AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2 (the "Amendment"), dated as of February 8, 2000,
is between Dexter Corporation, a Connecticut corporation (the "Company"),
and ChaseMellon Shareholder Services, L.L.C., a New Jersey limited
liability company, as rights agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement dated as of August 23, 1996, as amended by Amendment No. 1
thereto, dated as of October 4, 1999 (as so amended, the "Rights
Agreement");
WHEREAS, the Company deems it advisable to amend the Rights Agreement;
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Board of
Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable and the Company
and the Rights Agent desire to evidence such amendment in writing.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein and in the Rights Agreement, the parties hereby agree as
follows:
Section 1. Definitions. Capitalized terms used and not otherwise
defined herein shall have the meaning assigned to such terms in the Rights
Agreement.
Section 2. Amendments to Rights Agreement. The Rights Agreement is
hereby amended as set forth in this Section 2.
(a) Section 1(a) of the Rights Agreement is
hereby amended by deleting such section and inserting in lieu
thereof the following:
"(a) "Acquiring Person" shall mean any Person (as such
term is hereinafter defined) who or which, together with
all Affiliates (as such term is hereinafter defined) and
Associates (as such term is hereinafter defined) of such
Person, shall be the Beneficial Owner of 11% or more of
the shares of Common Stock then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary of the
Company, (iii) any employee benefit plan of the Company
or of any Subsidiary of the Company, (iv) any Person
organized, appointed or established by the Company for or
pursuant to the terms of any such plan, (v) any Person
who becomes an Acquiring Person solely as a result of a
reduction in the number of shares of Common Stock
outstanding due to the repurchase of shares of Common
Stock by the Company, unless and until such Person shall
purchase or otherwise become the Beneficial Owner of
additional shares of Common Stock constituting 1% or more
of the then outstanding shares of Common Stock other than
pursuant to a Qualifying Offer (as such term is
hereinafter defined), (vi) any such Person who is one of
the persons listed in Rule 13d-1(b)(1)(ii) under the
Exchange Act (as such term is hereinafter defined) or who
is otherwise entitled to report such ownership on
Schedule 13G under the Exchange Act (or any successor
report), and is reporting such ownership on Schedule 13G
under the Exchange Act, provided that such Person,
together with its Affiliates and Associates, is the
Beneficial Owner of less than 20% of the shares of Common
Stock then outstanding, or (vii) any Person who becomes
an Acquiring Person pursuant to a Qualifying Offer."
(b) Section 11(a)(ii) of the Rights Agreement is
hereby amended by deleting such section and inserting in lieu
thereof the following:
"(ii) In the event any Person (other than any Person who
is not an Acquiring Person by reason of clauses (i)
through (vii) of the definition of that term in Section
1(a)), alone or together with its Affiliates and
Associates, shall, at any time after the Rights Dividend
Declaration Date, become the Beneficial Owner of 11% or
more of the shares of Common Stock then outstanding,
unless the event causing the 11% threshold to be crossed
is a transaction set forth in Section 13(a) hereof, or is
an acquisition of shares of Common Stock pursuant to a
transaction described in either (A) or (B) below (a
"Qualifying Offer"):
(A) the transaction is a tender offer or an
exchange offer for all outstanding shares of
Common Stock at a price and on terms determined
by at least a majority of the entire Board of
Directors of the Company to be in the best
interests of the Company and its stockholders;
or
(B) the transaction is a tender offer or an
exchange offer for all outstanding shares of
Common Stock which meets all of the following
requirements:
(1) the offer is substantially
unconditional immediately prior to
the offer's expiration date;
(2) in the opinion of the Company's
financial advisor, the per share
consideration offered to the Company's
stockholders in the offer is fair to
such stockholders, from a financial
point of view.
(3) on or prior to the date such offer
is commenced within the meaning of Rule
14d-2(a) of the General Rules and
Regulations under the Exchange Act,
such Person has, and has provided the
Company, (a) with respect to the cash
portion of the offer, firm written
commitments from responsible financial
institutions, which have been accepted
by such Person or one of its
Affiliates, to provide, subject only to
customary terms and conditions (which
shall in no event include conditions
requiring access by such financial
institutions to non-public information
to be provided by the Company,
conditions based on the accuracy of any
information concerning the Company
other than such as would be the subject
of representations and warranties in a
public financing by the Company, or
conditions requiring the Company to
make any representations, warranties or
covenants in connection with such
financing) funds for such offer which,
when added to the amount of cash and
cash equivalents which such Person then
has available and has irrevocably
committed in writing to the Company to
utilize for purposes of the offer if
consummated, and to keep available for
such purposes until the offer is
consummated or withdrawn, will be
sufficient to pay the consideration
payable for all shares outstanding on a
fully diluted basis and all related
expenses and (b) with respect to any
securities portion of the offer, the
opinion of a nationally recognized
investment bank, ranking in the top ten
United States domestic mergers and
acquisitions advisors for the most
recent year, jointly chosen by the
Person and Company, and which
investment bank has not provided
services for either the Company or such
Person (with costs for the services of
such investment bank to be paid by such
Person), that the value of the
securities offered as consideration in
the offer for each share of Common
Stock receiving such securities is, at
the time of the expiration of the
offer, equal to or greater than the
cash offered as consideration in the
offer for each share of Common Stock
not receiving securities;
(4) such offer must remain open for at
least 60 calendar days; provided, that
(x) if there is any increase in the
price of such offer, such offer must remain
open for at least 10 Business Days after
the last such increase, and (y) such offer
must remain open for at least 10 Business
Days after the date that any bona fide
alternative offer is made which, in the
opinion of the Company's financial advisor,
provides or consideration per share in
excess of that provided for in such offer;
provided further, however, that such
offer need not remain open, as a result of
this clause (4), beyond (x) the time which
any other offer satisfying the criteria for
a Qualifying Offer is then required to be
kept open under this clause (4), or (y)
the announcement prior to the then
scheduled expiration date, of any other
offer with respect to which the Board of
Directors has agreed to redeem the Rights
immediately prior to acceptance for payment
of shares thereunder (unless such offer is
terminated prior to its expiration without
any shares having been purchased
thereunder); and
(5) on the date such offer is
commenced within the meaning of Rule
14d-2(a) of the Rules and Regulations
under the Exchange Act, such Person
makes an irrevocable commitment in the
offer to purchase relating to the
offer:
(a) to consummate promptly upon
completion of such offer a
transaction whereby all shares
of Common Stock not purchased
in such offer will be acquired
at the same price per share
paid pursuant to the offer, and
otherwise not to purchase any
shares of Common Stock
following completion of the
offer; and
(b) that such Person or group
will not amend such offer in a
manner adverse to the holders
of share Common Stock,
then, promptly following the occurrence of such event,
proper provision shall be made so that each holder of a
Right (except as provided below and in Section 7(e)
hereof) shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in
accordance with the terms of this Agreement, in lieu of a
number of one two-hundredths of a share of Preferred
Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x)
multiplying the then current Purchase Price by the then
number of one two-hundredths of a share of Preferred
Stock for which a Right was exercisable immediately prior
to the occurrence of the Section 11(a)(ii) Event,
and (y) dividing that product (which, following such
occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes of
this Agreement) by 50% of the current market price
(determined pursuant to Section 11(d) hereof) per share
of Common Stock on the date of such occurrence (such
number of shares, the "Adjustment Shares")."
Section 6. Amendment of Section 2. The first sentence of
Section 2 of the Rights Agreement is hereby amended to delete the following
words:
"and the holders of the Rights (who, in accordance with
Section 3 hereof, shall also be, prior to the
Distribution Date, the holders of the Common Shares)".
Section 8. Amendment of Section 18(a). Section 18(a) of
the Rights Agreement is hereby amended by adding the following words to the
end of such section:
"Anything to the contrary notwithstanding, in no event
shall the Rights Agent be liable for special, punitive,
indirect, consequential or incidental loss or damage of
any kind whatsoever (including, but not limited to lost
profits), even if the Rights Agent has been advised of
the likelihood of such loss or damage."
Section 10. Miscellaneous.
-------------
(a) The term "Agreement" as used in the Rights
Agreement shall be deemed to refer to the Rights Agreement as
amended hereby.
(b) The foregoing amendment shall be effective
as of the date first above written, and, except as set forth
herein, the Rights Agreement shall remain in full force and effect
and shall be otherwise unaffected hereby.
(c) This Amendment may be executed in two or
more counterparts, each of which shall be deemed to be an
original, but all for which together shall constitute one and the
same instrument.
(d) This Amendment shall be deemed to be a
contract made under the laws of the State of Connecticut 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.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Number One to be duly executed and attested, all as of the day
and year first above written.
Attest: DEXTER CORPORATION
By:/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary Title: Vice President
Attest: CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
By: /s/ ▇▇▇ Tinto By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- ------------------
Name: ▇▇▇ Tinto Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Title: Assistant Vice President
