SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
December 16, 1999
Date of Report (Date of earliest event reported)
BIOMET, INC.
(Exact name of registrant as specified in its charter)
Indiana 0-12515 35-1418342
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification Number)
incorporation)
Airport Industrial Park 46581-0587
P.O. Box 587 (Zip Code)
Warsaw, Indiana
(Address of principal
executive offices)
Registrant's telephone number, including area code (219) 267-6639
<PAGE>
Item 5. Other Events
The Board of Directors has adopted a new Shareholder Rights Plan (the
"Plan") to replace a 1989 rights plan that expired on December 2, 1999.
The purpose of the Plan is to deter certain coercive tactics that have
been used to acquire control of public corporations and to enable the
Board of Directors to represent effectively the interests of the
shareholders in the event of a takeover attempt. The Plan will not
deter negotiated mergers or business combinations that the Board of
Directors determines to be in the shareholders best interests and in
the best interests of the Company. The Plan is designed to force an
acquiror to deal with the Board of Directors. If the acquiror's
proposal is not approved by the Board, the issuance of the Rights
provided for in the Plan would dramatically alter the capital structure
of the Company thereby making the acquiror's proposal unattractive to
it. The involvement of the Board of Directors could improve the price
and terms of any acquisition proposal. The adoption of the Plan is not
in response to any specific acquisition proposal and the Company is not
aware of plans or proposals for the acquisition of control of the
Company. The Plan does not in any way alter the financial strength of
the Company or interfere with its business plans. The adoption of the
Plan is not dilutive, does not affect reported earnings per share, and
is not taxable to the shareholders or the Company.
Under the Plan, rights will attach to the outstanding common shares at
the rate of one right for each share held by shareholders of record at
the close of business on December 28, 1999. The rights will become
exercisable only if a person or group of affiliated persons (an
"Acquiring Person") acquires 15% or more of Biomet's common shares or
announces a tender offer or exchange offer that would result in the
acquisition of 30% or more of the outstanding common shares. At that
time, the rights may be redeemed at the election of the Board of
Directors of the Company. If not redeemed, then prior to the
acquisition by such person of 50% or more of the outstanding common
shares of Biomet, the Company may exchange the rights (other than
rights owned by the Acquiring Person, which would have become void) for
common shares (or other securities) of the Company on a one-for-one
basis. If not exchanged, the rights may be exercised and the holders
may acquire preferred share units or common shares of the Company
having a value of two times the exercise price of $175.00. Each
preferred share unit carries the same voting rights as one common
share. If the Acquiring Person engages in a merger or other business
combination with the Company, the rights would entitle the holders to
acquire shares of the Acquiring Person having a market value equal to
twice the exercise price of the rights. The Plan will expire in
December 2009. The distribution of the rights is not a taxable event
for shareholders of Biomet.
In connection with the adoption of the Plan, the Board of Directors
also approved the terms of the Series A Preferred Shares and adopted
the Restatement of the Articles of Incorporation of the Company
designating the relative rights, preferences and limitations of the
Series A Preferred Shares.
<PAGE>
Item 7. Financial Statements and Exhibits
(a) Financial statements of businesses acquired
Not applicable
(b) Pro forma financial information
Not applicable
(c) Exhibits
3.01 Restatement of Articles of Incorporation as filed with
the Indiana Secretary of State on January 3, 2000.
4.01 Rights Agreement dated as of December 16, 1999 between
Biomet, Inc. and Lake City Bank, as Rights Agent.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BIOMET, INC.
By: /s/Daniel P. Hann
------------------------------------------
Daniel P. Hann, Senior Vice President
and General Counsel
Dated: January 5, 2000
<PAGE>
EXHIBIT INDEX
Number Assigned
In Regulation
S-K Item 601 Description of Exhibit
(3) 3.01 Restatement of Articles of Incorporation as filed
with the Indiana Secretary of State on January
3, 2000.
(4) 4.01 Rights Agreement dated as of December 16, 1999
between Biomet, Inc. and Lake City Bank, as Rights
Agent.
RESTATEMENT OF ARTICLES OF INCORPORATION Sue Ann Gilroy
State Form 42152 (R2/4-95) Secretary of State
Approved by State Board of Accounts 1995 302 W. Washington St., Rm. E018
Indianapolis, IN 46204
Telephone: (317) 232-6576
Indiana Code 23-1-38-7
FILING FEE IS $30.00
INSTRUCTIONS: Use 8 1/2" x 11" white paper for inserts.
Present original and two (2) copies to address in upper right
corner of this form.
Please TYPE or PRINT.
Upon completion of filing the Secretary of State will issue a
receipt.
RESTATEMENT OF
ARTICLES OF INCORPORATION
OF
BIOMET, INC.
The above corporation (hereinafter referred to as the "Corporation") existing
pursuant to the Indiana Business Corporation Law, desiring to give notice of
corporate action effectuating the restatement of its Articles of Incorporation,
sets forth the following:
ARTICLE 1 - RESTATEMENT
SECTION 1: The date of incorporation of the Corporation:
November 30, 1977
SECTION II: The name of the Corporation following this restatement:
Biomet, Inc.
SECTION III: The exact text of the Restatement of Articles of Incorporation is
attached as "Exhibit A".
ARTICLE II - MANNER OF ADOPTION AND VOTE (Strike inapplicable section)
SECTION 1: The restatement does not contain an amendment requiring
[X] shareholder approval and the board of directors adopted the
restatement.
In Witness Whereof, the undersigned being the Senior Vice President,
General Counsel and Secretary of said Corporation executes this Restatement of
Articles of Incorporation and verifies, subject to penalties of perjury, that
the statements contained herein are true, this 30th day of December, 1999.
Signature Printed Name
/s/ Daniel P. Hann Daniel P. Hann
<PAGE>
EXHIBIT A
RESTATEMENT OF THE
ARTICLES OF INCORPORATION
OF
BIOMET, INC.
ARTICLE I.
Name
The name of the Corporation is Biomet, Inc.
ARTICLE II.
Purposes and Powers
Section 2.1. Purposes. The purposes for which the Corporation is formed
are:
a. To manufacture and distribute surgical implants and orthopedic support
devices.
b. In general, to transact any and all lawful business for which
corporations may be incorporated under the Indiana Business Corporation Law, as
amended (the "Act").
Section 2.2. Powers. Subject to any limitation or restriction imposed by
law or any provision of these Articles of Incorporation, the Corporation shall
have the power:
a. To do everything necessary, convenient to accomplish the purposes set
forth; and
b. To exercise and enjoy in furtherance of hereinbefore set forth all the
rights, privileges and powers granted to the Corporation by these Articles of
Incorporation, the Act as now or hereafter amended, and the common law.
ARTICLE III.
Term of Existence
The Corporation shall have perpetual existence.
<PAGE>
ARTICLE IV
Authorized Shares
Section 4.1. Number. The total number of shares which the Corporation shall
have authority to issue is one hundred fifty million five thousand two hundred
fifty (150,005,250) shares.
Section 4.2. Classes. The authorized shares of the Corporation shall be
divided into the following classes:
a. Preferred Shares, consisting of five thousand two hundred fifty (5,250)
shares with par value of $100.00 per share (the "Preferred Shares"); and
b. Common Shares, consisting of one hundred fifty million (150,000,000)
shares without par value (the "Common Shares").
Section 4.3. Relative Rights.
a. Preferred Shares. The Preferred Shares may be issued in one or more
series. The board of directors shall have the authority to determine by
resolution the relative rights, preferences, limitations and restrictions of any
series of Preferred Shares, prior to the issuance thereof. All shares within
each series of Preferred Shares shall have the same rights, preferences,
limitations and restrictions.
b. Common Shares. All Common Shares shall have the same rights,
preferences, limitations and restrictions.
Section 4.4. Voting Rights of Shares.
a. Common Shares. Each holder of Common Shares shall be entitled to one (1)
vote for each share owned of record on the books of the Corporation on each
matter submitted to a vote of the holders of Common Shares.
b. Preferred Shares. Holders of Preferred Shares shall have only such
voting rights as may be specified by the board of directors pursuant to Section
4.3 hereof or by the Act.
Section 4.5. Series A. Preferred Shares. The Series A Preferred Shares of
the Corporation shall consist of three thousand (3,000) of the Preferred Shares
specified in Section 4.2.a. of the Articles of Incorporation of Biomet, Inc.,
and shall have the following rights, preferences, limitations and restrictions:
a. Dividends and Distributions.
<PAGE>
(i) Entitlement to Dividends. Subject to the rights of the holders of
any shares or any series of Preferred Shares ranking prior and superior to
the Series A Preferred Shares with respect to dividends, and in preference
to the holders of Common Shares and of any other junior shares, the holders
of outstanding Series A Preferred Shares shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last
day of March, June, September and December, in each year (a "Quarterly
Payment Date"), commencing on the first Quarterly Payment Date after the
first issuance of a share or fraction of a Series A Preferred Share, in a
per share amount (rounded to the nearest cent) equal to the greater of (A)
$1,000, or (B) subject to the provision for adjustment hereinafter set
forth, 100,000 times the aggregate per share amount of all cash dividends,
and 100,000 times the aggregate per share amount (payable in kind) of all
non-cash dividends or other distributions (other than a dividend payable in
Common Shares or a subdivision of the outstanding Common Shares (by
reclassification or otherwise)), declared on the Common Shares since the
immediately preceding Quarterly Payment Date or, with respect to the first
Quarterly Payment Date, since the first issuance of any Series A Preferred
Share or fraction thereof. In the event the Corporation shall at any time
after December 28, 1999 (the "Rights Declaration Date") declare any
dividend on Common Shares payable in Common Shares, or effect a subdivision
or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common
Shares) into a greater or lesser number of Common Shares, then in each such
case the amount to which holders of Series A Preferred Shares were entitled
immediately prior to such event under clause (B) of the preceding sentence
shall be adjusted by multiplying such amount by a fraction the numerator of
which is the number of Common Shares outstanding immediately after the
event and the denominator of which is the number of Common Shares that were
outstanding immediately prior to the event.
(ii) Declaration of Dividends. The Corporation shall declare a
dividend or distribution on the Series A Preferred Shares as provided in
subparagraph (i) of this paragraph immediately after it declares a dividend
or distribution on the Common Shares (other than a dividend payable in
Common Shares); provided that, in the event no dividend or distribution
shall have been declared on the Common Shares during the period between any
Quarterly Payment Date and the next subsequent Quarterly Payment Date, a
dividend of $1,000 per share on the Series A Preferred Shares shall
nevertheless be payable on the subsequent Quarterly Payment Date.
(iii) Accrual of Dividends. Dividends shall begin to accrue and be
cumulative on outstanding Series A Preferred Shares from the Quarterly
Payment Date next preceding the date of issue of the shares, unless the
date of issue of the shares is prior to the record date for the first
Quarterly Payment Date, in which case dividends on the shares shall begin
to accrue from the date of issue of the shares, or unless the date of issue
is a Quarterly Payment Date or is a date after the record date for the
determination of holders of Series A Preferred Shares entitled to receive a
quarterly dividend and before such Quarterly Payment Date, in either of
which events the shares shall begin to accrue and be cumulative from such
Quarterly Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the Series A Preferred Shares in an amount less
than the total amount of the dividends at the time accrued and payable on
the shares shall be allocated pro rata on a share-by-share basis among all
shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of Series A Preferred Shares entitled
to receive payment of a dividend or distribution declared thereon, which
record date shall be not more than 60 days prior to the date fixed for the
payment thereof.
<PAGE>
b. Voting Rights. The holders of Series A Preferred Shares shall have the
following voting rights:
(i) Number of Votes. Subject to the provision for adjustment
hereinafter set forth, each Series A Preferred Share shall entitle the
holder thereof to 100,000 votes on all matters submitted to a vote of the
shareholders of the Corporation. In the event the Corporation shall at any
time declare or pay any dividend on the Common Shares payable in Common
Shares, or effect a subdivision or combination or consolidation of the
outstanding Common Shares (by reclassification or otherwise than by payment
of a dividend in Common Shares) into a greater or lesser number of Common
Shares, then in each such case the number of votes per share to which
holders of Series A Preferred Shares were entitled immediately prior to
such event shall be adjusted by multiplying that number by a fraction, the
numerator of which is the number of Common Shares outstanding immediately
after the event and the denominator of which is the number of Common Shares
that were outstanding immediately prior to the event.
(ii) No Class Voting. Except as otherwise provided herein, in any
other Articles of Amendment creating a series of Preferred Shares or any
similar shares or by law, the holders of Series A Preferred Shares and the
holders of Common Shares and any other shares of the Corporation having
general voting rights shall vote together as one class on all matters
submitted to a vote of shareholders of the Corporation.
(iii) No Special Voting Rights. Except as set forth herein, or as
otherwise provided by law, holders of Series A Preferred Shares shall have
no special voting rights and their consent shall not be required (except to
the extent they are entitled to vote with holders of Common Shares as set
forth herein) for taking any corporate action.
c. Certain Restrictions.
(i) Dividends in Arrears. Whenever quarterly dividends or other
dividends or distributions payable on the Series A Preferred Shares as
provided in paragraph a. are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on Series
A Preferred Shares outstanding shall have been paid in full, the
Corporation shall not:
<PAGE>
(A) Declare or pay dividends or make any other distributions, on
any shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Shares;
(B) Declare or pay dividends, or make any other distributions, on
any shares ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred
Shares, except dividends paid ratably on the Series A Preferred Shares
and all parity shares on which dividends are payable or in arrears in
proportion to the total amounts to which the holders of all those
shares are then entitled;
(C) Redeem or purchase or otherwise acquire for consideration
shares ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Shares, provided
that the Corporation may at any time redeem, purchase or otherwise
acquire any junior shares in exchange for shares of the Corporation
ranking junior (either as to dividends or upon dissolution,
liquidation or winding up) to the Series A Preferred Shares; or
(D) Redeem or purchase or otherwise acquire for consideration any
Series A Preferred Shares, or any shares ranking on a parity with the
Series A Preferred Shares, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Directors) to all holders of those shares upon such terms as the Board
of Directors, after consideration of the respective annual dividend
rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair
and equitable treatment among the respective series or classes.
(ii) Limitation on Subsidiaries. The Corporation shall not permit any
subsidiary of the Corporation to purchase or otherwise acquire for
consideration any shares of the Corporation unless the Corporation could,
under subparagraph (i) of this paragraph c. purchase or otherwise acquire
those shares at such time and in such manner.
d. Reacquired Shares. Any Series A Preferred Shares purchased or otherwise
acquired by the Corporation in any manner whatsoever shall be retired and
canceled promptly after the acquisition thereof. All such shares shall upon
their cancellation become authorized but unissued Preferred Shares and may be
reissued as part of a new series of Preferred Shares subject to the conditions
and restrictions on issuance set forth in these Articles of Incorporation, or in
any Articles of Amendment creating another series of Preferred Shares or any
similar shares or as otherwise required by law.
<PAGE>
e. Liquidation, Dissolution or Winding Up. Upon any liquidation,
dissolution or winding up of the Corporation, no distribution shall be made (1)
to the holders of shares ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Shares unless,
prior thereto, the holders of Series A Preferred Shares shall have received the
greater of (A) $100,000 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment, or (B) an aggregate amount per share, subject to the provision for
adjustment hereinafter set forth, equal to 100,000 times the aggregate amount to
be distributed per share to holders of Common Shares, or (2) to the holders of
shares ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Shares, except
distributions made ratably on the Series A Preferred Shares and all such parity
shares in proportion to the total amounts to which the holders of all such
shares are entitled upon liquidation, dissolution or winding up. In the event
the Corporation shall at any time declare or pay any dividend on the Common
Shares payable in Common Shares, or effect a subdivision or combination or
consolidation of the outstanding Common Shares (by reclassification or otherwise
than by payment of a dividend in Common Shares) into a greater or lesser number
of Common Shares, then in each such case the aggregate amount to which holders
of Series A Preferred Shares were entitled immediately prior to that event under
the proviso in clause (1) of the preceding sentence shall be adjusted by
multiplying that amount by a fraction the numerator of which is the number of
Common Shares outstanding immediately after the event and the denominator of
which is the number of Common Shares that were outstanding immediately prior to
the event.
f. Consolidation, Merger, etc. If the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the Common
Shares are exchanged for or changed into other securities, cash and/or any other
property, then in any such case each Series A Preferred Share shall at the same
time be similarly exchanged or changed in an amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 100,000 times the
aggregate amount of shares, securities, cash and/or any other property (payable
in kind), as the case may be, into which or for which each Common Share is
changed or exchanged. In the event the Corporation shall at any time declare or
pay any dividend on the Common Shares payable in Common Shares, or effect a
subdivision or combination or consolidation of the outstanding Common Shares (by
reclassification or otherwise than by payment of a dividend in Common Shares)
into a greater or lesser number of Common Shares, then in each such case the
amount set forth in the preceding sentence with respect to the exchange or
change of Series A Preferred Shares shall be adjusted by multiplying such amount
by a fraction, the numerator of which is the number of shares of Common Shares
outstanding immediately after the event and the denominator of which is the
number of Common Shares that were outstanding immediately prior to the event.
g. No Redemption. The Series A Preferred Shares shall not be redeemable.
h. Rank. The Series A Preferred Shares shall rank, with respect to the
payment of dividends and the distribution of assets, junior to all series of any
other class of the Corporation's Preferred Shares.
<PAGE>
i. Amendment. These Articles of Incorporation of the Corporation shall not
be amended in any manner that would materially alter or change the powers,
preferences or special rights of the Series A Preferred Shares so as to affect
them adversely without the affirmative vote of the holders of at least
two-thirds of the outstanding Series A Preferred Shares, voting together as a
single class.
j. Expiration of Rights Agreement. In the event that the Rights Agreement
dated as of December 16, 1999 between the Corporation and Lake City Bank is
terminated or expires prior to the issuance of any Series A Preferred Shares,
all Series A Preferred Shares shall become authorized but unissued Preferred
Shares and may be reissued as part of a new series of Preferred Shares subject
to the conditions and restrictions on issuance set forth in these Articles of
Incorporation or in any other Articles of Amendment creating a series of
Preferred Shares or any similar shares or as otherwise required by law.
ARTICLE V.
Directors
Section 5.1. Number. The by-laws of the Corporation shall specify from time
to time the number of directors of the Corporation. In the absence of a by-law
fixing the number of directors, the number shall be nine (9).
Section 5.2. Classes of Directors. The by-laws of the Corporation may
provide that the board of directors shall be divided into classes whose terms of
office expire at different times, under terms and conditions consistent with the
Act.
ARTICLE VI
Provisions for Regulation of Business and
Conduct of Affairs of the Corporation
Section 6.1. Issuance of Shares. Authorized but unissued shares and
treasury shares of the Corporation may be issued or sold from time to time upon
such terms and conditions, for such consideration, and to such persons,
corporations or other legal entities as the board of directors may determine
without authorization or approval of the shareholders. Shares having a par value
may be sold at less than their par value.
Section 6.2. Place of Meetings. Meetings of the shareholders and meetings
of the board of directors shall be held at such places, either within or without
the State of Indiana, as shall be specified in the respective calls and notices
or waivers of notice of such meetings given in accordance with the by-laws.
<PAGE>
Section 6.3. Indemnification of Directors and Officers.
a. As used in this section:
(1) "Director" means any person who is or was a director of this
Corporation and any person who, while a director of this
Corporation, is or was serving at the request of the Corporation
as a director, officer, partner), trustee, employee or agent of
another foreign or domestic corporation, partnership, joint
venture, trust, other enterprise or employee benefit plan.
(2) "Expenses" include attorneys' fees.
(3) "Official capacity" means
(A) when used with respect to a director, the office of director
in the Corporation, and
(B) when used with respect to a person other than a director, as
contemplated in subsection i., the elective or appointive
office in the Corporation held by the officer or the
employment or agency relationship undertaken by the employee
or agent in behalf of the Corporation, but in each case does
not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, other
enterprise, or employee benefit plan.
(4) "Party" includes a person who was, is, or is threatened to be
made, a named defendant or respondent in a proceeding.
(5) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative.
b. The Corporation shall have power to indemnify any person made a party to
any proceeding by reason of the fact that he is or was a director if
(1) he conducted himself in good faith; and
(2) he reasonably believed
(A) in the case of conduct in his official capacity with the
Corporation, that his conduct was in its best interest, and
(B) in all other cases, that his conduct was at least not
opposed to its best interests; and
<PAGE>
(3) in the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
Indemnification may be made against judgments, penalties, fines,
settlements and reasonable expenses, actually incurred by the person
in connection with the proceeding; except that if the proceeding was
by or in the right of the Corporation, indemnification may be made
only against such reasonable expenses and shall not be made in respect
of any proceeding in which the person shall have been adjudged to be
liable to the Corporation. The termination of any proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, be determinative
that the person did not meet the requisite standard of conduct set
forth in this subsection b.
c. A director shall not be indemnified under subsection b. in respect of
any proceeding charging improper personal benefit to him, whether or not
involving action in his official capacity, in which he shall have been adjudged
to be liable on the basis that personal benefit was improperly received by him.
d. A director who has been wholly successful, on the merits or otherwise,
in the defense of any proceeding referred to in subsection b. shall be
indemnified against reasonable expenses incurred by him in connection with the
proceeding; and
(1) a court of appropriate jurisdiction, upon application of a
director and such notice as the court shall require, shall have
authority to order indemnification in the following
circumstances:
(A) if it determines a director is entitled to reimbursement
under clause (1), the court shall order indemnification, in
which case the director shall also be entitled to recover
the expenses of securing such reimbursement; or
(B) if it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant
circumstances, whether or not he has met the standard of
conduct set forth in subsection b. or has been adjudged
liable in the circumstances described in subsection c., the
court may order such indemnification as the court shall deem
proper, except that indemnification with respect to any
proceeding by or in the right of the Corporation or in which
liability shall have been adjudged in the circumstances
described in subsection c. shall be limited to expenses.
A court of appropriate jurisdiction may be the same court in which the
proceeding involving the director's liability took place.
<PAGE>
e. No indemnification under subsection b. shall be made by the Corporation
unless authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because he
has met the standard of conduct set forth in subsection b. Such determination
shall be made:
(1) by the board of directors by a majority vote of a quorum
consisting of directors not at the time parties to the
proceeding; or
(2) if such a quorum cannot be obtained, then by a majority vote of a
committee of the board, duly designated to act in the matter by a
majority vote of the full board (in which designation directors
who are parties may participate), consisting solely of two or
more directors not at the time parties to the proceeding; or
(3) by special legal counsel, selected by the board of directors or a
committee thereof by vote as set forth in clauses (1) or (2) of
this subsection e., or, if the requisite quorum of the full board
cannot be obtained therefor and such committee cannot be
established, by a majority vote of the full board (in which
selection directors who are parties may participate); or
(4) by the shareholders.
Authorization of indemnification and determination as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination that indemnification is permissible is made by special
legal counsel, authorization of indemnification and determination as
to reasonableness of expenses shall be made in a manner specified in
clause (3) in the preceding sentence for the selection of such
counsel. Shares held by directors who are parties to the proceeding
shall not be voted on the subject matter under this subsection e.
f. Reasonable expenses incurred by a director who is a party to a
proceeding may be paid or reimbursed by the Corporation in advance of the final
disposition of such proceeding upon receipt by the Corporation of
(1) a written affirmation by the director of his good faith belief
that he has met the standard of conduct necessary for
indemnification by the Corporation as authorized in this section,
and
(2) a written undertaking by or on behalf of the director to repay
such amount if it shall ultimately be determined that he has not
met such standard of conduct, and
<PAGE>
after a determination that the facts then known to those making the
determination would not preclude indemnification under this section.
The undertaking required by clause (2) shall be an unlimited general
obligation of the director but need not be secured and may be accepted
without reference to financial ability to make repayment.
Determinations and authorizations of payments under this subsection f.
shall be made in the manner specified in subsection e.
g. The Corporation shall have the power to pay or reimburse expenses
incurred by a director in connection with his appearance as a witness in a
proceeding at a time when he has not been made a named defendant or respondent
in the proceeding.
h. For purposes of this section, the Corporation shall be deemed to have
requested a director to serve an employee benefit plan whenever the performance
by him of his duties to the Corporation also imposes duties on, or otherwise
involves services by, him to the plan or participants or beneficiaries of the
plan; excise taxes assessed on a director with respect to an employee benefit
plan pursuant to applicable law shall be deemed "fines"; and action taken or
omitted by him with respect to an employee benefit plan in the performance of
his duties for a purpose reasonably believed by him to be in the interest of the
participants and beneficiaries of the plan shall be deemed to be for a purpose
which is not opposed to the best interests of the Corporation.
i. (1) An officer of the Corporation shall be indemnified as and to the
same extent provided in subsection d. for a director and shall be
entitled to the same extent as a director to seek indemnification
pursuant to the provisions of subsection d.;
(2) the Corporation shall have the power to indemnify and to advance
expenses to an officer, employee or agent of the Corporation to
the same extent that it may indemnify and advance expenses to
directors pursuant to this section; and
(3) the Corporation, in addition, shall have the power to indemnify
and to advance expenses to an officer, employee or agent who is
not a director to such further extent, consistent with law, as
may be provided by these Articles of Incorporation, the by-laws,
general or specific action of its board of directors, or
contract.
j. The Corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation, or who, while a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust, other enterprise or employee
benefit plan, against any liability asserted against him and incurred by him in
any such capacity or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of this section.
<PAGE>
k. Any indemnification of, or advance of expenses to, a director in
accordance with this section, if arising out of a proceeding by or in the right
of the Corporation, shall be reported in writing to the shareholders with or
before the notice of the next shareholders' meeting.
l. The provisions of this Section 6.3 shall not limit any other rights of
indemnification to which a director may be entitled by law.
Section 6.4. Powers of Board of Directors. Subject to a limitation or
restriction imposed by law or by these Articles of Incorporation, the board of
directors may exercise, in furtherance of the purposes of the Corporation, all
the powers of the Corporation without authorization or approval of the
shareholders.
Section 6.5. Distributions upon Shares. The board of directors shall have
authority to authorize and direct the payment of dividends and the making of
other distributions by the Corporation in respect of its shares at such times,
in such amounts and forms, from such sources (specifically including, but not
limited to, the unrestricted and unreserved capital surplus of the Corporation)
and upon such terms and conditions as it may, from time to time, determine,
subject to such restrictions, limitations, conditions and requirements as may be
imposed by law or by these Articles of Incorporation.
Section 6.6. Acquisition of Shares. The board of directors shall have
authority to authorize and direct the acquisition by the Corporation of its
shares at such times, in such amounts, from such persons, for such
consideration, from such sources (specifically including, but not limited to,
the unrestricted and unreserved capital surplus of the Corporation) and upon
such terms and conditions as it may from time to time determine, subject to such
restrictions, conditions, and requirements as may be imposed by law or by these
Articles of Incorporation.
Section 6.7. Executive Committee and Other Committees. The powers and
duties conferred or imposed upon the board of directors by law and by these
Articles of Incorporation may be exercised or performed by an executive
committee or by one or more such other committees as may from time to time be
designated in a manner and to the extent specified in the by-laws.
Section 6.8. Voting Requirements. The affirmative vote of the holders of
not less than seventy-five percent (75%) of the outstanding Common Shares
entitled to vote shall be required:
a. To amend, alter, change or repeal any provision of these Articles of
Incorporation, except that an amendment to Section 4.1 or Section 4.2 shall be
adopted for the purpose of increasing the number of authorized shares of the
Corporation upon receipt of the affirmative vote of not less than a majority of
the outstanding Common Shares entitled to vote.
<PAGE>
b. To authorize a "special corporate transaction" as defined in the Indiana
General Corporation Act (IC 23-1-6-1).
c. To approve any merger or consolidation pursuant to the Act to which the
Corporation is a party.
RIGHTS AGREEMENT
between
BIOMET, INC.
and
LAKE CITY BANK,
as Rights Agent
Dated as of December 16, 1999
<PAGE>
<TABLE>
<CAPTION>
INDEX
<S> <C> <C>
Page
Section 1. Certain Definitions 1
Section 2. Appointment of Rights Agent 4
Section 3. Issuance of Right Certificates 4
Section 4. Form of Right Certificates 6
Section 5. Countersignature and Registration 6
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates;
Mutilated, Destroyed, Lost or Stolen Right Certificates 7
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights 7
Section 8. Cancellation and Destruction of Right Certificates 8
Section 9. Availability of Capital Stock 8
Section 10. Record Date 9
Section 11. Adjustment of Purchase Price, Number of Shares or Number of Rights 10
Section 12. Certificate of Adjusted Purchase Price or Number of Shares 16
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power 16
Section 14. Fractional Rights and Fractional Shares 18
Section 15. Rights of Action 19
Section 16. Agreement of Right Holders 19
Section 17. Right Certificate Holder Not Deemed a Shareholder 19
Section 18. Concerning the Rights Agent 20
Section 19. Merger or Consolidation or Change of Name of Rights Agent 20
Section 20. Duties of Rights Agent 21
Section 21. Change of Rights Agent 23
Section 22. Issuance of New Right Certificates 23
Section 23. Redemption 24
Section 24. Exchange 25
Section 25. Notice of Certain Event 26
Section 26. Notices 27
Section 27. Supplements and Amendments 27
Section 28. Successors 27
Section 29. Benefits of this Agreement 27
Section 30. Severability 28
Section 31. Governing Law 28
Section 32. Counterparts 28
Section 33. Descriptive Headings 28
</TABLE>
<PAGE>
RIGHTS AGREEMENT
This Agreement is made and entered into as of December 16, 1999, between
Biomet, Inc., an Indiana corporation (the "Company"), and Lake City Bank, an
Indiana corporation, (the "Rights Agent").
RECITALS
The Board of Directors of the Company has authorized and declared a
dividend of one preferred share purchase right (a "Right") for each Common Share
(as hereinafter defined) of the Company outstanding as of the Close of Business
on December 28, 1999 (the "Record Date"), each Right representing the right to
purchase one one-hundred thousandth (.00001) of a Series A Preferred Share of
the Company (a "Preferred Share Unit"), upon the terms and subject to the
conditions herein set forth, and has further authorized and directed the
issuance of one Right with respect to each Common Share that shall become
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date (as such terms are hereinafter
defined). The Rights Agent has agreed to accept its appointment as such, and to
carry out the duties imposed on it hereunder.
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 (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as such
terms are hereinafter defined) of such Person, shall be the Beneficial Owner (as
such term is hereinafter defined) of 15% or more of the Common Shares of the
Company then outstanding, but shall not include the Company, any Subsidiary (as
such term is hereinafter defined) of the Company, any employee benefit plan of
the Company or any Subsidiary of the Company, or any entity holding Common
Shares for or pursuant to the terms of any such plan. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result of an
acquisition of Common Shares by the Company that, by reducing the number of
shares outstanding, increases the proportionate number of shares beneficially
owned by such Person to 15% or more of the Common Shares of the Company then
outstanding; provided, however, that if a person shall become the Beneficial
Owner of 15% or more of the Common Shares of the Company then outstanding by
reason of share purchases by the Company and shall, after such share purchases
by the Company, become the Beneficial Owner of any additional Common Shares of
the Company, then such Person shall be deemed to be an "Acquiring Person".
(b) "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 (as such term is hereinafter defined).
<PAGE>
(c) 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
beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates 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 (other than customary agreements with and
between 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 these Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to Beneficially Own, 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) the right to vote pursuant to any
agreement, arrangement or understanding; provided however, that a Person
shall not be deemed the Beneficial Owner of, or to Beneficially Own, any
security if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such
Person in response to a public proxy or consent solicitation made pursuant
to, and in accordance with, the applicable rules and regulations
promulgated under the Exchange Act and (2) is not also then reportable on
Schedule 13D under the Exchange Act (or any comparable or successor
report); or
(iii) which are Beneficially Owned, directly or indirectly, by any
other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding (other than
customary agreements with and between underwriters and selling group
members with respect to a bona fide public offering of securities) for the
purpose of acquiring, holding, voting (except to the extent contemplated by
the proviso to Section 1(c)(ii)(B)) or disposing of any 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 issued and outstanding which such Person would be
deemed to Beneficially Own hereunder.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which banking institutions in the State of Indiana are authorized or
obligated by law or executive order to close.
<PAGE>
(e) "Close of Business" on any given date shall mean 5:00 P.M., Eastern
Standard Time, on such date; provided, however, that if such date is not a
Business Day it shall mean 5:00 P.M., Eastern Standard Time, on the next
succeeding Business Day.
(f) "Common Shares" when used with reference to the Company shall mean the
shares of the Company designated in its Amended Articles of Incorporation as
"Common Shares". "Common Shares" when used with reference to any Person other
than the Company shall mean the capital stock or other equity interest with the
greatest voting power of such other Person or, if such other Person is a
Subsidiary of another Person, the Person or Persons which ultimately control
such first-mentioned Person.
(g) "Company" shall have the meaning set forth in the preamble hereof.
(h) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(j) "Exchange Date" shall mean the time at which such Rights are exchanged
as provided in Section 24 hereof.
(k) "Exchange Ratio" shall have the meaning set forth in Section 24(a)
hereof.
(l) "Final Expiration Date" shall mean the Close of Business on December
16, 2009.
(m) "Person" shall mean any individual, firm, corporation or other entity,
and shall include any successor (by merger or otherwise) of such entity.
(n) "Preferred Share Unit" shall mean one-hundred thousandth (.00001) of a
Series A Preferred Share of the Company.
(o) "Preferred Shares" shall mean the shares of the Company designated in
the Articles of Incorporation of the Company, as amended as Series A "Preferred
Shares".
(p) "Purchase Price" shall initially be $175.00 for each Preferred Share
Unit purchasable pursuant to the exercise of a Right, and shall be subject to
adjustment from time to time as provided in Section 11 and 13 hereof and shall
be payable in lawful money of the United States of America in accordance with
Section 7(c).
(q) "Record Date" shall have the meaning set forth in the second paragraph
hereof.
(r) "Redemption Date" shall mean the time at which the Rights are redeemed
as provided in Section 23 hereof.
<PAGE>
(s) "Redemption Price" shall have the meaning set forth in Section 23
hereof.
(t) "Right" shall have the meaning set forth in the second paragraph
hereof.
(u) "Right Certificate" shall have the meaning set forth in Section 3(a)
hereof.
(v) "Rights Agent" shall have the meaning set forth in the preamble hereof.
(w) "Rights Agreement" shall have the meaning set forth in Section 3(c)
hereof.
(x) "Security" shall have the meaning set forth in Section 11(d) hereof.
(y) "Shares Acquisition Date" shall mean the first date of public
announcement by the Company or an Acquiring Person that an Acquiring Person has
become such or such earlier date as a majority of the Directors shall become
aware of the existence of an Acquiring Person.
(z) "Subsidiary" of any Person shall mean any corporation or other entity
of which a majority of the voting power of the voting equity securities or other
equity interest is owned, directly or indirectly, by such Person.
(aa) "Trading Day" shall have the meaning set forth in Section 11(d)
hereof.
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 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares) in accordance with the terms and conditions
hereof, and the Rights Agent hereby accepts such appointment. The Company may
from time to time appoint such co-Rights Agents as it may deem necessary or
desirable.
Section 3. Issuance of Right Certificates.
(a) Until the earlier of (a) the tenth business day after the Shares
Acquisition Date or (b) the tenth business day (or such later date as may be
determined by action of the Board of Directors prior to such time as any person
becomes an Acquiring Person) after the date of the commencement by any Person
(other than the Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) of, or of the first
public announcement of the intention of any Person (other than the Company, any
Subsidiary of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or pursuant to
the terms of any such plan) to commence, a tender or exchange offer the
consummation of which would result in any person becoming the Beneficial Owner
of Common Shares aggregating 30% or more of the then outstanding Common Shares,
including any such date which is after the date of this Agreement and prior to
the issuance of the Rights (the earlier of such dates being herein referred to
as the "Distribution Date"), (i) the Rights will be evidenced by the
certificates for Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (ii) the Rights Certificates will not be
transferable except as a part of the transfer of certificates for Common Shares,
and until the Distribution Date (or the earlier of the Redemption Date or the
Final Expiration Date), the surrender for transfer of any certificate for Common
Shares outstanding on the Record Date, with or without a copy of the Summary of
Rights attached thereto, shall also constitute the transfer of the Rights
associated with the Common Shares represented thereby. As soon as practicable
after the Distribution Date, the Company will prepare and execute, the Rights
Agent will countersign, and the Company will send or cause to be sent (and the
Rights Agent will, if requested, send) by first-class, insured, postage-prepaid
mail, to each record holder of Common Shares as of the Close of Business on the
Distribution Date, at the address of such holder shown on the records of the
Company, a separate Right Certificate, in substantially the form of Exhibit A
hereto (a "Right Certificate"), evidencing one Right for each Common Share so
held. Following the Close of Business on the Distribution Date, the Rights will
be evidenced solely by such Right Certificates.
<PAGE>
(b) The Company will make available, as promptly as practicable following
the Record Date, a Summary of Rights to Purchase Preferred Shares, in
substantially the form of Exhibit B hereto, to any holder of Rights from time to
time prior to the Expiration Date upon the request of the holders.
(c) Certificates for Common Shares issued after the Record Date but prior
to the earliest of the Distribution Date, the Redemption Date or the Final
Expiration Date (whether as an original issuance of Common Shares or as a
transfer or re-registration of outstanding Common Shares) shall have impressed
on, printed on, written on or otherwise affixed to them the following legend:
THIS CERTIFICATE ALSO EVIDENCES AND ENTITLES THE HOLDER HEREOF TO
CERTAIN RIGHTS AS SET FORTH IN A RIGHTS AGREEMENT BETWEEN BIOMET, INC.
AND LAKE CITY BANK, DATED AS OF DECEMBER 16, 1999 (THE "RIGHTS
AGREEMENT"), THE TERMS OF WHICH ARE HEREBY INCORPORATED HEREIN BY
REFERENCE AND A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF BIOMET, INC. UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN
THE RIGHTS AGREEMENT, SUCH RIGHTS WILL BE EVIDENCED BY SEPARATE
CERTIFICATES AND WILL NO LONGER BE EVIDENCED BY THIS CERTIFICATE.
BIOMET, INC. WILL MAIL TO THE HOLDER OF THIS CERTIFICATE A COPY OF THE
RIGHTS AGREEMENT WITHOUT CHARGE AFTER RECEIPT OF A WRITTEN REQUEST
THEREFOR. AS DESCRIBED IN THE RIGHTS AGREEMENT, RIGHTS ISSUED TO ANY
PERSON WHO BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) SHALL BECOME NULL AND VOID.
<PAGE>
(d) In the event that the Company purchases or acquires any Common Shares
after the Record Date but prior to the Distribution Date, any Rights associated
with such Common Shares shall be deemed cancelled and retired so that the
Company shall not be entitled to exercise any Rights associated with the Common
Shares which are no longer outstanding.
Section 4. Form of Right Certificates. The Right Certificates (and the
forms of election to purchase shares and of assignment to be printed on the
reverse thereof) shall be substantially the same as 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 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 the National Association of Securities
Dealers, Inc. or any stock exchange on which the Rights may from time to time be
listed or quoted, or to conform to usage. Subject to the provisions of Sections
11, 13, and 22 hereof, the Right Certificates shall entitle the holders thereof
to purchase such number of Preferred Share Units as shall be set forth therein
at the price per Preferred Share Unit set forth therein (the "Purchase Price"),
but the amount and type of securities purchasable upon the exercise of each
Right 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 by
its Chairman of the Board, its President, or any of its Vice Presidents, either
manually or by facsimile signature, shall have affixed thereto the Company's
seal or a facsimile thereof, and shall be attested by the Secretary or any
Assistant Secretary of the Company, 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 countersigned. In case any officer of
the Company who shall have signed 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 execution 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 any such person was not such an officer.
(b) Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its principal office or such other office designated for such
purpose, 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.
<PAGE>
Section 6. Transfer, Split Up, Combination and Exchange of Right
Certificates; Mutilated, Destroyed, Lost or Stolen Right Certificates.
(a) Subject to the provisions of Section 14 hereof, at any time after the
Close of Business on the Distribution Date, and at or prior to the Close of
Business on the earlier of the Redemption Date or the Final Expiration Date, any
Right Certificate or Right Certificates (other than Right Certificates
representing Rights that have become void pursuant to Section 11(a)(ii) hereof
or that have been exchanged pursuant to Section 24 hereof) may be transferred,
split up, combined or exchanged for another Right Certificate or Right
Certificates entitling the registered holder to purchase a like number of
Preferred Share Units (or other securities, as the case may be) as the Right
Certificate or Right Certificates by the surrender of the Right Certificate or
Right Certificates to be transferred, split up, combined or exchanged at the
office of the Rights Agent designated for such purpose, duly endorsed with
signature guaranteed as provided for in the form of Right Certificate, and with
the Certificate as to beneficial ownership duly executed by the registered
holder. Thereupon the Rights Agent shall 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 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 delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.
(a) The registered holder of any Right Certificate may exercise the Rights
evidenced thereby (except as otherwise provided herein) in whole or in part at
any time after the Distribution Date upon surrender of the Right Certificate,
with the form of election to purchase on the reverse side thereof duly executed,
to the Rights Agent at the office of the Rights Agent designated for such
purpose, together with payment of the Purchase Price for each Preferred Share
Unit (or other securities, as the case may be) as to which the Rights are
exercised, at or prior to the earliest of (a) the Final Expiration Date, (b) the
Redemption Date, or (c) the Exchange Date.
(b) The Purchase Price for each Preferred Share Unit (or other securities,
as the case may be) pursuant to the exercise of a Right shall initially be
$175.00, shall be subject to adjustment from time to time as provided in
Sections 11 and 13 hereof and shall be payable in lawful money of the United
States of America in accordance with Section 7(c) below.
<PAGE>
(c) Upon receipt of a Right Certificate representing exercisable Rights,
with the form of election to purchase duly executed, accompanied by payment of
the Purchase Price for the shares to be purchased and an amount equal to any
applicable transfer tax required to be paid by the holder of such Right
Certificate in accordance with Section 9 hereof by certified check, cashier's
check or money order payable to the order of the Company, the Rights Agent shall
thereupon promptly (a) (i) requisition from any transfer agent of the Preferred
Shares certificates for the total number of Preferred Share Units to be
purchased (and the Company hereby irrevocably authorizes its transfer agent to
comply with all such requests), or (ii) requisition from the Company's
depositary agent, if any, depositary receipts representing such number of
Preferred Share Units as are to be purchased, in which case certificates for the
Preferred Shares represented by such receipts shall be deposited by the transfer
agent with the depositary agent (and the Company hereby directs its depositary
agent to comply with such request), (b) when appropriate, requisition from the
Company the amount of cash to be paid in lieu of issuance of fractional shares
in accordance with Section 14 hereof, (c) promptly after receipt of such
certificates (or depositary receipts), 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 (d) when appropriate,
after receipt, promptly deliver such cash to or upon the order of the registered
holder of such Right Certificate.
(d) In case 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 to the registered holder of such Right Certificate or to his duly
authorized assigns, subject to the provisions of Section 14 hereof.
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 Rights 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, or shall, at the written
request of the Company, destroy such cancelled Right Certificates, and in such
case shall deliver a certificate of destruction thereof to the Company.
Section 9. Availability of Capital Stock.
(a) The Company covenants and agrees that it will cause to be reserved and
kept available out of its authorized and unissued Preferred Shares or any
authorized and issued Preferred Shares held in its treasury, the number of
Preferred Shares that will be sufficient to permit the exercise in full of all
outstanding Rights in accordance with Section 7, and shall, to the extent
reasonably practicable, so reserve and keep available a sufficient number of
Common Shares (and/or other securities which may be required to permit the
exercise in full of the Rights) pursuant to the Agreement. The Company covenants
and agrees that it will take all such action as may be necessary to ensure that
all securities delivered upon exercise of Rights shall, at the time of delivery
of the certificates for such securities (subject to payment of the Purchase
Price), be duly and validly authorized and issued and fully paid and
nonassessable.
<PAGE>
(b) The Company further covenants and agrees that it will pay when due and
payable any and all federal and state transfer taxes and charges which may be
payable in respect of the issuance or delivery of the Right Certificates or of
any Preferred Shares (or Common Shares and/or other securities, as the case may
be) upon the exercise of Rights. The Company shall not, however, be required to
pay any transfer tax which 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 or depositary receipts for the Preferred Shares (or Common Shares
and/or other securities, as the case may be) in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for
exercise or to issue or to deliver any certificates or depositary receipts for
Preferred Shares (or Common Shares and/or other securities, as the case may be)
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 reasonable
satisfaction that no such tax is due.
(c) The Company covenants and agrees that it will (i) prepare and file, as
soon as practicable after the Distribution Date, a registration statement under
the Securities Act of 1933, as amended (the "Securities Act"), on an appropriate
form with respect to the securities issuable upon exercise of the Rights, (ii)
use its best efforts to cause the registration statement to become effective as
soon as practicable after filing, and (iii) use its best efforts to cause the
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act and the rules and regulations
thereunder) until the earlier of the exercise of all of the Rights and the
Expiration Date. The Company will also take all actions required to comply with
the state securities laws applicable to the Rights and Preferred Shares (or
Common Shares and/or other securities, as the case may be) issuable upon
exercise of the Rights. 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 the registration statement. Upon any such suspension, the Company shall
issue a public announcement and notice to the Rights Agent stating that the
exercisability of the Rights has been temporarily suspended, and the Company
shall issue a public announcement and notice to the Rights Agent when 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 in which any requisite registration or qualification has not been
obtained or any requisite notice of exemption has not been filed.
Section 10. Record Date. Each person in whose name any certificate for
Preferred Shares (or Common Shares and/or other securities as the case may be)
is issued upon the exercise of Rights shall for all purposes be deemed to have
become the holder of record of the Preferred Shares (or Common Shares and/or
other securities as the case may be) 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 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 Preferred Share (or Common Share
and/or other securities as the case may be) transfer books of the Company are
closed, such person shall be deemed to have become the record holder of such
succeeding Business Day on which the Preferred Share (or Common Share and/or
other securities as the case may be) 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 holder of Preferred Shares
(or Common Shares and/or other securities as the case may be) for which the
Rights shall be 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.
<PAGE>
Section 11. Adjustment of Purchase Price, Number 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 (1) declare a dividend on the Preferred Shares payable
in Preferred Shares, (2) subdivide the outstanding Preferred Shares,
(3) combine the outstanding Preferred Shares into a smaller number of
Preferred Shares or (4) issue any securities in a reclassification of
the Preferred Shares (including any such reclassification in
connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), 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
Preferred Share 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.
The adjustments provided for in this Section 11(a) shall be made
successively whenever such a dividend is declared or paid or such a
subdivision, combination or consolidation is effected.
(ii) In the event (1) any Person alone or together with its
Affiliates and Associates shall become an Acquiring Person, or (2)
during such time as there is an Acquiring Person, there shall be any
reclassification of securities (including any reverse stock split) or
recapitalization or reorganization of the Company which has the
effect, directly or indirectly of increasing by more than 1% the
proportionate share of the outstanding shares of any class of equity
securities of the Company or any of its Subsidiaries beneficially
owned by any Acquiring Person or any Affiliate or Associate thereof,
each holder of a Right shall, for a period of sixty (60) days after
the later of the occurrence of any such event or the effective date of
the registration statement referred to in Section 9 hereof, have a
right to receive, upon exercise thereof at a price equal to the then
current Purchase Price in accordance with the terms of this Agreement
such number of Common Shares of the Company (or, in the discretion of
the Board, Preferred Share Units) as shall equal the result obtained
by (x) multiplying the then current Purchase Price by the number of
Preferred Share Units for which a Right is then exercisable and
dividing that product by (y) 50% of the then current per share market
price of the Company's Common Shares (determined pursuant to Section
11(d) hereof) on the date such Person became an Acquiring Person. In
the event that any Person shall, become an Acquiring Person and the
Rights shall then be outstanding, the Company shall not take any
action which would eliminate or diminish the benefits intended to be
afforded by the Rights.
<PAGE>
From and after the occurrence of the earlier of the events described
in clauses (i) and (ii) above, any Rights that are or were acquired or
beneficially owned by such Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be void and any holder of
such Rights shall thereafter have no right to exercise such Rights
under any provision of this Agreement. No Right Certificate shall be
issued pursuant to Section 3 that represents Rights Beneficially Owned
by an Acquiring Person whose Rights would be void pursuant to the
preceding sentence or any Associate or Affiliate thereof; no Right
Certificate shall be issued at any time upon the transfer of any
Rights to an Acquiring Person whose Rights would be void pursuant to
the preceding sentence or any Associate or Affiliate thereof or to any
nominee of such Acquiring Person, Associate or Affiliate; and any
Right Certificate delivered to the Rights Agent for transfer to an
Acquiring Person whose Rights would be void pursuant to the preceding
sentence or any Associate or Affiliate thereof shall be cancelled.
In case any event described in clauses (i) and (ii) above shall occur,
then the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 26 hereof, a
notice of the occurrence of such event which notice shall describe
such event and the consequences of such event to holders of Rights
under this Section 11 (a)(ii).
(iii) If there shall not be sufficient Common Shares issued but
not outstanding or authorized but unissued to permit the exercise in
full of the Rights in accordance with the foregoing subparagraph (ii),
the Company shall take all such action as may be necessary to
authorize additional Common Shares for issuance upon exercise of the
Rights, including the calling of a meeting of shareholders. If the
Company shall, after good faith effort, be unable to take all such
action as may be necessary to authorize such additional Common Shares,
the Company shall substitute, for each Common Share that would
otherwise be issuable upon exercise of a Right, a number of Preferred
Share Units (or a security with substantially similar rights,
privileges, preferences, voting power and economic rights) such that
the current per share market price of one Preferred Share Unit (or
such other security) is equal to the current per share market price of
one Common Share as of the date of issuance of such Preferred Share
Unit (or other security).
<PAGE>
(b) In case the Company shall fix a record date for the issuance of rights,
options or warrants to all holders of Preferred Shares entitling them (for a
period expiring within 45 calendar days after such record date) to subscribe for
or purchase Preferred Shares (or shares having the same rights, privileges and
preferences as the Preferred Shares ("equivalent preferred shares")) or
securities convertible into Preferred Shares or equivalent preferred shares at a
price per Preferred Share or equivalent preferred share (or having a conversion
price per share, if a security convertible into Preferred Shares or equivalent
preferred shares) less than the then current per share market price of the
Preferred Shares (as defined in Section 11(d)) 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 Preferred Shares
outstanding on such record date plus the number of Preferred Shares which the
aggregate offering price of the total number of Preferred Shares and/or
equivalent preferred shares 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
Preferred Shares outstanding on such record date plus the number of additional
Preferred Shares and/or equivalent preferred shares 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
in a 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 the Board of
Directors of the Company, whose determination shall be described in a statement
filed with the Rights Agent. Preferred Shares 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, options 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 the making of a
distribution to all holders of the Preferred Shares (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 assets (other than a regular quarterly cash dividend or a dividend payable in
Preferred Shares) or subscription rights or warrants (excluding those referred
to in Section 11(b) hereof), 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 then current per share market price of the Preferred Shares on such
record date, less the fair market value (as determined in good faith by the
Board of Directors of the Company, whose determination shall be described in a
statement filed with the Rights Agent) of the portion of the assets or evidences
of indebtedness so to be distributed or of such subscription rights or warrants
applicable to one Preferred Share and the denominator of which shall be such
current per share market price of the Preferred Shares; provided, however, that
in no event shall the consideration to be paid upon the exercise of one Right be
less than the aggregate par value of the shares of the Company to be issued upon
exercise of one Right. 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.
<PAGE>
(d) (i) For the purpose of any computation hereunder, the "current
per share market price" of any security (a "Security" for the purpose
of this Section 11(d)(i)) on any date shall be deemed to be the
average of the daily closing prices per share of such Security 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 per share market price of the Security is determined
during a period following the announcement by the issuer of such
Security of (1) a dividend or distribution on such Security payable in
shares of such Security or securities convertible into such shares, or
(2) any subdivision, combination or reclassification of such Security
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 of reclassification, then, and in each such
case, the current per share market price shall be appropriately
adjusted to reflect the current market price per share equivalent of
such Security. The closing price for each 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 Security is 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 Security is listed or admitted to trading or, if
the Security is not listed or admitted to trading on any national
securities exchange, the last quoted 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 Quotations System ("Nasdaq") or such other system then
in use, or, if on any such date the Security is 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
Security selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national
securities exchange on which the Security is listed or admitted to
trading is open for the transaction of business or, if the Security is
not listed or admitted to trading on any national securities exchange,
a Business Day.
(ii) For the purpose of any computation hereunder, the "current
per share market price" of the Preferred Shares shall be determined in
accordance with the method set forth in Section 11(d)(i). If the
Preferred Shares are not publicly traded, the "current per share
market price" of the Preferred Shares shall be conclusively deemed to
be the current per share market price of the Common Shares as
determined pursuant to Section 11(d)(i) (appropriately adjusted to
reflect any stock split, stock dividend or similar transaction
occurring after the date hereof), multiplied by one hundred thousand.
If neither the Common Shares nor the Preferred Shares are publicly
held or so listed or traded, "current per share market price" shall
mean the fair value per share as determined in good faith by the Board
of Directors of the Company, whose determination shall be described in
a statement filed with the Rights Agent.
<PAGE>
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the Purchase
Price; provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest one hundred thousandth of a
Preferred Share or one ten-thousandth of any other share or security as the case
may be. Notwithstanding the first sentence of this Section 11(e), any adjustment
required by this Section 11 shall be made no later than the earlier of (a) three
years from the date of the transaction which requires such adjustment or (b) the
date of the expiration of the right to exercise any Rights.
(f) If, as a result of an adjustment made pursuant to Section 11(a) hereof,
the holder of any Right thereafter exercised shall become entitled to receive
any securities of the Company other than Preferred Shares, thereafter the number
of such other securities so receivable upon exercise of any Right shall be
subject to adjustment from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with respect to the Preferred Shares
contained in Sections 11(a) through 11(c), inclusive, and the provisions of
Sections 7, 9, 10 and 13 with respect to the Preferred Shares shall apply on
like terms to any such other securities.
(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 Preferred Share Units
purchasable from time to time hereunder upon exercise of the Rights, all subject
to further adjustment as provided herein.
(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 Preferred Share Units
obtained by (a) multiplying (x) the number of Preferred Share Units covered by a
Right immediately prior to this adjustment by (y) the Purchase Price in effect
immediately prior to such adjustment of the Purchase Price and (b) 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 substitution for any
adjustment in the number of Preferred Share Units purchasable upon the exercise
of a Right. Each of the Rights outstanding after such adjustment of the number
of Rights shall be exercisable for the number of Preferred Share Units 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 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 hereof, 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 shall be registered in
the names of the holders of record of Right Certificates on the record date
specified in the public announcement.
<PAGE>
(j) Irrespective of any adjustment or change in the Purchase Price or the
number of Preferred Share Units issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue to express the
Purchase Price and the number of Preferred Share Units which were expressed in
the initial Right Certificates issued hereunder.
(k) Before taking any action that would cause an adjustment reducing the
Purchase Price of the Preferred Shares issuable upon exercise of the Rights, the
Company shall take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
fully paid and nonassessable Preferred Shares at such adjusted Purchase Price.
(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
Preferred Share Units, Common Shares or other securities of the Company, if any,
issuable upon such exercise over and above the number of Preferred Share Units,
Common Shares or other 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 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, it, in its sole discretion, shall determine to be advisable in
order that any (i) consolidation or subdivision of the Preferred Shares, (ii)
issuance wholly for cash of any Preferred Shares at less than the current market
price, (iii) issuance wholly for cash of Preferred Shares or securities which by
their terms are convertible into or exchangeable for Preferred Shares, or (iv)
dividends on Preferred Shares payable in Preferred Shares or issuance of rights,
options or warrants referred to hereinabove in Section 11, hereafter made by the
Company to holders of its Preferred Shares shall not be taxable to such
stockholders.
<PAGE>
(n) Anything in this Agreement to the contrary notwithstanding in the event
that at any time after the date of this Rights Agreement and prior to the
Distribution Date, the Company shall (i) declare or pay any dividend on the
Common Shares payable in Common Shares or (ii) effect a subdivision, combination
or consolidation of the Common Shares (by reclassification or otherwise than by
payment of dividends in Common Shares) into a greater or lesser number of Common
Shares, then in any such case (A) the number of Preferred Share Units
purchasable after such event upon proper exercise of each Right shall be
determined by multiplying the number of Preferred Share Units so purchasable
immediately prior to such event by a fraction, the numerator of which is the
number of Common Shares outstanding immediately before such event and the
denominator of which is the number of Common Shares outstanding immediately
after such event, and (B) each Common Share outstanding immediately after such
event shall have issued with respect to it that number of Rights which each
Common Share outstanding immediately prior to such event had issued with respect
to it. The adjustments provided for in the preceding sentence shall be made
successively whenever such a dividend is declared or paid or such a subdivision,
combination or consolidation is effected.
Section 12. Certificate of Adjusted Purchase Price or Number of Shares.
Whenever an adjustment is made as provided in Sections 11 or 13 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Preferred Shares and
Common Shares a copy of such certificate and (c) if a Distribution Date has
occurred, mail a brief summary thereof to each holder of a Right Certificate.
The Rights Agent shall be fully protected in relying on such certificate and
shall not be deemed to have knowledge of any adjustment unless and until it
shall have received such certificate.
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power.
(a) In the event, directly or indirectly, (i) the Company shall consolidate
with, or merge with and into, any other Person, (ii) any Person shall
consolidate with the Company, or merge with and into the Company and the Company
shall be the continuing or surviving corporation of such merger and, in
connection with such merger, all or part of the Common Shares shall be changed
into or exchanged for securities of any other Person (or the Company) or cash or
any other property, or (iii) the Company shall sell or otherwise transfer (or
one or more of its Subsidiaries shall sell or otherwise transfer) , in one or
more transactions, assets or earning power aggregating 50% or more of the assets
or earning power of the Company and its Subsidiaries (taken as a whole) to any
other person other than the Company or one or more of its wholly-owned
Subsidiaries, then, and in each such case, proper provision shall be made so
that (1) each holder of a Right (except as otherwise provided herein) shall
thereafter have the right to receive, upon the exercise thereof at a price equal
to the then current Purchase Price multiplied by the number of Preferred Share
Units for which a Right is then exercisable, in accordance with the terms of
this Agreement and in lieu of Preferred Share Units, such number of freely
tradeable Common Shares of such other Person (including the Company as successor
thereto or as the surviving corporation), free and clear of any liens, rights of
call or first refusal, encumbrances or other adverse claims, as shall equal the
result obtained by (A) multiplying the then current Purchase Price by the number
of Preferred Share Units for which a Right is then exercisable and dividing that
product by (B) 50% of the then current per share market price of the Common
Shares of such other Person (determined pursuant to Section 11(d) hereof) on the
date of consummation of such consolidation, merger, sale or transfer; (2) the
issuer of such Common Shares 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; (3) the term "Company"
shall thereafter be deemed to refer to such issuer; and (4) such issuer shall
take such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with Section 9 hereof) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Shares thereafter deliverable upon the exercise of the Rights.
<PAGE>
(b) The Company shall not consummate any such consolidation, merger, sale
or transfer unless prior thereto the Company and such issuer shall have executed
and delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in Section 13(a) hereof and further providing that, as soon as
practicable after the date of any consolidation, merger, sale or transfer of
assets mentioned in Section 13(a) hereof, such issuer at its own expense shall:
(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, will use its best efforts to cause such
registration statement to become effective as soon as practicable after
such filing and will use its best efforts to cause such registration
statement to remain effective (with a prospectus at all times meeting the
requirements of the Act and the rules and regulations thereunder) until the
Expiration Date;
(ii) use its best efforts to qualify or register the Rights and the
securities purchasable upon exercise of the Rights under the blue sky laws
of such jurisdictions as may be necessary or appropriate; and
(iii) deliver to holders of the Rights historical financial statements
for such issuer and each of its Affiliates which comply in all material
respects with the requirements for registration on Form 10 under the
Exchange Act.
(c) 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
eliminate or substantially diminish the benefits intended to be afforded by the
Rights. The provisions of this Section 13 shall similarly apply to successive
mergers or consolidations or sales or other transfers.
<PAGE>
Section 14. Fractional Rights and Fractional Shares.
(a) The Company shall not be required to issue fractions of Rights or to
distribute Right Certificates which evidence fractional Rights. In lieu of such
fractional Rights, there shall be paid to the registered holders of the 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
quoted 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 date 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 the Board of
Directors of the Company. If on any such date no such market maker is making a
market in the Rights, the fair value of the Rights on such date as determined in
good faith by the Board of Directors of the Company shall be used.
(b) The Company shall not be required to issue fractions of Preferred
Shares (other than fractions which are integral multiples of one one-hundred
thousandth of a Preferred Share) upon exercise of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other than fractions
which are integral multiples of one one-hundred thousandth of a Preferred
Share). Fractions of Preferred Shares in integral multiples of one one-hundred
thousandth of a Preferred Share may, at the election of the Company, be
evidenced by depositary receipts, pursuant to an appropriate agreement between
the Company and a depositary selected by it; provided that such agreement shall
provide that the holders of such depositary receipts shall have all the rights,
privileges and preferences to which they are entitled as Beneficial Owners of
the Preferred Shares represented by such depositary receipts. In lieu of
fractional Preferred Shares that are not integral multiples of one one-hundred
thousandth of a Preferred Share, the Company shall 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 of one
Preferred Share. For the purposes of this Section 14(b), the current market
value of a Preferred Share shall be the closing price of a Preferred Share (as
determined pursuant to the second sentence of Section 11(d)(ii) hereof) for the
Trading Day immediately prior to the date of such exercise.
<PAGE>
(c) The holder of a Right by the acceptance of the Right expressly waives
such holder's right to receive any fractional Rights or any fractional shares
upon exercise of a Right (except as expressly provided above).
Section 15. Rights of Action. All rights of action in respect of this
Agreement, except the rights of action given to the Rights Agent under Section
18 hereof, are vested in the respective registered holders of the Right
Certificates (and, prior to the Distribution Date, the registered holders of the
Common Shares); and any registered holder of any Right Certificate (or, prior to
the Distribution Date, of the Common Shares), without the consent of the Rights
Agent or of the holder of any other Right Certificate (or, prior to the
Distribution Date, of the Common Shares), may, in his own behalf and for his own
benefit, enforce, and may institute and maintain any suit, action or proceeding
against the Company to enforce, or otherwise act in respect of, his right to
exercise the Rights evidenced by such Right 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 under, 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 a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable only in
connection with the transfer of the Common Shares;
(b) after the Distribution Date, the Right Certificates are transferable
only on the registry books of the Rights Agent if surrendered at the office of
the Rights Agent designated for such purpose, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) 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 Share 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 Share 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.
Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder,
as such, of any Right Certificate shall be deemed for any purpose to be the
holder of the Preferred Shares 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 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 hereof.
<PAGE>
Section 18. Concerning the Rights Agent. 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 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.
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 the Preferred Shares or Common Shares or for other securities of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, 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, or otherwise upon the advice of counsel as set forth in
Section 20 hereof.
Section 19. Merger or Consolidation or Change of Name of Rights Agent. 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 stock transfer or
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 that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 21 hereof. 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.
<PAGE>
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,
by their acceptance thereof, 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.
(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 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 Chairman of the Board, the
President, any Vice President, the Treasurer or the Secretary of the Company and
delivered to the Rights Agent; and such certificate shall be full authorization
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 to the Company and any other
Person 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 (except its countersignature thereof) or be required to verify the
same, 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 change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 11(a)(ii) hereof) or any adjustment in
the terms of the Rights (including the manner, method or amount thereof)
provided for in Section 3, 11, 13, 23 or 24, or the ascertaining of the
existence of facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after actual
notice that such change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Preferred Shares, Common Shares or other
securities to be issued pursuant to this Agreement or any Right Certificate or
as to whether any Preferred Shares, Common Shares or other securities will, when
issued, be validly authorized and issued, fully paid and nonassessable.
<PAGE>
(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 of performing by the Rights Agent of
the provisions of this Agreement.
(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 Chairman of the Board, 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 by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions.
Any application by the Rights Agent for written instructions from the
Company may, at the option of the Rights Agent, set forth in writing any action
proposed to be taken or omitted by the Rights Agent under this Rights Agreement
and the date on and/or after which such action shall be taken or such omission
shall be effective. The Rights Agent shall not be liable for any action taken
by, or omission of, the Rights Agent in accordance with a proposal included in
any such application on or after the date specified in such application (which
date shall not be less than five Business Days after the date any such officer
of the Company actually receives such application, unless any such officer shall
have consented in writing to an earlier date) unless, prior to taking any such
action (or the effective date in the case of an omission), the Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(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 may be interested, or contract with or lend money to the Company 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 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 reasonable care was exercised in the selection
and continued employment thereof.
<PAGE>
(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 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.
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 Preferred Shares and Common Shares by registered or certified mail, and
to the holders of the Right 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 Preferred Shares and Common Shares by
registered or certified mail, and to the 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 holder of a Right Certificate (who shall,
with such notice, submit his Right Certificate for inspection by the Company),
then the registered holder of any Right Certificate 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 (i)
a corporation organized and doing business under the laws of the United States
or the State of Indiana (or of any other state of the United States so long as
such corporation is authorized to do business as a banking institution), validly
existing and which is authorized under such laws to exercise corporate trust or
stock transfer 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 $50 million or (ii) a subsidiary of a
corporation described in clause (i) of this sentence. 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 any property at the time held by it hereunder, and
execute and deliver any further assurance, conveyance, act or deed necessary for
the purpose. 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 Shares or Preferred Shares, and 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, however, or any
defect therein, shall not 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,
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 or kind or class of shares or other securities
or property purchasable under the Right Certificates made in accordance with the
provisions of this Agreement.
<PAGE>
Section 23. Redemption.
(a) The Board of Directors of the Company may, at its option, at any time
prior to the tenth business day after any Person becomes an Acquiring Person,
redeem all but not less than all of the then outstanding Rights at a redemption
price of $.0001 per Right, appropriately adjusted to reflect any stock split,
stock dividend or similar transaction occurring after the date hereof (such
redemption price being hereinafter referred to as the "Redemption Price");
provided, however, that during the time period in which the Rights may be
redeemed, the Board of Directors of the Company may extend the time during which
the Rights may be redeemed for a time period as may be determined by the Board
of Directors. Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first occurrence of the
event described in Section 11(a)(ii) until such time as the Company's right of
redemption hereunder has expired. The redemption of the Rights by the Board of
Directors of the Company may be made effective at such time, on such basis and
with such conditions as the Board of Directors of the Company, in its sole
discretion, may establish. The Company may, at is option, pay the Redemption
Price in cash, Common Shares (based on the current market price at the time of
redemption) or any other form of consideration deemed appropriate by the Board
of Directors.
(b) In addition, in the exercise of its sole discretion the Board of
Directors of the Company may redeem all but not less than all of the then
outstanding Rights at the Redemption Price following the occurrence of a Shares
Acquisition Date but prior to any event described in Section 13(a) either (a) in
connection with any event specified in Section 13(a) in which all holders of
Preferred Share Units are treated alike and not involving (other than as a
holder of Preferred Share Units being treated like all other such holders) an
Acquiring Person or an Affiliate or Associate of an Acquiring Person or any
other Person in which such Acquiring Person, Affiliate or such Associate has any
interest, or any other Person acting directly or indirectly on behalf of or in
association with any such Acquiring Person, Affiliate or Associate, or (b)
following the occurrence of an event set forth in, and the expiration of any
period during which the holder of Rights may exercise the rights under, Section
11(a)(ii) if and for as long as the Acquiring Person is not thereafter the
Beneficial Owner 15% or more of the outstanding Common Shares, and at the time
of redemption there are no other persons who are Acquiring Persons.
(c) Immediately upon the action of the Board of Directors of the Company
ordering the redemption of the Rights, 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. Within ten days after the action of the Board of Directors ordering the
redemption of the Rights, the Company shall give notice of such redemption to
the holders of the then outstanding Rights by mailing such notice to all such
holders at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the
transfer agent for the Shares. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any Rights at any time in
any manner other than that specifically set forth in this Section 23, and other
than in connection with the purchase of Common Shares prior to the Distribution
Date.
<PAGE>
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 11(a)(ii) hereof) for Common
Shares at an exchange ratio of one Common Share per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
involving either the Preferred Shares or the Common Shares occurring after the
date hereof (such exchange ratio being hereinafter referred to as the "Exchange
Ratio"). Notwithstanding the foregoing, the Board of Directors shall not be
empowered to effect such exchange at any time after any Person (other than the
Company, any Subsidiary of the Company, any employee benefit plan of the Company
or any such Subsidiary, or any entity holding Common Shares for or pursuant to
the terms of any such plan), together with all Affiliates and Associates of such
person, becomes the Beneficial Owner of more than 50% of the Common Shares then
outstanding.
(b) Immediately upon the action of the Board of Directors of the Company
ordering the exchange of any Rights pursuant to Section 24(a) 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 Common Shares 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
Common Shares 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 11(a)(ii) hereof)
held by each holder of Rights.
(c) In any exchange pursuant to this Section 24, the Company, at its
option, may substitute Preferred Shares (or equivalent preferred stock, as such
term is defined in Section 11(b) hereof) for some or all of the Common Shares
exchangeable for Rights, at the initial rate of one Preferred Share Unit (or
equivalent preferred stock) for each Common Share, as appropriate adjusted to
reflect adjustments in the voting rights of the Preferred Stock pursuant to the
terms thereof, so that each Preferred Share Unit delivered in lieu of each share
of Common Stock shall have the same voting rights as one share of Common Stock.
<PAGE>
(d) The Company shall not be required to issue fractions of Common Shares
or Preferred Share Units or to distribute certificates which evidence fractional
Common Shares or Preferred Share Units. In lieu of such fractional Common Shares
or Preferred Share Units, the Company shall pay to the registered holders of the
Right Certificates with regard to which such fractional Common Shares or
Preferred Share Units would otherwise be issuable an amount in cash equal to the
same fraction of the current market value of a whole Common Share or Preferred
Share Units. For the purposes of this Section 24(d), the current market value of
a whole Common Share or Preferred Share Unit, shall be the closing price of a
Common Share (as determined pursuant to the second sentence of Section 11(d)(i)
hereof) for the Trading Day immediately prior to the date of exchange pursuant
to this Section 24.
Section 25. Notice of Certain Events. (a) In case the Company shall propose
(i) to pay any dividend payable in stock of any class to the holders of its
Preferred Shares or to make any other distribution to the holders of its
Preferred Shares (other than a regular quarterly cash dividend), (ii) to offer
to the holders of its Preferred Shares rights or warrants to subscribe for or to
purchase any additional Preferred Shares or shares of stock of any class or any
other securities, rights or options, (iii) to effect any reclassification of its
Preferred Shares (other than a reclassification involving only the subdivision
of outstanding Preferred Shares), (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 more
transactions, of 50% or more of the assets or earning power of the Company and
its Subsidiaries (taken as a whole) to, any other Person, (v) to effect the
liquidation, dissolution or winding up of the Company, or (vi) to declare or pay
any dividend on the Common Shares payable in Common Shares or to effect a
subdivision, combination or consolidation of the Common Shares (by
reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Company shall give to each holder of a Right
Certificate, in accordance with Section 26 hereof, a notice of such proposed
action, which shall specify the record date for the purposes of such stock
dividend, or 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 the Preferred Shares, 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 10 days prior to the record date for determining
holders of the Preferred Shares for purposes of such action, and in the case of
any such other action, at least 10 days prior to the date of the taking of such
proposed action or the date of participation therein by the holders of the
Preferred Shares, whichever shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall occur,
then (i) the Company shall as soon as practicable thereafter give to each holder
of a Right Certificate, in accordance with Section 26 hereof, a notice of the
occurrence of such event, which notice shall describe such event and the
consequences of such event to holders of Rights under Section 11(a)(ii) hereof
and (ii) all references in the foregoing Section 25(a) to Preferred Shares shall
be deemed thereafter to refer also, if appropriate, to Common Shares and/or, if
appropriate, other securities of the Company.
<PAGE>
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:
Biomet, Inc.
Airport Industrial Park
P.O. Box 587
Warsaw, Indiana 46581-0587
Attention: Daniel P. Hann
Subject to the provisions of Section 21 hereof, 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:
Lake City Bank
P.O. Box 1387
Warsaw, Indiana 46581-1387
Attention: Jeanine D. Knowles
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 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.
Section 27. Supplements and Amendments. The Company may from time to time
supplement or amend this Agreement without the approval of any holders of Right
Certificates in order to cure any ambiguity, to correct or supplement any
provision contained herein which may be defective or inconsistent with any other
provisions herein, or to make any other provisions with respect to the Rights
which the Company may deem necessary or desirable, including but not limited to
extending the Final Expiration Date, any such supplement or amendment to be
evidenced by a writing signed by the Company and the Rights Agent; provided,
however, that this Agreement shall not be amended in any manner which would
adversely affect the interests of the holders of Rights.
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 or corporation other than the Company, the
Rights Agent and the registered holders of the Right Certificates (and, prior to
the Distribution Date, the Common Shares) any legal or equitable right, remedy
or claim under this Agreement and 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 Common Shares).
<PAGE>
Section 30. 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.
Section 31. Governing Law. This Agreement, each Right and each Right
Certificate issued hereunder shall be deemed to be a contract made under the
laws of the State of Indiana 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 32. 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 33. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
BIOMET, INC.
By /s/ Dane A. Miller
--------------------------------------
Dane A. Miller
President and Chief Executive Officer
Attest:
By /s/ Daniel P. Hann
---------------------------------
Daniel P. Hann, Secretary
LAKE CITY BANK
By: /s/ Jeanine D. Knowles
--------------------------------------
Name: Jeanine D. Knowles
-----------------------------------
Title: Vice President & Trust Officer
----------------------------------
Attest:
By /s/ Peggy L. Terhaar
---------------------------------
Name: Peggy L. Terhaar
-------------------------------
Title: AVP & TO
-------------------------------
<PAGE>
Exhibit A
Form of Right Certificate
Certificate No. R- _________ Rights
NOT EXERCISABLE AFTER ________________ OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.0001 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
Right Certificate
BIOMET, INC.
This certifies that __________________________, or registered assigns, is
the registered owner of the number Rights set forth above, each above, each of
which entitles the owner thereof, subject to the terms, provisions and
conditions of the Rights Agreement, dated as of December 16, 1999, (the "Rights
Agreement"), between Biomet, Inc., an Indiana corporation (the "Company"), and
Lake City Bank (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., Eastern Standard Time, on ____________________ at the
office of the Rights Agent designated for such purpose, or at the office of its
successor as Rights Agent, one one-hundred thousandth of a fully paid and
non-assessable Preferred Share (the "Preferred Share Units") of the Company, at
a purchase price of $_________ per Preferred Share Unit (the "Purchase Price"),
upon presentation and surrender of this Right Certificate with the Form of
Election to Purchase duly executed. The number of Rights evidenced by this Right
Certificate (and the number of Preferred Share Units which may be purchased upon
exercise hereof) set forth above, and the Purchase Price set forth above, are
the number and Purchase Price as of _________________, based on the Preferred
Share Units as constituted at such date. As provided in the Rights Agreement,
the Purchase Price and the number of Preferred Share Units 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.
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 a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations the Company and the holders of the Right
Certificates. Copies of the Rights Agreement are on file at the principal
executive offices of the Company and the above-mentioned offices of the Rights
Agent.
<PAGE>
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, 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
Preferred Share Units or other securities 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 Certificate (i) may be redeemed by the Company at a redemption price of
$.0001 per Right or (ii) may be exchanged in whole or in part for the Company's
Common Stock, without par value.
No fractional Preferred Share Units will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fraction shares which are integral
multiples of one one-hundred thousandth of a Preferred Share, which may, at the
election of the Company, be evidenced by depository receipts), but in lieu
thereof, a cash payment will be made, as provided in the Rights Agreement, but
in lieu thereof a cash payment will be made, as provided in the Rights
Agreement.
No holder of this Right Certificate shall be entitled to vote or receive
dividends or be deemed for any purpose the holder of the Preferred Shares 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 purchase
until it shall have been countersigned by the Rights Agent.
<PAGE>
WITNESS the facsimile signature of the proper officers of the Company, and
its corporate seal. Dated as of ___________________, 19____.
ATTEST: BIOMET, INC.
By
- ------------------------------ ------------------------------
Countersigned:
- ------------------------------
By
----------------------------
Authorized Signature
<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.
Dated:__________________, 19___
----------------------------------
Signature
Signature Guaranteed:
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
CERTIFICATE
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
----------------------------------
Signature
<PAGE>
Form of Reverse Side of Right Certificate --- continued
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to
exercise the Right Certificate.)
To BIOMET, INC.:
The undersigned hereby irrevocably elects to exercise ______ Rights
represented by this Right Certificate to purchase the Preferred Shares, Common
Shares or such other securities issuable upon the exercise of such Rights and
requests that certificates for such Preferred Shares, Common Shares or such
other securities be issued in the name of:
Please insert social security
or other identifying number:__________________________________________________
________________________________________________________________________________
(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)
Dated: _________________, 19____
----------------------------------
Signature
Signature Guaranteed:
<PAGE>
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
CERTIFICATE
The undersigned hereby certifies that the Rights evidenced by this Right
Certificate are not beneficially owned by an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement).
----------------------------------
Signature
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in every
particular, without alteration or enlargement or any change whatsoever.
In the event the certification set forth above in the Form of Assignment or
the Form of Election to Purchase, as the case may be, is not completed, the
Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
<PAGE>
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On December 2, 1989, the Board of Directors of Biomet, Inc. (the "Company")
adopted a Shareholder Rights Plan that expired on December 2, 1999. On December
11, 1999 the Board of Directors of the Company adopted a new Shareholder Rights
Plan (the "Rights Plan") effective as of December 16, 1999 to replace the 1989
Shareholder Rights Plan.
The purpose of the Rights Plan is to deter certain coercive takeover
tactics and enable the Board of Directors to represent effectively the interest
of shareholders in the event of a takeover attempt. The Rights Plan does not
deter negotiated mergers or business combinations that the Board of Directors
determines to be in the best interest of the Company and its shareholders.
To implement the Rights Plan the Board of Directors declared a dividend of
one preferred share purchase right (a "Right") for each outstanding common share
of the Company (the "Common Shares"). The dividend is payable to shareholders of
record on December 28, 1999 (the "Record Date"). Each Right entitles the
registered holder to purchase from the Company one one-hundred thousandth of a
Preferred Share (the "Preferred Share Units") at a price of $175.00 per
Preferred Share Unit (the "Purchase Price"), subject to adjustment. The
description and terms of the Rights are set forth in a Rights Agreement (the
"Rights Agreement") between the Company and Lake City Bank, as Rights Agent (the
"Rights Agent").
Rights Attach to Common Shares Initially
Initially and until a Distribution Date (as defined below) occurs, the
Rights are attached to all Common Shares and no separate Rights certificates
will be issued. During this initial period,
- the Rights are not exercisable;
- the Rights are transferred with the Common Shares and are not
transferable separately from the Common Shares;
- new Common Shares certificates or book entry shares issued will
contain a notation incorporating the Rights Agreement by
reference; and
- the transfer of any Common Shares will also constitute the
transfer of the Rights associated with those Common Shares.
<PAGE>
Distribution of Rights
Separate certificates evidencing the Rights will be mailed to holders of
record of the Common Shares on the "Distribution Date." The Distribution Date is
the earlier to occur of the following two events (or such later date as may be
determined by the Board of Directors):
- 10 business days following a public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person")
have acquired beneficial ownership of 15% or more of the
outstanding Common Shares; or
- 10 business days (or such later date as may be determined by
action of the Board of Directors prior to such time as any Person
becomes an Acquiring Person) after the commencement of, or
announcement of an intention to make, a tender offer or exchange
offer the consummation of which would result in the beneficial
ownership by a person or group of 30% or more of such outstanding
Common Shares.
Acquisitions by the following persons will not result in the person
becoming an Acquiring Person: the Company, any subsidiary or employee benefit
plan of the Company, or any other person approved in advance by the Board of
Directors.
After the Distribution Date, the Rights will be tradeable separately from
the Common Shares. After the Distribution Date and after the Company's right to
redeem (as described below) has expired, the Rights will be exercisable in two
different ways depending on the circumstances as set forth below.
Right to Purchase Company Stock
After the Distribution Date and after the Company's redemption right has
expired, each holder of a Right (except those held by the Acquiring Person and
its affiliates and associates) will have the right to purchase, upon exercise,
that number of Common Shares (or, in certain circumstances, Preferred Share
Units or other similar securities of the Company) having a market value of two
times the exercise price of the Right, in lieu of such Common Shares, subject to
the availability of a sufficient number of authorized but unissued Common Shares
(such right being called the "Subscription Right"). The Subscription Right will
be exercisable for a 60-day period after the effective date of a registration
statement under the Securities Act of 1933, as amended, covering the Common
Shares.
Right to Purchase Acquiring Person Stock
Alternatively, if the Company is acquired in a merger or other business
combination transaction or 50% or more of its consolidated assets or earning
power are sold, each holder of a Right will thereafter have the right to
receive, upon the exercise thereof at the then current exercise price of the
Right, that number of shares of common stock of the acquiring company which at
the time of such transaction will have a market value of two times the exercise
price of the Right (such right being called the "Merger Right"). Each holder of
a Right (other than an Acquiring Person) will continue to have the Merger Right
whether or not such holder exercises the Subscription Right.
<PAGE>
Exchange of Company Stock for Rights
At any time after the acquisition by a person or group of affiliated or
associated persons of beneficial ownership of 15% or more of the outstanding
Common Shares or the announcement of a tender or exchange offer resulting in the
beneficial ownership by a Person or group of 30% or more of the outstanding
Common Shares and prior to the acquisition by such Person or group of more than
50% outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which have
become void), in whole or in part, at an exchange ratio of one Common Share per
Right (subject to adjustment).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Common Shares or Preferred Share Units will
be issued and in lieu thereof, an adjustment in cash will be made based on the
market price of the Common Shares or Preferred Share Units on the last trading
day prior to the date of exercise.
Adjustment of Shares
The Purchase Price payable, and the number of Preferred Share Units or
other securities issuable, upon exercise of the Rights are subject to adjustment
from time to time to prevent dilution (i) in the event of a stock dividend on,
or a subdivision, combination or reclassification of, the Preferred Shares, (ii)
upon the grant to holders of the Preferred Shares of certain rights or warrants
to subscribe for or purchase Preferred Shares at a price, or securities
convertible into Preferred Shares with a conversion price, less than the then
current market price of the Preferred Shares or (iii) upon the distribution to
holders of the Preferred Shares of evidences of indebtedness or assets
(excluding regular periodic cash dividends paid out of earnings or retained
earnings or dividends payable on Preferred Shares) or of subscription rights or
warrants (other than those referred to above).
The Purchase Price payable, and the number of Preferred Share Units or
other securities issuable, upon exercise of the Rights are also subject to
adjustment in the event of a stock split of the Common Shares, or a stock
dividend on the Common Shares payable in Common Shares, or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
Redemption
At any time prior to the close of business on the tenth day following the
acquisition by a person or group of affiliated or associated persons of
beneficial ownership of 15% or more of the outstanding Common Shares or the
announcement of a tender or exchange offer resulting in the beneficial ownership
by a Person or group of 30% or more of the outstanding Common Shares and subject
to extension of the redemption period by the Board of Directors, the Board of
Directors of the Company may redeem the Rights in whole, but not in part, at a
price of $.0001 per Right (the "Redemption Price"). The redemption of the Rights
may be made effective at such time, on such basis and with such conditions as
the Board of Directors in its sole discretion may establish. Additionally the
Company may, following the time that a person has become an Acquiring Person,
redeem the then outstanding Rights in whole, but not in part, at the Redemption
Price provided that such redemption is (i) in connection with a merger or other
business combination transaction or series of transactions involving the Company
in which all holders of Common Shares are treated alike but not involving an
Acquiring Person or any person who was an Acquiring Person or (ii) following an
event giving rise to, and the expiration of the exercise period for, the
Subscription Right if and for as long as no person beneficially owns securities
representing 15% or more of the Company's outstanding Common Shares. Immediately
upon any redemption of the Rights, the right to exercise the Rights will
terminate and the only right of the holders of Rights will be to receive the
Redemption Price.
<PAGE>
Expiration of Rights
The Rights will expire on December 16, 2009 unless the expiration date is
extended by amendment as described below or unless the Rights are redeemed or
exchanged by the Company as described above.
Amendments
As long as the Rights are redeemable, the terms of the Rights may be
amended by the Board of Directors of the Company without the consent of the
holders of the Rights, except that no such amendment may adversely affect the
interests of the holders of the Rights.
Miscellaneous
The number of outstanding Rights and the number of Preferred Share Units
issuable upon exercise of each Right are subject to adjustment under certain
circumstances.
Because of the nature of the Preferred Shares' dividend, liquidation and
voting rights, the value of a Preferred Share Unit that may be purchased upon
exercise of each Right should approximate the value of one Common Share.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a shareholder of the Company, including, without limitation, the right
to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A. A
copy of the Rights Agreement is available free of charge from the Company upon
request to the Corporate Secretary of the Company.
This summary description of the Rights does not purport to be complete and
is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
