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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
ECC International Corp.
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(Exact name of registrant as specified in its charter)
Delaware 23-1714658
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(State of incorporation (IRS Employer
or organization) Identification No.)
2001 West Oak Ridge Road, Orlando, FL 32809-3803
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(Address of principal executive offices) (Zip Code)
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), please check the following box. [_]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), please check the following box. [_]
Securities Act registration statement number to which this form
relates: ___________________
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
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Preferred Stock Purchase Rights New York Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
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Explanatory Note:
This Amendment No. 1 to Registration Statement on Form 8-A/A amends and
restates the Registration Statement on Form 8-A dated August 27, 1996 (the "Form
8-A"), filed by ECC International Corp. (the "Company") with respect to the
Preferred Stock Purchase Rights (the "Rights") issued pursuant to the Rights
Agreement dated as of August 27, 1996 between the Company and ChaseMellon
Shareholder Services, L.L.C., as successor to Mellon Bank, N.A., as Rights Agent
(the "Rights Agent"). On March 25, 1997, the Company and the Rights Agent
entered into Amendment No. 1 to Rights Agreement ("Amendment No. 1"), which is
included as Exhibit 2 hereto and is incorporated herein by reference. In
general, Amendment No. 1 amended the Rights Agreement, among other things, to
increase the threshold of Beneficial Ownership (as such term is defined in the
Rights Agreement) in the definition of "Acquiring Person" to 30%. On March 12,
1999, the Company and the Rights Agent entered into Amendment No. 2 to Rights
Agreement ("Amendment No. 2"), which is included as Exhibit 3 hereto and is
incorporated herein by reference. In general, Amendment No. 2 amended the Rights
Agreement, among other things, to: (i) eliminate provisions related to
"Continuing Directors," (ii) eliminate provisions related to "Permitted Offers,"
(iii) amend the time period during which the Rights may be redeemed, and (iv)
make certain other revisions. The Rights Agreement, as amended through the date
hereof, is referred to herein as the "Rights Agreement."
Item 1. Description of Registrant's Securities to be Registered.
On August 27, 1996, the Board of Directors of the Company declared a
dividend distribution of one Right for each outstanding share of the Company's
Common Stock, par value $.10 per share (the "Common Stock"), to stockholders of
record at the close of business on September 17, 1996 (the "Record Date"). Each
Right entitles the registered holder to purchase from the Company a unit
consisting of one-thousandth of a share (a "Unit") of Series B Junior
Participating Preferred Stock, $.10 par value (the "Preferred Stock") at a
Purchase Price of $40.00 in cash per Unit, subject to adjustment. The
description and terms of the Rights are set forth in the Rights Agreement.
Initially, the Rights will be attached to all Common Stock certificates
representing shares then outstanding, and no separate Rights Certificates will
be distributed. The Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) ten business days (or such
later date as may be determined by the Board of Directors of the Company)
following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 30% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) ten business days (or such
later
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date as may be determined by the Board of Directors of the Company) following
the commencement of a tender offer or exchange offer that would result in a
person or group beneficially owning 30% or more of such outstanding shares of
Common Stock. Until the Distribution Date (or earlier redemption or expiration
of the Rights), (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by reference and
(iii) the surrender for transfer of any certificates for Common Stock
outstanding, even without such notation, will also constitute the transfer of
the Rights associated with the Common Stock represented by such certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on September 17, 2006 (the "Final Expiration
Date"), unless earlier redeemed or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of the Common Stock as of the close of
business on the Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as otherwise determined by
the Board of Directors and except in connection with shares of Common Stock
issued upon the exercise of employee stock options, issuances under other
employee stock benefit plans or the conversion of convertible securities issued
hereafter, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
In the event that a Person becomes an Acquiring Person, each holder of
a Right will thereafter have the right to receive, upon exercise, that number of
shares of Common Stock (or, in certain circumstances, cash, property or other
securities of the Company) which equals the exercise price of the Right divided
by one-half of the current market price (as defined in the Rights Agreement) of
the Common Stock at the date of the occurrence of the event. Notwithstanding any
of the foregoing, following the occurrence of such event, all Rights that are,
or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and void. The event set
forth in this paragraph are referred to as a "Section 11(a)(ii) Event."
For example, at an exercise price of $40.00 per Right, each Right not
owned by an Acquiring Person (or by certain related parties) following an event
set forth in the preceding paragraph would entitle its holder to purchase for
$40.00 such number of shares of Common Stock (or other consideration, as noted
above) as equals $40.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of the Common Stock. Assuming that the Common
Stock had a per share value of $10.00 at such time, the holder of each valid
Right would be entitled to purchase eight shares of Common Stock for $40.00.
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In the event that, at any time after any person has become an Acquiring
Person, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation or its Common
Stock is changed or exchanged, or (ii) 50% or more of the Company's assets or
earning power are sold or transferred, each holder of a Right (except Rights
which previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise, that number of shares of common stock of the
acquiring company which equals the exercise price of the Right divided by
one-half of the current market price of such common stock at the date of the
occurrence of the event.
For example, at an exercise price of $40.00 per Right, each Right
following an event set forth in the preceding paragraph would entitle its holder
to purchase for $40.00 such number of shares of common stock of the acquiring
company as equals $40.00 divided by one-half of the current market price (as
defined in the Rights Agreement) of such common stock. Assuming that such common
stock had a per share value of $20.00 at such time, the holder of each valid
Right would be entitled to purchase four shares of common stock of the acquiring
company for $40.00.
At any time after the occurrence of a Section 11(a)(ii) Event, and
subject to certain conditions, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such Acquiring Person which have
become void), in whole or in part, at an exchange ratio of one share of Common
Stock, or one-thousandth of a share of Preferred Stock (or of a share of a class
or series of the Company's preferred stock having equivalent rights, preferences
and privileges), per Right (subject to adjustment).
The Purchase Price payable, and the number of Units of Preferred Stock
or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a stock dividend on, or a subdivision, combination or reclassification of, the
Preferred Stock, (ii) if holders of the Preferred Stock are granted certain
rights or warrants to subscribe for Preferred Stock or convertible securities at
less than the current market price of the Preferred Stock, or (iii) upon the
distribution to holders of the Preferred Stock 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 Rights associated with each share of Common Stock is also
subject to adjustment in the event of a stock split of the Common Stock or a
stock dividend on the Common Stock payable in Common Stock or subdivisions,
consolidations or combinations of Common Stock occurring, in any such case,
prior to the Distribution Date.
Preferred Stock purchasable upon exercise of the Rights will not be
redeemable.
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Each share of Preferred Stock will be entitled to a minimum preferential
quarterly dividend payment of $10 per share and will be entitled to an aggregate
dividend of 1,000 times the dividend declared per share of Common Stock. In the
event of liquidation, the holders of the Preferred Stock will be entitled to a
minimum preferential liquidating payment of $10 per share and will be entitled
to an aggregate payment of 1,000 times the payment made per share of Common
Stock. Each share of Preferred Stock will have 1,000 votes, voting together with
the Common Stock. Finally, in the event of any merger, consolidation or other
transaction in which Common Stock is changed or exchanged, each share of
Preferred Stock will be entitled to receive 1,000 times the amount received per
share of Common Stock. These rights are protected by customary anti-dilution
provisions.
Because of the nature of the Preferred Stock's dividend, liquidation
and voting rights, the value of one-thousandth of a share of Preferred Stock
purchasable upon exercise of each Right should approximate the value of one
share of Common Stock.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Preferred Stock on the last
trading date prior to the date of exercise.
At any time prior to the earlier of (i) ten business days (or such
later date as may be determined by the Board of Directors of the Company)
following the Stock Acquisition Date (or if the Stock Acquisition Date shall
have occurred prior to the Record Date, ten business days following the Record
Date), or (ii) the Final Expiration Date, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right (the "Redemption Price"),
payable in cash, shares of Common Stock or any other form of consideration, or
any combination of the foregoing, deemed appropriate by the Board of Directors
of the Company. Immediately upon the action of the Board of Directors ordering
redemption of the Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the Redemption Price.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends. While the distribution of the Rights will not
be taxable to stockholders or to the Company, stockholders may, depending upon
the circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
common stock of the acquiring company as set forth above.
Subject to certain exceptions, any of the provisions of the Rights
Agreement may be amended by the Board of Directors of the Company prior to such
time as the Rights
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are no longer redeemable.
The Rights Agreement between the Company and the Rights Agent
specifying the terms of the Rights, which includes as Exhibit A the Form of
Certificate of Designations, as Exhibit B the Form of Rights Certificate, and as
Exhibit C the Summary of Rights to Purchase Preferred Stock, is filed as Exhibit
1 to the Form 8-A and is incorporated herein by reference. Amendment No. 1 is
filed as Exhibit 4.2 to the Company's Current Report on Form 8-K dated March 25,
1997, and is incorporated herein by reference. Amendment No. 2 is filed as
Exhibit 3 hereto and is incorporated herein by reference. The foregoing
description of the Rights Agreement and the Rights does not purport to be
complete and is qualified in its entirety by reference to such Exhibits.
Item 2. Exhibits.
1 Rights Agreement, dated as of August 27, 1996 between the Company
and Mellon Bank, N.A., is incorporated herein by reference to
Exhibit 1 to the Company's Registration Statement on Form 8-A
(File No. 001-8988)
2 Amendment No. 1 to Rights Agreement, dated as of March 25, 1997,
between the Company and Mellon Bank, N.A., is incorporated herein
by reference to Exhibit 4.2 to the Registrant's Current Report on
Form 8-K dated March 25, 1997 (File No. 001-8988)
3 Amendment No. 2 to Rights Agreement, dated as of March 12, 1999,
between the Company and ChaseMellon Shareholder Services, L.L.C.,
as successor to Mellon Bank, N.A.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this Amendment No. 1 to Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
ECC INTERNATIONAL CORP.
Date: April 9, 1999 By: /s/ James C. Garrett
-------------------------------
James C. Garrett
President and Chief
Executive Officer
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EXHIBIT INDEX
Exhibit No. Description
1 Rights Agreement, dated as of August 27, 1996 between the Company
and Mellon Bank, N.A., is incorporated herein by reference to
Exhibit 1 to the Company's Registration Statement on Form 8-A
(File No. 001-8988)
2 Amendment No. 1 to Rights Agreement, dated as of March 25, 1997,
between the Company and Mellon Bank, N.A., is incorporated herein
by reference to Exhibit 4.2 to the Registrant's Current Report on
Form 8-K dated March 25, 1997 (File No. 001-8988)
3 Amendment No. 2 to Rights Agreement, dated as of March 12, 1999,
between the Company and ChaseMellon Shareholder Services, L.L.C.,
as successor to Mellon Bank, N.A.
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EXHIBIT 3
AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 2 (the "Amendment") to the Rights Agreement (the
"Rights Agreement") dated as of August 27, 1996, as amended, between ECC
International Corp., a Delaware corporation (the "Company"), and ChaseMellon
Shareholder Services, L.L.C., successor to Mellon Bank N.A., as Rights Agent
(the "Rights Agent"), is entered into as of the 12th day of March, 1999.
Capitalized terms not otherwise defined herein shall have the respective
meanings given to them in the Rights Agreement.
RECITALS
WHEREAS, the Board of Directors has determined that it is in the best
interests of the Company to amend the Rights Agreement as set forth herein.
WHEREAS, the Company has requested that the Rights Agreement be amended
in accordance with Section 27 of the Rights Agreement, as set forth herein, and
the Rights Agent is willing to amend the Rights Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
1. The WHEREAS clause of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
"WHEREAS, on August 27, 1996, the Board of Directors of the Company
(the "Board") authorized and declared a dividend of one right (a
"Right") for each share of Common Stock (as hereinafter defined) of the
Company outstanding at the Close of business on September 17, 1996 (the
"Record Date"), and authorized the issuance of one Right (as such
number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for each share of Common Stock of the Company
issued between the Record Date (whether originally issued or delivered
from the Company's treasury) and the earlier of the Distribution Date
or the Expiration Date, each Right initially representing the right to
purchase one one-thousandth of a share of Series B Junior Participating
Preferred Stock of the
<PAGE> 2
Company having the rights, powers and preferences set forth in the form
of Certificate of Designations attached hereto as Exhibit A, upon the
terms and subject to the conditions hereinafter set forth (the
"Rights");"
2. The last sentence of Section 1(a) of the Rights Agreement is hereby
amended and restated to read in its entirety as follows:
"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 shares of
Common Stock 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
shall again become an "Acquiring Person.""
3. Section 1(d)(i) of the Rights Agreement is hereby amended and restated
to read in its entirety as follows:
"(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, beneficially owns or has the right
to acquire (whether such right is exercisable immediately or only after
the passage of time) pursuant to any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities), whether or not in writing, or upon the
exercise of conversion rights, exchange rights, other rights, warrants
or options, or otherwise; PROVIDED, however, that a Person shall not be
deemed the "Beneficial Owner" of, or to "beneficially own," (A)
securities tendered pursuant to a tender or exchange offer made by such
Person or any of such Person's Affiliates or Associates until such
tendered securities are accepted for purchase or exchange, or (B)
securities issuable upon exercise of Rights at any time prior to the
occurrence of a Triggering Event, or (C) securities issuable upon
exercise of Rights from and after the occurrence of a Triggering Event
which Rights were acquired by such Person or any of such Person's
Affiliates or Associates prior to the Distribution Date or pursuant to
Section 3(a) or Section 22 hereof (the "Original Rights") or pursuant
to Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights;"
4. The last paragraph of Section 1(d) of the Rights Agreement is hereby
deleted in its entirety.
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5. Section 1(g) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(g) "Common Stock" shall mean the common stock, $.10 par
value, of the Company, except that "Common Stock" when used with
reference to any Person other than the Company shall mean the capital
stock of such Person with the greatest voting power, or the equity
securities or other equity interest having power to control or direct
the management, of such Person."
6. Section 1(i) of the Rights Agreement is hereby deleted in its entirety
and replaced with the following:
"(i) Intentionally omitted."
7. Section 1(p) of the Rights Agreement is hereby deleted in its entirety
and replaced with the following:
"(p) Intentionally omitted."
8. Section 2 of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"Section 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby
appoints the Rights Agent to act as agent for the Company in accordance
with the terms and conditions hereof, and the Rights Agent hereby
accepts such appointment. The Company may from time to time appoint
such Co-Rights Agents as it may deem necessary or desirable. The Rights
Agent shall have no duty to supervise, and in no event shall be liable
for the acts or omissions of any such Co-Rights Agent."
9. Section 3(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) Until the earlier of (i) the Close of business on the
tenth Business Day (or such later date as may be determined by the
Board) after the Stock Acquisition Date (or, if the tenth Business Day
after the Stock Acquisition Date occurs before the Record Date, the
Close of business on the Record Date), or (ii) the Close of business on
the tenth Business Day (or such later date as may be determined by
action of the Board) after the date that a tender or exchange offer by
any Person (other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or of any Subsidiary of the
Company, or any Person or entity organized, appointed or established by
the Company for or
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pursuant to the terms of any such plan) is first published or sent or
given within the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation thereof, such
Person would be the Beneficial Owner of 30% or more of the shares of
Common Stock then outstanding (the earlier of (i) and (ii) being herein
referred to as the "Distribution Date"), (x) the Rights will be
evidenced (subject to the provisions of paragraph (b) of this Section
3) by the certificates for the Common Stock registered in the names of
the holders of the Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only in
connection with the transfer of the underlying shares of Common Stock
(including a transfer to the Company). As soon as practicable after the
Distribution Date and receipt by the Rights Agent of all necessary
information, the Rights Agent will send by first-class, insured,
postage prepaid mail, to each record holder of the Common Stock as of
the Close of business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more rights
certificates, in substantially the form of Exhibit B hereto (the
"Rights Certificates"), evidencing one Right for each share of Common
Stock so held, subject to adjustment as provided herein. In the event
that an adjustment in the number of Rights per share of Common Stock
has been made pursuant to Sections 11(i) or 11(p) hereof, at the time
of distribution of the Right Certificates, the Company shall make the
necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only
whole numbers of Rights are distributed and cash is paid in lieu of any
fractional Rights and the Rights Agent is authorized and protected in
relying on such adjustments. As of and after the Distribution Date, the
Rights will be evidenced solely by such Rights Certificates."
10. Section 4(b) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(b) Any Rights Certificate issued pursuant to Section 3,
Section 11(i) or Section 22 hereof that represents Rights beneficially
owned by persons known to be: (i) an Acquiring Person or any Associate
or Affiliate of an Acquiring Person, (ii) a transferee of an Acquiring
Person (or of any such Associate or Affiliate) who becomes a transferee
after the Acquiring Person becomes such, or (iii) a transferee of an
Acquiring Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person becoming
such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person to holders
of equity interests in such Acquiring Person or to any Person with whom
such Acquiring Person has any continuing agreement, arrangement or
understanding regarding the transferred Rights or (B) a transfer which
the Board of Directors of the Company has
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determined is part of a plan, arrangement or understanding that has as
a primary purpose or effect avoidance of Section 7(e) hereof, and any
Rights Certificate issued pursuant to Section 6 or Section 11 hereof
upon transfer, exchange, replacement or adjustment of any other Rights
Certificate referred to in this sentence, shall contain (to the extent
feasible) the following legend:
The Rights represented by this Rights Certificate are or were
beneficially owned by a Person who was or became an Acquiring
Person or an Affiliate or Associate of an Acquiring Person (as
such terms are defined in the Rights Agreement). Accordingly,
this Rights Certificate and the Rights represented hereby may
become null and void in the circumstances specified in Section
7(e) of such Agreement."
11. The first sentence of Section 6(a) of the Rights Agreement is hereby
amended and restated to read in its entirety as follows:
"Subject to the provisions of Section 4(b), Section 7(e) and Section 14
hereof, at any time after the Close of business on the Distribution
Date, and at or prior to the Close of business on the Expiration Date,
any Rights Certificate or Certificates (other than Rights Certificates
representing Rights that have become null and void pursuant to Section
7(e) hereof or that have been exchanged pursuant to Section 24 hereof)
may be transferred, split up, combined or exchanged for another Rights
Certificate or Certificates, entitling the registered holder to
purchase a like number of one one-thousandth of a share of Preferred
Stock (or, following a Triggering Event, Common Stock, other
securities, cash or other assets, as the case may be) as the Rights
Certificate or Certificates surrendered then entitled such holder (or
former holder in the case of a transfer) to purchase."
12. Section 7(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of
any Rights Certificate may exercise the Rights evidenced thereby
(except as otherwise provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c), Section
11(a)(iii) and Section 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate,
with the form of election to purchase and the certificate on the
reverse side thereof duly and properly executed, to the Rights Agent at
the office of the Rights Agent designated for such purpose, together
with payment of the aggregate Purchase Price with respect to the total
number of one one-thousandth of a share (or other shares, securities,
cash or other assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the earliest of (i) the
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Final Expiration Date, (ii) the time at which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date"), or (iii) the
time at which such Rights are exchanged as provided in Section 24
hereof (the earliest of (i), (ii) and (iii) being herein referred to as
the "Expiration Date")."
13. Section 11(a)(ii) of the Rights Agreement is hereby amended and
restated to read in its entirety as follows:
"(ii) Subject to Section 24 of this Agreement, in the event
that any Person alone or together with its Affiliates or Associates,
becomes an Acquiring Person, then, promptly following the first
occurrence of such event, proper provision shall be made so that each
holder of a Right (except as provided below and in Section 7(e) hereof)
shall thereafter have the right to receive (subject to the last
sentence of Section 23(a)), upon exercise thereof at the then current
Purchase Price in accordance with the terms of this Agreement, in lieu
of a number of one one-thousandth of a share of Preferred Stock, such
number of shares of Common Stock of the Company that equals the result
obtained by (x) multiplying the then current Purchase Price by the then
number of one one-thousandth of a share of Preferred Stock for which a
Right was exercisable immediately prior to the first occurrence of a
Section 11(a)(ii) Event, and (y) dividing that product (which,
following such first occurrence, shall thereafter be referred to as the
"Purchase Price" for each Right and for all purposes of this Agreement)
by 50% of the current market price (determined pursuant to Section
11(d) hereof) per share of Common Stock on the date of such first
occurrence (such number of shares, the "Adjustment Shares")."
14. Section 11(e) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(e) Anything herein to the contrary notwithstanding, no
adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least one
percent (l%) in the Purchase Price; PROVIDED, however, that any
adjustments which by reason of this Section 11(e) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Section 11 shall be
made to the nearest cent or to the nearest one-millionth of a share of
Preferred Stock, or one-hundred-thousandth of a share of Common Stock
or other security, as the case may be. Notwithstanding the first
sentence of this Section 11(e), any adjustment required by this Section
11 shall be made no later than the earlier of (i) three (3) years from
the date of the transaction which mandates such adjustment, or (ii) the
Expiration Date."
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15. Section 11(f) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(f) If as a result of an adjustment made pursuant to Section
11(a)(ii) or Section 13(a) hereof, the holder of any Right thereafter
exercised shall become entitled to receive any securities other than
Preferred Stock, thereafter the number of such other securities so
receivable upon exercise of any Right and the Purchase Price thereof
shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in Sections 11(a), (b), (c),
(e), (g), (h), (i), (j), (k) and (m), and the provisions of Sections 7,
9, 10, 13 and 14 hereof with respect to the Preferred Stock shall apply
on like terms to any such other securities; provided, however, that the
Company shall not be liable for its inability to reserve and keep
available for issuance upon exercise of the Rights pursuant to Section
11(a)(ii) a number of shares of Common Stock greater than the number
then authorized by the Company's Certificate of Incorporation but not
outstanding or reserved for other purposes."
16. Section 11(q) of the Rights Agreement is hereby deleted in its
entirety.
17. Section 13(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) In the event that, at any time after a Person has become
an Acquiring Person, directly or indirectly, (x) the Company shall
consolidate with, or merge with and into, any other Person (other than
a Subsidiary of the Company in a transaction that complies with Section
11(o) hereof), and the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person (other than
a Subsidiary of the Company in a transaction that complies with Section
11(o) hereof) shall consolidate with, or merge with or into, the
Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with
such consolidation or merger, all or part of the outstanding shares of
Common Stock shall be changed into or exchanged for stock or other
securities of any other Person or cash or any other property, or (z)
the Company shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one transaction or a
series of related transactions, assets or earning power aggregating
more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to any Person or Persons (other than
the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof), then,
and in each such case, proper provision shall be made so that: (i) each
holder of a Right, except as provided in Section 7(e)
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<PAGE> 8
hereof, shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms
of this Agreement, such number of validly authorized and issued, fully
paid, non-assessable and freely tradeable shares of Common Stock of the
Principal Party (as such term is hereinafter defined), not subject to
any liens, encumbrances, rights of first refusal or other adverse
claims, as shall be equal to the result obtained by (1) multiplying the
then current Purchase Price by the number of one one-thousandth of a
share of Preferred Stock for which a Right is exercisable immediately
prior to the first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first occurrence of a Section
13 Event, multiplying the number of such one one-thousandth of a share
for which a Right was exercisable immediately prior to the first
occurrence of a Section 11(a)(ii) Event by the Purchase Price in effect
immediately prior to such first occurrence), and (2) dividing that
product (which, following the first occurrence of a Section 13 Event,
shall be referred to as the "Purchase Price" for each Right and for all
purposes of this Agreement) by 50% of the current market price
(determined pursuant to Section 11(d)(i) hereof) per share of the
Common Stock of such Principal Party on the date of consummation of
such Section 13 Event; (ii) such Principal Party shall thereafter be
liable for, and shall assume, by virtue of such Section 13 Event, all
the obligations and duties of the Company pursuant to this Agreement;
(iii) the term "Company" shall thereafter be deemed to refer to such
Principal Party, it being specifically intended that, subject to clause
(v) below, the provisions of Section 11 hereof shall apply only to such
Principal Party following the first occurrence of a Section 13 Event;
(iv) such Principal Party shall take such steps (including, but not
limited to, the reservation of a sufficient number of shares of its
Common Stock) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable upon the
exercise of the Rights; and (v) the provisions of Section 11(a)(ii)
hereof shall be of no effect following the first occurrence of any
Section 13 Event."
18. Section 13(d) of the Rights Agreement is hereby deleted in its
entirety.
19. Section 18 of the Rights Agreement is hereby amended and restated to
add the following subsection at the end thereof:
"(c) The indemnity provided in this Section 18 shall survive
the termination of this Agreement and the termination and the
expiration of the Rights. The costs and expenses reasonably incurred by
the Rights Agent in enforcing this right of indemnification shall be
paid by the Company. Anything to the contrary notwithstanding, in no
event shall the Rights Agent be liable for special, punitive, indirect,
consequential or incidental loss or damage of any kind
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<PAGE> 9
whatsoever (including but not limited to lost profits), even if the
Rights Agent has been advised of the likelihood of such loss or damage.
Any liability of the Rights Agent under this Agreement shall be limited
to the amount of fees paid by the Company to the Rights Agent
hereunder."
20. Section 23(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) 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
tenth Business Day (or such later date as may be determined by the
Board pursuant to clause (i) of the first sentence of Section 3(a) with
respect to the Distribution Date) following the Stock Acquisition Date
(or, if the Stock Acquisition Date shall have occurred prior to the
Record Date, the Close of business on the tenth Business Day following
the Record Date), or (ii) the Final Expiration Date, redeem all but not
less than all the then outstanding Rights at a redemption price of $.01
per Right, as such amount may be 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"). The redemption of the Rights by the Board may be
made effective at such time, on such basis and with such conditions as
the Board in its sole discretion may establish. The Company may, at its
option, pay the Redemption Price in cash, shares of Common Stock (based
on the "current market price," as defined in Section 11(d)(i) hereof,
of the Common Stock at the time of redemption) or any other form of
consideration, or any combination of any of the foregoing, deemed
appropriate by the Board. Notwithstanding anything contained in this
Agreement to the contrary, the Rights shall not be exercisable after
the first occurrence of a Section 11(a)(ii) Event until such time as
the Company's right of redemption hereunder has expired."
21. Section 23(c) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(c) In the event of a redemption of the Rights in accordance
with this Agreement, the Company may, at its option, discharge all of
its obligations with respect to the Rights by (i) issuing a press
release announcing the manner of redemption of the Rights in accordance
with this Agreement (with notice to the Rights Agent in accordance with
Section 26 hereof) and (ii) mailing payment of the Redemption Price to
the registered holders of the Rights at their last addresses as they
appear on the registry books of the Rights Agent or, prior to the
Distribution Date, on the registry books of the Transfer Agent of the
Common Shares, and upon such action, all outstanding Rights and Rights
Certificates shall be null and void without any further action by the
Company."
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<PAGE> 10
22. Section 24(a) of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"(a) The Board of Directors of the Company may, at its option,
at any time after a Section 11(a)(ii) Event, exchange all or part of
the then outstanding and exercisable Rights (which (i) shall not
include Rights that have become null and void pursuant to the
provisions of Section 7(e) hereof, and (ii) shall include, without
limitation, any Rights issued after the Distribution Date for shares of
Common Stock at an exchange ratio of one share of Common Stock per
Right, appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof (such
exchange ratio being hereinafter referred to as the "Exchange Ratio").
Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other
than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or any such Subsidiary, or any entity holding
Common Stock for or pursuant to the terms of any such plan), together
with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the shares of Common Stock then
outstanding."
23. Section 27 of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"Section 27. SUPPLEMENTS AND AMENDMENTS. Except as provided in
the penultimate sentence of this Section 27, for so long as the Rights
are then redeemable, the Company may, in its sole and absolute
discretion, and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without the
approval of any holders of the Rights. At any time when the Rights are
no longer redeemable, except as provided in the penultimate sentence of
this Section 27, the Company may, and the Rights Agent shall, if the
Company so directs, supplement or amend this Agreement without the
approval of any holders of Rights Certificates in order (i) to cure any
ambiguity or (ii) to correct or supplement any provision contained
herein which may be defective or inconsistent with any other provisions
herein; provided that no supplement or amendment shall adversely affect
the interests of the holders of Rights as such (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person). Upon the
delivery of a certificate from an appropriate officer of the Company
which states that the proposed supplement or amendment is in compliance
with the terms of this Section 27, and provided that such supplement or
amendment does not change or increase the Rights Agent's duties,
liabilities or obligations hereunder, the Rights Agent shall execute
such supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, no supplement or amendment shall be
made (i) which changes the
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<PAGE> 11
Redemption Price or (ii) at any time prior to such time as any Person
first becomes an Acquiring Person lowers the thresholds set forth in
Sections 1(a) and/or 3(a) hereof from 30% to less than, in either case,
the greater of (x) the sum of .001% and the largest percentage of the
outstanding shares of Common Stock then known by the Company to be
beneficially owned by any Person or (y) 10%. Prior to the Distribution
Date, the interests of the holders of Rights shall be deemed coincident
with the interests of the holders of Common Stock."
24. Section 31 of the Rights Agreement is hereby amended and restated to
read in its entirety as follows:
"Section 31. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of
this Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated; provided, however, that
notwithstanding anything in this Agreement to the contrary, if any such
term, provision, covenant or restriction is held by such court or
authority to be invalid, void or unenforceable and the Board determines
in its good faith judgment that severing the invalid, void or
unenforceable language from this Agreement would adversely affect the
purpose or effect of this Agreement, the right of redemption set forth
in Section 23 hereof shall be reinstated and shall not expire until the
Close of business on the tenth day following the date of such
determination by the Board. The Rights Agent shall always be entitled
to assume the Board acted in good faith under this Section 31 and shall
be fully protected and incur no liability in reliance thereon."
25. Except as amended hereby, the Rights Agreement shall remain unchanged
and shall remain in full force and effect.
26. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute
one instrument.
[signatures on following page]
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<PAGE> 12
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed by their respective duly authorized representatives as of the date
first above written.
ECC INTERNATIONAL CORP.
By: /s/ James C. Garrett
----------------------------------------
Name: James C. Garrett
Title: President and Chief Executive Officer
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C., SUCCESSOR TO
MELLON BANK, N.A., AS RIGHTS AGENT
By: /s/ Deborah Bass
----------------------------------------
Name: Deborah Bass
Title: Relationship Manager
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