Exhibit 4(b)(ii)
THIRD AMENDMENT TO RIGHTS AGREEMENT
THIS THIRD AMENDMENT TO RIGHTS AGREEMENT, dated as of November 10, 1998,
is between BATTLE MOUNTAIN GOLD COMPANY, a Nevada corporation (the "Company"),
and THE BANK OF NEW YORK, as rights agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to that certain
Rights Agreement dated as of November 10, 1988, as amended as of July 30, 1992
and as further amended and restated as of July 19, 1996 (the "Rights
Agreement").
WHEREAS, the parties desire to amend the Rights Agreement in accordance
with Section 26 of the Rights Agreement; and
WHEREAS, the Distribution Date in connection with the Rights Agreement
has not occurred;
NOW THEREFORE, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(A). The penultimate sentence of Section 1(a) is
hereby amended by adding the following proviso immediately prior to the period
(.) at the end of such sentence:
"and PROVIDED, FURTHER, that neither an initial acquirer ("Acquirer A"),
nor the first subsequent acquirer from Acquirer A ("Acquirer B" and
together with Acquirer A, the "Subsequent Acquirer") of all Exchangeable
Shares (or Common Stock acquired in exchange therefor) held by Noranda in
connection with and as a result of the consummation of the Arrangement
referred to in the Combination Agreement or a block of such shares in
excess of twenty percent (20%) of the total combined outstanding Common
Stock and Exchangeable Shares as of the date of such acquisition (such
shares an "Exempted Block"), which Subsequent Acquirer and its Affiliates
or Associates do not Beneficially Own any Exchangeable Shares or Common
Stock at the time of such acquisition, shall be or become an Acquiring
Person solely as a result of the Subsequent Acquirer becoming the
Beneficial Owner of such shares comprising the Exempted Block, but shall
thereafter become an Acquiring Person if (I) the Subsequent Acquirer or an
Affiliate or Associate of the Subsequent Acquirer shall purchase or
otherwise become the Beneficial Owner of any additional Exchangeable
Shares or (II) shares of Common Stock or any Person (or Persons) who is
(or collectively are) the Beneficial Owner of any Exchangeable Shares or
shares of Common Stock shall become an Affiliate or Associate of the
Subsequent Acquirer unless (x) in either such case the Subsequent Acquirer
together with all Affiliates and
Associates of the Subsequent Acquirer is not then the Beneficial Owner of
20% or more of the total combined then outstanding shares of Common Stock
and Exchangeable Shares or (y) the Subsequent Acquirer's increase in
Beneficial Ownership of shares of Common Stock or Exchangeable Shares is
solely as a result of a reduction in the number of shares of Common Stock
or Exchangeable Shares outstanding due to the purchase or other
acquisition of Common Stock or Exchangeable Shares outstanding by the
Company or any Subsidiary thereof, and the Subsequent Acquirer does not
become the Beneficial Owner of any additional Exchangeable Shares or
shares of Common Stock after such reduction in the number of outstanding
shares."
2. AMENDMENT OF SECTION 1(i). Section 1(i) is hereby amended and restated
in its entirety to read as follows:
"(i) "Final Expiration Date" shall mean the close of
business on November 10, 2008."
3. AMENDMENT TO SECTION 26. The following shall be added as the final
sentence of Section 26:
"Notwithstanding the foregoing, the last proviso of the penultimate
sentence of Section 1(a) shall not be amended without the consent
(which consent shall not be unreasonably withheld) of (a) Noranda,
if such amendment is proposed prior to any Person's becoming a
Subsequent Acquirer or (b) Acquirer A if Acquirer A has acquired and
continues to hold an Exempted Block at the time such an amendment is
proposed."
4. AMENDMENT OF EXHIBIT B TO THE RIGHTS AGREEMENT. Exhibit B to the Rights
Agreement, the Form of Rights Certificate, is hereby amended and replaced in its
entirety by Exhibit B hereto.
5. EFFECTIVENESS. This Amendment shall be deemed effective as of November
10, 1998 as if executed on such date. Except as amended hereby, the Rights
Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
6. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Nevada 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. This Amendment may be
executed in any number of counterparts, 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. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
EXECUTED as of the date set forth above.
ATTEST: BATTLE MOUNTAIN GOLD COMPANY
By:_________________________ By:__________________________
Name:_______________________ Name:________________________
Title:______________________ Title:_______________________
ATTEST: THE BANK OF NEW YORK
By:_________________________ By:__________________________
Name:_______________________ Name:________________________
Title:______________________ Title:_______________________
EXHIBIT B
NOT EXERCISABLE AFTER NOVEMBER 10, 2008 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN AFFILIATE
OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID AND
NO LONGER BE TRANSFERABLE. [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 THIS RIGHTS AGREEMENT). ACCORDINGLY, THIS RIGHTS CERTIFICATE AND THE RIGHTS
REPRESENTED HEREBY WILL BECOME NULL AND VOID IN THE CIRCUMSTANCES SPECIFIED IN
SECTION 7(e) OF SUCH AGREEMENT.]**
Rights Certificate
BATTLE MOUNTAIN GOLD COMPANY
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 November 10,
1988, as amended and restated as of July 19, 1996 and as further amended as of
November 10, 1998 (the "Rights Agreement"), between Battle Mountain Gold
Company, a Nevada corporation (the "Company"), and The Bank of New York, as
successor rights agent (the "Rights Agent"), to purchase from the Company at any
time prior to 5:00 P.M. (Houston time) on November 10, 2008 at the office or
offices of the Rights Agent designated for such purpose, or its successors as
Rights Agent, one one-hundredth of a fully-paid nonassessable share of Series A
Junior Participating Preferred Stock (the "Preferred Stock") of the Company, at
a purchase price of $60 per one one-hundredth of a share (the "Purchase Price"),
upon presentation and surrender of this Rights Certificate with the Form of
Election to Purchase set forth on the reverse hereof and the Certificate
contained therein duly executed. The Purchase Price may be paid by certified
bank check, bank cashier's or official bank check or money order payable to the
order of the Company or the Rights Agent. 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 November 11, 1988, based on the
Preferred Stock as constituted at such date.
Upon the occurrence of a Flip-In Event (as such term is defined in
the Rights Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement), (ii) a
transferee of any such Acquiring Person, Associate or Affiliate,
** The portion of the legend in brackets shall be inserted only if applicable
and shall replace the preceding sentence.
or (iii) under certain circumstances specified in the Rights Agreement, a
transferee of a person who, concurrently with or after such transfer, became an
Acquiring Person, such Rights shall become null and void and no holder hereof
shall have any rights whatsoever with respect to such Rights from and after the
occurrence of such Flip-In Event.
As provided in the 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 (as such term is defined in the Rights Agreement).
This Rights 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 Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability of
such Rights under the specific circumstances set forth in the Rights Agreement.
Copies of the Rights Agreement are on file at the above-mentioned office of the
Rights Agent and are also available upon written request to the Company.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices 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-hundredths of a share of Preferred
Stock as the Rights evidenced by the Rights Certificate or 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 Rights Agreement, the Rights
evidenced by this Certificate may be redeemed by the Company at its option at a
redemption price of $.01 per Right, payable, at the election of the Company, in
cash or shares of Common Stock or such other consideration as the Board of
Directors may determine, at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition Date (as such time
period may be extended or shortened pursuant to the Rights Agreement) and (ii)
the Expiration Date (as such term is defined in the Rights Agreement). After the
expiration of the redemption period, the Company's right of redemption may be
reinstated if (i) each Acquiring Person reduces his beneficial ownership to
prescribed levels in a transaction or series of transactions not involving the
Company and (ii) there are no other Acquiring Persons.
No fractional shares of Preferred Stock will be issued upon the
exercise of any Right or Rights evidenced hereby (other than fractions which are
integral multiples of one one-hundredth of a share of Preferred Stock, which
may, at the election of the Company, be evidenced by depositary receipts), but
in lieu thereof of a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Rights Certificate, as such, 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 which may at any time
be issuable on the exercise 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 Rights
Certificate shall have been exercised as provided in the Rights Agreement.
This Rights 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 _________________, _____
ATTEST: BATTLE MOUNTAIN GOLD COMPANY
By:_________________________ By:__________________________
Name:_______________________ Name:________________________
Title:______________________ Title:_______________________
Countersigned:
THE BANK OF NEW YORK
By:________________________________
Authorized Signature
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
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(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)
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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: __________________, ______
_______________________________
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 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 of an
Affiliate or Associate of an Acquiring Person.
Dated: _________________, _____ _______________________________
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
represented by the Rights Certificate.)
To: BATTLE MOUNTAIN GOLD COMPANY
The undersigned hereby irrevocably elects to exercise ______________
Rights represented 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 which 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: _________________, _____ _______________________________
Signature
Signature Guaranteed:
CERTIFICATE
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate are [ ] 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 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: _________________, _____ _______________________________
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.
