AMENDMENT NO. 4
TO
RIGHTS AGREEMENT
Amendment No. 4, dated as of July 2, 2001 (the "Amendment"), to the Rights
Agreement, dated as of October 19, 1990 and amended as of June 28, 1995,
February 22, 1999, and December 7, 1999 (as amended to date, the "Rights
Agreement"), by and among Apogee Enterprises, Inc., a Minnesota corporation (the
"Company") and The Bank of New York, as Rights Agent (the "Rights Agent").
WITNESSETH:
WHEREAS, the Company and American Stock Transfer & Trust Company (f/k/a
American Stock Transfer Company)("AST") previously entered into the Rights
Agreement, pursuant to which AST was appointed to serve as the Rights Agent; and
WHEREAS, pursuant to Section 21 of the Rights Agreement, the Company has
notified AST of its removal as Rights Agent, and the Company has appointed The
Bank of New York as successor Rights Agent under the Rights Agreement, in both
cases effective as of July 2, 2001; and
WHEREAS, in connection with the removal of AST as Rights Agent and the
appointment of The Bank of New York as successor Rights Agent, the Company and
the Rights Agent desire to amend the Rights Agreement in certain respects, in
accordance with Section 27 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 of the Rights Agreement. Effective as of the date of
---------------------------------
appointment of The Bank of New York as successor Rights Agent, the Rights
Agreement shall be amended as follows:
(a) All references in the Rights Agreement to "American Stock
Transfer Company" or "American Stock Transfer & Trust Company" as Rights Agent
shall be replaced with and shall for all purposes be deemed to refer to "The
Bank of New York," as Rights Agent.
(b) The legend set forth in Section 3(c) of the Rights Agreement
is hereby amended to read in its entirety as follows:
"This certificate also evidences and entitles the holder hereof
to certain rights as set forth in a Rights Agreement between
Apogee Enterprises, Inc. and The Bank of New York, dated as of
October 19, 1990, as amended to date (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive offices
of Apogee Enterprises, Inc. Under certain circumstances, as set
forth in the Rights Agreement, such Rights will be evidenced by
separate certificates and will no longer be evidenced by this
certificate. Apogee Enterprises, Inc. will mail to the holder of
this certificate a copy of the Rights Agreement without charge
after receipt of a written request therefor. Under certain
circumstances, as set forth in the Rights
Agreement, Rights issued to any Person who becomes an Acquiring
Person or an Associate or Affiliate thereof (as defined in the
Rights Agreement), or certain transferees of such Person, may
become null and void."
(c) Section 8 of the Rights Agreement is amended by deleting the
last sentence thereof and substituting therefor the following sentence: "The
Rights Agent shall deliver all cancelled Right Certificates to the Company, or,
at the written request of the Company, may (but shall not be required to)
destroy such cancelled Right Certificates, and, if such cancelled Right
Certificates are destroyed, shall deliver to the Company a certificate of
destruction thereof.
(d) Section 18 of the Rights Agreement is amended by adding the
following sentence at the end of the first paragraph thereof: "The Company's
reimbursement and indemnification obligations described in this paragraph shall
survive the termination of this Agreement."
(e) Section 21 of the Rights Agreement is amended by deleting
the words "and to the holders of the Right Certificates by first-class mail" in
the last clause of each of the first and second sentences of that section and is
further amended by inserting the words "the Rights Agent or" before the words
"the registered holder of any Right Certificate" in the last clause of the
fourth sentence of that section.
(f) The address of the Rights Agent set forth in Section 26 is
hereby amended to read in its entirety as follows:
"The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Stock Transfer Administration"
(g) Section 31 of the Rights Agreement is amended by adding the
following words at the end thereof: "; provided however, that the rights and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York."
(h) 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 2. 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 3. 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 4. 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.
2
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 dates set forth below.
APOGEE ENTERPRISES, INC.
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Chief Executive Officer and President
Dated: July 13, 2001
Attest:
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Secretary and General Counsel
Dated: July 13, 0000
XXX XXXX XX XXX XXXX
By: /s/ Xxxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
Dated: July 17, 2001
Attest:
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
Dated: July 17, 2001
3
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, as
of February 22, 1999, as of December 7, 1999 and as of July 2, 2001 (as amended,
the "Rights Agreement"), between Apogee Enterprises, Inc., a Minnesota
corporation (the "Company"), and The Bank of New York (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, Amendment No. 2, dated as of February 22, 1999,
Amendment No. 3, dated as of December 7, 1999, and Amendment No. 4, effective as
of July 2, 2001, between the Company and The Bank of New York, 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); and
(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,
-1-
(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
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.
-2-
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 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
-3-
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. 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.
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 Xx. 0,
Xxxxxxxxx Xx. 0, Xxxxxxxxx Xx. 0 and Amendment No. 4 to the Rights Agreement,
respectively, has been filed with the SEC as an Exhibit to four Forms 8-A/A
amending the 1990 Form 8-A, the first of which is dated July 26, 1995, the
second of which is dated February 22, 1999, the third of which is dated December
7, 1999, and the fourth of which is dated July 17, 2001. A copy of the Rights
Agreement and each of Amendments Xx. 0, Xx. 0, Xx. 0 and No. 4 thereto are
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.
-4-
