Exhibit 99.1
AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
Amendment No. 2, dated as of February 22, 1999 (the "Amendment"), to
the Rights Agreement, dated as of October 19, 1990 and amended as of June 28,
1995, (as amended to date, the "Rights Agreement"), between Apogee Enterprises,
Inc., a Minnesota corporation (the "Company"), and American Stock Transfer &
Trust Company (f/k/a American Stock Transfer Company), a New York corporation
(the "Rights Agent").
WITNESSETH:
WHEREAS, the Company and the Rights Agent entered into the Rights
Agreement; and
WHEREAS, on October 9, 1998, the Board of Directors of the Company, in
accordance with Section 27 of the Rights Agreement, determined it desirable and
in the best interests of the Company and its shareholders to supplement and
amend certain provisions of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties hereby agree as follows:
Section 1. Amendment to Section 1. The following definitions
appearing in Section 1 of the Rights Agreement are hereby amended to read in
their entirety as follows:
"(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and
Associates (as such terms are hereinafter defined) of such Person, shall be
the Beneficial Owner (as such term is hereinafter defined) of 10% or more
of the Common Shares (as such term is hereinafter defined) of the Company
then outstanding, but shall not include (i) the Company, (ii) any
Subsidiary (as such term is hereinafter defined) of the Company, (iii) any
employee benefit plan of the Company or any Subsidiary of the Company, or
(iv) any entity holding Common Shares for or pursuant to the terms of any
such plan. Notwithstanding the foregoing:
(x) no Person shall become an Acquiring Person as the result of
an acquisition of Common Shares by the Company which, by reducing
the number of shares outstanding, increases the proportionate
number of shares beneficially owned by such Person to 10% or more
of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of
10% or more of the Common Shares of the Company then outstanding
by reason of share purchases by the Company and shall, after such
share purchases by the
Company, become the Beneficial Owner of any additional Common
Shares of the Company, then such Person shall be deemed to be an
Acquiring Person; and
(y) if a majority of the Continuing Directors of the Company
determines in good faith that a Person who would otherwise be an
Acquiring Person has become such inadvertently (including,
without limitation, because (i) such Person was unaware that he
or it was the Beneficial Owner of a percentage of Common Shares
that would otherwise cause such person to be an Acquiring Person
or (ii) such Person was aware of the extent to which he or its is
the Beneficial Owner of Common Shares but had no actual knowledge
of the consequences of being such a Beneficial Owner under this
Agreement) and without any intention of changing or influencing
control of the Company, and if such Person, after being advised
of such determination and within a period of time set by a
majority of the Continuing Directors, divest himself or itself of
a sufficient number of Common Shares so that such Person would no
longer be an Acquiring Person, then such Person shall not be
deemed to be or to have become and Acquiring Person for any
purposes of this Agreement; and during any period of time (1)
prior to the time the Continuing Directors shall have become
aware that such Person had become an Acquiring Person (but for
the provisions of this subsection (y)); (2) during which the
Continuing Directors are making the determination called for
under this subsection (y), and (3) during which such Person is
divesting himself or itself of a sufficient number of Common
Shares so that such Person would no longer be an Acquiring
Person, such Person shall not be deemed to be or to have become
an Acquiring Person for any purpose under this Agreement."
"(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as in effect on the date of this Agreement.
Notwithstanding anything in this definition of Affiliate or Associate
to the contrary, no trustee or other person holding Common Shares for
or pursuant to the terms of any employee benefit plan shall be deemed
an Affiliate or Associate of any employee benefit plan, respectively,
because of the trustee's, beneficiary's or other Person's position,
capacity, power or action as a trustee, beneficiary of the holder of
Common Shares for or pursuant to the terms of any employee benefit
plan of the Company or of any subsidiary of the Company, and no such
employee benefit plan shall be deemed an Affiliate or Associate of
such trustee, beneficiary or other Person (or of any Affiliate or
Associate of such trustee or other Person) because of such trustee's,
beneficiary's
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or other Person's capacity, power or action as a trustee, beneficiary
or holder of Common Shares for or pursuant to the terms of such
employee benefit plan."
"(c) [Deleted Intentionally.]"
"(d) [Deleted Intentionally.]"
"(e) [Deleted Intentionally.]"
"(f) [Deleted Intentionally.]"
"(l) [Deleted Intentionally.]"
Section 2. Amendment to Section 1(g). The last two paragraphs of
Section 1(g) of the Rights Agreement are hereby deleted in their entirety.
Section 3. Amendment to Section 3(c). The first sentence of the
legend set forth in Section 3(c) is hereby amended by inserting after the words,
"October 19, 1990," the words, "and amended as of June 28, 1995 and February 22,
1999."
Section 4. Amendments to Section 7 . Section 7(a) of the Rights
Agreement is hereby amended to delete the words, "October 19, 2000" in clause
(i) thereof and replace such words with "October 9, 2008." Section 7(b) of the
Rights Agreement is hereby amended to delete the phrase, "shall initially be
$70.00 (Seventy Dollars)" with the phrase, "shall be $50.00 (Fifty Dollars)."
Section 5. Amendment to Section 23. The first sentence of Section
23(a) of the Rights Agreement is hereby amended to read in its entirety as
follows:
"Subject to the provisions of Section 27, the Board of Directors of
the Company may, at its option, at any time prior to the earlier of
(i) the Close of Business on the twentieth day after the Share
Acquisition Date (or, if the twentieth day following such Share
Acquisition Date occurs before the record Date, the Close of Business
on the Record Date) or (ii) the final Expiration Date, redeem all but
not less than all of the then outstanding Rights at a redemption price
of $.01 per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof
(such redemption price being hereinafter referred to as the
"Redemption Price"); provided, however, the Board of Directors of the
Company shall not be entitled to so redeem the Rights for a period of
90 days after the time at which any person first becomes an Acquiring
Person if a majority of the members of the Board of Directors then
serving are not Continuing Directors."
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Section 6. Amendment to Form of Right Certificate. The first page of
the Form of Right Certificate to purchase Preferred Shares set forth in Exhibit
B attached to the Rights Agreement is hereby amended to read in its entirety as
set forth in the attachment hereto.
Section 7. Amendment to Summary of Rights. The form of Summary of
Rights to purchase Preferred Shares set forth in Exhibit C attached to the
Rights Agreement is hereby amended to read in its entirety as set forth in the
attachment hereto.
Section 8. Rights Agreement as Amended. The term "Agreement" as used
in the Rights Agreement shall be deemed to refer to the Rights Agreement as
amended hereby. This Amendment 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 be otherwise unaffected hereby.
Section 9. Counterparts. This Amendment may be executed in any
number of counterparts and 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.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
APOGEE ENTERPRISES, INC.
Attest:
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------------ ----------------------------
Title: Secretary and General Counsel Title: Chief Executive
Officer and President
AMERICAN STOCK TRANSFER & TRUST
COMPANY F/K/A AMERICAN STOCK
TRANSFER COMPANY
Attest:
By: /s/ Xxxxxxxxx X. Xxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------------ ----------------------------
Title: Vice President Title: Vice President
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Exhibit B
FORM OF RIGHT CERTIFICATE
Certificate No. R- _______________ Rights
NOT EXERCISABLE AFTER OCTOBER 9, 2008 OR EARLIER IF REDEMPTION OR EXCHANGE
OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01 PER RIGHT (SUBJECT TO
ADJUSTMENT) AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS
BENEFICIALLY OWNED BY A PERSON WHO IS, WAS OR BECOMES AN ACQUIRING PERSON OR AN
AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH TERMS ARE DEFINED IN THE
RIGHTS AGREEMENT) AND SUBSEQUENT HOLDERS OF SUCH RIGHTS MAY BECOME NULL AND
VOID.
RIGHT CERTIFICATE
APOGEE ENTERPRISES, 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 Rights Agreement, dated as of October 19, 1990, and as amended
as of June 28, 1995 and as of February 22, 1999 (as amended, the "Rights
Agreement"), between Apogee Enterprises, Inc., a Minnesota corporation (the
"Company"), and American Stock Transfer & Trust Company (f/k/a American Stock
Transfer Company), a New York corporation (the "Rights Agent"), to purchase from
the Company at any time after the Distribution Date (as such term is defined in
the Rights Agreement) and prior to 5:00 P.M., Minneapolis, Minnesota time, on
October 9, 2008, at the office or offices of the Rights Agent designated for
such purpose, or of its successor as Rights Agent, one one-hundredth of a fully
paid nonassessable share of Series A Junior Participating Preferred Stock, par
value $1.00 per share (the "Preferred Shares"), of the Company, at a purchase
price of $50.00 (the "Purchase Price"), upon presentation and surrender of this
right Certificate with the form of Election to Purchase duly executed. The
number of Rights evidenced by this Right Certificate (and the number of one one-
hundredths of a Preferred Share which may be purchased upon exercise hereof) set
forth above, and the Purchase Price set forth above, are the number and Purchase
Price as of October 9, 1998, based on the Preferred Shares as constituted at
such date. As provided in the Rights Agreement, the Purchase Price and the
number of one one-hundredths of a Preferred Share which may be purchased upon
the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.
Exhibit C
APOGEE ENTERPRISES, INC.
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On October 19, 1990, the Board of Directors of Apogee Enterprises, Inc.
(the "Company"), declared a dividend of one preferred share purchase right (a
"Right") per share for each outstanding share of Common Stock, par value $33 1/3
(the "Common Shares"), of the Company. The dividend was payable on November 6,
1990 (the "Record Date") to shareholders of record on that date.
Each Right entitles the registered holder to purchase from the Company one
one-hundredth of a share of Series A Junior Participating Preferred Stock, par
value $1.00 (the "Preferred Shares"), of the Company at a price of $50.00 per
one-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement"), dated as of October 19, 1990, as amended by
Amendment No. 1, dated as of June 28,1995, and Amendment No. 2, dated as of
February 22, 1999, between the Company and American Stock Transfer & Trust
Company (formerly known as American Stock Transfer Company), as Rights Agent
(the "Rights Agent").
Initially, the Rights will attach to all certificates representing Common
Shares then outstanding and no separate Right Certificates will be distributed.
The Rights will separate from the Common Shares, and a Distribution Date for the
Rights will occur upon the earlier of:
(i) the close of business on the twentieth day following a public
announcement that a person or group of affiliated or associated persons has
become an "Acquiring Person" (i.e., has become, subject to certain
exceptions, the beneficial owner of 10% or more of the outstanding Common
Shares);
(ii) the close of business on the twentieth day following the
commencement or public announcement of a tender offer or exchange offer,
the consummation of which would result in a person or group of affiliated
or associated persons becoming, subject to certain exceptions, the
beneficial owner of 10% or more of the outstanding Common Shares (or such
later date as may be determined by the Board of Directors of the Company
prior to a person or group of affiliated or associated persons becoming an
Acquiring Person).
A Person will not be an Acquiring Person if the Continuing Directors of the
company determine that such Person became an Acquiring Person inadvertently and
such Person divests itself, within a reasonable period of time as determined by
the Continuing Directors, of a sufficient number of Common Shares so that such
Person is no longer an Acquiring Person.
Until the Distribution Date,
(i) the Rights will be evidenced by the Common Share certificates and
will be transferred with and only with the Common Shares,
(ii) new Common Share certificates issued after the Record Date upon
transfer or new issuance of the Common Shares will contain a notation
incorporating the Rights Agreement by reference, and
(iii) the surrender for transfer of any Common Share certificate,
even without such notation or a copy of this Summary of Rights attached
thereto, will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate.
As promptly as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates") will be mailed to
holders of record of the Common Shares as of the close of business on the
Distribution Date, and such separate Right Certificates alone will evidence the
Rights.
The Rights are not exercisable until the Distribution Date. The Rights
will expire on October 9, 2008, unless extended or earlier redeemed or exchanged
by the Company as described below.
The Purchase Price payable, and the number of Preferred Shares 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 Preferred Shares,
(ii) upon the grant to holders of the Preferred Shares of certain
rights, options or warrants to subscribe for or purchase Preferred Shares
or convertible securities at less than the then current market price of the
Preferred Shares, or
(iii) upon the distribution to holders of the Preferred Shares of
evidences of indebtedness or assets (excluding regular periodic cash
dividends or dividends payable in Preferred Shares) or of subscription
rights or warrants (other than those described in clause (ii) of this
paragraph).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
the Purchase Price. No fraction of a Preferred Share will be issued (other than
fractional shares which are integral multiples of one one-hundredth of a
Preferred Share, which may, at the election of the Company, be evidenced by
depositary receipts) if in lieu thereof, a payment in cash is made based on the
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closing price (prorated for the fraction) of the Preferred Shares on the last
trading date prior to the date of exercise.
The number of outstanding Rights and the number of one one-hundredths of a
Preferred Share issuable upon exercise of each Right are also subject to
adjustment in the event of a stock split of the Common Shares or a stock
dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Preferred Shares purchasable upon exercise of the Rights will not be
redeemable. Each Preferred Share will be entitled to a minimum preferential
quarterly dividend payment of $1.00 per share but will be entitled to an
aggregate dividend of 100 times the dividend declared per Common Share. In the
event of liquidation, the holders of the Preferred Shares will be entitled to a
minimum preferential liquidation payment of $100 per share but will be entitled
to an aggregate payment of 100 times the payment made per Common Share. Each
Preferred Share will have 100 votes, voting together with the Common Shares.
Finally, in the event of any merger, consolidation or other transaction in which
Common Shares are exchanged, each Preferred Share will be entitled to receive
100 times the amount received per Common Share. These rights are protected by
customary antidilution provisions.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of the one one-hundredth interest in a Preferred Share
purchasable upon exercise of each Right should approximate the value of one
Common Share.
In the event that:
(i) any person or group of affiliated or associated persons becomes an
Acquiring Person (unless such person first becomes an Acquiring Person
pursuant to a tender offer or an exchange offer for all outstanding Common
Shares at a price and on terms determined by the Board of Directors of the
Company (prior to any change in control of the Board of Directors) to be
fair to shareholders and otherwise in the best interests of the Company and
its shareholders and which the Board of Directors recommends to the
shareholders) or
(ii) during such time as there is an Acquiring Person, there shall be
a reclassification of securities or a recapitalization or reorganization of
the Company or other transaction or series of transactions involving the
Company or a subsidiary of the Company which has the effect of increasing
by more than 1% the proportionate share of the outstanding shares of any
class of equity securities of the Company or any of its subsidiaries
beneficially owned by an Acquiring Person, proper provision shall be made
so that each holder of a Right, other than Rights beneficially owned by the
Acquiring Person and certain transferees thereof (which will thereafter be
void), will thereafter have the right, exercisable following the expiration
of the Company's right to redeem the
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Rights, to receive upon exercise thereof at the then current exercise price
of the Right that number of Common Shares having a market value of two
times the exercise price of the Right, subject to certain possible
adjustments.
In the event that the Company is acquired in certain mergers or other
business combination transactions (other than a transaction for at least the
same per-share consideration with a person who acquired Common Shares through a
tender offer or exchange offer for all outstanding Common Shares approved by the
Board of Directors of the Company in accordance with the preceding paragraph or
any wholly owned subsidiary of such person) or 50% or more of the assets or
earning power of the Company and its subsidiaries (taken as a whole) are sold
after the Distribution Date or within twenty days prior thereto, each holder of
a Right (other than Rights which have become void under the terms of the Rights
Agreement) will thereafter have the right to receive, upon exercise thereof at
the then current exercise price of the Right, that number of Common Shares of
the acquiring company (or, in certain cases, one of its affiliates) having a
market value of two times the exercise price of the Right.
In certain events specified in the Rights Agreement, the Company is
permitted to temporarily suspend the exercisability of the Rights.
At any time after a person or group of affiliated or associated persons
becomes an Acquiring Person (subject to certain exceptions), and prior to the
acquisition by a person or group of affiliated or associated persons of 50% or
more of the outstanding Common Shares, the Board of Directors of the Company may
(if there has been no change in control of the Board of Directors) exchange all
or part of the Rights (other than Rights which have become void under the terms
of the Rights Agreement) for Common Shares at an exchange ratio per Right equal
to the result obtained by dividing the exercise price of a Right by the current
per share market price of the Common Shares, subject to adjustment.
At any time prior to the close of business on the twentieth day after a
public announcement that a person or group of affiliated or associated persons
has become an Acquiring Person, the Board of Directors of the Company may redeem
the Rights in whole, but not in part, at a price of $.01 per Right, subject to
adjustment (the "Redemption Price"), payable in cash, Common Shares or any other
form of consideration deemed appropriate by the Board of Directors; provided,
however, that such redemption may not occur for the ninety-day period after any
person becomes an Acquiring Person if there has been a change in control of the
Board of Directors of the Company. The period of time during which the Rights
may be redeemed may be extended if no such change of control has occurred or if
no person has become an Acquiring Person. The redemption of the Rights may be
made effective at such time, on such basis and with such conditions as the Board
of Directors in its sole discretion may establish. The Board of Directors and
the Company shall not have any liability to any person as a result of the
redemption or exchange of the Rights pursuant to any provisions of the Rights
Agreement.
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Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including without limitation, the right
to vote or to receive dividends. In addition, the Company will have no
liability to holders of Rights or of the Common Shares for any failure to comply
with the Rights Agreement during any period the Continuing Directors are unaware
of the existence of the Acquiring Person.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission ("SEC") as an Exhibit to a Registration Statement on Form 8-
A dated October 26, 1990 (the "1990 Form 8-A"). A copy of each of Amendment No.
1 and Amendment No. 2 to the Rights Agreement has been filed with the SEC as an
Exhibit to two Forms 8-A/A amending the 1990 Form 8-A, one of which is dated
July 25, 1995, and the other of which is dated February 22, 1999. A copy of the
Rights Agreement and each of Amendment No. 1 and No. 2 thereto is available free
of charge from the Company by contacting the Secretary of Apogee Enterprises,
Inc., 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. 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 hereby incorporated
herein by reference.
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