AMENDMENT TO RIGHTS AGREEMENT
-----------------------------
This AMENDMENT, dated as of May 31, 2000 (the "Amendment"), to the
Rights Agreement dated as of October 15, 1999 (the "Rights Agreement"), between
Laser Power Corporation, a Delaware corporation (the "Company"), and American
Securities Transfer and Trust, Inc., as Rights Agent (the "Rights Agent").
RECITALS
--------
WHEREAS, the Company, ACEC, Inc., a Delaware corporation ("Purchaser")
and Union Miniere U.S.A., Inc., a Delaware corporation ("Parent") are entering
into an Agreement and Plan of Merger, dated as of June 1, 2000 (as amended or
supplemented from time to time, the "Merger Agreement"), contemplating a tender
offer and merger pursuant to which Purchaser shall make an offer to purchase all
of the outstanding common stock of the Company (the "Offer") and after the
consummation of the Offer, Purchaser shall be merged with and into the Company
(the "Merger").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company
may, in its sole and absolute discretion, supplement and amend the Rights
Agreement;
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company and the Rights Agent desire to
evidence such amendment in writing; and
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed and
the execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Rights Agreement.
2. AMENDMENT OF SECTION 1.
(a) The definition of "Acquiring Person" in Section 1(a) of the
Rights Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
neither Parent, Purchaser nor any of their Affiliates or
Associates shall be deemed to be an Acquiring Person solely by
virtue of (i) the approval, execution, delivery or performance
of the Merger Agreement, (ii) the making or consummation of
the Offer or the Merger in accordance with the provisions of
the Merger Agreement or any public announcement relating
thereto, (iii) the acquisition of Common Shares in accordance
with the provisions of the Merger Agreement pursuant to the
Offer or the Merger or (iv) the consummation of any other
transaction to be effected pursuant to the Merger Agreement in
accordance with the provisions thereof."
(b) Section 1 of the Rights Agreement is supplemented by adding
the following definitions in the appropriate locations therein:
"Agreement" shall means this Rights Agreement between Laser
Power Corporation, a Delaware corporation, and American
Securities Transfer and Trust, Inc., as Rights Agent, amended
as of May 31, 2000, and as may be amended thereafter from time
to time.
"Merger" shall have the meaning set forth in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of
Merger, dated as of May 31, 2000, between the Company, Parent
and Purchaser, as it may be amended, supplemented or replaced
from time to time.
"Offer" shall have the meaning set forth in the Merger
Agreement.
(c) The definition of "Shares Acquisition Date" in Section 1(n) of
the Rights Agreement is amended by adding the following sentence at the end
thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Shares Acquisition Date shall not be deemed to have occurred
solely as the result of (i) the approval, execution, delivery
or performance of or public announcements of the approval,
execution, delivery or performance of the Merger Agreement,
(ii) the making or consummation of the Offer or the Merger in
accordance with the provisions of the Merger Agreement or any
public announcement relating thereto, (iii) the acquisition of
Common Shares in accordance with the Merger Agreement pursuant
to the Offer or the Merger or (iv) the consummation of any
other transaction to be effected pursuant to the Merger
Agreement in accordance with the provisions thereof or any
public announcement relating thereto."
3. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights Agreement is
amended by adding the following sentence immediately following the first
sentence:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely
as the result of (1) the approval, execution, delivery or
performance of or public announcement of the approval,
execution, delivery or performance of the Merger Agreement,
(2) the commencement, making or consummation of the Offer or
the consummation of the Merger in accordance with the
provisions of the Merger Agreement or any public announcement
relating thereto, (3) the acquisition of Common Shares in
accordance with the Merger Agreement pursuant to the Offer or
the Merger or (4) the consummation of any other transaction to
be effected pursuant to the Merger Agreement in accordance
with the provisions thereof or any public announcement
relating thereto."
4. AMENDMENT OF SECTION 7(a). Clauses numbered (i), (ii) and (iii) in
Section 7(a) of the Rights Agreement are hereby deleted and replaced in their
entirety as follows:
"(i) the close of business on October 14, 2009 (the "Final
Expiration Date"), (ii) immediately prior to the time at which
the consummation of the Offer occurs, (iii) the time at which
the Rights re redeemed as provided in Section 23 hereof (the
"Redemption Date") or (iv) the time at which the Rights are
exchanged as provided in Section 24 hereof."
5. AMENDMENT OF SECTION 11(a)(ii). Section 11(a)(ii) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
none of (1) the approval, execution, delivery or performance
of the Merger Agreement, (2) the consummation of the Offer or
the Merger in accordance with the provisions of the Merger
Agreement, (3) the acquisition of Common Shares in accordance
with the Merger Agreement pursuant to the Offer or the Merger
or (4) the consummation of any other transaction to be
effected pursuant to the Merger Agreement in accordance with
the provisions of the Merger Agreement shall cause the Rights
to be adjusted or become exercisable in accordance with this
Section 11(a)(ii)."
6. AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement is
amended by adding the following sub-section (e) at the end thereof:
"(e) Notwithstanding anything in this Agreement to the
contrary, none of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the consummation of
the Offer or the Merger in accordance with the provisions of
the Merger Agreement, (iii) the acquisition of Common Shares
in accordance with the Merger Agreement pursuant to the Offer
or the Merger or (iv) the consummation of any other
transaction to be effected pursuant to the Merger Agreement in
accordance with the provisions of the Merger Agreement shall
be deemed an event of the type described in clauses (a), (b)
or (c) of this Section 13 and shall not cause the Rights to be
adjusted or exercisable in accordance with the terms of this
Section 13."
7. AMENDMENT OF SECTION 29. Section 29 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any
holder of Rights or any other Person any legal or equitable
rights, remedies or claims under this Agreement by virtue of
the execution, delivery, approval or performance of the Merger
Agreement or by virtue of the commencement or consummation of
any of the transactions to be effected pursuant to the Merger
Agreement in accordance with the provisions of the Merger
Agreement.
8. EFFECTIVENESS. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date. Except as amended hereby,
the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
9. MISCELLANEOUS. This Amendment shall be deemed to be a contract made
under the laws of the State of Delaware and for all purposes, shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original and all such counterparts shall
together constitute but one and the same document. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
COMPANY:
Laser Power Corporation,
a Delaware corporation
By: /S/ Xxxx Xxxxxxx
_____________________________
Xxxx Xxxxxxx, CEO
By: /S/ Xxxxxxx Xxxxx
_____________________________
Xxxxxxx Xxxxx, Secretary
RIGHTS AGENT:
American Securities Transfer and Trust, Inc.
By: /s/ Xxxxxxx Xxxx /s/ Xxxxxx Xxxxx
Name: Xxxxxxx Xxxx Xxxxxx Xxxxx
Title: Executive Vice President Vice President
