EXHIBIT 4.5
SECOND AMENDMENT
TO
RIGHTS AGREEMENT
SECOND AMENDMENT, dated as of November 9, 2000 (the "Second Amendment")
to the Rights Agreement dated as of September 4, 1992 and amended March 25, 1996
(the "Rights Agreement"), between Candela Corporation, a Delaware corporation
(the "Company"), and Fleet National Bank (formerly The First National Bank of
Boston), as Rights Agent (the "Rights Agent").
WHEREAS, the Board of Directors of the Company has determined that it
would be desirable and in the best interests of the Company and its stockholders
for the Company to supplement and amend the Rights Agreement in the manner set
forth in this Second Amendment;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements set forth herein and in the Rights Agreement and for other good and
valuable consideration, the receipt of which is hereby acknowledged, and
pursuant to Section 26 of the Rights Agreement, the parties hereby agree as
follows:
1. Section 1(a) of the Rights Agreement is hereby amended to read
in its entirety as follows:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person,
shall be the Beneficial Owner of more than 30% 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 or entity organized, appointed
or established by the Company for or pursuant to the terms
of any such plan, or (v) any person whose ownership of shares
in excess of such 30% threshold is the result of action taken
solely by the Company provided that such Person shall be an
Acquiring Person if thereafter such Person acquires
additional shares of voting stock of the Company, except as a
result of further corporate action not caused, directly or
indirectly, by the Person.
2. All references in the Rights Agreement to "Continuing
Director" or "Continuing Directors" are deleted and replaced with "Director"
or "Directors" as appropriate.
3. Section 1 (o) of the Rights Agreement is amended to read in
its entirety as follows: (o) "Director" shall mean any member of the Board,
and "Directors" shall mean the members of the Board.
4. Section 25 of the Rights Agreement is amended to read in
its entirety as follows:
Section 25. NOTICES. Notices or demands authorized by this
Agreement to be given or made by the Rights Agent or by the
holder of any Rights 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:
Candela Corporation
000 Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000-0000
Attention: President
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the
Company or by the holder of any Rights 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:
Fleet National Bank
c/o EquiServe L.P.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
Notices or demands authorized by this Agreement to be given or
made by the Company or the Rights Agent to the holder of any
Rights Certificate (or, if prior to the Distribution Date, to
the holder of certificates representing shares of Common
Stock) 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.
5. To delete from Section 23(a)(iii) the phrase "(with the
concurrence of a majority of the Continuing Directors)".
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6. To delete from Section 28 in each place that it appears the
phrase "(with, where specifically provided for herein, the concurrence of the
Continuing Directors)".
7. The forms of Rights Certificate and Summary of Rights to
Purchase Common Stock attached as Exhibits A and B to the Rights Agreement,
respectively, are amended to read in their entireties as set forth in the
forms of such documents attached hereto and labeled Exhibits A and B,
respectively.
8. The term "Agreement" as used in the Rights Agreement shall
be deemed to refer to the Rights Agreement as amended hereby.
9. The foregoing Amendments shall be effective as of the date
hereof and, except as set forth herein, the Rights Agreement shall remain in
full force and effect and shall be otherwise unaffected hereby.
10. This Amendment may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be duly executed and their respective corporate seals to be
hereunto affixed, all as of the day and year first above written.
Attest: CANDELA CORPORATION
By: /s/ Xxxxxx X. Xxxxx, Xx. By: /s/ F. Xxxx Xxxxxx
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Xxxxxx X. Xxxxx, Xx. F. Xxxx Xxxxxx
Secretary Chief Financial Officer
Attest: FLEET NATIONAL BANK
By: /s/ Xxxxxxx Xxxxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx Xxxxxxx Name: Xxxxxxxx X. Xxxxxxxx
Title: Account Manager Title: Managing Director
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EXHIBIT A
Certificate No. R-
Rights
NOT EXERCISABLE AFTER SEPTEMBER 22, 2002 OR EARLIER IF REDEEMED
BY THE COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE
OPTION OF THE COMPANY, AT $0.005 PER RIGHT ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON OR AN ADVERSE
PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) AND
ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID.
THE RIGHTS SHALL NOT BE EXERCISABLE, AND SHALL BE VOID SO LONG
AS HELD, BY A HOLDER IN ANY JURISDICTION WHERE THE REQUISITE
QUALIFICATION TO THE ISSUANCE TO SUCH HOLDER, OR THE EXERCISE BY
SUCH HOLDER, OF THE RIGHTS IN SUCH JURISDICTION SHALL NOT HAVE
BEEN OBTAINED OR BE OBTAINABLE. [THE RIGHTS REPRESENTED BY THIS
RIGHTS CERTIFICATE ARE OR WERE BENEFICIALLY OWNED BY A PERSON
WHO WAS OR BECAME AN [ACQUIRING] [ADVERSE] PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN [ACQUIRING] [ADVERSE] PERSON (AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY,
THIS RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY
BECOME NULL AND VOID IN THE CIRCUMSTANCE SPECIFIED IN SECTION
7(e) OF SUCH AGREEMENT.](1)
Rights Certificate
CANDELA CORPORATION
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 September 4, 1992 (the "Rights
Agreement"), as amended, between Candela Corporation, a Delaware
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(1) The portion of the legend in brackets shall be inserted only if applicable,
shall be modified to apply to an Acquiring Person or an Adverse Person, as
applicable, and shall replace the preceding sentence.
corporation (the "Company"), and Fleet National Bank (formerly The First
National Bank of Boston) (the "Rights Agent"), to purchase from the Company
at any time prior to 5:00 P.M. (Eastern time) on September 22, 2002 at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, one fully paid and nonassessable share of common
stock, par value $.01 per share (the "Common Stock"), of the Company, at a
purchase price of $48.00 per 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 set
forth above, are the number and Purchase Price as of September 22, 1992,
based on the Common Stock as constituted at such date.
As more fully set forth in the Rights Agreement, following the
occurrence of a Section 11(a)(ii) 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, an Adverse Person or an
Affiliate or Associate of any such Person (as such terms are defined in the
Rights Agreement), which the Company's Directors (as defined in the Rights
Agreement), in their sole discretion, determine is or was involved in or
caused or facilitated, directly or indirectly (including through any change
in the Board), such Section 11(a)(ii) Event, (ii) a transferee of any such
Acquiring Person, Adverse Person, Affiliate or Associate who becomes a
transferee after such Acquiring Person, Adverse Person, Affiliate or
Associate becomes such, or (iii) under certain circumstances specified in the
Rights Agreement, a transferee of any such Acquiring Person, Adverse Person,
Affiliate or Associate who becomes a transferee prior to or concurrently with
such Acquiring Person or Adverse Person becoming such, 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.
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The Rights evidenced by this Rights Certificate shall not be
exercisable, and shall be void so long as held, by a holder in any jurisdiction
where the requisite qualification to the issuance to such holder, or the
exercise by such holder, of the Rights in such jurisdiction shall not have been
obtained or be obtainable.
As provided in the Rights Agreement, the Purchase Price and the number
and kind of shares of Common Stock or other securities, which 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 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 shares of Common 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 (unless the Directors shall have made a determination
that a Person is an
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Adverse Person) be redeemed by the Company at its option at a redemption
price of $0.005 per Right at any time prior to the earlier of the close of
business on (i) the tenth day following the Stock Acquisition Date (as
defined in the Rights Agreement and as such time period may be extended
pursuant to the Rights Agreement), and (ii) the Expiration Date (as defined
in the Rights Agreement). Under certain circumstances set forth in the Rights
Agreement, the decision to redeem shall require the concurrence of a majority
of the Directors. After the expiration of the redemption period, the
Company's right of redemption may be reinstated if either (i) an Acquiring
Person reduces his beneficial ownership to less than 10% of the outstanding
shares of Common Stock in a transaction or series of transactions not
involving the Company or (ii) the Board approves the merger of the Company
with, or acquisition of the Company by, a Person unrelated to the Acquiring
Person, and such reinstatement is approved by the Company's Board of
Directors.
No fractional shares of Common Stock will be issued upon the
exercise of any Right or Rights evidenced hereby, but in lieu thereof a cash
payment will be made, as provided in the 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 Common
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.
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WITNESS the facsimile signature of the proper officer of the Company
under seal.
Dated as of __________________ 20__.
CANDELA CORPORATION
By
--------------------------------
Title:
By
--------------------------------
Title:
Countersigned:
FLEET NATIONAL BANK
By
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Authorized Signature
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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
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(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: ________________ , 20__
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Signature
Signature Guaranteed:
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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, an Adverse Person or an Affiliate or Associate of any such
Person (as such terms are defined in 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, an Adverse Person or an Affiliate or Associate of any such
Person.
Dated: ______________, 20__ __________________________________________
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.
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FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise
Rights represented by the Rights Certificate.)
To: CANDELA CORPORATION
The undersigned hereby irrevocably elects to exercise Rights
represented by this Rights Certificate to purchase the shares of Common 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 be issued in the name
of and delivered to:
Please insert social security
or other identifying number
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(Please print name and address)
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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
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(Please print name and address)
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Dated: _____________, 20__
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Signature
Signature Guaranteed:
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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, an Adverse Person or an Affiliate or Associate of any such Person (as
such terms are defined in 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, an
Adverse Person or an Affiliate or Associate of any such Person.
Dated: ________________, 20__ ___________________________________________
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.
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EXHIBIT B
SUMMARY OF RIGHTS TO PURCHASE COMMON STOCK
On September 4, 1992, the Board of Directors of Candela Corporation
(the "Company") declared a dividend distribution of one common stock purchase
right (a "Right") for each outstanding share of Common Stock of the Company
to stockholders of record at the close of business on September 22, 1992.
Each Right entitles the registered holder to initially purchase from the
Company one share of Common Stock at an initial exercise price of $48.00 per
share (the "Purchase Right"), subject to adjustment (the "Purchase Price").
The description and terms of the Rights are set forth in a Rights Agreement,
as amended from time to time (the "Rights Agreement") between the Company and
Fleet National Bank (formerly The First National Bank of Boston) as Rights
Agent.
Initially, the Rights will be attached to all Common Stock
certificates representing shares then outstanding, and no separate Rights
Certificates will be distributed. The Rights will separate from the Common
Stock and a Distribution Date will occur upon the earlier of (i) 10 days
following the date on which the Company's chief executive officer becomes
aware that a person or group of affiliated or associated persons (an
"Acquiring Person") has acquired, or obtained the right to acquire,
beneficial ownership of more than 30% of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), (ii) 10 business days following the
commencement of a tender offer or exchange offer that may result in a person
or group beneficially owning 30% or more of such outstanding shares of Common
Stock or (iii) 10 business days after the Directors of the Company shall
declare any Person to be an Adverse Person, upon a determination that such
person, alone or together with its affiliates and associates, has become the
Beneficial Owner of an amount of Common Stock which the Directors determine
to be substantial (which amount shall in no event be less than 10% of the
shares of Common Stock then outstanding) and a majority of the Directors
(with the concurrence of a majority of the Independent Directors) determines,
after reasonable inquiry and investigation, including consultation with such
persons as such directors shall deem appropriate, that (a) such beneficial
ownership by such person is intended to cause the Company to repurchase the
Common Stock beneficially owned by such person or to cause pressure on the
Company to take action or enter into a transaction or series of transactions
intended to provide such person with short-term financial gain under
circumstances where such directors determine that the best long-term
interests of the Company and its stockholders (taking into account any impact
on the national security of the United States or the impact on any
constituency which applicable law permits directors to consider in
discharging their fiduciary duty) would not be served by taking such action
or entering into such transaction or series of transactions at that time or
(b) such beneficial ownership is causing or reasonably likely to cause a
material adverse impact (including, but not limited to, impairment of
relationships with customers or impairment of the Company's ability to
maintain its competitive position) on the business or prospects of the
Company.
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)
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new Common Stock certificates issued after September 22, 1992 will contain a
notation incorporating the 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
represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on September 22, 2002 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 represent the Rights.
In the event that the Directors determine that a person is an
Adverse Person or, at any time following the Distribution Date, (i) the
Company is the surviving corporation in a merger with an Acquiring Person and
its Common Stock is not changed or exchanged, (ii) a Person becomes the
beneficial owner of more than 30% of the then outstanding shares of Common
Stock (except pursuant to an offer for all outstanding shares of Common Stock
which the Independent Directors determine to be fair to and otherwise in the
best interests of the Company and its stockholders), (iii) an Acquiring
Person engages in one or more "self-dealing" transactions as set forth in the
Rights Agreement, or (iv) during such time as there is an Acquiring Person,
an event occurs which results in such Acquiring Person's ownership interest
being increased by more than 1% (E.G., a reverse stock split), each holder of
a Right will thereafter have the right to receive, upon exercise, Common
Stock (or, in certain circumstances, cash, property or other securities of
the Company) having a value equal to two times the exercise price of the
Right. However, Rights are not exercisable following the occurrence of either
of the events set forth above until such time as the Rights are no longer
redeemable by the Company as set forth below. Notwithstanding any of the
foregoing, following the occurrence of any of the events set forth in this
paragraph, all Rights that are, or (under certain circumstances specified in
the Rights Agreement) were, beneficially owned by an Acquiring Person or an
Adverse Person will be null and void.
In the event that, at any time following the Stock Acquisition Date,
(i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation (other than
a merger described in the preceding paragraph or a merger which follows an
offer described in the preceding paragraph), or (ii) more than 50% of the
Company's assets or earning power is sold or transferred, each holder of a
Right (except Rights which 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 Purchase Price payable, and the number of shares of Common Stock
or 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 Common Stock, (ii) if holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or convertible securities at
less than the current market price of the Common Stock, or (iii) upon the
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distribution to holders of the Common Stock of evidences of indebtedness or
assets (excluding regular quarterly or other periodic 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 shares of Common Stock will be issued and, in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Stock on the last trading date prior to the date of exercise.
In general, the Company may redeem the Rights in whole, but not in
part, at any time until ten days following the Stock Acquisition Date, at a
price of $0.005 per Right (payable in cash, Common Stock or other
consideration deemed appropriate by the Board of Directors). Under certain
circumstances set forth in the Rights Agreement, the decision to redeem shall
require the concurrence of a majority of the Directors. The Company may not
redeem the Rights if the Directors have previously declared a person to be an
Adverse Person. After the redemption period has expired, the Company's right
of redemption may be reinstated if either (i) an Acquiring Person reduces its
beneficial ownership to less than 10% of the outstanding shares of Common
Stock in a transaction or a series of transactions not involving the Company
or (ii) the Board of Directors approves the merger of the Company with, or
acquisition of the Company by, a Person unrelated to the Acquiring Person.
Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the $0.005 per Right 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 be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that
the Rights become exercisable for Common Stock (or other consideration) of
the Company or for common stock of the acquiring company as set forth above.
Other than those provisions relating to the principal economic terms
of the Rights, any of the provisions of the Rights Agreement may be amended
by the Board of Directors of the Company prior to the earlier to occur of the
determination that a person is an Adverse Person or the Distribution Date.
After the earlier of such events, the provisions of the Rights Agreement may
be amended by the Board in order to cure any ambiguity, to correct or
supplement any provision which may be defective or inconsistent with other
provisions, to make changes which do not adversely affect the interests of
holders of Rights (excluding the interests of any Acquiring Person or any
Adverse Person), or to shorten or lengthen any time period under the Rights
Agreement; provided, however, that no amendment to adjust the time period
governing redemption shall be made at such time as the Rights are not
redeemable.
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-K dated
September 4,
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1992. 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, which is incorporated herein by reference.
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