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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 4, 1996.
APERTUS TECHNOLOGIES INCORPORATED
(Exact name of registrant as specified in its charter)
Minnesota 0-12378 41-1349953
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
7275 Flying Cloud Drive, Eden Prairie, Minnesota 55344
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (612) 828-0300
Not Applicable
(Former name or former address, if changed since last report.)
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Item 5. Other Events
On September 4, 1996, the Company amended and restated the Rights
Agreement between the Company and Norwest Bank Minneapolis, N.A., as Rights
Agent (the "Rights Agent"), dated as of September 18, 1986 (the "Prior
Agreement"). Described below are the more significant amendments set forth in
the Amended and Restated Rights Agreement, a copy of which is attached hereto as
Exhibit 4 (the "Amended Agreement"). The Amended Agreement sets forth the
description and the terms of the rights (the "Rights") held by holders of the
Company's common stock, par value $.05 per share (the "Common Stock"), to
purchase one-half of one share of the Common Stock. Capitalized terms used in
the summary below have the meanings given to them in the Amended Agreement:
The definition of an Acquiring Person in the Prior Agreement was amended to
(i) reduce from 20% to 15% the percentage ownership of outstanding Common
Stock required for an "Acquiring Person" and (ii) add an exception with
respect to an offer approved by the Board of Directors.
The Final Expiration Date of the Prior Agreement was amended from October 1,
1996 to September 4, 2006.
The Prior Agreement was amended to change the Purchase Price for each one-
half share of Common Stock acquired pursuant to the exercise of a Right from
$20.00 to $7.50.
The redemption provisions of the Prior Agreement were amended to (i) provide
that the Board of Directors may, at its option, redeem all outstanding rights
at any time prior to the earlier of the Stock Acquisition Date or the Final
Expiration Date and (ii) eliminate certain reinstatement rights for an
Acquiring Person.
A new Section 24 was added to the Prior Agreement to include an exchange
feature, whereby the Board of Directors of the Company may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or part
of the then outstanding and exercisable Rights (which shall not include
Rights that have become void pursuant to the provisions of Section 7(e)) for
Common Stock, provided, however, that the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other than an
Exempt Person), together with all Affiliates and Associates of such Person,
becomes the Beneficial Owner of 50% or more of the then outstanding shares of
Common Stock.
Exhibit A of the Agreement, the Form of Right Certificate, was amended to
reflect the various changes in the Amended Agreement.
In addition, the Company amended its Bylaws to require that a
shareholder give written notice of proposed business and of any director
nominations within a reasonable amount of time before the meeting, to provide
greater authority in conducting shareholder meetings, and to make certain other
changes. A copy of the Restated Bylaws, as amended and restated, is attached
hereto as Exhibit 3.2.
On September 4, 1996, the Company also restated, without further
amendment, its Articles of Incorporation. A copy of the Restated Articles of
Incorporation is attached hereto as Exhibit 3.1.
Item 7. Financial Statements and Exhibits
(c) Exhibits
3.1 Restated Articles of Incorporation of the Company, restated as of
September 4, 1996
3.2 Restated Bylaws of the Company, amended and restated as of
September 4, 1996
4 Amended and Restated Rights Agreement between the Company and
Norwest Bank Minnesota, National Association, amended and restated
as of September 4, 1996, including the amended and restated Form of
Right Certificate attached as Exhibit A thereto.
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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 report to be signed on its
behalf by the undersigned, thereunto duly authorized.
Dated: September 5, 1996
APERTUS TECHNOLOGIES INCORPORATED
By /s/ Julie Cummins Brady
---------------------------------------------
Julie Cummins Brady
Vice President, Secretary and General Counsel
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INDEX TO EXHIBITS
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<TABLE>
<CAPTION>
Exhibits Page No.
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3.1 Restated Articles of Incorporation of the Company,
restated as of September 4, 1996
3.2 Restated Bylaws of the Company, amended and restated
as of September 4, 1996
4 Amended and Restated Rights Agreement between the
Company and Norwest Bank Minnesota, N.A., amended and
restated as of September 4, 1996, including the amended
and restated Form of Right Certificate attached as
Exhibit A thereto
</TABLE>
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Exhibit 3.1
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RESTATED ARTICLES OF INCORPORATION
OF
APERTUS TECHNOLOGIES INCORPORATED
ARTICLE I.
The name of the Corporation is Apertus Technologies Incorporated.
ARTICLE II.
The purposes of this Corporation are general business purposes.
ARTICLE III.
The Corporation shall possess all powers necessary to conduct any business
in which it is authorized to engage, including but not limited to all those
powers expressly conferred upon business corporations by Minnesota Statutes,
together with those powers necessarily implied therefrom.
ARTICLE IV.
This Corporation shall have perpetual duration.
ARTICLE V.
The location and post office address of the registered office of this
Corporation in Minnesota is 7275 Flying Cloud Drive, Eden Prairie, Minnesota
55344.
ARTICLE VI.
The total authorized capital of this Corporation is 30,000,000 shares of
common stock, par value $.05 per share. There shall be no cumulative voting by
the shareholders of the Corporation. The shareholders of the Corporation shall
not have preemptive rights to subscribe for or acquire securities or rights to
purchase securities of any kind, class or series of the Corporation.
1
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ARTICLE VII.
An action required or permitted to be taken at a meeting of the Board of
Directors of this Corporation may be taken by a written action signed, or
counterparts of a written action signed, in the aggregate, by all of the
directors.
ARTICLE VIII.
The Board of Directors shall have the power, to the extent permitted by
law, to adopt, amend or repeal the Bylaws of this Corporation, subject to the
power of the shareholders to adopt, amend or repeal such Bylaws. Bylaws fixing
the number of directors or their classifications, qualifications, or terms of
office, or prescribing procedures for removing directors or filling vacancies in
the Board may be adopted, amended or repealed only by the affirmative vote of
the holders of 80% of the outstanding shares of Common Stock entitled to vote.
The number of directors shall be no less than three nor more than twenty
and shall be established by resolution of the Board of Directors. The number of
directors may be increased or decreased from time to time by a resolution
adopted by the holders of at least 80% of the outstanding shares of Common Stock
entitled to vote. In case of any increase or decrease in the number of
directors, the increase or decrease shall be distributed among the several
classes of directors as equally as possible as shall be determined by the Board
of Directors or by the holders of at least 80% of the outstanding shares of
Common Stock entitled to vote at an election of directors may remove any or all
of the directors from office at any time, with or without cause.
Notwithstanding any other provisions of these Restated Articles of
Incorporation or the Bylaws of the Corporation or the fact that a lesser
percentage may be specified by law, these Restated Articles of Incorporation or
the Bylaws of the Corporation, the affirmative vote of the holders of at least
80% of the outstanding shares of Common Stock entitled to vote shall be required
to amend or repeal all or any portion of this Article IX; provided, however,
that if the Continuing Directors shall by majority vote of all Continuing
Directors have adopted a resolution approving the amendment or repeal proposal
and have determined to recommend it for approval by the holders of Common Stock,
then the vote required shall be the affirmative vote of the holders of at least
a majority of the outstanding Common Stock entitled to vote.
The term "Common Stock" shall mean the Common Stock, par value $.05 per
share, of the Corporation.
The term "Continuing Director" shall mean any member of the Board of
Directors of the Corporation who is unaffiliated with a Controlling Person and
was a member of the Board prior to the time that the Controlling Person became a
Controlling Person, and any successor of a Continuing Director who is
unaffiliated
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with a Controlling Person and is recommended or elected to succeed a Continuing
Director by a majority of all Continuing Directors.
The term "Controlling Person" shall mean any Person who beneficially owns a
number of shares of Common Stock, whether or not such number includes shares not
then issued, which exceeds a number equal to ten percent of the outstanding
shares of Common Stock.
The term "Person" shall mean an individual, a corporation, a partnership,
an association, a joint-stock company, a trust, any unincorporated organization
and any other entity or group.
ARTICLE IX.
A director of this corporation shall not be personally liable to the
corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the corporation or its shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) under Section 302A.550 or 80A.23 of the Minnesota
Statutes; (iv) for any transaction from which the director derived an improper
personal benefit; or (v) for any act or omission occurring prior to the date
when this Article X became effective.
If the Minnesota Business Corporation Act is hereafter amended to authorize
the further elimination or limitation of the liability of a director, then the
liability of a director of the corporation shall be eliminated or limited to me
fullest extent permitted by the Minnesota Business Corporation Act, as so
amended.
Any repeal or modification of the foregoing provisions of this Article X by
the shareholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
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Exhibit 3.2
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RESTATED BYLAWS
OF
APERTUS TECHNOLOGIES INCORPORATED
ARTICLE I.
Offices
Section 1. Registered Office. The registered office of the Corporation is
as provided and designated in the Articles of Incorporation. The Board of
Directors of the Corporation may, from time to time, change the location of the
registered office. On or before the day that such change is to become
effective, a certificate of such change and of the location and post office
address of the new registered office shall be filed with the Secretary of State
of the State of Minnesota.
Section 2. Other Offices. The Corporation may establish and maintain such
other offices, within or without the State of Minnesota, as are from time to
time authorized by the Board of Directors.
ARTICLE II.
Meeting of Shareholders
Section 1. Place of Meeting. All meetings of the shareholders shall be
held at the registered office of the Corporation in the State of Minnesota or
at such place within or without the state as may be fixed from time to time by
the Board of Directors or by written consent of all the shareholders entitled to
vote thereat.
Section 2. Annual Meetings.
(a) A meeting of the shareholders shall be held on an annual basis on
such date and at such time and place as the Board of Directors shall by
resolution establish.
(b) At the annual meeting, the shareholders, voting as provided in the
Articles of Incorporation and these Bylaws, shall elect qualified successors for
directors who serve for an indefinite term or whose terms have expired or are
due to expire within six months after the date of the meeting and shall transact
such other business as may properly come before them.
(c) To be properly brought before a regular meeting of shareholders,
business must be (1) specified in the notice of the meeting, (2) directed to be
brought before the meeting by the Board of Directors or (3) proposed at the
meeting by a shareholder who (i) was a shareholder of record at the time of
giving of notice
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provided for in these Bylaws, (ii) is entitled to vote at the meeting and (iii)
gives prior notice of the matter, which must otherwise be a proper matter for
shareholder action, in the manner herein provided. For business to be properly
brought before a regular meeting by a shareholder, the shareholder must give
written notice to the Secretary of the Corporation so as to be received at the
principal executive office of the Corporation at least 120 days before the date
that is one year after the prior year's annual meeting. Such notice shall set
forth (1) the name and record address of the shareholder and of the beneficial
owner, if any, on whose behalf the proposal will be made, (2) the class and
number of shares of the Corporation owned by the shareholder and beneficially
owned by the beneficial owner, if any, on whose behalf the proposal will be
made, (3) a brief description of the business desired to be brought before the
regular meeting and the reasons for conducting such business and (4) any
material interest in such business of the shareholder and the beneficial owner,
if any, on whose behalf the proposal is made. The chairman of the meeting shall
refuse to acknowledge any proposed business not made in compliance with the
foregoing procedure.
Section 3. Special Meetings. Special meetings of the shareholders may be
held at any time and for any proper purpose and may be called by the Chief
Executive Officer, the Chief Financial Officer, two or more directors or a
shareholder or shareholders holding 10% or more of the voting power of all
shares entitled to vote, except that a special meeting called by a shareholder
or shareholders for the purpose of considering any action to directly or
indirectly facilitate or effect a business combination, including any action to
change or otherwise affect the composition of the Board of Directors for that
purpose, must be called by a shareholder or shareholders holding 25% or more of
the voting power of all shares entitled to vote. A shareholder or shareholders
holding the requisite percentage of the voting power may demand a special
meeting of the shareholders by written notice given to the Chief Executive
Officer or Chief Financial Officer of the Corporation stating the purposes of
the meeting. Within 30 days after receipt of such a demand by one of those
officers, the Board of Directors shall cause a special meeting of shareholders
to be called and held on notice not later than 90 days after receipt of the
demand, at the expense of the Corporation. Special meetings shall be held on
the date and at the time and place fixed by the Chief Executive Officer, the
Chief Financial Officer or the Board of Directors, except that a special meeting
called by or at demand of a shareholder or shareholders shall be held in the
county where the principal executive office is located. The business transacted
at a special meeting shall be limited to the purpose stated in the notice of the
meeting.
Section 4. Notice of Meetings. There shall be mailed to each shareholder,
shown by the books of the Corporation to be a holder of record of voting shares,
at his address as shown by the books of the Corporation, a notice setting out
the time and place of each regular meeting and each special meeting, except
where the meeting is an adjourned meeting and the date, time and place of the
meeting were announced at the time of adjournment. This notice shall be mailed
at least five (5) days prior thereto and no earlier than sixty (60) days prior
thereto. However, notice of a meeting at which an agreement of merger or
exchange is to be considered shall
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be mailed to all shareholders of record, whether entitled to vote or not, at
least fourteen (14) days prior thereto. Every notice of any special meeting
called pursuant to this Section shall state the purpose or purposes for which
the meeting has been called, and the business transacted at all special meetings
shall be confined to the purpose stated in the notice.
Section 5. Waiver of Notice. A shareholder may waive notice of a meeting
of shareholders. A waiver of notice by a shareholder entitled to notice is
effective whether given before, at, or after the meeting, and whether given in
writing, orally, or by attendance. Attendance by a shareholder at a meeting is
a waiver of notice that meeting, except where the shareholder objects at the
beginning of the meeting to the transaction of business because the meeting is
not lawfully called or convened, or objects before a vote on an item of business
because the item may not lawfully be considered at that meeting and does not
participate in the consideration of the item at that meeting.
Section 6. Quorum, Adjourned Meetings. The holders of a majority of the
shares entitled to vote shall constitute a quorum for the transaction of
business at any regular or special meeting. In case quorum shall not be
present at a meeting, those present may adjourn to such day as they shall, by
majority vote, agree upon, and a notice of such adjournment shall be mailed to
each shareholder entitled to vote at least five (5) days before such adjourned
meeting. If a quorum is present, a meeting may be adjourned from time to time
without notice other than announcement at the meeting. At adjourned meetings at
which a quorum is present, any business may be transacted which might have been
transacted at the meeting as originally noticed. If a quorum is present, the
shareholders may continue to transact business until adjournment notwithstanding
the withdrawal of enough shareholders to leave less than a quorum.
Section 7. Voting. At each meeting of the shareholders every shareholder
having the right to vote shall be entitled to vote either in person or by proxy,
but no proxy shall be valid after eleven (11) months unless a longer period is
expressly provided for in the appointment. Each shareholder, unless the
Articles of Incorporation or statute provide otherwise, shall have one vote for
each share having voting power registered in such shareholder's name on the
books of the Corporation. Jointly owned shares may be voted by any joint owner
unless the Corporation receives written notice from any one of them denying the
authority of that person to vote those shares. Upon the demand of any
shareholder, the vote upon any question before the meeting shall be by ballot.
All questions shall be decided by a majority vote of the number of shares
entitled to vote and represented at the meeting at the time of the vote except
if otherwise required by statute, the Articles of Incorporation, or these
Bylaws.
Section 8. Closing of Books. The Board of Directors may fix a time, not
exceeding sixty (60) days preceding the date of any meeting of shareholders, as
a record date for the determination of the shareholders entitled to notice of,
and to vote at, such meeting, notwithstanding any transfer of shares on the
books of the
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Corporation after any record date against the transfer of shares during the
whole or any part of such period. If the Board of Directors fails to fix a
record date for determination of the shareholders entitled to notice of, and to
vote at, any meeting of shareholders, the record date shall be the twentieth
(20th) day preceding the date of such meeting.
Section 9. Organization and Conduct of Business. The highest ranking
officer of the Corporation who is present shall call to order and act as
chairman of any meeting of the shareholders. In the absence of the Secretary,
the secretary of the meeting shall be such person as the chairman of the meeting
appoints. The chairman of the meeting shall have the right and authority to
prescribe such rules, regulations and procedures and to do all such acts as, in
the judgment of such chairman, are appropriate for conduct of the meeting. To
the extent not prohibited by law, such rules, regulations or procedures may
include, without limitation, establishment of (1) an agenda or order of business
for the meeting and the method by which business may be proposed, (2) rules and
procedures for maintaining order at the meeting and the safety of those present,
(3) limitations on attendance at or participation in the meeting to shareholders
of record of the Corporation, their duly authorized proxies or such other
persons as the chairman of the meeting shall determine, (4) restrictions on
entry to the meeting after the time fixed for the commencement thereof and (5)
limitations on the time allotted to questions or comments by participants. Any
proposed business contained in the notice of a regular meeting is deemed to be
on the agenda and no further motions or other actions shall be required to bring
such proposed business up for consideration. Unless and to the extent otherwise
determined by the chairman of the meeting, it shall not be necessary to follow
Robert's Rules of Order or any other rules of parliamentary procedure at the
meeting of the shareholders. Following completion of the business of the
meeting as determined by the chairman of the meeting, the chairman of the
meeting shall have the exclusive authority to adjourn the meeting.
Section 10. Action Without a Meeting. Any action which may lawfully be
taken at a shareholders' meeting may be taken without a meeting if authorized by
a writing or writings signed by all of the holders of shares who would be
entitled to a notice of a meeting for such purpose. Such action shall be
effective on the date on which the last signature is placed on such writing or
writings, or such earlier effective date as is set forth therein. If any action
so taken requires a certificate to be filed in the office of the Secretary of
State, the officer signing the same shall state therein that the action was
effected in the manner aforesaid.
ARTICLE III
Board of Directors
Section 1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of its Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statue or by the Articles of Incorporation or by these
bylaws required to be exercised or done by the shareholders.
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Section 2. Number, Qualification and Term of Office. The number of
directors shall be no less than three (3) nor more than twenty (20) and shall be
established by resolution of the Board of Directors. The number of directors
may be increased or decreased from time to time by a resolution adopted by the
holders of at least 80% of the outstanding shares of Common Stock entitled to
vote. The directors shall be divided into three classes, as equal in number as
possible. At each regular meeting of the shareholders, each director elected
to succeed a director whose term has expired shall hold office until the third
succeeding regular meeting of the shareholders after such director's election
and until such director's successor has been duly elected and qualified, or
until the earlier death, resignation, removal or disqualification of such
director. In case of any increase or decrease in the number of directors, the
increase or decrease shall be distributed among the several classes of directors
as equally as possible as shall be determined by the Board of Directors or by
the affirmative vote of the holders of at least 80% of the outstanding shares of
Common Stock entitled to vote. Directors need not be shareholders.
Nominations of persons for election as directors may be made at a regular
meeting of shareholders (a) by or at the direction of the Board of Directors or
(b) by any shareholder who (1) was a shareholder of record at the time of giving
of notice provided for in these Bylaws, (2) is entitled to vote at the meeting
and (3) gives prior notice of the nomination in the manner herein provided. For
a nomination to be properly made by a shareholder, the shareholder must give
written notice to the Secretary of the Corporation so as to be received at the
principal executive office of the Corporation at least 120 days before the date
that is one year after the prior year's regular meeting. Such notice shall set
forth (a) as to the shareholder giving the notice: (1) the name and record
address of the shareholder and of the beneficial owner, if any, on whose behalf
the nomination will be made, and (2) the class and number of shares of the
Corporation owned by the shareholder and beneficially owned by the beneficial
owner, if any, on whose behalf the nomination will be made; and (b) as to each
person the shareholder proposes to nominate: (1) the name, age, business address
and residence address of the person, (2) the principal occupation or employment
of the person and (3) the class and number of shares of the Corporation's
capital stock beneficially owned by the person. The chairman of the meeting
shall refuse to acknowledge the nomination of any person not made in compliance
with the foregoing procedure.
Section 3. Board Meetings. Meetings of the Board of directors may be held
from time to time at such time and place within or without the State of
Minnesota as may be designated in the notice of such meeting.
Section 4. Calling Meetings; Notice. Meetings of the Board of Directors
may be called by the Chairman of the Board by giving at least twenty-four (24)
hours' notice, or by any other director by giving at least five (5) days'
notice, of the date, time and place thereof to each director by mail, telephone,
telegram or in person.
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Section 5. Waiver of Notice. Notice of any meeting of the Board of
Directors may be waived by any director either before, at, or after such meeting
orally or in writing signed by such director. A director, by his attendance at
any meeting of the Board of Directors, shall be deemed to have waived notice of
such meeting, except where the director objects at the beginning of the meeting
to the transaction of business because the meeting is not lawfully called or
convened and does not participate thereafter in the meeting.
Section 6. Quorum. A majority of the directors holding office immediately
prior to a meeting of the Board of Directors shall constitute a quorum for the
transaction of business at such meeting.
Section 7. Absent Directors. A director may give advance written consent
or opposition to a proposal to be acted on at a meeting of the Board of
Directors. If such director is not present at the meeting, consent or
opposition to a proposal does not constitute presence for purposes of
determining the existence of a quorum, but consent or opposition shall be
counted as a vote in favor of or against the proposal and shall be entered in
the minutes or other record of action at the meeting, if the proposal acted on
at the meeting is substantially the same or has substantially the same effect as
the proposal to which the director has consented or objected.
Section 8. Conference Communications. Any or all directors may
participate in any meeting of the Board of Directors, or of any duly constituted
committee thereof, by any means of communication through which the directors may
simultaneously hear each other during such meeting. For the purposes of
establishing a quorum and taking any action at the meeting, such directors
participating pursuant to this Section 8 shall be deemed present in person at
the meeting, and the place of the meeting shall be the place or origination of
the conference communication.
Section 9. Vacancies. Vacancies in the Board of Directors of this
Corporation occurring by reason of death, resignation, removal or
disqualification shall be filled for the unexpired term by a majority of the
remaining directors, even though less than a quorum. Vacancies resulting from
an increase in the number of directors may be filled by a majority vote of the
remaining directors. Each director elected to fill a vacancy shall hold office,
subject to the provisions of these Bylaws, until a qualified successor is
elected by the shareholders at a regular or special meeting. The shareholders
shall elect a director to fill the remainder of any unexpired term for which a
director has been elected to fill a vacancy by the Board of Directors at their
next regular or special meeting.
Section 10. Removal. The affirmative vote of the holders of at least 80%
of the outstanding shares of Common Stock entitled to vote at an election of
directors may remove any or all of the directors from office at any time, with
or without cause. In the event that the Board of Directors or any one or more
directors be so removed, new directors shall be elected at the same meeting. A
director named by the Board of Directors to fill a vacancy may be removed from
office at any time, with
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or without cause, by the affirmative vote of the remaining directors if the
shareholders have not elected directors in the interim between the time of the
appointment to fill such vacancy and the time of the removal.
Section 11. Committee. A resolution approved by the affirmative vote of a
majority of the Board of Directors may establish committees having the authority
of the Board in the management of the business of the Corporation to the extent
provided in the resolution. A committee shall consist of one or more persons,
who need not be directors, appointed by the affirmative vote of a majority of
the directors present. Committees are subject to the direction and control of,
and vacancies in the membership thereof shall be filled by, the Board of
Directors.
A majority of the members of the committee present at a meeting is a quorum
for the transaction of business, unless a larger or smaller proportion or number
is provided in a resolution approved by the affirmative vote of a majority of
the directors present.
Section 12. Written Action. An action required or permitted to be taken at
a meeting of the Board of Directors may be taken by written action signed or
counterparts of a written action signed in the aggregate by all of the
directors. The written action is effective when signed by all of the directors,
unless a different effective time is provided in the written action.
Section 13. Resignations. Any director of the Corporation may resign at
any time by giving written notice to the Secretary of the Corporation. Such
resignation shall take effect at the date of the receipt of such notice, or at
any later time specified therein, and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
Section 14. Compensation of Directors. By resolution of the Board of
directors, each director may be paid his expenses, if any, of attendance at each
meeting of the Board of Directors, and may be paid a stated amount as director
or a fixed sum for attendance at each meeting of the Board of Directors, or
both. No such payment shall preclude a director from serving the Corporation in
any other capacity and receiving compensation therefor. Members of special or
standing committees may be allowed, pursuant to resolution by the Board of
Directors, like compensation for attending committee meetings.
ARTICLE IV.
Officers
Section 1. Number. The officers of the Corporation shall be chosen by the
Board of Directors and shall include a Chairman of the Board, a Chief Executive
Officer and/or President, a Chief Financial Officer, a Vice President and a
Secretary. The Board of Directors may also choose additional Vice Presidents
and one or more Assistant Secretaries. Any number of offices may be held by the
same person.
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Section 2. Election, Term of Office and Qualifications. The Board of
Directors shall elect or appoint, by resolution approved by the affirmative vote
of a majority of the directors present, from within or without their number, the
Chairman of the Board, President, Chief Financial Officer, Secretary and such
other officers as may be deemed advisable, each of whom shall have the powers,
rights, duties, responsibilities, and terms in office provided for in these
Bylaws or a resolution of the Board of Directors not inconsistent therewith.
The President and all other officers who may be directors shall continue to hold
office until the election and qualification of their successors, notwithstanding
an earlier termination of their directorship.
Section 3. Removal and Vacancies. Any officer may be removed from his
office by the Board of Directors at any time, with or without cause. Such
removal, however, shall be without prejudice to the contract rights of the
person so removed. If there be a vacancy among the officers of the Corporation
by reason of death, resignation or otherwise, such vacancy shall be filled for
the unexpired term by the Board of Directors.
Section 4. Chairman of the Board. The Chairman of the Board (or his
designee), if one is elected, shall preside at all meetings of the shareholders
and directors and shall have such other duties as may be prescribed, from time
to time, by the Board of Directors.
Section 5. Chief Executive Officer. The Chairman of the Board or the
President shall be the Chief Executive Officer of the Corporation as determined
by the Board of Directors. The Chief Executive Officer shall have general
active management of the business of the Corporation. In the absence of the
Chairman of the Board or Chief Executive Officer, if separately appointed, the
President shall preside at all meetings of the shareholders and directors. The
Chief Executive Officer shall see that all orders and resolutions of the Board
of Directors are carried into effect. He, in general, shall perform all duties
usually incident to the office of the Chief Executive Officer. He shall have
such other duties as may, from time to time, be prescribed by the Board of
Directors.
Section 6. Chief Financial Officer. The Chief Financial Officer shall be
the chief financial officer and shall keep accurate financial records for the
Corporation. He shall deposit all moneys, drafts and checks in the name of, and
to the credit of, the Corporation in such banks and depositaries as the Board of
Directors shall, from time to time, designate. He shall have power to endorse,
for deposit, all notes, checks and drafts received by the Corporation. He shall
disburse the funds of the Corporation, as ordered by the Board of Directors,
making proper vouchers therefor. He shall render to the President and the
directors, whenever requested, an account of all his transactions as Chief
Financial Officer.
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<PAGE>
Section 7. Vice President. Each Vice President, if one or more are
elected, shall have such powers and shall perform such duties as may be
specified in the Bylaws or prescribed by the Board of Directors or by the
President. In the event of the absence or disability of the President, Vice
Presidents shall succeed to his power and duties in the order designated by the
Board of Directors.
Section 8. Secretary. The Secretary shall be secretary of and shall
attend all meetings of the shareholders and Board of Directors and shall record
all proceedings of such meetings in the minute book of the Corporation. He or
she shall give proper notice of meetings of shareholders and directors. He or
she shall perform such other duties as may, from time to time, be prescribed by
the Board of Directors or by the President.
Section 9. Assistant Secretary. The Assistant Secretary, if any, or if
there be more than one (1), the Assistant Secretaries in the order determined by
the Board of Directors, shall in the absence or disability of the Secretary
perform the duties and exercise the powers of the Secretary, and shall perform
such other duties and have such other powers as the Board of Directors may from
time to time prescribe.
Section 10. Compensation. The officers of the Corporation shall receive
such compensation for their services as may be determined, from time to time, by
resolution of the Board of Directors.
ARTICLE V.
Certificates of Stock
Section 1. Certificates of Stock. All shares of the Corporation shall be
certificated shares. Ever holder of stock in the Corporation shall be entitled
to have a certificate, signed by, or in the name of the Corporation by the
President, or a Vice President and the Secretary or an Assistant Secretary of
the Corporation, certifying the number of shares owned by him in the
Corporation. The certificates of stock shall be numbered in the order of their
issue.
Section 2. Issuance of Shares. The Board of Directors is authorized to
cause to be issued shares of the Corporation up to the full amount authorized by
the Articles of Incorporation in such amounts as may be determined by the Board
of Directors and as may be permitted by law. No shares shall be allotted except
in consideration of cash or other property, tangible or intangible, received or
to be received by the Corporation under a written agreement, or services
rendered or to be rendered to the Corporation under a written agreement, or of
an amount transferred from surplus to stated capital upon a share dividend. At
the time of such allotment of shares, the Board of Directors making such
allotments shall state, by resolution, their determination of the fair value to
the Corporation in monetary terms of any consideration other than cash for which
shares are allotted.
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<PAGE>
Section 3. Facsimile Signatures. Where a certificate is signed (1) by a
transfer agent or an assistant transfer agent, or (2) by a transfer clerk acting
on behalf of the Corporation and a registrar, the signature of any such
President, Vice President, Secretary or Assistant Secretary may be facsimile.
In case any officer or officers who have signed, or whose facsimile signature or
signatures have been used on any such certificate or certificates shall cease to
be such officer or officers of the Corporation before such certificate or
certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be adopted by the Corporation and be issued and
delivered as though the person or persons who signed such certificate or
certificates or whose facsimile signature or signatures have been used thereon
had not ceased to be such officer or officers of the Corporation.
Section 4. Lost or Destroyed Certificates. Except as otherwise provided
by Minnesota Statutes Section 302A.419, any shareholder claiming a certificate
for shares to be lost, stolen or destroyed shall make an affidavit of that fact
in such form as the Board of Directors shall require and shall, if the Board of
Directors so requires, give the Corporation a bond of indemnity in form, in an
amount, and with one or more sureties satisfactory to the Board of Directors, to
indemnify the Corporation against any claim which may be made against it on
account of the reissue of such certificate, whereupon a new certificate may be
issued in the same tenor and for the same number of shares as the one alleged to
have been lost, stolen or destroyed.
Section 5. Transfers of Stock. Upon surrender to the Corporation or the
transfer agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate to
the person entitled thereto, cancel the old certificate and record the
transaction upon its books.
Section 6. Registered Shareholders. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of Minnesota.
ARTICLE VI.
Indemnification of Certain Persons
Section 1. The Corporation shall indemnify such persons, for such expenses
and liabilities, in such manner, under such circumstances, and to such extent as
permitted by Minnesota Statutes Section 302A.521, as now enacted or hereafter
amended.
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<PAGE>
ARTICLE VII.
Books and Records
Section 1. Share Register. The Board of Directors of the Corporation
shall cause to be kept at its principal executive office, or at another place or
places within the United States determined by the Board:
(1) a share register not more than one year old, containing the names
and addresses of the shareholders and the number and classes of shares held
by each shareholder; and
(2) a record of the dates on which certificates representing shares
were issued.
Section 2. Other Books and Records. The Board of Directors shall cause to
be kept at its principal executive office, or, if its principal executive office
is not in Minnesota, shall make available at its registered office within ten
days after receipt by an officer of the Corporation of a written demand for them
made by a shareholder or other person authorized by Minnesota Statutes Section
302A.461, originals or copies of:
(1) records of all proceedings of shareholders for the last three
years;
(2) records of all proceedings of the Board for the last three
years;
(3) its Articles and all amendments currently in effect;
(4) its Bylaws and all amendments currently in effect;
(5) financial statements required by Minnesota Statutes Section
302A.463 and the financial statement for the most recent interim period
prepared in the course of the operation of the Corporation for distribution
to the shareholders or to a governmental agency as a matter of public
record;
(6) reports made to shareholders generally within the last three
years;
(7) a statement of the names and usual business addresses of its
directors and principal officers; and
(8) any shareholder voting or control agreement of which the
Corporation is aware.
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<PAGE>
ARTICLE VIII.
Loans, Guarantees, Suretyship
Section 1. The Corporation may lend money to, guarantee an obligation
of, become a surety for, or otherwise financially assist a person if the
transaction, or a class of transactions to which the transaction belongs, is
approved by the affirmative vote of a majority of the directors present and:
(1) is in the usual and regular course of business of the
Corporation;
(2) is with, or for the benefit of, a related corporation, an
organization in which the Corporation has a financial interest, an
organization with which the Corporation has a business relationship, or an
organization to which the Corporation has the power to make donations;
(3) is with, or for the benefit of, an officer or other employee
of the Corporation or a subsidiary, including an officer or employee who is
a director of the Corporation or a subsidiary, and may reasonably be
expected, in the judgment of the Board, to benefit the Corporation; or
(4) has been approved by the affirmative vote of the holders of
two-thirds of the outstanding shares.
The loan, guarantee, surety contract or other financial assistance may be with
or without interest, and may be unsecured, or may be secured in the manner as a
majority of the directors approved, including, without limitation, a pledge of
or other security interest in shares of the Corporation. Nothing in this
Section shall be deemed to deny, limit, or restrict the powers of guaranty or
warranty of the Corporation at common law or under a statute of the State of
Minnesota.
ARTICLE IX.
General Provisions
Section 1. Dividends. Subject to provisions of applicable law and the
Articles of Incorporation, dividends upon the capital stock of the Corporation
may be declared by the Board of Directors at any regular or special meeting, and
may be paid in cash, in property, or in shares of the capital stock.
Section 2. Record Date. Subject to any provisions of the Articles of
Incorporation, the Board of Directors may fix a date not exceeding 120 days
preceding the date fixed for the payment of any dividend as the record date for
the determination of the shareholders entitled to receive payment of the
dividend and, in such case, only shareholders of record on the date so fixed
shall be entitled to receive payment of such dividend notwithstanding any
transfer of shares on the books of the Corporation after the record date. The
Board of Directors may close the books of the Corporation against the transfer
of shares during the whole or any part of such period.
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<PAGE>
Section 3. Annual Statement. The Board of Directors shall present at any
regular or special meeting of the shareholders when called for by vote of the
shareholders, a full and clear statement of the business and condition of the
Corporation.
Section 4. Checks. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time designate.
Section 5. Fiscal Year. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
Section 6. Seal. The Corporation shall have no corporate seal.
ARTICLE X.
Amendments
Section 1. These Bylaws may be amended or altered by a vote of the
majority of the whole Board of Directors at any meeting provided that notice of
such proposed amendment shall have been given in the notice given to the
directors of such meeting. Such authority in the Board of Directors is subject
to the power of the shareholders to change or repeal such Bylaws by a majority
vote of the shareholders present or represented at any regular or special
meeting of shareholders called for such purpose, and the Board of Directors
shall not make or alter any Bylaws fixing a quorum for meetings of shareholders,
prescribing procedures or removing directors of filling vacancies in the Board
of Directors, or fixing the number of directors or their classifications,
qualifications, or terms of office, except that the Board of Directors may adopt
or amend any Bylaw to increase their number.
ARTICLE XI.
Securities of Other Corporations
Section 1. Voting Securities Held by the Corporation. Unless otherwise
ordered by the Board of Directors, the President shall have full power and
authority on behalf of the Corporation to purchase, sell, transfer or encumber
any and all securities of any other corporation owned by the Corporation, and
may execute and deliver such documents as may be necessary to effectuate such
purchase, sale, transfer or encumbrance. The Board of Directors may, from time
to time, confer like powers upon any other person or persons.
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<PAGE>
Exhibit 4
---------
================================================================================
APERTUS TECHNOLOGIES INCORPORATED
AND
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
AS RIGHTS AGENT
AMENDED AND RESTATED RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 4, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
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<S> <C>
Section 1. Certain Definitions............................................ 1
Section 2. Appointment of Rights Agent.................................... 5
Section 3. Issuance of Right Certificates................................. 5
Section 4. Form of Right Certificates..................................... 6
Section 5. Countersignature and Registration.............................. 7
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Lost, Stolen, Destroyed or
Mutilated Right Certificates..................................... 7
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.. 8
Section 8. Cancellation and Destruction of Right Certificates............. 10
Section 9. Reservation and Availability of Shares of Common Stock......... 10
Section 10. Common Stock Record Date...................................... 11
Section 11. Adjustment of Purchase Price, Number and Kind of
Shares or Number of Rights................................. 12
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.... 18
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power........................................... 18
Section 14. Fractional Rights and Fractional Shares....................... 21
Section 15. Rights of Action.............................................. 22
Section 16. Agreement of Right Holders.................................... 22
Section 17. Right Certificate Holder Not Deemed a Shareholder............. 23
Section 18. Concerning the Rights Agent................................... 23
</TABLE>
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<TABLE>
<CAPTION>
<S> <C>
Section 19. Merger or Consolidation or Change of Name of
Rights Agent............................................... 24
Section 20. Duties of Rights Agent........................................ 25
Section 21. Change of Rights Agent........................................ 27
Section 22. Issuance of New Right Certificates............................ 28
Section 23. Redemption.................................................... 28
Section 24. Exchange...................................................... 29
Section 25. Notice of Certain Events...................................... 30
Section 26. Notices....................................................... 30
Section 27. Supplements and Amendments.................................... 31
Section 28. Successors.................................................... 32
Section 29. Benefits of this Agreement.................................... 32
Section 30. Administration and Interpretation by Directors................ 32
Section 31. Severability.................................................. 32
Section 32. Governing Law................................................. 33
Section 33. Counterparts.................................................. 33
Section 34. Descriptive Headings.......................................... 33
Section 35. Costs of Enforcement.......................................... 33
Exhibit A--Form of Right Certificate....................................... A-1
</TABLE>
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AMENDED AND RESTATED RIGHTS AGREEMENT
Agreement, dated as of September 4, 1996, between Apertus Technologies
Incorporated, a Minnesota corporation (the "Company"), and Norwest Bank
Minnesota, National Association, a national banking association, as Rights Agent
(the "Rights Agent").
WITNESSETH
WHEREAS, on September 18, 1986, the Board of Directors of the Company
authorized and declared a dividend of one Right (as hereinafter defined) for
each share of Common Stock, par value $.05 per share, of the Company outstanding
on October 1, 1986, and authorized the issuance of one Right with respect to
each share of Common Stock issued thereafter and prior to the earlier of the
Distribution Date (as hereinafter defined) and the Expiration Date (as
hereinafter defined) each Right (individually a "Right" and collectively the
"Rights") initially representing the right to purchase one-half of one share of
Common Stock.
WHEREAS, on September 4, 1996, the Board of Directors determined to amend
and restate the Rights Agreement dated as of September 18, 1986, and directed
the Rights Agent to enter into this Amended and Restated Agreement (this
"Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
Section 1. Certain Definitions. For purposes of this Agreement, the
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who or which,
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include an Exempt Person or a Person acquiring
Beneficial Ownership pursuant to an Approved Offer. For purposes of this
Agreement, any calculation of the number of shares of Common Stock
outstanding at any particular time, including for purposes of determining
the particular percentage of such outstanding shares of Common Stock of
which any Person is the Beneficial Owner, shall be made in accordance with
the last sentence of Rule 13d-3(d)(1)(i) of the General Rules and
Regulations under the Exchange Act.
(b) "Acquisition Event" shall mean any event described in Section
11(a)(ii) or Section 13(a).
<PAGE>
(c) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Exchange Act.
(d) "Approved Offer" shall mean a tender offer or an exchange
offer for all outstanding Common Stock of the Company at a price and on
terms determined by the Board of Directors of the Company, at a time when a
majority of the members of the Board of Directors then serving are
Continuing Directors and after receiving advice from one or more investment
banking firms, to be (a) fair to shareholders (taking into account all
factors that the Board of Directors deems relevant) and (b) otherwise in
the best interests of the Company, its shareholders, employees, customers,
suppliers and creditors and the communities in which the Company does
business.
(e) A Person shall be deemed the "Beneficial Owner" of, and shall
be deemed to "beneficially own," any securities:
(i) which such Person or any of such Person's Affiliates or
Associates, directly or indirectly, has
(A) the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding (whether
or not in writing), other than customary agreements with and
among underwriters and selling group members with respect to a
bona fide public offering of securities, or upon the exercise of
conversion rights, exchange rights, rights (other than the Rights
at any time prior to the occurrence of an Acquisition Event but
thereafter including Rights acquired by such Person from and
after the Distribution Date other than Rights acquired by such
Person directly from the Company pursuant to Section 3(a) or
Rights acquired by such Person upon adjustments under Section 11
or 22 to Rights that would not be deemed hereunder to be
beneficially owned by such Person), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any securities
tendered pursuant to a tender or exchange offer made by or on
behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for
purchase or exchange; or
(B) (1) the right to vote or dispose of or (2) the
"beneficial ownership" (as determined pursuant to Rule 13d-3 of
the General Rules and Regulations under the Exchange Act) and
including without limitation pursuant to any agreement,
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<PAGE>
arrangement or understanding (whether or not in writing) other
than customary agreements with and among underwriters and selling
group members with respect to a bona fide public offering of
securities; provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, any securities
if the agreement, arrangement or understanding to vote such
securities (x) arises solely from a revocable proxy or consent
given to such Person or any of such Person's Affiliates or
Associates in response to a public proxy solicitation made
pursuant to, and in accordance with, the applicable rules and
regulations under the Exchange Act and (y) is not also then
reportable by such Person on Schedule 13D under the Exchange Act
(or any comparable or successor report) as being beneficially
owned by such Person; or
(ii) which are beneficially owned, directly or indirectly,
by any other Person (or any Affiliate or Associate thereof) with which
such Person (or any of such Person's Affiliates or Associates) has any
agreement, arrangement or understanding (whether or not in writing)
other than customary agreements with and among underwriters and
selling group members with respect to a bona fide public offering of
securities, for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy that does not, as a result of the
proviso to clause (i)(B) of this Section 1(e), cause the holder
thereof to be deemed to be the beneficial owner of such securities
under clause (i)(B) of this Section 1(e) or disposing of any voting
securities of the Company.
Notwithstanding anything in this definition of Beneficial Ownership to the
contrary, the phrase "then outstanding," when used with reference to a
Person's Beneficial Ownership of securities of the Company, shall mean the
number of such securities then issued and outstanding together with the
number of such securities not then actually outstanding which such Person
is deemed to beneficially own hereunder.
(f) "Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in the State of New York or
Minnesota are authorized or obligated by law or executive order to close.
(g) "Close of Business" on any given date shall mean 5:00 P.M.,
Minneapolis, Minnesota time, on such date; provided, however, that if such
date is not a Business Day it shall mean 5:00 P.M., Minneapolis, Minnesota
time, on the next succeeding Business Day.
(h) "Common Stock," unless used with reference to a Person other
than the Company, shall mean the shares of Common Stock, par value $.05 per
share (as such par value may be changed from time to time), of the
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<PAGE>
Company. "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 or, if such Person
is a Subsidiary of another Person, the Person or Persons that ultimately
control such first-mentioned Person.
(i) "Continuing Director" shall mean any Person who is on the
date of this Agreement a member of the Board of Directors of the Company,
who continues to be a member of the Board of Directors and who is not an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or
Associate. A "Continuing Director" shall also mean any Person who
subsequently becomes a member of the Board of Directors, who continues to
be a member of the Board of Directors, whose initial nomination for
election or initial election to the Board of Directors is recommended or
approved by a majority of the Continuing Directors and who is not an
Acquiring Person, or an Affiliate or Associate of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or
Associate.
(j) "Distribution Date" shall have the meaning set forth in
Section 3.
(k) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, as in effect on the date of this Agreement.
(l) "Exempt Person" shall mean the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or of any Subsidiary of
the Company or any entity holding shares of Common Stock organized,
appointed or established for, or pursuant to the terms of, any such plan.
(m) "Expiration Date" shall have the meaning set forth in
Section 7.
(n) "Final Expiration Date" shall have the meaning set forth in
Section 7.
(o) The terms "merger," "merge" and "consolidation" shall, if
such action involves the Company, include, without limitation, any
exchange, pursuant to a statutory exchange of voting stock under the
Minnesota Business Corporation Act, of shares of one or more classes or
series of voting stock of the Company (whether held by existing
shareholders of the Company or newly issued by the Company) for shares of
another corporation.
(p) "Person" shall mean any individual, firm, corporation or
other entity, and shall include any successor (by merger or otherwise) of
such entity.
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<PAGE>
(q) "Redemption Date" shall have the meaning set forth in
Section 23.
(r) "Section 13 Event" shall mean any event described in clauses
(x), (y) or (z) of Section 13(a).
(s) "Stock Acquisition Date" shall mean the date of the first
public announcement (which, for purposes of this definition, shall include,
without limitation, a report filed pursuant to Section 13(d) of the
Exchange Act) by the Company or any Person that such Person has become an
Acquiring Person.
(t) "Subsidiary" shall mean, with reference to any Person, any
corporation or other entity of which a majority of the voting power of the
voting equity securities or other equity interest entitled to vote in the
election of directors (or Persons with comparable responsibilities if the
entity has no directors) is beneficially owned, directly or indirectly, by
such Person.
Section 2. Appointment of Rights Agent. The Company hereby appoints
the Rights Agent to act as agent for the Company and the holders of the Rights
(who, in accordance with Section 3, shall, prior to the Distribution Date, also
be the holders of the Common Stock) in accordance with the terms and conditions
of this Agreement, 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.
Section 3. Issuance of Right Certificates.
(a) Until the earliest of (i) the Close of Business on the first Stock
Acquisition Date or (ii) the Close of Business on the date that a tender or
exchange offer by any Person is first commenced (within the meaning of Rule 14d-
2(a) of the General Rules and Regulations under the Exchange Act), if, upon the
consummation thereof, such Person would be an Acquiring Person or (iii) a
Section 13 Event (the earliest of such dates described in clauses (i), (ii) and
(iii) being herein referred to as the "Distribution Date"), (x) the Rights will
be evidenced by the certificates for Common Stock registered in the names of the
holders thereof (which certificates for Common Stock shall also be deemed to be
Right Certificates) and not by separate Right Certificates, and (y) the right to
receive Right Certificates will be transferable only in connection with the
transfer of the underlying shares of Common Stock (including a transfer to the
Company). As promptly as practicable following the Distribution Date, the
Rights Agent will send, by first-class, postage prepaid mail, to each record
holder of 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
Right Certificates, in substantially the form of Exhibit A hereto, evidencing
one Right for each share of Common Stock so held. In the event that an
adjustment in the number of Rights per share of Common Stock has been made
pursuant to Section 11, at the time Right Certificates are distributed, the
Company may, to the extent provided in Section 14(a), make the necessary and
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<PAGE>
appropriate rounding adjustments (as set forth in Section 14(a)) so that Right
Certificates are distributed representing only whole numbers of Rights and cash
is paid in lieu of fractional Rights pursuant to Section 14(a). As of, and
after the Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) Rights have been issued in respect of all shares of Common Stock
that are outstanding on the date of this Agreement and shall be issued in
respect of all shares of Common Stock that are issued after the date of this
Agreement and prior to the earlier of the Distribution Date or the Expiration
Date.
(c) Certificates for Common Stock issued after the date of this
Agreement but prior to the earlier of the Distribution Date and the Expiration
Date shall bear substantially the following legend:
This certificate also evidences and entitles the holder hereof to
certain Rights as set forth in an Amended and Restated Rights Agreement
between Apertus Technologies Incorporated (the "Company") and Norwest Bank
Minnesota, National Association dated as of September 4, 1996 (the "Rights
Agreement"), the terms of which (including restrictions on the transfer of
such Rights) are hereby incorporated herein by reference and a copy of
which is on file at the principal executive office of the Company. Under
certain circumstances, as set forth in the Rights Agreement, such Rights
will be evidenced by separate certificates and will no longer be evidenced
by this certificate. The Company will mail to the holder of this
certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge after receipt of a written request therefor from
such holder. Under certain circumstances set forth in the Rights
Agreement, Rights issued to or held by any Person who is, was or becomes an
Acquiring Person or any Affiliate or Associate thereof (as such terms are
defined in the Rights Agreement) and any subsequent holder of such Rights,
whether currently held by or on behalf of such Person or any subsequent
holder, shall become null and void.
With respect to certificates for Common Stock outstanding on the date of this
Agreement or subsequently becoming outstanding, until the earlier of the
Distribution Date and the Expiration Date, the Rights associated with the Common
Stock represented by such certificates shall be evidenced by such certificates
alone, the registered holders of Common Stock shall also be the registered
holders of the associated Rights, and the transfer of any such certificate shall
also constitute the transfer of the Rights associated with the Common Stock
represented by such certificates.
Section 4. Form of Right Certificates. The Right Certificates (and
the forms of election to exercise and of assignment to be printed on the reverse
thereof) shall be in substantially the form of Exhibit A hereto and may have
such marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are not
inconsistent with the
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<PAGE>
provisions of this Agreement, or as may be required to comply with any
applicable law or with any rule or regulation made pursuant thereto or with any
rule or regulation of any stock exchange on which the Rights may from time to
time be listed, or to conform to usage. Subject to the provisions of Sections
11, 14 and 22, the Right Certificates, whenever distributed, on their face shall
entitle the holders thereof to purchase such number of one-half shares of Common
Stock as shall be set forth therein at the price per one-half share set forth
therein (the "Purchase Price"), but the number of such one-half shares and the
Purchase Price thereof shall be subject to adjustment as provided herein.
Section 5. Countersignature and Registration.
(a) The Right Certificates shall be executed on behalf of the Company,
unless otherwise determined by the Board of Directors, by its Chief Executive
Officer, President or any Vice President and its Secretary or any assistant
secretary, either manually or by facsimile signature. The Right Certificates
shall be manually countersigned by the Rights Agent and shall not be valid for
any purpose unless so countersigned. In case any officer of the Company who
shall have signed or whose facsimile signature shall appear on any of the Right
Certificates shall cease to be such officer of the Company before
countersignature by the Rights Agent and issuance and delivery by the Company,
such Right Certificates, nevertheless, may be countersigned by the Rights Agent
and issued and delivered by the Company with the same force and effect as though
the person who signed such Right Certificates had not ceased to be such officer
of the Company; and any Right Certificate may be signed on behalf of the Company
by any person who, at the actual date of the signing of such Right Certificate,
shall be a proper officer of the Company to sign such Right Certificate,
although at the date of the execution of this Rights Agreement such person was
not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or
cause to be kept, at its offices in Minneapolis, Minnesota, books for
registration and transfer of the Right Certificates issued hereunder. Such
books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right
Certificates and the date of each of the Right Certificates.
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Lost, Stolen, Destroyed or Mutilated Right Certificates.
(a) Subject to the provisions of Section 7(e) and Section 14, 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 Right Certificate or Right
Certificates may be transferred, split up, combined or exchanged for another
Right Certificate or Right Certificates, evidencing a like number of Rights and
entitling the registered holder to purchase a like number of one-half shares of
Common Stock as the Right Certificate or Right Certificates surrendered then
evidenced and entitled such holder
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(or former holder in the case of a transfer) to purchase. Any registered holder
desiring to transfer, split up, combine or exchange any Right Certificate or
Right Certificates shall make such request in writing delivered to the Rights
Agent, and shall surrender the Right Certificate or Right Certificates to be
transferred, split up, combined or exchanged at the office or offices of the
Rights Agent designated for such purpose. Neither the Rights Agent nor the
Company shall be obligated to take any action whatsoever with respect to the
transfer of any such surrendered Right Certificate until the registered holder
shall have duly completed and executed the form of assignment on the reverse
side of such Right Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company shall reasonably request.
Thereupon the Rights Agent shall, subject to Section 7(e), countersign and
deliver to the Person entitled thereto a Right Certificate or Right
Certificates, as the case may be, as so requested. The Company may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer, split up, combination or exchange of
Right Certificates.
(b) Upon receipt by the Company and the Rights Agent of evidence
reasonably satisfactory to them of the loss, theft, destruction or mutilation of
a Right Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's or the Rights
Agent's request, reimbursement to the Company and the Rights Agent of all
reasonable expenses incidental thereto, and upon surrender to the Rights Agent
and cancellation of the Right Certificate if mutilated, the Company will make
and deliver a new Right Certificate of like tenor to the Rights Agent for
countersignature and delivery to the registered owner in lieu of the Right
Certificate so lost, stolen, destroyed or mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject to Section 7(e), the registered holder of any Right
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) and 11(a)(iii)), in whole or in part,
at any time after the Distribution Date upon surrender of the Right Certificate,
with the form of election to exercise on the reverse side thereof duly completed
and executed, to the Rights Agent at the office or offices of the Rights Agent
designated for such purpose, together with payment of the Purchase Price for
each one-half share of Common Stock as to which the Rights evidenced by such
Right Certificate are exercised, and at or prior to the earlier of (i) the Close
of Business on September 4, 2006 (the "Final Expiration Date") or (ii) the
Redemption Date (such earlier of the times provided in clauses (i) and (ii)
being herein referred to as the "Expiration Date").
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<PAGE>
(b) The Purchase Price for each one-half share of Common Stock acquired
pursuant to the exercise of a Right shall initially be $7.50, shall be subject
to adjustment from time to time as provided in Sections 11 and 13 and shall be
payable in lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to exercise duly completed and executed, accompanied
by payment, with respect to each Right so exercised, of the Purchase Price for
each one-half share of Common Stock to be purchased and an amount equal to any
applicable transfer tax in cash, or by certified check or bank draft payable to
the order of the Company, the Rights Agent shall, subject to Section 20(k),
thereupon promptly (i) requisition from any transfer agent of the shares of
Common Stock (or make available, if the Rights Agent is the transfer agent for
such shares) certificates for the number of shares of Common Stock to be
purchased and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests, (ii) requisition from the Company the amount of
cash to be paid in lieu of issuance of fractional shares in accordance with
Section 14, (iii) promptly after receipt of such certificates, cause the same to
be delivered to or upon the order of the registered holder of such Right
Certificate, registered in such name or names as may be designated by such
holder, and (iv) promptly after receipt thereof, deliver such cash for
fractional shares to or upon the order of the registered holder of such Right
Certificate.
(d) If the registered holder of any Right Certificate shall exercise
less than all the Rights evidenced thereby, a new Right Certificate evidencing
Rights equivalent to the Rights remaining unexercised shall be issued by the
Rights Agent and delivered to the registered holder of such Right Certificate or
to such holder's duly authorized assigns, subject to the provisions of Section
14.
(e) Notwithstanding anything in this Agreement to the contrary, from
and after the occurrence of an Acquisition Event, any Rights that are or were
beneficially owned by (i) an Acquiring Person or an Associate or Affiliate of an
Acquiring Person, (ii) a transferee of an Acquiring Person or an Associate or
Affiliate of an Acquiring Person who becomes a transferee after such Acquiring
Person becomes such, and (iii) a transferee of an Acquiring Person or an
Associate or Affiliate of an Acquiring Person 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 or Associate or Affiliate to or on behalf of holders of equity
interests in such Acquiring Person or Associate or Affiliate or to any Person
with whom such Acquiring Person or Associate or Affiliate has any continuing
plan, agreement, arrangement or understanding regarding the transferred Rights
or (B) a transfer which a majority of the Continuing Directors (or, if there are
no Continuing Directors, the Board of Directors) concludes in good faith is a
part of a plan, agreement, arrangement or understanding which has as a primary
purpose or effect avoidance of this
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Section 7(e), shall become null and void without any further action, and any
holder of such Rights shall have no rights under any provision of this Agreement
or otherwise. The Company shall use all reasonable efforts to insure that the
provisions of this Section 7(e) are complied with, but shall have no liability
to any holder of Rights as a result of its failure to make any determinations
with respect to an Acquiring Person or its Affiliates or Associates or the
transferees thereof hereunder.
(f) Notwithstanding anything in this Agreement to the contrary,
neither the Rights Agent nor the Company shall be obligated to undertake any
action with respect to a registered holder upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) duly completed and executed the form of election to purchase set forth on
the reverse side of the Right Certificate surrendered for such exercise and (ii)
provided such additional evidence of the identity of the Beneficial Owner (or
former Beneficial Owner) or Affiliates or Associates thereof as the Company
shall reasonably request.
Section 8. Cancellation and Destruction of Right Certificates. All
Right Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in cancelled form,
or, if surrendered to the Rights Agent, shall be cancelled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the
Rights Agent for cancellation and retirement, and the Rights Agent shall so
cancel and retire, any other Right Certificate purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall
deliver all cancelled Right Certificates to the Company.
Section 9. Reservation and Availability of Shares of Common Stock.
(a) The Company will use its best efforts to cause to be reserved and
keep available, out of its authorized and unissued shares of Common Stock, the
number of shares of Common Stock that will be sufficient to permit the exercise
in full of all outstanding Rights.
(b) So long as the shares of Common Stock issuable upon the exercise
of Rights may be listed on any national securities exchange, the Company will
use its best efforts to cause, from and after such time as the Rights become
exercisable, all shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
(c) The Company will use its best efforts to (i) file, as soon as
practicable following the earliest date after the first occurrence of an
Acquisition Event or as soon as is required by law following the Distribution
Date, as the case may be, a registration statement under the Securities Act of
1933, as amended (the "Act"), with respect to the Rights and the securities
purchasable upon exercise of the Rights on
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<PAGE>
an appropriate form, (ii) cause such registration statement to become effective
as soon as practicable after such filing and (iii) cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act) until the earlier of (A) the date as of which the
Rights are no longer exercisable for such securities or (B) the Expiration Date.
The Company will also take such action as may be appropriate under the blue sky
or securities laws of the various states. The Company may temporarily suspend,
for a period of time not to exceed 90 days, the exercisability of the Rights in
order to prepare and file any required registration statement. Upon any such
suspension, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended, as well as a public
announcement at such time as the suspension is no longer in effect.
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction unless the requisite qualification
in such jurisdiction shall have been obtained.
(d) The Company will take all such action as may be necessary to assure
that all shares of Common Stock delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares (subject to payment of the
Purchase Price), be duly and validly authorized and issued and fully paid and
nonassessable.
(e) The Company will pay when due and payable any and all federal and
state transfer taxes and charges that may be payable in respect of the issuance
or delivery of the Right Certificates and of any certificates for shares of
Common Stock upon the exercise of Rights. The Company shall not, however, be
required to pay any transfer tax that may be payable in respect of any transfer
or delivery of Right Certificates to a Person other than, or the issuance or
delivery of certificates for shares of Common Stock in a name other than that
of, the registered holder of the Right Certificate evidencing Rights surrendered
for exercise or to issue or deliver any certificates for shares of Common Stock
upon the exercise of any Rights until any such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at the time of
surrender) or until it has been established to the Company's satisfaction that
no such tax is due.
Section 10. Common Stock Record Date. Each Person in whose name any
certificate for shares of Common Stock is issued upon the exercise of Rights
shall for all purposes be deemed to have become the holder of record of the
shares of Common Stock represented thereby on, and such certificate shall be
dated, the date upon which the Right Certificate evidencing such Rights was duly
surrendered and payment of the applicable Purchase Price (and any applicable
transfer taxes) was made; provided, however, that if the date of such surrender
and payment is a date upon which the Common Stock transfer books of the Company
are closed, such Person shall be deemed to have become the record holder of such
shares on, and such certificate shall be dated, the next succeeding Business Day
on which such transfer books of the Company are open. Prior to the exercise of
the Rights evidenced thereby, the holder of a Right Certificate shall not be
entitled to any rights of a shareholder of the Company with respect to shares
for which the Rights shall be
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<PAGE>
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section 11. Adjustment of Purchase Price, Number and Kind of Shares
or Number of Rights. The Purchase Price, the number and kind of shares covered
by each Right and the number of Rights outstanding are subject to adjustment
from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the date of
this Agreement (A) declare a dividend on the outstanding Common Stock payable in
shares of Common Stock, (B) subdivide the outstanding Common Stock, (C) combine
the outstanding Common Stock into a smaller number of shares or (D) issue any
shares of its capital stock in a reclassification of the outstanding Common
Stock (including any such reclassification in connection with a consolidation or
merger in which the Company is the continuing or surviving corporation), except
as otherwise provided in this Section 11(a) and in Section 7(e), the Purchase
Price in effect at the time of the record date for such dividend or of the
effective date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock issuable on such date, shall be
proportionately adjusted so that the holder of any Right exercised after such
time shall be entitled to receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately prior to such
date and at a time when the Common Stock transfer books of the Company were
open, such holder would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination or
reclassification. If an event occurs which would require an adjustment under
both this Section 11(a)(i) and Section 11(a)(ii), the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii).
(ii) In the event any Person shall become an Acquiring Person, proper
provision shall be made so that each holder of a Right (except as otherwise
provided below and in Section 7(e)) shall thereafter have the right to receive,
upon exercise thereof at the then current Purchase Price in accordance with the
terms of this Agreement, in lieu of the number of shares of Common Stock for
which such Right was exercisable immediately prior to the occurrence of such
Acquisition Event, such number of shares of Common Stock as shall be equal to
the result obtained by (x) multiplying the then current Purchase Price by the
number of shares of Common Stock for which a Right was exercisable immediately
prior to the date that a Person became an Acquiring Person and (y) dividing that
product by 50% of the current market price (determined pursuant to Section
11(d)) per share of Common Stock on the date of occurrence.
(iii) In the event that there shall not be sufficient authorized
but unissued shares of Common Stock of the Company to permit the exercise in
full of the Rights, the Company shall use its best efforts to have the
shareholders of the Company take
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all such action as may be necessary to authorize additional shares of Common
Stock of the Company for issuance upon exercise of the Rights. If a majority of
the Continuing Directors of the Company determine in good faith that it is
likely that sufficient additional shares of Common Stock could be authorized for
issuance upon exercise in full of the Rights, the Company may suspend the
exercisability of the Rights to the extent necessary (but not more than 90 days)
for the Company to seek shareholder approval for the authorization of such
additional shares. In the event of any suspension under this Section 11(a)(iii),
the Company shall issue a public announcement stating that the exercisability of
the Rights has been temporarily suspended, as well as a public announcement at
the time such suspension is no longer in effect.
(b) In the case the Company shall fix a record date for the issuance
of rights, options or warrants to all holders of Common Stock entitling them
(for a period expiring within 45 calendar days after such record date) to
subscribe for or purchase Common Stock (or securities convertible into Common
Stock) at a price per share of Common Stock (or having a conversion price per
share of Common Stock, if a security convertible into Common Stock) less than
the current market price (as determined pursuant to Section 11(d)) of the Common
Stock on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding on such record date, plus the
number of shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so to be offered (and/or the aggregate initial
conversion price of the convertible securities so to be offered) would purchase,
at such current market price, and the denominator of which shall be the number
of shares of Common Stock outstanding on such record date, plus the number of
additional shares of Common Stock to be offered for subscription or purchase (or
into which the convertible securities so to be offered are initially
convertible). In case such subscription price may be paid by delivery of
consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be as determined in good faith by a majority of the
Continuing Directors (or, if there are no Continuing Directors, the Board of
Directors), whose determination shall be described in a statement filed with the
Rights Agent and shall be binding on the Rights Agent. Shares of Common Stock
owned by or held for the account of the Company shall not be deemed outstanding
for the purpose of any such computation. Such adjustment shall be made
successively whenever such a record date is fixed; and in the event that such
rights or warrants are not so issued, the Purchase Price shall be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(c) In case the Company shall fix a record date for a distribution to
all holders of Common Stock (including any such distribution made in connection
with a consolidation or merger in which the Company is the continuing or
surviving corporation) of evidences of indebtedness or cash or non-cash assets
(other than (i) a regular periodic cash dividend out of the earnings or retained
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<PAGE>
earnings of the Company or (ii) a dividend payable in Common Stock, but
including any dividend payable in stock other than Common Stock) or subscription
rights or warrants (excluding those referred to in Section 11(b)), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the current market price (as
determined pursuant to Section 11(d)) of one-half of one share of the Common
Stock on such record date, less the fair market value (as determined in good
faith by a majority of the Continuing Directors or, if there are no Continuing
Directors, the Board of Directors, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the evidences of
indebtedness or cash or non-cash assets so to be distributed on, or of such
subscription rights or warrants applicable to, one-half of one share of the
Common Stock, and the denominator of which shall be such current market price of
one-half of one share of the Common Stock. Such adjustments shall be made
successively whenever such a record date is fixed; and in the event that such
distribution is not so made, the Purchase Price shall again be adjusted to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(d) For the purpose of any computation hereunder, the "current market
price" of one-half of one share of the Common Stock on any date shall be deemed
to be one-half of the average of the daily closing prices per whole share of
such Common Stock for the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however, that in
the event that the current market price of one-half of one share of the Common
Stock is determined during a period following the announcement by the issuer of
such Common Stock of (i) a dividend or distribution on such Common Stock payable
in shares of such Common Stock or securities convertible into shares of such
Common Stock (other than the Rights), or (ii) any subdivision, combination or
reclassification of such Common Stock, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in each
such case, the "current market price" per one-half of one share of such Common
Stock shall be appropriately adjusted to take into account ex-dividend trading.
The closing price for any day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the New York Stock Exchange or, if the shares of Common
Stock are not listed or admitted to trading on the New York Stock Exchange, as
reported in the principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if the shares of
Common Stock are not listed or admitted to trading on any national securities
exchange, the last sale price or, if not so quoted, the average of the high bid
and low asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ") or
such other system then in use or, if on any such day the shares of Common Stock
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<PAGE>
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker making a market in the
Common Stock selected by a majority of the Continuing Directors (or, if there
are no Continuing Directors, the Board of Directors). If on any such day no
market maker is making a market in the Common Stock, the fair value of such
shares on such day as determined in good faith by a majority of the Continuing
Directors (or, if there are no Continuing Directors, the Board of Directors)
shall be used in lieu of the closing price for such day. The term "Trading Day"
shall mean a day on which the principal national securities exchange on which
the shares of Common Stock are listed or admitted to trading is open for the
transaction of business or, if the Common Stock is not listed or admitted to
trading on any national securities exchange, a Business Day. If the Common
Stock is not publicly held or not so listed or traded, the "current market price
of one-half of one share of such Common Stock shall be deemed to be one-half of
the fair value per whole share of such Common Stock as determined in good faith
by a majority of the Continuing Directors (or, if there are no Continuing
Directors, the Board of Directors), whose determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all purposes.
(e) Anything herein to the contrary notwithstanding, except the third
sentence of this Section 11(e), no adjustment in the Purchase Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such 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 ten-thousandth of
a share of Common Stock, as the case may be. Notwithstanding the first sentence
of this Section 11(e), any adjustment which would be required by this Section
11, but for the first sentence of this Section 11(e), shall be made no later
than the earlier of (i) three years from the date of the transaction which
requires such adjustment or (ii) the Expiration Date.
(f) If as a result of an adjustment made pursuant to Section 11(a) or
13(a), the holder of any Right thereafter exercised shall become entitled to
receive any shares of capital stock of the Company other than Common Stock,
thereafter the number of such other shares 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 one-half shares of Common 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 with respect to the Common Stock
shall apply on like terms to any such other shares.
(g) All Rights originally issued by the Company subsequent to any
adjustment made to the Purchase Price hereunder shall evidence the right to
purchase, at the adjusted Purchase Price, the number of shares of Common Stock
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
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(h) Unless the Company shall have exercised its election as provided
in Section 11(i), upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter evidence the right to
purchase, at the adjusted Purchase Price, that number of one-half shares
(calculated to the nearest ten-thousandth) of Common Stock obtained by (i)
multiplying (x) the number of one-half shares covered by a Right immediately
prior to such adjustment by (y) the Purchase Price in effect immediately prior
to such adjustment of the Purchase Price and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment of
the Purchase Price.
(i) The Company may elect on or after the date of any adjustment of
the Purchase Price to adjust the number of Rights, in lieu of any adjustment in
the number of one-half shares of Common Stock issuable upon the exercise of a
Right. Each of the Rights outstanding after such adjustment in the number of
Rights shall be exercisable for the number of one-half shares of Common Stock
for which a Right was exercisable immediately prior to such adjustment. Each
Right held of record prior to such adjustment of the number of Rights shall
become that number of rights (calculated to the nearest ten-thousandth) obtained
by dividing the Purchase Price in effect immediately prior to adjustment of the
Purchase Price by the Purchase Price in effect immediately after adjustment of
the Purchase Price. The Company shall make a public announcement of its
election to adjust the number of Rights, indicating the record date for the
adjustment, and, if known at the time, the amount of the adjustment to be made.
This record date may be the date on which the Purchase Price is adjusted or any
day thereafter, but, if the Right Certificates have been issued, shall be at
least 10 days later than the date of the public announcement. If Right
Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11(i), the Company shall, as promptly as practicable,
cause to be distributed to holders of record of Right Certificates on such
record date Right Certificates evidencing, subject to Section 14, the additional
Rights to which such holders shall be entitled as a result of such adjustment,
or, at the option of the Company, shall cause to be distributed to such holders
of record in substitution and replacement for the Right Certificates held by
such holders prior to the date of adjustment, and upon surrender thereof, if
required by the Company, new Right Certificates evidencing all the Rights to
which such holders shall be entitled after such adjustment. Right Certificates
so to be distributed shall be issued, executed and countersigned in the manner
provided for herein (and may bear, at the option of the Company, the adjusted
Purchase Price) and shall be registered in the names of the holders of record of
Right Certificates on the record date specified in the public announcement.
(j) Irrespective of any adjustment or change in the Purchase Price or
the number of one-half shares of Common Stock issuable upon the exercise of the
Rights, the Right Certificates theretofore and thereafter issued may continue to
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express the Purchase Price per one-half share and the number of one-half shares
which were expressed in the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing
the Purchase Price below one-half of the then par value, if any, of the shares
of Common Stock issuable upon exercise of the Rights, the Company shall take all
corporate action, if any, which may, in the opinion of its counsel, be necessary
in order that the Company may validly and legally issue fully paid and
nonassessable shares of Common Stock upon exercise of the Rights.
(l) In any case in which this Section 11 shall require that an
adjustment in the Purchase Price be made effective as of a record date for a
specified event, the Company may elect to defer until the occurrence of such
event the issuance to the holder of any Right exercised after such record date
of the number of shares of Common Stock and other capital stock or securities of
the Company, if any, issuable upon such exercise over and above the number of
shares of Common Stock and other capital stock or securities of the Company, if
any, issuable upon such exercise on the basis of the Purchase Price in effect
prior to such adjustment; provided, however, that the Company shall deliver to
such holder a due bill or other appropriate instrument evidencing such holder's
right to receive such additional shares or securities (fractional or otherwise)
upon the occurrence of the event requiring such adjustment.
(m) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that in their sole discretion a majority of the Continuing Directors
(or, if there are no Continuing Directors, the Board of Directors) shall
determine to be advisable in order that any (i) combination or subdivision of
the Common Stock, (ii) issuance wholly for cash of any shares of Common Stock at
less than twice the current market price of one-half of one share of the Common
Stock, (iii) issuance wholly for cash of securities which by their terms are
convertible into or exchangeable for shares of Common Stock, (iv) stock
dividends or (v) issuance of rights, options or warrants referred to in this
Section 11 hereafter made by the Company to holders of its Common Stock shall
not be taxable to such shareholders.
(n) The Company shall not, at any time after the Distribution Date and
prior to the Expiration Date, (i) consolidate with, (ii) merge with or into or
(iii) sell or transfer (or permit any Subsidiary to sell or 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 its Subsidiaries) if at the time of or immediately after such consolidation,
merger or sale or transfer or such other transaction (x) there are any rights,
warrants or other instruments or securities outstanding or agreements in effect
which would substantially diminish or otherwise eliminate the benefits intended
to be afforded by the Rights or (y) with
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respect to a transaction of the kind listed in Section 11(a)(ii), there are not
sufficient unissued, unreserved shares of Common Stock of the Company to permit
the exercise in full of the Rights.
(o) The Company shall not, after the Stock Acquisition Date, except as
permitted by Section 23 or 27, take (or permit any Subsidiary to take) any
action if at the time such action is taken it is reasonably foreseeable that
such action will diminish substantially or otherwise eliminate the benefits
intended to be afforded by the Rights unless such action is approved by a
majority of the Continuing Directors.
Section 12. Certificate of Adjusted Purchase Price or Number of
Shares. Whenever an adjustment is made as provided in Sections 11 and 13, the
Company shall (a) promptly prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for such adjustment, (b) promptly
file with the Rights Agent and with each transfer agent for the Common Stock a
copy of such certificate and (c) mail a brief summary thereof to each holder of
record of a Right Certificate (or, if prior to the Distribution Date, to each
holder of record of a certificate representing shares of Common Stock) in
accordance with Section 26. The Rights Agent shall be fully protected in
relying on any such certificate and on any adjustment therein contained.
Section 13. Consolidation, Merger or Sale or Transfer of Assets
or Earning Power.
(a) In the event that, directly or indirectly,
(x) the Company shall consolidate with, or merge with and into,
any other Person (other than a Subsidiary of the Company), 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) shall
consolidate with the Company, or merge with and 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 held by
existing shareholders of the Company shall be changed into or exchanged for
stock or other securities of any other Person (or the Company) 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 its Subsidiaries),
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and following such event any Person is an Acquiring Person, then, and in each
such case, except as contemplated by Section 13(e), proper provision shall be
made so that: (i) each holder of a Right (except as otherwise provided herein),
shall thereafter have the right to receive, upon the exercise thereof at the
then current Purchase Price (without taking into account any adjustment
previously made pursuant to Section 11(a)(ii)) 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 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-half
shares of Common Stock for which a Right is exercisable (or would have been
exercisable if a Distribution Date had occurred) immediately prior to the first
occurrence of a Section 13 Event and dividing that product by (2) 50% of the
current market price (determined in accordance with the method set forth in
Section 11(d)) per whole share of the Common Stock of such Principal Party on
the date of consummation of such consolidation, merger, sale or transfer; (ii)
such Principal Party shall thereafter be liable for, and shall assume, by virtue
of such consolidation, merger, sale or transfer, 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 the provisions of Section 11 shall apply to such Principal Party;
(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
accordance with Section 9) in connection with the consummation of any such
transaction as may be necessary to assure that the provisions of this Agreement
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) shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in (x) or (y) of the
first sentence of Section 13(a), the Person that is the issuer of any
securities into which shares of Common Stock of the Company are converted
in such merger or consolidation, or if no securities are so issued, the
Person that is the other party to such merger or consolidation; and
(ii) in the case of any transaction described in (z) of the first
sentence of Section 13(a), the Person that is the party receiving the
greatest portion of the assets or earning power transferred pursuant to
such transaction or transactions;
provided, however, that in any such case, (1) if the Common Stock of such Person
is not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the Common Stock of which is and
has been
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so registered, "Principal Party" shall refer to such other Person, and (2) in
case such Person is a Subsidiary, directly or indirectly, of more than one
Person, the Common Stocks of two or more of which are and have been so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market value.
(c) The Company shall not consummate any such transaction constituting
a Section 13 Event unless the Principal Party shall have a sufficient number of
authorized shares of its Common Stock which have not been issued or reserved for
issuance to permit the exercise in full of the rights in accordance with this
Section 13 and unless prior thereto the Company and such Principal Party shall
have executed and delivered to the Rights Agent a supplemental agreement
providing for the terms set forth in paragraphs (a) and (b) of this Section 13
and further providing that, as soon as practicable after the date of such
Section 13 Event, the Principal Party will:
(i) prepare and file a registration statement under the Act, with
respect to the Rights and the securities purchasable upon exercise of the
Rights, on an appropriate form, and use its best efforts to cause such
registration statement to (A) become effective as soon as practicable after
such filing and (B) remain effective (with a prospectus at all times
meeting the requirements of the Act) until the earlier of (1) the date as
of which the Rights are no longer exercisable for such securities or (2)
the Expiration Date; and
(ii) deliver to holders of the Rights historical financial
statements for the Principal Party and each of its Affiliates which comply
in all respects with the requirements for registration on Form 10 under the
Exchange Act.
(d) The Company shall not enter into any transaction of the kind
referred to in this Section 13 if at the time of such transaction there are any
rights, warrants, instruments or securities outstanding or any agreements or
arrangements which, as a result of the consummation of such transaction, would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights.
(e) Notwithstanding anything in this Agreement to the contrary,
Section 13 shall not be applicable to a Section 13 Event if either (1) (i) such
Section 13 Event is consummated with a Person or Persons who acquired Common
Stock pursuant to an Approved Offer (or a wholly owned Subsidiary of any such
Person or Persons), (ii) the price per share of Common Stock offered in such
Section 13 Event is not less than the price per share of Common Stock paid to
all holders of Common Stock whose shares were purchased pursuant to such
Approved Offer and (iii) the form of consideration being offered to the
remaining holders of Common Stock pursuant to such Section 13 Event is the same
as the form of consideration paid pursuant to such Approved Offer or (2) such
Section 13 Event is approved by a majority of the Continuing Directors. Upon
consummation of any such transaction contemplated by this Section 13(e), all
Rights hereunder shall expire.
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(f) The provisions of this Section 13 shall similarly apply to
successive mergers or consolidations or sales or other transfers. In the event
that any Section 13 Event shall occur at any time after the occurrence of a
transaction described in Section 11(a)(ii), the Rights which have not
theretofore been exercised shall thereafter become exercisable in the manner
described in Section 13(a) and shall no longer be exercisable in the manner
provided under Section 11(a)(ii).
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or
to distribute Right Certificates that evidence fractional Rights. The Company
may, in lieu of such fractional Rights, pay to the registered holders of Right
Certificates with regard to which such fractional Rights would otherwise be
issuable an amount in cash equal to the same fraction of the current market
value of a whole Right. For the purposes of this Section 14(a), the current
market value of a whole Right shall be the closing price of the Rights for the
Trading Day immediately prior to the date on which such fractional Rights would
have been otherwise issuable. The closing price for any day shall be the last
sale price, regular way, or, in case no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock Exchange or,
if the Rights are not listed or admitted to trading on the New York Stock
Exchange, as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Rights are listed or admitted to trading or, if the Rights are not
listed or admitted to trading on any national securities exchange, the last sale
price or, if not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by NASDAQ or such other system then in
use or, if on any such day the Rights are not quoted by any such organization,
the average of the closing bid and asked prices as furnished by a professional
market maker making a market in the Rights selected by a majority of the
Continuing Directors (or, if there are no Continuing Directors, the Board of
Directors). If on any such day no market maker is making a market in the
Rights, the fair value of the Rights on such day as determined in good faith by
a majority of the Continuing Directors (or, if there are no Continuing
Directors, the Board of Directors) shall be used in lieu of the closing price
for such day.
(b) The Company shall not be required to issue fractions of shares of
Common Stock upon exercise of the Rights or to distribute certificates which
evidence fractional shares. The Company may, in lieu of such fractional shares,
pay to the registered holders of Right Certificates at the time such Rights are
exercised as herein provided an amount in cash equal to the same fraction of the
current market value per whole share of such Common Stock. For purposes of this
Section 14(b), the current market value per whole share of Common Stock shall be
the closing price of a share of such Common Stock (as determined in accordance
with the
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method set forth in Section 11(d)) for the Trading Day immediately prior to the
date of such exercise.
(c) Every holder of Rights by accepting the Rights expressly waives
his right to receive any fractional Rights or any fractional shares upon
exercise of a Right if cash payments are made to such holder as permitted by
this Section 14.
Section 15. Rights of Action. All rights of action in respect of
this Agreement are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, of the associated Common
Stock certificates); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of any associated Common Stock certificate),
without the consent of the Rights Agent or of any holder of a Right Certificate
(or, prior to the Distribution Date, of an associated Common Stock certificate),
may, in such holder's own behalf and for such holder's own benefit, enforce and
may institute and maintain any suit, action or proceeding against the Company to
enforce, or otherwise act in respect of, such holder's right to exercise the
Rights evidenced by such Right Certificate (or, prior to the Distribution Date,
the associated Common Stock certificate) in the manner provided in such Right
Certificate and in this Agreement. Without limiting the foregoing or any
remedies available to the holders of Rights, it is specifically acknowledged
that the holders of Rights would not have an adequate remedy at law for any
breach of this Agreement and will be entitled to specific performance of the
obligations hereunder and injunctive relief against actual or threatened
violations of the obligations of any Person subject to this Agreement.
Section 16. Agreement of Right Holders. Every holder of Rights by
accepting the Rights consents and agrees with the Company and the Rights Agent
and with every other holder of Rights that:
(a) prior to the Distribution Date, the Rights will be
transferable only in connection with the transfer of the Common Stock;
(b) on or after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered
at the office or offices of the Rights Agent designated for such purposes,
duly endorsed or accompanied by a proper instrument of transfer; and
(c) subject to Sections 6(a) and 7(f), the Company and the Rights
Agent may deem and treat the Person in whose name the Right Certificate
(or, prior to the Distribution Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or writing on
the Right Certificates or the associated Common Stock certificate made by
anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected
by any notice to the contrary.
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Notwithstanding anything in this Agreement or the Rights to the contrary, the
Company, the Rights Agent, the Board of Directors and the Continuing Directors
shall not have any liability to any holder of a Right or other Person as a
result of the inability of the Company or the Rights Agent to perform any of its
obligations under this Agreement by reason of any preliminary or permanent
injunction or other order, decree or ruling issued by a court of competent
jurisdiction or by a governmental, regulatory or administrative agency or
commission, or any statute, rule, regulation or executive order promulgated or
enacted by any governmental authority prohibiting or otherwise restraining
performance of such obligation; provided, however, that the Company shall use
its best efforts to have any such order, decree or ruling lifted, dissolved or
overturned at the earliest practicable time.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No
holder, as such, of any Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of shares of Common Stock or
any other securities of the Company which may at any time be issuable on the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Right Certificate be construed to confer upon the holder of any Right
Certificate, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in Section 25), or to receive dividends or
subscription rights, or otherwise, until the Right or Rights evidenced by such
Right Certificate shall have been exercised in accordance with the provisions of
this Agreement.
Section 18. Concerning the Rights Agent.
(a) The Company agrees to pay to the Rights Agent reasonable
compensation for all services rendered by it hereunder and, from time to time,
on demand of the Rights Agent, its reasonable expenses and counsel fees and
disbursements and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability in the premises.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in connection
with its administration of this Agreement in reliance upon any Right Certificate
or certificate for Common Stock or for other securities of the Company,
instrument of assignment or transfer, power of attorney, endorsement, affidavit,
letter, notice,
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direction, consent, certificate, statement or other paper or document believed
by it to be genuine and to be signed, executed and, where necessary, verified or
acknowledged by the proper Person or Persons.
Section 19. Merger or Consolidation or Change of Name of Rights
Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or any successor Rights Agent shall be a party, or any corporation succeeding to
the corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto; provided, however, that such corporation would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21. In
case at the time such successor Rights Agent shall succeed to the agency created
by this Agreement, any of the Right Certificates shall have been countersigned
but not delivered, any such successor Rights Agent may adopt the
countersignature of the predecessor Rights Agent and deliver such Right
Certificates so countersigned; and in case at that time any of the Right
Certificates shall not have been countersigned, any successor Rights Agent may
countersign such Right Certificates either in the name of the predecessor Rights
Agent or in the name of the successor Rights Agent; and in all such cases such
Right Certificates shall have the full force provided in the Right Certificates
and in this Agreement.
(b) In case at any time the name of the Rights Agent shall be changed
and at such time any of the Right Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its prior
name and deliver Right Certificates so countersigned; and in case at that time
any of the Right Certificates shall not have been countersigned, the Rights
Agent may countersign such Right Certificates either in its prior name or in its
changed name; and in all such cases such Right Certificates shall have the full
force provided in the Right Certificates and in this Agreement.
Section 20. Duties of Rights Agent. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates
(or, prior to the Distribution Date, the associated Common Stock certificates),
by their acceptance of the Rights, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be
legal counsel for the Company), and the opinion of such counsel shall be
full and complete authorization and protection to the Rights Agent as to
any action taken or omitted by it in good faith and in accordance with such
opinion.
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(b) Whenever in the performance of its duties under this
Agreement the Rights Agent shall deem it necessary or desirable that any
fact or matter (including, without limitation, the identity of any
Acquiring Person and the determination of the "current per share market
price") be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence
in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a certificate signed by any one of
the Chief Executive Officer, the President, any Vice President, the
Secretary or the Treasurer of the Company and delivered to the Rights
Agent; and such certificate shall be full and complete authorization and
protection to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent shall be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any
of the statements of fact or recitals contained in this Agreement or in the
Right Certificates or be required to verify the same (except as to its
countersignature thereof), but all such statements and recitals are and
shall be deemed to have been made by the Company only.
(e) The Rights Agent shall not be under any responsibility in
respect of the validity of this Agreement or the execution and delivery
hereof (except the due execution hereof by the Rights Agent) or in respect
of the validity or execution of any Right Certificate (except its
countersignature thereof); nor shall it be responsible for any breach by
the Company of any covenant or condition contained in this Agreement or in
any Right Certificate; nor shall it be responsible for any adjustment
required under the provisions of Section 11 or 13 or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or
reservation of any shares of Common Stock of the Company or any other
Person to be issued pursuant to this Agreement or any Right Certificate or
as to whether any shares of Common Stock of the Company or any other Person
will, when so issued, be validly authorized and issued, fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge
and deliver or cause to be performed, executed, acknowledged and delivered
all such further and other acts, instruments and assurances as may
reasonably be required by the Rights Agent for the carrying out or
performing by the Rights Agent of the provisions of this Agreement.
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(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any one of the Chief Executive Officer, the President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such
officers for advice or instructions in connection with its duties, and it
shall not be liable for any action taken or suffered in good faith by it in
accordance with instructions of any such officer.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in any of the Rights or
other securities of the Company or become pecuniarily interested in any
transaction in which the Company or its Subsidiaries may be interested, or
contract with or lend money to the Company or its Subsidiaries or otherwise
act as fully and freely as though it were not Rights Agent under this
Agreement. Nothing herein shall preclude the Rights Agent from acting in
any other capacity for the Company or its Subsidiaries or for any other
legal entity.
(i) The Rights Agent may execute and exercise any of the rights
or powers hereby vested in it or perform any duty hereunder either itself
or by or through its attorneys or agents, and the Rights Agent shall not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct; provided, however, reasonable
care was exercised in the selection and continued employment thereof.
(j) No provision of this Agreement shall require the Rights Agent
to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder or in the exercise of its
rights or powers if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnification against such risk or
liability is not reasonably assured to it.
(k) If, with respect to any Right Certificate surrendered to the
Rights Agent for exercise of transfer, the form of assignment or form of
election to purchase, as the case may be, has either not been duly
completed and executed or indicates an affirmative response to enumerated
clause 1 and/or 2 of such Right Certificate, the Rights Agent shall not
take any further action with respect to such requested exercise of transfer
without first consulting with the Company.
Section 21. Change of Rights Agent. The Rights Agent or any
successor Rights Agent may resign and be discharged from its duties under this
Agreement upon 30 days' notice in writing mailed to the Company and to each
transfer agent of the Common Stock by registered or certified mail, and to the
registered holders of
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the Right Certificates (or, prior to the Distribution Date, the associated
Common Stock certificates) by first-class mail. The Company may remove the
Rights Agent or any successor Rights Agent upon 30 days' notice in writing,
mailed to the Rights Agent or successor Rights Agent, as the case may be, and to
each transfer agent of the Common Stock by registered or certified mail, and if
such removal occurs on or after the Distribution Date to the registered holders
of the Right Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the registered holder of a Right
Certificate (or, prior to the Distribution Date, the associated Common Stock
certificate) who shall, with such notice, submit such holder's Right Certificate
(or, prior to the Distribution Date, the associated Common Stock certificate)
for inspection by the Company, then the registered holder may apply to any court
of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of the State of Minnesota or New York (or of any other state of the
United States so long as such corporation is authorized to do business as a
banking institution in the State of Minnesota or New York), in good standing,
having an office in the State of Minnesota or New York which is authorized under
such laws to exercise corporate trust powers and is subject to supervision or
examination by federal or state authority and which has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $5
million. After appointment, the successor Rights Agent shall be vested with the
same powers, rights, duties and responsibilities as if it had been originally
named as Rights Agent without further act or deed; but the predecessor Rights
Agent shall deliver and transfer to the successor Rights Agent all property at
the time held by it hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose of such delivery and
transference. Not later than the effective date of any such appointment the
Company shall file notice thereof in writing with the predecessor Rights Agent
and each transfer agent of the Common Stock, and if such effective date is on or
after the Distribution Date, mail a notice thereof in writing to the registered
holders of the Right Certificates. Failure to give any notice provided for in
this Section 21, or any defect therein, shall not, however, affect the legality
or validity of the resignation or removal of the Rights Agent or the appointment
of the successor Rights Agent, as the case may be.
Section 22. Issuance of New Right Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may:
(a) at its option, issue new Right Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price and the number of shares purchasable under the Right
Certificates made in accordance with the provisions of this Agreement; and (b)
if deemed necessary or appropriate by the Board of Directors, issue Right
Certificates
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representing the appropriate number of Rights in connection with the sale or
issuance (including upon exercise of any stock option or under any employee plan
or arrangement, or upon the exercise, conversion or exchange of securities
hereinafter issued by the Company) of shares of Common Stock following the
Distribution Date and prior to the Expiration Date; provided, however, that (i)
no such Right Certificate shall be issued if, and to the extent that, the
Company shall be advised by counsel that such issuance would create a
significant risk of material adverse tax consequences to the Company or the
Person to whom such Right Certificate would be issued, and (ii) no such Right
Certificate shall be issued if, and to the extent that, appropriate adjustment
shall otherwise have been made in lieu of the issuance thereof.
Section 23. Redemption.
(a) The Board of Directors may, at its option, at any time prior to the
earlier of the Close of Business (i) on the Stock Acquisition Date or (ii) on
the Final Expiration Date, redeem all but not less than all of the then
outstanding Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date of this Agreement (such redemption price being referred
to as the "Redemption Price" and such time being referred to as the "Redemption
Date"). The Board of Directors and the Company shall not have any liability to
any Person as a result of the redemption of Rights pursuant to the terms hereof.
(b) Immediately upon the action of the Board of Directors of the
Company redeeming the Rights pursuant to Section 23(a), evidence of which shall
have been filed with the Rights Agent, and without any further action and
without any notice, the right to exercise the Rights will terminate and the only
right thereafter of the holders of Rights shall be to receive the Redemption
Price for each Right so held. Promptly after the action of the Board of
Directors redeeming the Rights pursuant to Section 23(a), the Company shall give
notice of such redemption to the Rights Agent and the registered 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 Company maintained by
the Company, the Rights Agent or the transfer agent for the Common Stock, as the
case may be. 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 will state the method by which the payment of the Redemption Price
will be made.
Section 24. Exchange.
(a) The Board of Directors of the Company may, at its option, at any
time after any Person becomes an Acquiring Person, exchange all or part of the
then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 7(e)) for shares of
Common Stock at an exchange ratio of one share of Common Stock per Right,
appropriately
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adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date of this Agreement (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 an Exempt Person), 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.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to paragraph (a) of this Section 24
and without any further action and without any notice, the right to exercise
such Rights shall terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company promptly shall mail a notice
of any such exchange to all of the holders of such Rights at their last
addresses as they appear upon the registry books of the Rights Agent. 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 exchange will state the
method by which the exchange of the shares of Common Stock for Rights will be
effected and, in the event of any partial exchange, the number of Rights which
will be exchanged. Any partial exchange shall be effected pro rata based on the
number of Rights (other than Rights which have become void pursuant to the
provisions of Section 7(e)) held by each holder of Rights.
(c) In the event that there shall not be sufficient shares of Common Stock
issued but not outstanding or authorized but unissued to permit any exchange of
Rights as contemplated in accordance with this Section 24, the Company shall
take all such action as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights.
(d) The Company shall not be required to issue fractions of shares of
Common Stock or to distribute certificates which evidence fractional shares of
Common Stock. In lieu of such fractional shares of Common Stock, the Company
shall pay to the registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be issuable an
amount in cash equal to the same fraction of the current market value of a whole
Common Share. For the purposes of this paragraph (d), the current market value
of a share of Common Stock shall be the closing price of a share of Common Stock
(as determined pursuant to the second sentence of Section 11(d)(i)) for the
Trading Day immediately prior to the date of exchange pursuant to this Section
24.
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<PAGE>
Section 25. Notice of Certain Events.
(a) In case the Company shall propose, at any time after the Distribution
Date, (i) to pay any dividend payable in stock of any class (other than Common
Stock) to the holders of Common Stock or to make any other distribution to the
holders of Common Stock (other than a regular periodic cash dividend), (ii) to
offer to the holders of Common Stock rights or warrants to subscribe for or to
purchase any additional Common Stock or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its
Common Stock (other than a reclassification involving only the subdivision of
outstanding shares of Common Stock), (iv) to effect any consolidation or merger
into or with, or to effect any sale or other transfer (or to permit one or more
of its Subsidiaries to effect any sale or other transfer), in one or a series of
related transactions, of more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to, any other Person or Persons,
other than a merger in which the Company is the surviving corporation and no
vote of shareholders of the Company is required to consummate the merger or (v)
to effect the liquidation, dissolution or winding up of the Company, then, in
each such case, the Company shall give to each registered holder of a Right
Certificate, to the extent feasible and in accordance with Section 26, a notice
of such proposed action, which shall specify the record date for the purposes of
such stock dividend, distribution of rights or warrants, or the date on which
such reclassification, consolidation, merger, sale, transfer, liquidation,
dissolution or winding up is to take place and the date of participation therein
by the holders of shares of the Common Stock, if any such date is to be fixed,
and such notice shall be so given in the case of any action covered by clause
(i) or (ii) above at least 20 days prior to the record date for determining
holders of the shares of Common Stock for purposes of such action, and in the
case of any such other action, at least 20 days prior to the date of the taking
of such proposed action or the date of participation therein by the holders of
the shares of Common Stock, whichever shall be the earlier.
(b) In case any Acquisition Event shall occur, then, in any such case, the
Company shall as soon as practicable thereafter give to each registered holder
of a Right Certificate, to the extent feasible and in accordance with Section
26, a notice of the occurrence of such event, which shall specify the event and
the consequences of the event to holders of Rights under Section 11(a)(ii).
Section 26. Notices. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
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<PAGE>
APERTUS TECHNOLOGIES INCORPORATED
7275 Flying Cloud Drive
Eden Prairie, Minnesota 55344
Attention: Secretary
Subject to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address is
filed in writing with the Company) as follows:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
Shareowner Services
161 North Concord Exchange
South St. Paul, Minnesota 55075
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate (or, prior to
the Distribution Date, the associated Common Stock certificate) shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company maintained by the Company, the Rights Agent or the transfer
agent for the Common Stock, as the case may be.
Section 27. Supplements and Amendments. The Company and the Rights
Agent shall from time to time, if the Company so directs, supplement or amend
this Agreement without the approval of any holders of Right Certificates (or,
prior to the Distribution Date, the associated Common Stock certificates) in
order (i) to cure any ambiguity herein, (ii) to correct or supplement any
provision herein which may be defective or inconsistent with any other provision
herein, (iii) to extend the period of redemption provided for in Section 23 or
the Final Expiration Date, notwithstanding anything to the contrary provided in
clause (v), (iv) prior to the Distribution Date, to otherwise change or
supplement any provision herein in any manner which the Company may deem
necessary or desirable to effectuate the purposes of this Agreement or (v)
following the Distribution Date, to otherwise change or supplement any provision
herein in any manner which the Company may deem necessary or desirable and which
shall not adversely affect the interests of the holders of Right Certificates
(other than an Acquiring Person or any Affiliate or Associate thereof);
provided, however, that this Agreement may not be supplemented or amended in any
way (other than pursuant to clauses (i) and (ii) above) at any time after there
is an Acquisition Event without the consent of a majority of the Continuing
Directors. 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, the Rights Agent shall execute
such supplement or amendment unless the Rights Agent shall have
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<PAGE>
determined in good faith that such supplement or amendment would adversely
affect its interests under this Agreement. 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.
Section 28. Successors. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
Section 29. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give to any Person other than the Company, the Rights
Agent and the registered holders of the Right Certificates (and, prior to the
Distribution Date, the associated Common Stock certificates) any legal or
equitable right, remedy or claim under this Agreement; but this Agreement shall
be for the sole and exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the Distribution
Date, the associated Common Stock certificates).
Section 30. Administration and Interpretation by Directors. The
Board of Directors (and/or, as provided for herein, the Continuing Directors)
shall have the exclusive power and authority to administer this Agreement and to
exercise all rights and powers specifically granted to the Board of Directors or
the Company (and/or, as provided herein, a majority of the Continuing Directors,
as the case may be) or necessary or advisable in the administration of this
Agreement, including without limitation the right and power to interpret this
Agreement and to make all determinations deemed necessary or advisable for the
administration of this Agreement. Any action which, pursuant to this Agreement,
may not be taken without the consent, approval or determination of a majority of
Continuing Directors may not be taken if the Company, at the time of the
proposed action, has no Continuing Directors. All such acts, interpretations
and determinations done or made by the Board of Directors and/or a majority of
the Continuing Directors in good faith shall be final, conclusive and binding on
the Company, the Rights Agent and the holders of the Rights. Accordingly, the
Board of Directors and the Continuing Directors, as the case may be, shall not
be liable to the holders of the Rights or any other party for any determination
made, action taken or action omitted to be taken pursuant to the terms of this
Agreement, if such determination, action or omitted action was made or taken or
omitted in good faith.
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 or the Rights
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 of
Directors (together with a majority
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<PAGE>
of the Continuing Directors if at such time the Company has, or at any time
prior thereto had, an Acquiring Person) determines in its, or their, good faith
judgment that severing the invalid language from this Agreement would adversely
affect the purpose or effect of this Agreement, the right of redemption set
forth in Section 23 shall be reinstated and shall not expire until the Close of
Business on the fifteenth day following the date of such determination.
Section 32. Governing Law. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Minnesota 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.
Section 33. Counterparts. This Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 34. Descriptive Headings. Descriptive headings of the
several sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the provisions
hereof.
Section 35. Costs of Enforcement. The Company agrees that if it
fails after a Stock Acquisition Date to fulfill any of its obligations pursuant
to this Agreement, then the Company will reimburse the holder of any Right for
the costs and expenses, including legal fees, incurred by such holder to enhance
his rights pursuant to such Right or this Agreement.
-33-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Rights Agreement to be duly executed as of the day and year first above
written.
APERTUS TECHNOLOGIES
INCORPORATED
By /s/ Julie C. Brady
-------------------------------------------------
Its Vice President and General Counsel
---------------------------------------------
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Nancy Rosengren
-------------------------------------------------
Its Assistant Vice President
---------------------------------------------
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<PAGE>
Exhibit A
---------
[Form of Right Certificate]
Certificate No. R- ___________ Rights
NOT EXERCISABLE AFTER SEPTEMBER 4, 2006 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO OR HELD BY ANY
ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON (AS SUCH
TERMS ARE DEFINED IN THE RIGHTS AGREEMENT) OR THEIR TRANSFEREES BECOME VOID.
Right Certificate
APERTUS TECHNOLOGIES INCORPORATED
This certifies that ___________________________, or registered assigns, is
the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Amended and Restated Rights Agreement dated as of September 4, 1996 (the
"Rights Agreement") between Apertus Technologies Incorporated, a Minnesota
corporation (the "Company"), and Norwest Bank Minnesota, National Association
(the "Rights Agent"), to purchase from the Company at any time after the
Distribution Date (as such term is defined in the Rights Agreement) and prior to
5:00 P.M. (Minneapolis, Minnesota time) on September 4, 2006, at the office or
offices of the Rights Agent designated for such purpose, or its successors as
Rights Agent, one-half of one fully paid, non-assessable share of the Common
Stock (the "Common Stock") of the Company, at a purchase price of $__________
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Exercise duly completed and executed.
The number of Rights evidenced by this Right Certificate (and the number of one-
half shares which may be purchased upon exercise thereof) set forth above, and
the Purchase Price per one-half share set forth above, are, except for
adjustments required pursuant to the Rights Agreement, the number and Purchase
Price as of __________, 19__, based on the Common Stock as constituted at such
date.
As provided in the Rights Agreement, the Purchase Price and the number of
shares of Common Stock which may be purchased upon the exercise of the Rights
evidenced by this Right Certificate are subject to modification and adjustment
upon the happening of certain events, including Acquisition Events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive office of the
Company and are also available upon written request to the Company.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or offices of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Common Stock as the Rights evidenced by the Right
Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder
shall be entitled to receive upon surrender hereof another Right Certificate or
Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Right Certificate may be redeemed by the Company at its option at a
redemption price of $.01.
No fractional shares of Common Stock will be issued upon the exercise of
any Right or Rights evidenced hereby, if in lieu thereof a cash payment is made,
as provided in the Rights Agreement.
A-1
<PAGE>
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of shares of the
Common Stock or of any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in the Rights Agreement), or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the manual or facsimile signature of the proper officer of the
Company.
Dated as of
-------------------
ATTEST: APERTUS TECHNOLOGIES INCORPORATED
By
- ---------------------------- ------------------------------------
Title: Title:
Countersigned:
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By
-------------------------
Authorized Signature
A-2
<PAGE>
[Form of Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED hereby sells, assigns and transfers unto
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
this Right Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _____________________________
Attorney, to transfer the within Right Certificate on the books of the within-
named Company, with full power of substitution.
The undersigned hereby certifies (after due inquiry and to the best of its
knowledge) by checking the appropriate boxes that: (1) this Right Certificate [
] is or [ ] is not being sold, assigned and transferred by or on behalf of a
Person who is or was an Acquiring Person or an Affiliate or Associate of an
Acquiring Person (as such terms are defined in the Rights Agreement); and (2)
the undersigned [ ] did or [ ] did not acquire the Rights evidenced by this
Right Certificate from any Person who is, was or subsequently became an
Acquiring Person or an Affiliate or Associate of an Acquiring Person.
Dated:
---------------------- --------------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee Medallion program), pursuant to SEC Rule 17Ad-
15.
FORM OF ELECTION TO EXERCISE
----------------------------
(To be executed if holder desires to exercise
Rights represented by the Right Certificate.)
The undersigned hereby irrevocably elects to exercise ________________
Rights represented by this Right Certificate to purchase the shares of Common
Stock issuable upon the exercise of such Rights (or such other securities of the
Company or of any other Person which may be issuable upon exercise of the
Rights) and requests that certificates for such shares be issued in the name of:
- --------------------------------------------------------------------------------
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please insert social security
or other identifying number
- --------------------------------------------------------------------------------
(Please print name and address)
The undersigned hereby certifies (after due inquiry and to the best of its
knowledge) by checking the appropriate boxes that: (1) the Rights evidenced by
this Right Certificate [ ] are or [ ] are not being exercised by or on
behalf of a Person who is or was an Acquiring Person or an Affiliate or
Associate of an Acquiring Person (as such terms are defined in the Rights
Agreement); and (2) the undersigned [ ] did or [ ] did not acquire the
Rights evidenced by this Right Certificate from any Person who is, was or
subsequently became an Acquiring Person or an Affiliate or Associate of an
Acquiring Person.
Dated:
---------------------- --------------------------------------------
Signature
(Signature must conform in all respects to
name of holder as specified on the face of
this Right Certificate)
Signature Guaranteed:
Signatures must be guaranteed by an eligible guarantor institution (banks,
stockbrokers, savings and loan associations and credit unions with membership in
an approved signature guarantee Medallion program), pursuant to SEC Rule 17Ad-
15.
