UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) April 30, 1996
CHEYENNE SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-9189 13-3175893
(State or Other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
3 Expressway Plaza, Roslyn Heights, NY 11577
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 465-4000
Page 1 of 3
ITEM 5. OTHER EVENTS.
On April 30, 1996, the Company mailed to its
shareholders the two letters attached hereto as Exhibit 20.1
and Exhibit 20.2, respectively, both of which are hereby
incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits.
20.1 Letter to shareholders of the Company dated April
24, 1996.
20.2 Letter to shareholders of the Company dated April
26, 1996.
Page 2 of 3
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.
CHEYENNE SOFTWARE, INC.
Date April 30, 1996 /s/ ReiJane Huai
Name: ReiJane Huai
Title: President and Chief
Executive Officer
Page 3 of 3
EXHIBIT LIST
20.1 Letter to shareholders of the Company dated April 24,
1996.
20.2 Letter to shareholders of the Company dated April 26,
1996.
EXHIBIT 20.1
[CHEYENNE SOFTWARE, INC. LETTERHEAD]
April 24, 1996
Dear Fellow Cheyenne Shareholder:
In light of recent events, I want to share with you this update
on the state of the Company, and on what we are doing to
achieve our primary objective: building the value of Cheyenne
for you.
Despite a tough third quarter, and despite the misinformation
currently being spread by an opportunistic, unsolicited suitor
seeking to take advantage of it, Cheyenne is financially,
strategically, technologically and operationally strong. We
believe we are well-positioned to continue to build the value
of Cheyenne for our shareholders, customers, business partners
and employees. And the Board of Directors and management of
Cheyenne are 100 percent united in our commitment and
determination to do so.
Let me describe the basis for our confidence in the Company and
its prospects.
Financial Strength
Largely based on the strength of our strategy, technology, and
product offerings, and despite the hiccup we experienced last
quarter, our financial performance over the past decade has
been very strong. For example, our annual revenue grew from $8
million in 1991 to $128 million in 1995, and our annual net
income has grown from $2 million to $38.5 million over the same
period. We have achieved this growth with no debt, and we
currently have more than $76 million of cash on hand, an
increase of about $6.5 million from the previous quarter.
Pre-tax operating margins are expected to be approximately 25%
before one-time charges for the year ending June 30, 1996.
This performance is near the top for software companies. We
intend to push for even higher margins and expect that the
shift to fee-based technical support currently under way will
substantially increase margins in the latter half of fiscal
year 1997. We believe, in short, that we are well-positioned
for future growth, with many new and innovative products for
Windows NT, Windows 95, NetWare and UNIX, among other
platforms.
Market Leader
We do not just claim to be, but are universally recognized as,
the world's leading provider of network backup and recovery
software, with more than one-third of that $410 million market
--a market industry analysts expect to double in size over the
next three years. We have a broad range of well-established,
innovative storage management solutions in such areas as
network backup, disaster recovery, on-line backup of relational
databases and groupware applications, as well as Internet-based
solutions. We are confident of our ability to build upon our
strength in four key platforms: Microsoft Windows NT, Windows
95, Novell NetWare, and UNIX.
- Windows NT and Windows 95
Revenues related to Windows NT products grew 66% to $8.3
million in the third quarter from $5.0 million in the
second quarter. Unit shipments of ARCserve and InocuLAN
grew 80% and 100%, respectively, on a sequential basis. We
are gaining market share rapidly in the backup and anti-
virus segments based on our excellence in product quality
and our channel strategy.
In the desktop arena, Cheyenne is planning additional 32-
bit Windows products, including an extensive line of
backup, anti-virus, storage management, and communications
utilities for Windows 95 and Windows NT that will be
unveiled later this quarter, along with some very exciting
new strategic alliances.
- NetWare
We are actively committed to Novell NetWare customers and
are seeing strong sales growth for our various NetWare
offerings. ARCserve 6.0 for NetWare addresses a market in
which we have an estimated 65% share and an installed base
of more than 500,000 servers. Importantly, the transition
to ARCserve 6.0 is already well under way. During the
third quarter, sales of the newly-introduced ARCserve 6.0
exceeded those of ARCserve 5.0. We sold close to 40,000
copies into our worldwide distribution channel compared to
5,000 copies sold when the product was released at the end
of the previous quarter. This market acceptance should
provide a significant opportunity for the cross-selling of
our NetWare anti-virus and fax products. Finally, we also
have a number of enhanced NetWare offerings in the pipeline
for release later this year. For instance, we recently
signed an agreement with Novell to integrate our anti-virus
and fax technologies with Novell's Groupwise product and we
will introduce a Groupwise backup option as well.
- UNIX
UNIX remains a popular platform for deploying enterprise
applications. We are shipping and preparing additional
products for the most popular UNIX platforms, including
Hewlett-Packard HP-UX, IBM AIX, SCO Open Server, and Sun
Solaris. We will ship ARCserve/Open 2.2 for UNIX in the
fourth quarter complete with agents to backup Informix,
Sybase, Lotus Notes, and Web servers, and our engineers are
hard at work on the next release. The Santa Cruz Operation
(SCO), the world's leading provider of UNIX, chose to
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bundle ARCserve/Open with its Open Server software. We
expect to distribute approximately 4,000 units of this
important new product within the next few months.
- Other Initiatives
Among other new initiatives, in March 1996 we announced our
"Application Agent Strategy" for groupware, database, and
Web applications. Under our innovative approach, we are
delivering software agents that work in tandem with
ARCserve, and that permit on-line backup of mission-
critical groupware and on-line transaction processing
(OLTP) applications running on Windows NT, UNIX, NetWare
and OS/2. Our Application Agent Strategy has been strongly
endorsed by several industry consultants, trade
publications and existing and potential customers, who are
already purchasing or beta-testing many of these
Application Agents for such groupware systems as Lotus
Notes, cc:Mail and Microsoft Exchange Server, and such
database systems as Microsoft SQL Server, Oracle, Sybase,
Btrieve, Gupta and others. We also previewed the
industry's first Web server backup agent at
NetWorld+Interop in Las Vegas, which generated a lot of
excitement among our customers, Web masters, and industry
analysts.
Strategic Relationships
One of Cheyenne's often unrecognized competitive advantages is
the number of relationships we enjoy with more than 40 of the
world's leading technology companies, including Compaq,
Computer Associates, Fujitsu, Hewlett-Packard, IBM, and
Microsoft. These partners license our software, integrate it
into their own solutions, and participate with us in joint
development and joint marketing. Many of them sell and
distribute Cheyenne products directly as well. We have
recently formed several new strategic partnerships, including,
last month, a contract with Novell to integrate Cheyenne
FAXserve with Novell Groupwise and partnerships with Intel and
Symantec to integrate ARCserve with their respective network
and systems management software. Additionally, we have been
working with the leaders in the "firewall" market--which refers
to products designed to prevent unauthorized access to an
enterprise--to enhance their data protection by providing real-
time virus scanning capabilities. This market will increase in
both size and importance as increasing numbers of transactions
are conducted and information disseminated via the Internet.
Just yesterday, we signed a letter of intent with CheckPoint
Software Technologies Ltd. to create the industry's first
integrated firewall and anti-virus solution.
The benefit of these strategic relationships is clear. For
example, ARCserve for Windows NT has shown impressive momentum,
with unit shipments of that offering nearly doubling over the
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last quarter. Several of our partners offer widely respected
system and network management platforms. Cheyenne's strategy
is to partner--not compete--with these companies. Through
these partnerships, Cheyenne customers are assured that our
products are tightly integrated with market-leading management
platforms. In fact, we are the only data storage management
software company that supports all major network management
server operating systems.
A Growing Global Company
As for our market scope, more than 50% of Cheyenne's revenue
now comes from outside North America, and we are aggressively
and successfully expanding our global presence. For example,
in the three years since we established CSKK, our wholly owned
Japanese subsidiary, its annual revenues have increased from
less than $1 million in its first year to $18 million today,
and CSKK has already achieved strong profitability. We are the
leading provider of storage management, anti-virus, and
communications software in Japan, and have OEM relationships
with virtually all of the major Japanese systems vendors,
including Fujitsu, NEC, Mitsubishi, Toshiba and Hitachi. And
we recently opened offices in China and Taiwan, which join our
existing and well-established sales and technical support
offices in Europe, Asia, and North and South America.
***
The McAfee Proposal
As many of you know, our Board of Directors last week
unanimously rejected an unsolicited proposal from McAfee
Associates, Inc. After careful consideration, the Board
determined that the proposal was not in the best interests of
Cheyenne's shareholders, customers, business partners or
employees from a financial, strategic, technological, or
operational point of view, and that it represents little more
than an attempt by an opportunistic suitor to take advantage of
Cheyenne's substantially undervalued stock and to deprive
Cheyenne's shareholders and other constituents of the values to
which they are entitled and which they were instrumental in
creating. Under the proposal, McAfee would have exchanged each
Cheyenne share for 0.4783 of a share of McAfee. Consequently,
the value to be received by Cheyenne shareholders would not be
$27.50 as widely reported, but rather would be dependent on the
value of McAfee stock.
Our Board, management, and investment bankers do not believe
that the proposal is in your interests, for several reasons.
First, under the McAfee proposal, McAfee shareholders would
receive the lion's share of the combined company but would
contribute far less to the combined entity. Cheyenne
shareholders would suffer significant dilution from the near-
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doubling of McAfee's outstanding stock under its proposed
transaction, receiving only an approximately 46% ownership
interest in the combined entity even though Cheyenne (based on
calendar 1995 results) would be contributing 64% of its
revenues, 57% of its combined pre-tax income, and the
tremendous value and earnings potential represented by our
technological expertise, our broad and rapidly growing range of
market-leading and innovative products, our strategic
relationships, our international presence, and our loyal and
dedicated employees. Indeed, McAfee has emphasized that it
would not enter into any transactions that was not "prima facie
accretive" to McAfee stock, which by definition means that any
McAfee transaction would be dilutive to Cheyenne shareholders.
Moreover, from a strategic and operational perspective,
McAfee's proposal raises a number of difficult questions:
- How solid are McAfee's growth prospects and therefore its
valuation, given that in its core business McAfee directly
competes against the established market leaders, Symantec
and Intel, in the highly competitive desktop management and
anti-virus markets? (By contrast, Cheyenne is the market
leader in the higher-value-added enterprise storage
management market.)
- How could McAfee, a California-based company with some 300
employees, hope to acquire and successfully manage a
company twice its size, and to retain the people who are
its principal assets, in what amounts to a different
industry, with a radically different and incompatible
business model, located more than 3,000 miles away?
- How could McAfee hope to deliver on its promise of so-
called manufacturing efficiencies and other cost savings
when Cheyenne already outsources all of its manufacturing,
when there is virtually no significant geographic or
functional overlap between the two organizations, and when
Cheyenne is already operating at a very high level of
organizational efficiency?
- What sense does it make for Cheyenne to link up with a
company in direct competition with many of Cheyenne's most
important strategic partners?
- What sense does it make to combine two companies whose
distribution strategies are fundamentally incompatible?
For these and other reasons, our Board and management have
rejected McAfee's proposal. We deplore McAfee's stated intent
to pursue its proposal and the resulting confusion and concern
this has caused among our shareholders, customers, employees,
and other constituents.
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Please be assured that all of us on the Board of Directors and
management team of your Company very much appreciate your
continuing interest and support and reaffirm our commitment to
you, our shareholders.
On behalf of the Board of Directors,
Sincerely,
/s/ ReiJane Huai
ReiJane Huai
Chairman, President and
Chief Executive Officer
***
Safe Harbor Statement
Except for any statements of historical fact, the above
statements constitute forward-looking statements and are
inherently subject to uncertainties. The actual results of
Cheyenne may differ materially from the forward-looking
statements noted above based on a number of important factors
including, but not limited to: receipt and fulfillment of
expected orders; the level and timing of returns and exchanges;
changes in general business conditions and seasonality; the
growth in computer networking; market volatility related to the
competition between Novell, Microsoft and other network
operating system vendors and other factors; the successful
expansion of Cheyenne into the Windows NT, UNIX, desktop,
groupware, Internet, and firewall markets; the ability to
expand successfully into new geographic regions; the
maintenance and expansion of strategic partnerships; the
effectiveness of price and other competition faced by
Cheyenne; the market acceptance of new products like ARCserve
Version 6.0 and the timing of such acceptance; the successful
establishment of fee-based technical support; changes in
distributors' and other customers' buying patterns; the
continuation of the April trend in sell-through; changes in the
Company's and the industry's sales practices; one-time events
and other factors which may disrupt the Company's business; and
other important factors disclosed from time to time in the
Company's Form 10-K and Form 10-Q and other Securities and
Exchange Commission filings, including the Form 10-Q for the
quarter ended Dec. 31, 1995 and, when filed, for the quarter
ended March 31, 1996.
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EXHIBIT 20.2
[CHEYENNE SOFTWARE, INC. LETTERHEAD]
April 26, 1996
Dear Fellow Cheyenne Shareholder:
As you may know, on April 15, 1996, your Board of Directors
declared a dividend distribution of Preferred Share Purchase
Rights payable to shareholders of record as of April 26,
1996. These Rights contain provisions to protect
shareholders in the event of an unsolicited attempt to
acquire the Company by such means as a gradual accumulation
of shares in the open market, a partial or two-tier tender
offer that does not treat all shareholders equally, a
squeeze-out merger and other abusive takeover tactics--
tactics which the Board believes are not in the best
interests of shareholders because they unfairly pressure
shareholders, squeeze them out of their investment without
giving them any real choice and deprive them of the full
value of their shares.
More than 1,700 companies, including approximately half of
the Business Week 1000 companies and Fortune 500 companies
and approximately two-thirds of the companies in the Fortune
200, have issued rights to protect their shareholders against
these tactics. We consider the Rights to be the best
available means of protecting both your right to retain your
equity investment in Cheyenne and the full value of that
investment, while not foreclosing a fair acquisition bid for
the Company.
The Rights are not intended to prevent a takeover of the
Company and will not do so. However, they should deter any
attempt to acquire the Company in a manner, or on terms, not
approved by the Board. The Rights approved on April 15,
1996, are designed to deal with the very serious problem of
another person or company using abusive tactics to deprive
Cheyenne's Board and its shareholders of any real opportunity
to determine the destiny of the Company.
The Rights may be redeemed by the Board of Directors for one
cent per Right prior to the accumulation, through open-market
purchases, a tender offer or otherwise, of 20% or more of the
Company's shares by a single acquiror or group. Thus, the
Rights should not interfere with any merger or business
combination approved by the Board of Directors prior to that
time.
Issuance of the Rights does not in any way weaken the
financial strength of the Company or interfere with its
business plans. The issuance of the Rights has no dilutive
effect, will not affect reported earnings per share, is not
taxable to the Company or to you and will not change the way
in which you can currently trade the Company's shares. As
explained in the attached "Summary of Rights to Purchase
Preferred Shares," the Rights will only be exercisable if and
when the problem which they were created to deal with arises.
They will then operate to protect you against being deprived
of your right to share in the full measure of your Company's
long-term potential.
Your Board was aware when it acted that some people have
advanced arguments that securities of the sort we are issuing
deter legitimate acquisition proposals. We carefully
considered these views and concluded that the arguments are
speculative and do not justify leaving shareholders without
any protection against unfair treatment by a potential
acquiror--which, after all, will be seeking its own
advantage, not yours. Your Board believes that these Rights
represent a sound and reasonable means of addressing the
complex issues of corporate policy created by the current
takeover environment.
Please refer to the attached "Summary of Rights to Purchase
Preferred Shares" for a description of the Rights.
Please note as well the enclosed letter to Cheyenne
shareholders concerning an unsolicited proposal received by
your Company on April 13 and unanimously rejected by your
Board on April 15 for reasons set forth therein.
In declaring the Rights dividend, we have expressed our
confidence in the future of Cheyenne and our determination
that you, our shareholders, be given every opportunity to
participate fully in that future.
On behalf of the Board of Directors,
Sincerely,
/s/ ReiJane Huai
ReiJane Huai
Chairman, President and
Chief Executive Officer
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SUMMARY OF RIGHTS TO PURCHASE
PREFERRED SHARES
On April 15, 1996, the Board of Directors of Cheyenne
Software, Inc. (the "Company") declared a dividend of one
preferred share purchase right (a "Right") for each
outstanding share of common stock, par value $0.01 per share
(the "Common Shares"), of the Company. The dividend is
payable on April 26, 1996 (the "Record Date") to the
shareholders of record on that date. Each Right entitles the
registered holder to purchase from the Company one one-
hundredth of a share of Series A Junior Participating
Preferred Stock, par value $0.01 per share (the "Preferred
Shares"), of the Company at a price of $100 per one one-
hundredth of a Preferred Share (the "Purchase Price"),
subject to adjustment. The description and terms of the
Rights are set forth in a Rights Agreement (the "Rights
Agreement") between the Company and Continental Stock
Transfer & Trust Company, as Rights Agent (the "Rights
Agent").
Until the earlier to occur of (i) 10 days following a public
announcement that a person or group of affiliated or
associated persons (other than (A) the Company, (B) a
majority-owned subsidiary of the Company, (C) any employee
benefit plan of the Company or any majority-owned subsidiary
of the Company, or (D) any entity holding Common Shares for
or pursuant to the terms of any such plan) has acquired
beneficial ownership of 20% or more of the outstanding Common
Shares (an "Acquiring Person") or (ii) 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 or group of
affiliated persons becomes an Acquiring Person) following the
commencement of, or public 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 20% or more of the outstanding Common Shares (the
earlier of such dates being called the "Distribution Date"),
the Rights will be evidenced, with respect to any of the
Common Share certificates outstanding as of the Record Date,
by such Common Share certificate with a copy of this Summary
of Rights attached thereto.
The Rights Agreement provides that, until the Distribution
Date (or earlier redemption or expiration of the Rights), the
Rights will be transferred with and only with the Common
Shares. Until the Distribution Date (or earlier redemption
or expiration of the Rights), new Common Share certificates
issued after the Record Date upon transfer or new issuance of
Common Shares will contain a notation incorporating the
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Rights Agreement by reference. Until the Distribution Date
(or earlier redemption or expiration of the Rights), the
surrender for transfer of any certificates for Common Shares
outstanding as of the Record Date, even without such notation
or a copy of this Summary of Rights being attached thereto,
will also constitute the transfer of the Rights associated
with the Common Shares represented by such certificate. As
soon as practicable following the Distribution Date, separate
certificates evidencing the Rights ("Right Certificates")
will be mailed to holders of record of the Common Shares as
of the close of business on the Distribution Date, and such
separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date.
The Rights will expire on April 15, 2006 (the "Final
Expiration Date"), unless the Final Expiration Date is
extended or unless the Rights are earlier redeemed or
exchanged by the Company, in each case, as described below.
The Purchase Price payable, and the number of Preferred
Shares or other securities or property issuable, upon
exercise of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock dividend
on, or a subdivision, combination or reclassification of, the
Preferred 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 in
Preferred Shares) or of subscription rights or warrants
(other than those referred to above).
The number of outstanding Rights and the number of one one-
hundredths of a Preferred Share issuable upon exercise of
each Right 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.
Preferred Shares purchasable upon exercise of the Rights will
not be redeemable. Each Preferred Share will be entitled to
a minimum preferential quarterly dividend payment of $1 per
share but will be entitled to an aggregate dividend of 100
times the dividend declared per Common Share. In the event
of liquidation, the holders of the Preferred Shares will be
entitled to a minimum preferential liquidation payment of
$100 per share but will be entitled to an aggregate payment
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of 100 times the payment made per Common Share. Each
Preferred Share will entitle the holder to 100 votes on all
matters submitted to shareholders of the Company, voting
together as a single class with the holders of Common Shares.
Finally, in the event of any merger, consolidation or other
transaction in which Common Shares are exchanged, each
Preferred Share will be entitled to receive 100 times the
amount received per Common Share. These rights are protected
by customary antidilution provisions.
Because of the nature of the Preferred Share dividend,
liquidation and voting rights, the value of the one one-
hundredth interest in a Preferred Share purchasable upon
exercise of each Right should approximate the value of one
Common Share.
In the event that 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 after a person
or group has become an Acquiring Person, proper provision
will be made so that 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. In the event that any
person or group of affiliated or associated persons becomes
an Acquiring Person, proper provision shall be made so that
each holder of a Right, other than Rights beneficially owned
by the Acquiring Person (which will thereafter be void), will
thereafter have the right to receive upon exercise that
number of Common Shares having a market value of two times
the exercise price of the Right.
At any time after any person or group becomes an Acquiring
Person and prior to the acquisition by such person or group
of 50% or more of the outstanding Common Shares, the Board of
Directors of the Company may exchange the Rights (other than
Rights owned by such person or group, which will have become
void), in whole or in part, at an exchange ratio of one
Common Share, or one one-hundredth of a Preferred Share (or
of a share of a class or series of the Company's preferred
stock having equivalent rights, preferences and privileges),
per Right (subject to adjustment).
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 Preferred Shares will be issued (other than
fractions which are integral multiples of one one-hundredth
of a Preferred Share, which may, at the election of the
Company, be evidenced by depositary receipts) and in lieu
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thereof, an adjustment in cash will be made based on the
market price of the Preferred Shares on the last trading day
prior to the date of exercise.
At any time prior to such time as any person becomes an
Acquiring Person, the Board of Directors of the Company may
redeem the Rights in whole, but not in part, at a price of
$0.01 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. 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.
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, including an amendment to lower the 20%
thresholds described above to not less than the greater of
(i) the sum of .001% and the largest percentage of the
outstanding Common Shares then known to the Company to be
beneficially owned by any person or group of affiliated or
associated persons (other than an excepted person) and (ii)
10%, except that from and after such time as any person or
group of affiliated or associated persons becomes an
Acquiring Person, no such amendment may adversely affect the
interests of the holders of the Rights.
Until a Right is exercised, the holder thereof, as such, will
have no rights as a shareholder of the Company, including,
without limitation, the right to vote or to receive
dividends.
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, dated April 15, 1996. A
copy of the Rights Agreement is available free of charge from
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.
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