Exhibit 4.7
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2, dated as of May 9, 2006, to the Rights Agreement,
dated as of October 25, 2000 (the "Rights Agreement"), between Compuware
Corporation, a Michigan corporation (the "Company"), and Equiserve Trust
Company, N.A., a National Banking Association, now known as Computershare Trust
Company N.A., (the "Rights Agent").
WHEREAS, the Company and the Rights Agent have entered into the Rights
Agreement specifying the terms of the Rights (as defined therein);
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement in accordance with Section 28 of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth in the Rights Agreement and this Amendment, the parties hereby agree as
follows:
1. The definition of "Acquiring Person" is amended and restated in its
entirety as follows:
"Acquiring Person" shall mean any Person who or which, together with
all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 20% or more of the Voting Shares of the Company then
outstanding (other than as a result of a Permitted Offer) or was such
a Beneficial Owner at any time after the date of this Agreement,
regardless of whether such person continues to be the Beneficial Owner
of 20% or more of the then outstanding Voting Shares, but shall not
include the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the Company or any
trustee of or fiduciary with respect to any such plan when acting in
such capacity. Notwithstanding the foregoing, no Person shall become
an "Acquiring Person" if such Person, together with all Affiliates and
Associates of such person, becomes the Beneficial Owner of 20% or more
of the then outstanding Voting Shares as a result of the acquisition
of Common Shares that the Board of Directors has specifically
permitted, authorized or approved in advance, provided, however, that
if after such permitted acquisition, such Person, together with all
Affiliates and Associates of such Person, acquires additional Common
Shares not so specifically permitted, authorized or approved in
advance by the Board of Directors which, together with all Common
Shares beneficially owned by the Person, together with all Affiliates
or Associates of such Person, totals 20% or more of the Common Shares
then outstanding, then such Person
shall be deemed to be an Acquiring Person. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result
of an acquisition of Voting Shares by the Company which, by reducing
the number of shares outstanding, increases the proportionate number
of shares beneficially owned by such Person to 20% or more of the
Voting Shares of the Company then outstanding; provided, however,
that, if a Person shall become the Beneficial Owner of 20% or more of
the Voting Shares of the Company then outstanding by reason of share
purchases by the Company and shall, after such share purchases by the
Company and at a time when such Person is the Beneficial Owner of 20%
or more of the Voting Shares of the Company then outstanding, become
the Beneficial Owner of any additional Voting Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person".
Notwithstanding the foregoing, if the Board of Directors of the
Company determines in good faith that a Person who would otherwise be
an "Acquiring Person", as defined pursuant to the foregoing provisions
of this paragraph (a), has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of Common
Shares so that such Person would no longer be an "Acquiring Person,"
as defined pursuant to the foregoing provisions of this paragraph (a),
then such Person shall not be deemed to be an "Acquiring Person" for
any purposes of this Agreement unless and until such Person
subsequently meets the definition of an Acquiring Person.
2. The definition of "Final Expiration Date" is amended and restated in
its entirety as follows:
"Final Expiration Date" shall mean the Close of Business on May 9,
2009.
3. The definition of "Qualified Offer" is hereby added to read as
follows:
"Qualified Offer" shall mean a tender offer for all outstanding Common
Shares of the Company which meets all of the following requirements on
the date on which the offer is commenced (for purposes of this
definition, the "date on which the offer is commenced" shall be
determined within the meaning of Rule 14d-2(a) of the General Rules
and Regulations under the Exchange Act) and immediately prior to the
consummation of the offer.
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(i) the same per share price is offered for all Common Shares in the
offer, provided that such per share price (A) is greater than the
highest Closing Price for the Common Shares during the 365 calendar
day period immediately preceding the date on which the offer is
commenced, and (B) represents a reasonable premium above the average
of the Closing Prices for the five trading days immediately preceding
the date on which the offer is commenced (for purposes of this
definition, the "date on which the offer is commenced" shall be
determined within the meaning of Rule 14d-2(a) of the General Rules
and Regulations under the Exchange Act);
(ii) the consideration is at least 70 percent cash (and any non-cash
portion is comprised of shares of common stock of the offering Person
that are listed on the New York Stock Exchange or the Nasdaq National
Market, such consideration to be adjusted to reflect any decrease in
the value of such shares prior to the consummation of the offer) and
is to be paid upon consummation of the offer for all Common Shares
tendered or exchanged in the offer;
(iii) in the case of an offer that includes shares of common stock of
the offering Person, (A) the value of such shares for purposes of this
definition shall be the lower of (1) the average of the last sale
prices (regular way) of such shares reported in the principal
consolidated transaction reporting system with respect to such shares
for the five trading days immediately preceding the date of any
determination, and (2) the lowest reported market price for common
stock of the offering Person during the five trading days immediately
preceding the date on which the offer is commenced, (B) the offering
Person is a publicly owned United States corporation and its common
stock is listed or admitted to trading on either the New York Stock
Exchange or the Nasdaq National Market, (C) no stockholder approval of
the offering Person is required to issue such common stock, or, if
required, has already been obtained, (D) no other class of voting
stock of the offering Person is outstanding, and (E) the offering
Person shall permit a nationally recognized investment banking firm
retained by the Board of Directors of the Company and legal counsel
designated by the Company to have access to such offering Person's
books, records, management, accountants and other appropriate outside
advisers for the purposes of permitting such investment banking firm
and such legal counsel to conduct a due diligence review of the
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offering Person in order to permit such investment banking firm
(relying as appropriate on the advice of such legal counsel) to be
able to render an opinion to the Board of Directors of the Company
with respect to whether the consideration being offered to the
Company's shareholders is fair;
(iv) on or prior to the date on which the offer is commenced, such
offering Person:
(A) has on hand cash or cash equivalents for the full amount
necessary to consummate such offer and has irrevocably committed
in writing to the Company to utilize such cash or cash
equivalents for purposes of such offer if consummated and to set
apart and maintain available such cash or cash equivalents for
such purposes until the offer is consummated or withdrawn; or
(B) has all financing in the full amount necessary to consummate
such offer and has: (1) entered into, and provided to the Company
certified copies of, definitive financing agreements (including
exhibits and related documents) for funds for such offer which,
when added to the amount of cash and cash equivalents available,
committed in writing, set apart and maintained in the same manner
as described in clause (A) above, are in an amount not less than
the full amount necessary to consummate such offer, which
agreements are with one or more responsible financial
institutions or other entities having the necessary financial
capacity and ability to provide such funds, constitute firm,
unqualified commitments to provide the funding described above
without market or company maximum limitations, and are subject
only to customary terms and conditions (which shall in no event
include conditions requiring access by such financial
institutions to non-public information to be provided by the
Company, conditions based on the accuracy of any information
concerning the Company, or conditions requiring the Company to
make any representations, warranties or covenants in connection
with such financing), and (2) provided to the Company copies of
all written materials prepared by such Person for such financial
institutions in connection with entering into such
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financing agreements; provided that, "the full amount necessary
to consummate such offer" in either clause (A) or (B) above shall
be an amount sufficient to pay for all Common Shares outstanding
on a fully diluted basis the consideration pursuant to the offer
and the second-step transaction required by clause (viii) below
and all related expenses;
(v) such offer is conditioned on receiving a minimum of at least 90%
of the outstanding Common Shares (other than those owned by the
offering Person) being tendered and not withdrawn as of the offer's
expiration date, which condition shall not be waivable;
(vi) prior to or on the date that such offer is commenced, the Company
shall have received an irrevocable written commitment of the offering
Person that the offer will remain open for at least 60 Business Days
and, if a Special Meeting is duly requested in accordance with Section
24(c), for at least 10 Business Days after the date of the Special
Meeting or, if no Special Meeting is held within 90 Business Days
following receipt of the Special Meeting Notice in accordance with
Section 24(c), for at least 10 Business Days following such 90
Business Day period;
provided, however, that (x) if there is any increase in the price of
such offer, such offer must remain open for at least an additional 15
Business Days after the last such increase, (y) such offer must remain
open for at least 15 Business Days after the date that any bona fide
alternative offer is made which, in the opinion of one or more
investment banking firms designated by the Company, provides for
consideration per share in excess of that provided for in such offer,
and (z) such offer must remain open for at least 15 Business Days
after the date, if any, on which such offering Person reduces the per
share price offered in accordance with clause (viii)(B) below
(provided, in the case of each of clauses (x), (y) and (z) above, in
no event will such offer have been outstanding for less than 60
Business Days);
provided further, however, that such offer need not remain open, as a
result of this clause (vi), beyond (1) the time which any other offer
satisfying the criteria for a Qualified Offer is then required to be
kept open under this clause (vi), or (2) the scheduled expiration
date, as such date may be extended by public announcement on or prior
to the then
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scheduled expiration date, of any other tender offer for Common Shares
with respect to which the Board of Directors has agreed to redeem the
Rights immediately prior to acceptance for payment of Common Shares
thereunder (unless such other offer is terminated prior to its
expiration without any Common Shares having been purchased
thereunder);
(vii) such offer is accompanied by a written opinion, in customary
form, of a nationally recognized investment banking firm which is
addressed to the Company and the holders of Common Shares other than
such offering Person and states that the price to be paid to holders
pursuant to the offer is fair from a financial point of view to such
holders and includes any written presentation of such firm showing the
analysis and range of values underlying such conclusions and such
written opinion and any such presentation is updated and provided to
the Company within two Business Days prior to the date such offer is
consummated;
(viii) prior to or on the date that such offer is commenced, such
offering Person makes an irrevocable written commitment to the Company
and, with respect to clause (A) to the Company's shareholders,
(A) to consummate a transaction or transactions promptly upon the
completion of such offer (and in no event later than five
Business Days thereafter), whereby all Common Shares not
purchased in such offer will be acquired at the same cash price
per share paid in such offer,
(B) that the offering Person will not make any amendments to the
offer to reduce the offer consideration, or otherwise change the
terms of the offer in a way that is adverse to a tendering
shareholder (other than a reduction to reflect any dividend
declared by the Company, other than a regular quarterly dividend,
after the commencement of such offer or any material change in
the capital structure of the Company initiated by the Company
after the commencement of such offer, whether by way of
reclassification, recapitalization, reorganization, repurchase or
otherwise), and
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(C) if the offer is not consummated, that neither such offering
Person nor any of its Affiliates or Associates will make any
offer for or purchase any equity securities of the Company for a
period of one year after the commencement of the original offer
if such original offer does not result in the tender of at least
85% of the outstanding Common Shares not owned by such offering
Person (including its Affiliates and Associates), unless another
tender offer by another party for all outstanding Common Shares
is commenced that (a) constitutes a Qualified Offer (in which
event, any new offer by such offering Person or of any Affiliates
or Associates must be at a price no less than that provided for
in such original offer) or (b) is approved by the Board of
Directors of the Company (in which event, any new offer by such
offering Person or of any of its Affiliates or Associates must be
at a price no less than that provided for in such approved
offer); and
(ix) the offer is subject only to the conditions required in this
definition and other customary terms and conditions, and is not
subject to any financing, funding or similar condition, nor any
condition relating to completion of or satisfaction with any due
diligence or similar investigation.
4. Section 24 is amended by amending and restating paragraph (a) as set
forth below, adding new paragraph (c) as set forth below, by
redesignating paragraph (c) as paragraph (d) and amending and
restating such paragraph as set forth below, and by redesignating
paragraph (d) as paragraph (e):
(a) The Rights may be redeemed pursuant to this Section 24, but shall
not be redeemed in any other manner.
*****
(c) (i) In the event the Company, not earlier than 60 Business Days
nor later than 80 Business Days following the commencement of a
Qualifying Offer within the meaning of Rule 14(d)-2(a) under the
Exchange Act, which has not been terminated prior thereto and which
continues to be a Qualified Offer, receives a written notice complying
with the terms of this Section 24(c) (the "Special Meeting Notice")
that is properly executed by the holders of record (or their duly
authorized proxy) of not less than 10% of the Common Shares then
outstanding directing the Board of
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Directors of the Company to submit to a vote of shareholders at a
special meeting of the shareholders of the Company (a "Special
Meeting") a resolution authorizing the redemption of all, but not less
than all, of the then outstanding Rights at the Redemption Price (the
"Shareholder Resolution"), then the Board of Directors of the Company
shall take such actions as are necessary or desirable to cause the
Shareholder Resolution to be so submitted to a vote of shareholders,
by including a proposal relating to adoption of the Shareholder
Resolution in the proxy materials of the Company for the Special
Meeting. The Board of Directors shall set a date for determining the
shareholders of record entitled to notice of and to vote at the
Special Meeting in accordance with the Company's articles of
incorporation, bylaws and applicable law.
(ii) Any Special Meeting Notice must be delivered to the Secretary of
the Company at the principal executive offices of the Company and must
set forth as to the shareholders of record executing the request (x)
the name and address of such shareholders, as they appear on the
Company's books and records, (y) the number of Common Shares which are
owned of record by each of such shareholders, and (z) in the case of
Common Shares that are owned beneficially by another Person, an
executed certification by the holder of record that such holder has
executed such Special Meeting Notice only after obtaining instructions
to do so from such beneficial owner.
(iii) Subject to the requirements of applicable law, the Board of
Directors of the Company may take a position in favor of or opposed to
the adoption of the Shareholder Resolution, or no position with
respect to the Shareholder Resolution, as it determines to be
appropriate in the exercise of its duties. At the offering Person's
request, the Company shall include in any proxy soliciting material
prepared by it in connection with the Special Meeting proxy soliciting
material submitted by the offering Person; provided, however, that the
offering Person, by written agreement with the Company contained in or
delivered with such request, shall have indemnified the Company
against any and all liabilities resulting from any statements found to
be defamatory, misstatements, misleading statements or omissions
contained in or omitted from the offering Person's proxy soliciting
materials and have agreed to pay the Company's incremental costs
incurred as a result of including such material in the Company's proxy
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soliciting material. Notwithstanding anything to the contrary
contained this Agreement, if the Board of Directors determines that it
is in the best interests of shareholders to seek an alternative
transaction so as to obtain greater value for shareholders than that
provided by any Qualified Offer, the Company shall be entitled to
include information relating to such alternative transaction in the
proxy soliciting material prepared by it in connection with the
Special Meeting.
(iv) In the event that no Person has become an Acquiring Person prior
to the redemption date referred to in this Section 24(c), and the
Qualified Offer continues to be a Qualified Offer and either (i) the
Special Meeting is not held on or prior to the 90th Business Day
following receipt of the Special Meeting Notice (the "Outside Date"),
or (ii) if, at the Special Meeting, a majority of the Common Shares
voted on the Shareholder Resolution at the Special Meeting (or such
higher vote requirement as may be required by the Company's articles
of incorporation) shall vote in favor of the Shareholder Resolution
(and the results of the vote are certified as official by the
appointed inspectors of election for the Special Meeting), then (x)
all of the Rights shall be deemed redeemed by such failure to hold the
Special Meeting or as a result of such shareholder action, as the case
may be, at the Redemption Price, or (y) the Board of Directors shall
take such other action as would prevent the existence of the Rights
from interfering with the consummation of the Qualified Offer,
effective immediately prior to the consummation of the Qualified Offer
(provided that the Qualified Offer is consummated prior to 60 days
after the earlier of the date of the Special Meeting or the Outside
Date).
(v) Nothing in this paragraph (c) shall be construed as limiting or
prohibiting the Company or any offering Person from proposing or
engaging in any acquisition, disposition or other transfer of any
securities of the Company, any merger or consolidation involving the
Company, any sale or other transfer of assets of the Company, any
liquidation, dissolution or winding-up of the Company, or any other
business combination or other transaction, or any other action by the
Company or such offering Person; provided, however, that the holders
of Rights shall have the rights set forth in this Rights Agreement
with respect to any such acquisition, disposition, transfer, merger,
consolidation,
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sale, liquidation, dissolution, winding-up, business combination,
transaction or action.
(d) The right of the registered holders of Right Certificates to
exercise the Rights evidenced thereby or, if the Distribution Date has
not theretofore occurred, the inchoate right of the registered holders
of Rights to exercise the same shall, without notice to such holders
or to the Rights Agent and without further action, terminate and be of
no further force or effect effective as of the earlier of (i) the time
of adoption by the Board of Directors of the Company of a resolution
authorizing and directing the redemption of the Rights pursuant to
paragraph (b) of this Section 24 (or, alternatively, if the, Board of
Directors qualified such action as to time, basis or conditions, then
at such time, on such basis and with such conditions as the Board of
Directors may have established pursuant to such paragraph (b)); and
(ii) or the effectiveness of such redemption pursuant to Section
24(c); thereafter, the only right of the holders of Rights shall be to
receive the Redemption Price. The Company shall promptly give public
notice of any redemption pursuant to paragraphs (b) or (c) of this
Section 24; provided, however, that the failure to give, or any defect
in, any such notice shall not affect the validity of such redemption.
Within 10 days after the adoption of any redemption resolution
pursuant to paragraph (b) of this Section 24, the Company shall give
notice of such redemption to the holders of the then outstanding
Rights by mailing such notice to all such holders at their last
addresses as they appear upon the registry books of the Rights Agent
or, prior to the Distribution Date, on the registry books of the
transfer agent for the Common Shares. Any notice which is mailed in
the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of redemption shall state
the method by which the payment of the Redemption Price will be made.
5. The Form of Right Certificate attached to the Agreement as Exhibit B
is hereby amended by replacing all references to "November 9, 2010"
therein with "May 9, 2009".
6. The Summary of Rights to Purchase Preferred Shares attached to the
Agreement as Exhibit C is amended and restated in its entirety in the
form attached to this Amendment No. 2.
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7. The term "Agreement" as used in the Rights Agreement shall be deemed
to refer to the Rights Agreement as amended hereby.
8. Section 22, as amended on October 29, 2001, is further amended to
include the following as the second sentence in the paragraph:
"In the event the transfer agency relationship in effect between the
Company and the Rights Agent terminates, the Rights Agent will be
deemed to resign automatically on the effective date of such
termination; and any required notice will be sent by the Company."
9. Section 27 is amended to include the following address for the
parties:
Company: Compuware Corporation
Xxx Xxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Attention: Secretary
Rights Agent (Formerly known as EquiServe Trust Company, N.A.):
Computershare Trust Company, N.A.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Client Administration
10. The Rights Agreement is amended to add Section 35. Force Majeure which
is stated in its entirety as follows:
"Notwithstanding anything to the contrary contained herein, Rights
Agent shall not be liable for any delays or failures in performance
resulting from acts beyond its reasonable control including, without
limitation, acts of God, terrorist acts, shortage of supply,
breakdowns or malfunctions, interruptions or malfunction of computer
facilities, or loss of data due to power failures or mechanical
difficulties with information storage or retrieval systems, labor
difficulties, war, or civil unrest."
11. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed, all as of the day and year first above written.
COMPUWARE CORPORATION COMPUTERSHARE TRUST COMPANY, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxx X. Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxxx, Xx. Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President, Human Title: Managing Director
Human Resources; Secretary
and General Counsel
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EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On October 23, 2000, the Board of Directors of Compuware Corporation (the
"Company") declared a dividend of one preferred share purchase right (a "Right")
for each outstanding Common Share, par value $0.01 per share (the "Common
Shares"), of the Company. The dividend is payable to the shareholders of record
at the close of business on November 9, 2000 (the "Record Date"), and with
respect to Common Shares issued thereafter until the Distribution Date (as
defined below) and, in some circumstances, with respect to Common Shares issued
after the Distribution Date. Except as set forth below, each Right, when it
becomes exercisable, entitles the registered holder to purchase from the Company
one two-thousandth of a share of Series A Junior Participating Preferred Stock,
par value $0.01 per share (the "Preferred Shares"), of the Company at a price of
$40.00 per one two-thousandth 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") between the Company and EquiServe
Trust Company, N.A., as Rights Agent (the "Rights Agent"), dated as of October
25, 2000, as amended.
Initially, the Rights will be evidenced by the certificates representing
Common Shares then outstanding, and no separate certificates evidencing the
Rights ("Right Certificates") will be distributed. The Rights will become
exercisable and separate from the Common Shares upon the earlier to occur of (1)
the first date of public announcement that a person or group of affiliated or
associated persons, other than the Company, any subsidiary, or an employee
benefit plan of the Company or one of its subsidiaries, has acquired, or
obtained the right to acquire, beneficial ownership of 20% or more of the
outstanding Common Shares (except pursuant to a Permitted Offer, as defined
below, specified acquisitions of Common Shares by the Company, specified
inadvertent acquisitions, and specified acquisitions specifically permitted by
the Company's Board of Directors); or (2) the close of business on the tenth
business day (or such later date as the Company's Board of Directors may
determine) after the commencement of, or a public announcement of an intention
to commence (which tender offer is not terminated within such ten business
days), a tender or exchange offer the consummation of which would result in a
person or group becoming an Acquiring Person (as defined below), the earlier of
such dates being called the "Distribution Date." The Rights are not exercisable
until the Distribution Date has occurred. Generally, a person or group whose
acquisition of Common Shares causes a Distribution Date pursuant to clause (1)
above is an "Acquiring Person." The first date of public announcement that a
person or group has become an Acquiring Person is the "Shares Acquisition Date."
The Rights Agreement provides that, until the Distribution Date, the right
to receive Right Certificates will be transferable only with the Common Shares.
Until the Distribution Date (or earlier redemption or expiration of the Rights),
new Common Share certificates issued after the Record Date upon transfer or new
issuance of Common Shares will contain a notation incorporating the Rights
Agreement by reference. Until the
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Distribution Date (or earlier redemption or expiration of the Rights), the
transfer of any certificates for Common Shares will also constitute the transfer
of the Rights associated with the Common Shares represented by such
certificates. As soon as practicable following the Distribution Date, separate
Right Certificates will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date (and to each initial record
holder of certain Common Shares issued after the Distribution Date), and,
thereafter, such separate Right Certificates alone will evidence the Rights.
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.
The Rights will expire at the close of business on May 9, 2009 (the "Final
Expiration Date"), unless the Final Expiration Date is extended or unless the
Rights are earlier redeemed as described below.
In the event that any person becomes an Acquiring Person (except pursuant
to a tender or exchange offer for all outstanding Common Shares at a price and
on terms which a majority of the Company's directors determines to be adequate
and in the best interests of the Company and its shareholders, other than such
Acquiring Person, its affiliates and associates (a "Permitted Offer")), each
holder of a Right will thereafter have the right (the "Flip-In Right") to
receive upon exercise, at the then current Purchase Price, that number of Common
Shares (or, in certain circumstances, one two-thousandths of a Preferred Share)
having an average market value during a specified time period equal to two times
the then current Purchase Price. Notwithstanding the foregoing, following the
occurrence of a person becoming an Acquiring Person, any Rights that are, or
(under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person or any affiliate or associate thereof
will be null and void. In other words, the Rights holders, other than the
Acquiring Person and certain others, may purchase Common Shares (or, in certain
circumstances, Preferred Shares) at a 50% discount.
Alternatively, in the event that, at any time on or following the Shares
Acquisition Date, (1) the Company is a party to a merger or statutory share
exchange in which the holders of all of the outstanding Common Shares
immediately before the consummation of the transaction are not the holders of
all of the surviving corporation's voting power, or (2) more than 50% of the
Company's assets or earning power is sold or transferred, in either case with or
to an Acquiring Person or any affiliate or associate or any other person in
which such Acquiring Person, affiliate or associate has an interest or any
person acting on behalf of or in concert with such Acquiring Person, affiliate
or associate, or, if in such transaction all holders of Common Shares are not
treated alike, any other person, then each holder of a Right (except Rights that
have been voided as set forth above) shall thereafter have the right (the
"Flip-Over Right") to receive, upon exercise, at the then current Purchase
Price, common shares of the acquiring or surviving company having an average
market value during a specified time period equal to two times the then current
Purchase Price. In other words, the Rights holders, other than the Acquiring
Person and certain others, may purchase the acquiring or surviving company's
common shares at a 50% discount.
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The Purchase Price payable, and the number of one two-thousandths of a
Preferred Share or Common Shares issuable, upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution (1) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Shares, (2) upon the grant to holders of the Preferred Shares of
certain rights, options or warrants to subscribe for or purchase Preferred
Shares at a price, or securities convertible into Preferred Shares with a
conversion price, less than the then current market price of the Preferred
Shares, or (3) upon the distribution to holders of the Preferred Shares of
evidences of indebtedness or assets (excluding regular quarterly cash dividends)
or of subscription rights or warrants (other than those referred to above). The
number of outstanding Rights and the exercise price of the Rights are also
subject to adjustment in the event of a stock dividend on the Common Shares
payable in Common Shares or subdivisions or combinations of the Common Shares
occurring, in any such case, before the Distribution Date.
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. The Company will not be required to issue fractional
Preferred Shares (other than fractions that are integral multiples of one
two-thousandth of a Preferred Share, which may, at the election of the Company,
be evidenced by depositary receipts) or fractional Common Shares and, in lieu
thereof, an adjustment in cash may be made based on the market price of the
Preferred Shares or Common Shares, as applicable, on, or an average ending
immediately before, the last trading date before the date of exercise.
At any time before a person becomes an Acquiring Person, the Company may
redeem the Rights in whole, but not in part, at a price of $.001 per Right (the
"Redemption Price"), which redemption shall be effective upon the action of the
Board of Directors. Additionally, after 60 days after the later of the date
holders of Rights begin to have Flip-In Rights and the effective date of a
registration statement under the Securities Act of 1933 with respect to
securities issuable upon exercise of such Flip-In Rights, but before holders of
Rights begin to have Flip-Over Rights, the Company may redeem the then
outstanding Rights in whole, but not in part, at the Redemption Price; provided
that such redemption is (1) in connection with a merger, statutory share
exchange or other business combination transaction or series of transactions
involving the Company in which all holders of Common Shares are treated alike
but not involving an Acquiring Person or its affiliates or associates, or (2) at
a time when no other persons are Acquiring Persons and the Acquiring Person is
not the beneficial owner of 10% of the Common Shares. The Redemption Price may,
at the option of the Company, be paid in cash or Common Shares.
However, in the event the Company receives a Qualified Offer (as defined
below), the Rights may be redeemed by way of shareholder action taken at a
special meeting of shareholders called for the purpose of voting on a resolution
accepting the Qualified Offer and authorizing the redemption of the Rights
pursuant to the provisions of the Agreement. The special meeting must be held
within 90 business days after the Company receives a request from shareholders
to hold such a meeting. If a resolution to redeem the Rights is approved at the
special meeting (or if the special meeting is not held on or before the 90th
business day after receipt of the request for a meeting), it will
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become effective immediately prior to the consummation of any Qualified Offer
consummated within 60 days after the earlier of the special meeting or the 90th
business day after receipt of a request for a special meeting of shareholders. A
"Qualified Offer" is a tender offer for all outstanding Common Shares not
already beneficially owned by the person making the offer that meets all of the
following conditions:
- the same per share price is offered for all shares, is greater than
the highest closing price for the Common Shares during the 365
calendar day period immediately preceding the date on which the offer
is commenced, represents a reasonable premium above the average of the
closing prices for the five trading days immediately preceding the
date on which the offer is commenced, is at least 70% cash (with any
non-cash consideration consisting of common stock of the offeror), and
is to be paid upon consummation of the offer,
- if the consideration offered includes shares of common stock of the
offeror, the offeror is a publicly owned United States corporation and
its common stock is traded on either the New York Stock Exchange or
the Nasdaq National Market, no further stockholder approval is
required to issue such common stock, no other class of voting stock of
the offeror is outstanding, and the offeror shall permit the Company's
investment banking firm and legal counsel to have access to such
offeror's books, records, management, accountants and other advisers
for the purpose of permitting such investment banking firm and such
legal counsel to conduct a due diligence review to permit such
investment banking firm to be able to render a fairness opinion with
respect to the consideration being offered,
- the offer is accompanied by written financing commitments and/or the
offeror has on hand cash or cash equivalents, for the full amount of
all financing necessary to consummate the offer and follow-on merger,
- the offer is subject to a non-waivable condition that a minimum of 90%
of the outstanding Common Shares (other than those owned by the
offeror) will be tendered and not withdrawn as of the offer's
expiration date,
- the offer by its terms remains open for at least 60 business days and
at least 10 business days after the date of any special meeting of
shareholders called under the redemption provisions, plus 15 business
days after any change in price or after any bona fide alternative
offer for a higher consideration is made,
- the offer is accompanied by a written opinion of a nationally
recognized investment banking firm stating that the price to be paid
to holders pursuant to the offer is fair and including any written
presentation of such firm showing the analysis and range of values
underlying such conclusion,
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- on or before the date the offer is commenced, such person makes an
irrevocable written commitment to the Company:
- to acquire, within 5 business days following completion of
the offer, all Common Shares then not beneficially owned by
such person at the same cash price per share as paid in the
offer,
- not to amend its offer to reduce the price or otherwise
change the terms in a way that is adverse to tendering
shareholders, and
- if the offer is not consummated, that such person will not
make another offer for the Common Shares within one year if
at least 85% of the Common Shares not owned by such Person
has not been tendered, and
- such offer is subject only to the conditions required in the
definition and usual and customary terms and conditions, and is not
subject to any financing, funding or similar condition, nor to any
condition relating to completion of or satisfaction with any due
diligence or similar investigation.
Effective (1) at the time of adoption by the Board of Directors of a
resolution authorizing the redemption of the Rights (or such other date chosen
by the Board of Directors in authorizing such redemption), or (2) at the
effective time of a redemption in connection with the calling of a special
meeting of shareholders in connection with a Qualified Offer, the right to
exercise the Rights shall terminate and the only right of holders of the Rights
will be to receive the Redemption Price.
The Preferred Shares purchasable upon the exercise of the Rights will not
be redeemable. The Rights Agreement provides that each Right is exercisable for
one two-thousandth of a Preferred Share. The Certificate of Designation for the
Preferred Shares provides that each full Preferred Share would be entitled to a
preferential quarterly dividend in an amount equal to the greater of $1.00 per
share and 2,000 times the dividend declared on each Common Share. In the event
of liquidation, the holders of Preferred Shares would receive a preferential
liquidation payment equal to the greater of $1,000 per share and 2,000 times the
payment made per Common Share, plus, in each case, accrued and unpaid dividends.
In the event of any merger, consolidation, statutory share exchange, combination
or other transaction in which Common Shares are exchanged, each Preferred Share
would be entitled to receive 2,000 times the amount received per Common Share.
Each Preferred Share would have 2,000 votes, voting together with the common
stock. The rights of the holders of Preferred Shares as to dividends,
liquidation and voting, and in the event of mergers, consolidations and
statutory share exchanges, are protected by customary anti-dilution provisions.
Any of the provisions of the Rights Agreement may be amended by the Board
of Directors of the Company before the Distribution Date without the consent of
the Rights holders. From and after the Distribution Date, the provisions of the
Rights Agreement
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may be amended by the Board in order to cure any ambiguity, to correct or
supplement any provision contained in the Rights Agreement which may be
defective or inconsistent with any other provision, to make changes which do not
adversely affect the interests of holders of Rights (excluding the interests of
any Acquiring Person), or, subject to certain limitations, to shorten or
lengthen any time period under the Rights Agreement, but no amendment to adjust
the time period governing redemption shall be made at a time when the Rights are
not redeemable.
While the distribution of the Rights should not be taxable to shareholders
or to the Company, shareholders will recognize taxable income if the Rights are
redeemed and may, depending on the circumstances, recognize taxable income if
the Rights become exercisable or are exercised or upon the occurrence of certain
events thereafter. Shareholders are encouraged to consult their own tax advisers
concerning the tax treatment in their particular situation.
The Rights have certain anti-takeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on the Rights being redeemed or a substantial
number of Rights being acquired, and under certain circumstances the Rights
beneficially owned by such a person or group may become void. The Rights should
not interfere with any merger, statutory share exchange or other business
combination approved by the Board of Directors because, if the Rights would
become exercisable as a result of such merger, share exchange or business
combination, the Board of Directors may, at its option, at any time before the
time that any person becomes an Acquiring Person, redeem all (but not less than
all) of the then outstanding Rights at the Redemption Price.
A copy of the Rights Agreement is available free of charge from the Company
and may be obtained by contacting the Company's Secretary. 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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