, the Rights will
terminate and the only right of the holders of Rights will be to receive the
redemption price.
No fractional shares of Preferred Stock will be issued upon the exercise
of any Right or Rights evidenced hereby (other than fractions that are integral
multiples of one-one thousandth (1/1000) of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof a cash payment will be made, as provided in the Amended and
Restated Rights Agreement.
No holder of this Rights Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of Preferred
Stock or of any other securities of the Company that may at any time be issuable
on the exercise hereof, nor shall anything contained in the Amended and Restated
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 Amended and Restated Rights Agreement), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
this Rights Certificate shall have been exercised as provided in the Amended and
Restated Rights Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned manually or by facsimile signature by the
Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company
and its corporate seal.
Dated as of _____ __, 20__
THQ Inc. ATTEST:
By: By:
-------------------------------- --------------------------------
Name: Name:
Title: Chief Executive Officer Title: Senior Vice President--
and President Finance & Administration,
Chief Financial Officer
and Secretary
Countersigned:
[Rights Agent]
By:
-----------------------------
Name:
Title:
FORM OF REVERSE SIDE OF RIGHTS CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
HOLDER DESIRES TO TRANSFER THE RIGHTS CERTIFICATE.)
FOR VALUE RECEIVED _______________________________________ hereby sells, assigns
and transfers unto _____________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint __________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated: , 20
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Signature
Signature Guaranteed:
Certificate
The undersigned hereby certifies by checking the appropriate boxes that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of an Acquiring Person (as such terms are defined
pursuant to the Amended and Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: , 20
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Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise Rights evidenced
by the Rights Certificate.)
TO: THQ INC.
The undersigned hereby irrevocably elects to exercise ______ Rights
evidenced by this Rights Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of the Rights (or such other securities of the
Company or of any other person that may be issuable upon the exercise of the
Rights) and requests that certificates for such shares (or other securities) be
issued in the name of and delivered to:
Please insert social security or other identifying number: ________________
(Please print name and address): __________________________________________
If such number of Rights shall not be all the Rights evidenced by this
Rights Certificate, a new Rights Certificate for the balance of such Rights
shall be registered in the name of and delivered to:
Please insert social security or other identifying number: ________________
(Please print name and address): __________________________________________
Dated: , 20
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Signature
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are not
being exercised by or on behalf of a Person who is or was an Acquiring Person or
an Affiliate or Associate of an Acquiring Person (as such terms are defined
pursuant to the Amended and Restated Rights Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it [
] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: , 20
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Signature
Signature Guaranteed:
NOTICE
The signature to the foregoing Election to Purchase and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE PREFERRED STOCK
On June 21, 2000 the Board of Directors of THQ Inc. (the "Company")
declared a dividend distribution of one preferred stock purchase right (a
"Right") for each outstanding share of the Company's common stock, par value
$0.01 per share ("Common Stock"), to stockholders of record at the close of
business on July 3, 2000. Each Right entitles the registered holder to purchase
from the Company a unit consisting of one-one thousandth (1/1000) of a share (a
"Unit") of Series A Junior Participating Preferred Stock, par value $0.01 per
share (the "Preferred Stock"), at a Purchase Price of $100.00 per Unit, subject
to adjustment. The description and terms of the Rights are set forth in the
Amended and Restated Rights Agreement, dated as of August 22, 2001 between the
Company and the Rights Agent and its successors (as amended by the First
Amendment to Amended and Restated Rights Agreement, dated as of April 9, 2002
and as may be further amended, restated, supplemented or otherwise modified, the
"Amended and Restated Rights Agreement").
Initially, the Rights will be attached to all Common Stock certificates
evidencing shares then outstanding, and no separate Rights certificates will be
distributed. The Rights will separate from the Common Stock and the Distribution
Date will occur upon the earliest of (i) 10 days following a public announcement
that a person or group of affiliated or associated persons (an "Acquiring
Person") has acquired, or obtained the right to acquire, beneficial ownership of
15% or more of the outstanding shares of Common Stock (the "Stock Acquisition
Date"), or (ii) 10 business days (or such later date as may be determined by
action of the Board of Directors prior to such time as any person or group
becomes an Acquiring Person) following the commencement of a tender offer or
exchange offer which, if consummated, would result in a person or group
beneficially owning 15% or more of the outstanding shares of Common Stock.
Until the Distribution Date, (i) the Rights will be evidenced by the
Common Stock certificates and will be transferred with and only with such Common
Stock certificates, (ii) new Common Stock certificates issued after July 3,
2000, will contain a notation incorporating the Amended and Restated Rights
Agreement by reference and (iii) the surrender for transfer of any certificates
for Common Stock outstanding will also constitute the transfer of the Rights
associated with the Common Stock evidenced by such certificate.
Pursuant to the Amended and Restated Rights Agreement, the Company
reserves the right to require prior to the occurrence of a Triggering Event (as
defined below) that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will be issued.
The Rights are not exercisable until the Distribution Date and will
expire at the Close of Business on June 21, 2010, unless earlier redeemed by the
Company as described below.
As soon as practicable after the Distribution Date, Rights certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
certificates alone will evidence the Rights. Except as otherwise provided in the
Amended and Restated Rights Agreement, only shares of Common Stock issued prior
to the Distribution Date will be issued with Rights.
In the event that, (i) at any time following the Distribution Date, a
Stock Acquisition Date occurs, or (ii) a Distribution Date occurs following a
Stock Acquisition Date (each such occurrence, an "Event"), the holder of each
Right will thereafter have the right to receive, upon exercise, shares of Common
Stock
having a value equal to two times the exercise price of the Right. If the number
of shares of Common Stock authorized for issuance is insufficient for this
purpose, then the Board of Directors is required to substitute cash, property or
other securities of the Company for the Common Stock. Notwithstanding the
foregoing, following the occurrence of an Event, all Rights that are or (under
certain circumstances specified in the Amended and Restated Rights Agreement)
were, beneficially owned by any Acquiring Person will be null and void. However,
Rights are not exercisable following the occurrence of an Event until such time
as the Rights are no longer redeemable by the Company as set forth below.
For example, at an exercise price of $100.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an Event
would entitle its holder to purchase $200.00 worth of Common Stock (or other
consideration, as noted above) for $100.00. Assuming that the Common Stock had a
per share value of $50.00 at such time, the holder of each valid Right would be
entitled to purchase four (4) shares of Common Stock for $100.00.
In the event that, at any time following the Stock Acquisition Date and
the Distribution Date, (i) the Company is acquired in a merger or other business
combination transaction in which the Company is not the surviving corporation,
(ii) the Company is acquired in a merger or other business combination
transaction in which the Company is the surviving corporation and all or part of
the Common Stock is converted into securities of another entity, cash or other
property, or (iii) 50% or more of the Company's assets or earning power is sold
or transferred, each holder of a Right (except Rights that previously have been
voided as set forth above) shall thereafter have the right to receive, upon
exercise, common stock of the acquiring company having a value equal to two
times the exercise price of the Right. The events set forth in this paragraph
and in the second preceding paragraph are referred to as the "Triggering
Events."
The purchase price payable, and the number of Units of Preferred Stock
or amount of other securities or property issuable, upon exercise of the Rights
are subject to adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, combination or reclassification of,
the Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights, options or warrants to subscribe for Preferred Stock or convertible
securities at less than the 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 quarterly cash dividends) 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 amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of shares of the Preferred Stock on
the last trading day prior to the date of exercise.
At any time after any person or group becomes an Acquiring Person and
prior to the acquisition by such person or group 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 person or group that will
have become void), in whole or in part, at an exchange ratio of one share of
Common Stock, or one-one thousandth (1/1000) of a share of Preferred Stock (or
of a share of a class or series of the Company's preferred stock having
equivalent rights, preferences and privileges) per Right (subject to
adjustment).
In general, the Company may redeem the Rights in whole, but not in part,
at a price of $0.001 per Right (subject to adjustment and payable in cash,
Common Stock or other consideration deemed appropriate by the Board of
Directors) at any time until ten days following the Stock Acquisition Date.
Immediately upon the action of the Board of Directors authorizing any
redemption, the Rights will terminate and the only right of the holders of
Rights will be to receive the redemption price.
Until a Right is exercised, 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. While the distribution of the Rights will not
result in the recognition of taxable income by stockholders or the Company,
stockholders may, depending upon the circumstances, recognize taxable income
after a Triggering Event.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights, except that from and
after such time as any person or group of affiliated or associated persons
becomes an Acquiring Person no such amendment may adversely affect the interests
of the holders of the Rights.
A copy of the Amended and Restated Rights Agreement is available free of
charge from the Rights Agent. This description of the Rights does not purport to
be complete and is qualified in its entirety by reference to the Amended and
Restated Rights Agreement, which is incorporated herein by reference.
Please note that on March 8, 2002, the Board of Directors of the Company
declared a 50% stock dividend on the issued shares of Common Stock which was
distributed on, or about, April 9, 2002, to holders of record as of the close of
business on March 26, 2002, for the purposes of effecting a three-for-two stock
split of the Common Stock.
In accordance with the Amended and Restated Rights Agreement, to reflect
the stock split, each share of Common Stock shall, after April 9, 2002, be
accompanied by two-thirds of a Right, unless and until further adjustments are
necessary in accordance with the Amended and Restated Rights Agreement, but the
exercise price of one full Right will remain unchanged.
