SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
F O R M 10-Q
(Mark One)
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended August 27, 1995
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________ to ___________________
Commission file number 1-4415
PARK ELECTROCHEMICAL CORP.
----------------------------------------------------------
(Exact name of registrant as specified in its charter)
New York 11-1734643
- ------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5 Dakota Drive, Lake Success, N.Y. 11042
- ------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (516) 354-4100
Not Applicable
-----------------------------------------------------
(Former name, former address and former fiscal year,
if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days. Yes [X] No [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents
and
reports required to be filed by Sections 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [ ] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date: 11,532,314 as of October 6,
1995.
<PAGE> 2
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
I N D E X
Page
Number
PART I. FINANCIAL INFORMATION:
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
August 27, 1995 (Unaudited) and
February 26, 1995 ............................. 3
Consolidated Statements of Earnings
13 weeks and 26 weeks ended August 27, 1995
and August 28, 1994 (Unaudited)................ 4
Consolidated Statements of Cash Flows
26 weeks ended August 27, 1995 and August 28,
1994 (Unaudited)............................... 5
Notes to Condensed Consolidated Financial
Statements (Unaudited) ....................... 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations ................................... 7
PART II. OTHER INFORMATION:
Item 1. Legal Proceedings .............................. 10
Item 2. Changes in Securities........................... 10
Item 4. Submission of Matters to a Vote of Security
Holders......................................... 13
Item 6. Exhibits and Reports on Form 8-K ............... 13
SIGNATURES ................................................. 15
<PAGE> 3
<TABLE>
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<CAPTION>
August 27, February 26,
1995 1995
<S> <C> <C>
ASSETS (Unaudited) *
Cash and cash equivalents $ 18,046 $ 30,803
Marketable securities 23,199 15,107
Accounts receivable, net 36,635 33,172
Inventories (Note 2) 21,767 16,181
Prepaid expenses & other current assets 3,980 3,057
-------- -------
TOTAL CURRENT ASSETS 103,627 98,320
Property, plant and equipment, net 70,906 61,427
Other assets 1,947 2,304
-------- --------
TOTAL ASSETS $176,480 $162,051
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable $ 30,059 $ 24,616
Accrued liabilities 13,756 15,867
Income taxes payable 3,222 2,825
-------- --------
TOTAL CURRENT LIABILITIES 47,037 43,308
Deferred income taxes 5,590 5,243
Deferred pension liability 1,452 1,452
Stockholders' Equity: (Note 3)
Common stock 1,358 1,358
Other stockholders' equity 121,043 110,690
-------- --------
TOTAL STOCKHOLDERS' EQUITY 122,401 112,048
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS'
EQUITY $176,480 $162,051
======== ========
<FN>
*The Balance Sheet at February 26, 1995 has been taken from the
audited financial statements at that date, and condensed.
</TABLE>
<PAGE> 4
<TABLE>
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited - in thousands, except per share data)
<CAPTION>
13 weeks ended 26 weeks ended
August 27, August 28, August 27, August 28,
1995 1994 1995 1994
<S> <C> <C> <C> <C>
NET SALES $69,937 $58,795 $145,349 $121,564
------- ------- -------- ---------
COSTS AND EXPENSES:
Cost of sales 54,728 46,275 112,423 95,797
Selling, general and
administrative 7,630 6,941 16,487 14,412
------- ------- -------- ---------
Total costs and expenses 62,358 53,216 128,910 110,209
------- ------- -------- ---------
Operating profit 7,579 5,579 16,439 11,355
------- ------- -------- ---------
OTHER INCOME (EXPENSE):
Interest expense - - - (412)
Other income, net 551 382 1,119 844
------- ------- -------- ---------
Total other income 551 382 1,119 432
------- ------- -------- ---------
EARNINGS BEFORE INCOME TAX
PROVISION 8,130 5,961 17,558 11,787
INCOME TAX PROVISION 2,764 2,205 6,168 4,361
------- ------- -------- ---------
NET EARNINGS $ 5,366 $ 3,756 $ 11,390 $ 7,426
======= ======= ======== =========
EARNINGS PER COMMON SHARE:
Primary $ .45 $ .33 $ .97 $ .72
Fully Diluted $ .45 $ .33 $ .96 $ .67
Dividends per common share $ .06 $ .04 $ .12 $ .08
Weighted average number of
common shares outstanding:
Primary 11,801 11,344 11,749 10,312
Fully Diluted 11,829 11,544 11,814 11,512
</TABLE>
<PAGE> 5
<TABLE>
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited - in thousands)
<CAPTION>
26 weeks ended
August 27, August 28,
1995 1994
<S> <C> <C>
NET CASH PROVIDED BY OPERATING ACTIVITIES $ 10,276 $ 10,351
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of property, plant and
equipment, net (13,844) (7,461)
Purchases of marketable securities (13,476) (9,997)
Proceeds from sales of marketable
securities 5,393 15,841
--------- ---------
Net cash used in investing activities (21,927) (1,617)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of borrowings (2) (82)
Dividends paid (1,375) (859)
Proceeds from exercise of stock options 347 611
Debt conversion costs - (100)
--------- ---------
Net cash used in financing activities (1,030) (430)
--------- ---------
(DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS BEFORE EXCHANGE RATE CHANGES (12,681) 8,304
EFFECT OF EXCHANGE RATE CHANGES ON CASH
AND CASH EQUIVALENTS (76) (69)
--------- --------
(DECREASE) INCREASE IN CASH AND CASH
EQUIVALENTS (12,757) 8,235
CASH AND CASH EQUIVALENTS, BEGINNING OF
PERIOD 30,803 14,135
--------- ---------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 18,046 $ 22,370
========= =========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ - $ 25
Income taxes $ 4,983 $ 4,747
</TABLE>
SUPPLEMENTAL DISCLOSURE OF NON-CASH FINANCING ACTIVITIES:
The Company's Board of Directors voted a two-for-one stock split on July 12,
1995, which was distributed on August 15, 1995 to stockholders of record on
July 24, 1995.
During the quarter ended May 29, 1994 the Company issued 1,586,184 shares of
Common Stock upon the conversion of $32,835,000 principal amount of 7.25%
Convertible Subordinated Debentures.
<PAGE> 6
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
The condensed consolidated balance sheet as of August 27, 1995, the
consolidated statements of earnings for the 13 weeks and 26 weeks ended
August 27, 1995 and August 28, 1994, and the consolidated statements of
cash flows for the 26 week periods then ended have been prepared by the
Company, without audit. In the opinion of management, all adjustments
(which include only normal recurring adjustments) necessary to present
fairly the financial position at August 27, 1995, and the results of
operations and cash flows for all periods presented, have been made.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. It is suggested
that these condensed consolidated financial statements be read in
conjunction with the financial statements and notes thereto included in
the Company's Annual Report on Form 10-K for the fiscal year ended
February 26, 1995.
2. INVENTORIES
<TABLE>
Inventories consist of the following:
<CAPTION>
August 27, February 26,
1995 1995
----------- ------------
<S> <C> <C>
Raw materials $ 8,654,000 $ 5,215,000
Work-in-process 4,145,000 2,997,000
Finished goods 8,407,000 7,446,000
Manufacturing supplies 561,000 523,000
----------- -----------
$21,767,000 $16,181,000
=========== ===========
</TABLE>
3. STOCKHOLDERS' EQUITY
On July 12, 1995 the Company's Board of Directors voted a two-for-one
stock split in the form of a 100% common stock dividend. The stock
dividend was distributed on August 15, 1995 to stockholders of record on
July 24, 1995. All share and per share data for prior periods have been
retroactively restated to reflect the stock split. The par value of the
6,790,009 new shares issued, which totalled $679,001, was transferred from
additional paid-in capital to the common stock account. In addition, on
July 12, 1995 the Company's shareholders approved an increase in the
number of authorized shares of common stock from 15,000,000 to 30,000,000.
<PAGE> 7
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS.
Results of Operations
During the Company's current fiscal year's second quarter ended August 27,
1995, net sales increased 19% to $69,937,000 from $58,795,000 during last
year's second quarter. Net sales for the six-month period ended August 27,
1995 increased 20% to $145,349,000 from $121,564,000 for last year's
comparable period. Operating profits increased 36% to $7,579,000 for the
current fiscal year's second quarter from $5,579,000 for last year's second
quarter. During the six-month period ended August 27, 1995, operating profit
increased 45% to $16,439,000 from $11,355,000 for the same period last year.
During the current year's second quarter, the Company's electronics
segment accounted for $61,893,000 in net sales or 88% of the Company's
worldwide net sales, compared to $50,805,000 during the prior year's second
quarter. Similarly, the Company's electronics segment accounted for 88% of
worldwide net sales during the first half of the current year, or $127,248,000
compared to $105,304,000 during the prior year's comparable period. The
Company's foreign operations, which are almost exclusively within the
electronics segment, accounted for $22,525,000 in sales or 32% of total sales
worldwide during this quarter; this represented an increase of 63% from last
year's second quarter foreign sales of $13,811,000. Foreign sales during the
six-month period ended August 27, 1995 increased 55% to $43,864,000 from
$28,336,000 for the same period last year. Plumbing and industrial component
sales were $8,044,000 for the current year's second quarter and $18,101,000
for the first six months, compared to $7,990,000 and $16,260,000 for the same
periods in the prior fiscal year.
The Company's gross margin percentage was 21.7% during the current fiscal
year's second quarter, as compared to last year's second quarter gross margin
percentage of 21.3%. The gross margin percentage for the current year's first
six months was 22.7%, as compared to 21.2% for last year's first half.
This improvement in the results for the current year was predominantly due
to the performance of the Company's electronics operations, lead by the very
strong performance of the Company's Southeast Asian based electronics
operations.
The Company's electronics segment performed well in the second quarter of
the current fiscal year, despite the loss of a considerable number of
production days during this period for mandatory holidays and major
maintenance of machinery and equipment. The electronics segment was affected
by the increase in the cost of certain raw materials, some of which could not
be passed through to its customers due to the competitive market environment.
For the most part, however, the Company's electronics operations have been
successful in offsetting the impact of rising raw material costs through
operating and manufacturing efficiencies and by continuing to focus its
business towards higher technology and higher margin products. The markets
for the Company's electronics products remain strong worldwide, and
particularly strong in Southeast Asia. The Company is currently expanding its
facilities in Arizona and New York. Both of these expansions are expected to
be completed during the current year.
The Company's plumbing and industrial component segment is comprised of
the Company's plumbing hardware business, its advanced composite business, and
its specialty adhesive tape business. The Company's plumbing business
performed poorly in the second quarter as the result of a sharp drop in the
plumbing hardware markets during the period. The Company believes that those
markets have begun to recover to more normal levels. The Company's advanced
composite business continues to aggressively develop promising opportunities
in the aerospace, wireless communication and industrial markets; however its
financial performance has not yet achieved the levels expected by the Company.
The Company's adhesive tape business continued to perform well in the second
quarter.
<PAGE> 8
Selling, general and administrative expenses, measured as a percentage of
net sales, were 10.9% during the current fiscal year's second quarter as
compared to 11.8% during the same period in the prior year. Selling, general
and administrative expenses were 11.3% during the current year's first six-
month period, as compared to 11.9% during last year's comparable period.
Other income, which consists principally of investment income, increased
44% to $551,000 for the current fiscal year's second quarter from $382,000 for
the prior fiscal year's second quarter. Other income during the six months
ended August 27, 1995 increased by 159% to $1,119,000 from $432,000 during
last year's comparable period. The increase in investment income during the
second quarter of the current year, as compared to the same period in the
prior year, was principally attributable to the increase in prevailing
interest rates. The increase in investment income for the first half of the
current year, as compared to last year's first six months, was due to a
combination of a reduction in interest expense as well as increased interest
income resulting from an increase in prevailing interest rates and an increase
in the amount of cash available for investment. During the first quarter of
the prior year the Company elected to call its 7.25% Convertible Subordinated
Debentures for redemption. As a result, nearly all of the Debentures
outstanding at the beginning of the year were converted into the Company's
common stock during the prior year's first quarter. This redemption
eliminated virtually all of the Company's long-term debt and the associated
interest expense. The Company's cash reserves continue to be invested
primarily in short-term taxable instruments and government securities.
The Company's effective income tax rate for the current fiscal year's
second quarter and six months ended August 27, 1995 was 34% and 35.1%,
respectively, as compared to 37% for both of the prior fiscal year's
comparable periods. This decrease in rate is primarily due to the benefit of
favorable foreign tax rate differentials.
During the current fiscal year's second quarter, the Company's net
earnings increased 43% to $5,366,000 from $3,756,000 during the prior fiscal
year's second quarter. Adjusting for the two-for-one common stock split
approved and distributed during the second quarter, both primary and fully
diluted earnings per share increased to $.45 for the current year's second
quarter from $.33 for the prior year's second quarter primary and fully
diluted earnings per share. For the six-month period ended August 27, 1995 the
Company's net earnings increased 53% to $11,390,000 from $7,426,000 during the
prior fiscal year's first half. Primary and fully diluted earnings per share
increased to $.97 and $.96, respectively, for the current year's six-month
period ended August 27, 1995 from $.72 and $.67, respectively, for the
comparable prior period. This increase in net earnings was primarily
attributable to the increase in operating profit.
Liquidity and Capital Resources
At August 27, 1995, the Company's cash and temporary investments amounted
to $41,245,000, as compared to $45,910,000 at February 26, 1995, the end of
the Company's last fiscal year. The decrease in the Company's cash and
investment position was attributable to the significant level of capital
spending during that six-month period and the increase in working capital.
The Company's working capital position was $56,590,000 at August 27, 1995 as
compared to $55,012,000 at February 26, 1995. The Company's current ratio, or
the ratio of current assets to current liabilities, was 2.2 to 1 at August 27,
1995 as compared to 2.3 to 1 at February 26, 1995.
<PAGE> 9
During the current fiscal year's first six months, the Company generated
$10,276,000 of funds from operations and expended $13,844,000 for the purchase
of property, plant and equipment. During the current year's second quarter
the Company announced a two-for-one common stock split in the form of a stock
dividend to holders of record on July 24, 1995. This stock dividend was
distributed on August 15, 1995. In addition, on September 28, 1995 the
Company announced an increase in its regular quarterly cash dividend to $.08
per share, an increase of 33 1/3%, up from $.06 per share. The increased
dividend is payable November 15, 1995 to shareholders of record on October 18,
1995.
The Company believes its financial resources will be sufficient, for the
foreseeable future, to provide for continued investment in property, plant and
equipment and for general corporate purposes. Such resources are also
available for appropriate acquisitions and other expansions of the Company's
business.
<PAGE> 10
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
(a) There are no material pending legal proceedings to which the
Company is a party or to which any of its properties is
subject.
(b) No material pending legal proceeding was terminated during the
fiscal quarter ended August 27, 1995.
Item 2. Changes in Securities.
The Board of Directors of the Company has effected a distribution
of one preferred stock purchase right (collectively, the "Rights")
per outstanding share of Common Stock of the Company, $.10 par
value per share (the "Common Stock"), held of record on February
15, 1989 or issued thereafter and prior to the Distribution Date
(as defined below). The terms of the Rights have been amended
effective July 12, 1995. Each Right entitles the holder thereof
to purchase from the Company one one-hundredth (1/100th) of a
share of a new series of Preferred Stock of the Company, $1.00 par
value per share, designated as Series A Preferred Stock (the
"Preferred Stock"), currently at a price of $75.00 (the "Purchase
Price") per each one one-hundredth of a share, subject to
adjustment. The description and terms of the Rights are set forth
in an Amended and Restated Rights Agreement, dated as of July 12,
1995 (the "Rights Agreement") between the Company and Registrar &
Transfer Company, as Rights Agent (the "Rights Agent").
Capitalized terms used but not defined herein shall have the
respective meanings assigned such terms in the Rights Agreement.
A copy of the Rights Agreement may be obtained by shareholders of
the Company free of charge from the Company by written request to
Park Electrochemical Corp., 5 Dakota Drive, Lake Success, New York
11042. 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 incorporated herein by reference.
Until the Distribution Date, the Rights shall not be exercisable
and shall be evidenced only by certificates representing shares of
Common Stock. The term "Distribution Date" means the earlier of
(i) the tenth day after the date of the first public announcement
by the Company or a Person that such Person, other than the
Company, any Subsidiary of the Company, any employee benefit plan
of the Company or any Shore Affiliate (unless such Shore Affiliate
becomes the Beneficial owner of more than 25% of the shares of
Common Stock then outstanding) alone or together with Affiliates
and Associates (an "Acquiring Person"), has become the beneficial
owner of 15% (or 25% in certain cases) or more of the then
outstanding shares of Common Stock or (ii) the tenth Business Day
(or such later date as may be determined by the Board of Directors
prior to such time as any Person becomes an Acquiring Person)
after the date of the commencement of, or public announcement of
the intent to commence, a tender or exchange offer by any Person,
other than the Company, any Subsidiary of the Company, any
employee benefit plan of the Company or any Subsidiary of the
Company or any Shore Affiliate, for 15% or more of the then
outstanding shares of Common Stock. "Shore Affiliate" is defined
as Mr. Jerry Shore, his estate, any trust or foundation created by
him to hold any of his shares of Common Stock, any of his lineal
<PAGE> 11
descendants and any transferee of shares of Common Stock owned by
Jerry Shore by will or pursuant to the laws of descent and
distribution or any corporation, partnership or other entity which
is an Affiliate of Jerry Shore or his estate or of any such trust,
foundation, lineal descendent or transferee by reason of the
control of such corporation, partnership or other entity by Jerry
Shore or his estate or any one or more of such trusts,
foundations, lineal descendants or transferees.
The Rights Agreement may be amended in such a manner as the Board
of Directors and Rights Agent may deem necessary or desirable so
long as the interests of the holders of the Rights are not
materially adversely affected, as determined in good faith by the
Board of Directors.
Until the Distribution Date, the Rights will be evidenced by the
certificates for Common Stock and will be transferable only in
connection with the transfer of the Common Stock. As soon as
practicable after the Distribution Date, separate certificates
evidencing the Rights (the "Rights Certificates") shall be mailed
to holders of record of the Common Stock as of the close of
business on the Distribution Date and such separate certificates
alone shall evidence the Rights.
The Rights (and the Rights Certificates, if issued) shall expire
on July 12, 2005 (the "Final Expiration Date"), unless earlier
redeemed or exchanged by the Company as described below. After
the Distribution Date, the registered holder of any Rights
Certificate may exercise the Rights evidenced thereby to acquire
shares of Preferred Stock upon surrender of the Rights
Certificate, with the form of election to purchase on the reverse
side thereof duly executed, to the Rights Agent, together with
payment of the Purchase Price for each one one-hundredth of a
share of Preferred Stock for which such Rights are being
exercised. The Rights must be exercised prior to the earliest of
the Final Expiration Date or the date on which the Rights are
redeemed or exchanged.
Upon liquidation, dissolution or winding up of the Company, the
holders of the Preferred Stock shall receive an amount equal to
accrued and unpaid dividends plus an amount equal to the greater
of (i) $100 per share of Preferred Stock or (ii) an aggregate
amount per share equal to 100 times the aggregate amount
distributable per share with respect to the Common Stock, before
any distribution is made to holders of shares of stock ranking
junior to the Preferred Stock. Dividends on outstanding shares of
Preferred Stock shall be payable quarterly, on a cumulative basis,
at the annual rate of 5% per annum (calculated as a percent of the
liquidation value per share of $100), in cash. Unpaid dividends
shall cumulate and be compounded quarterly. The Preferred Stock
may not be redeemed by the Company. The Preferred Stock shall not
have voting rights except as required by law.
The Purchase Price and the number of shares of Preferred Stock
issuable upon exercise of the Rights are subject to adjustment
from time to time in the event, among other things, of the
subdivision, combination or reclassification of the Preferred
Stock or the Common Stock.
<PAGE> 12
In the event that after a Person becomes an Acquiring Person, (a)
the Company shall, or shall agree or become obligated to,
consolidate with or merge with or into any other Person, (b) any
Person shall, or shall agree or become obligated to, consolidate
with or merge with or into the Company, whether or not the
Company's securities remain outstanding and unchanged thereby, or
(c) the Company or any of its subsidiaries shall, or shall agree
or become obligated to, sell or otherwise transfer more than 50%
of the assets of the Company and its subsidiaries (taken as a
whole) or assets which, during any of the immediately preceding
three fiscal years, accounted for more than 50% of the net profits
or more than 50% of the gross revenue of the Company and its
subsidiaries (taken as a whole) to any Person, other than the
Company or one or more of its wholly-owned subsidiaries, then,
should any of the events described in (a) through (c) occur, to
the extent permitted by applicable law, the Company will take such
action as will be necessary to ensure, and will not enter into or
consummate any such merger, consolidation, sale, transfer or other
transaction which does not provide, that each holder of a Right,
other than Rights of an Acquiring Person (which will have become
void), shall have the right to receive, upon the exercise thereof
at a price equal to the then current Purchase Price multiplied by
the number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable, and in lieu of shares of
Preferred Stock, such number of shares of Common Stock of the
other party to the transaction (or, in certain instances, of the
survivor of a merger or consolidation) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by the
number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable and dividing that product by (B)
50% of the then current per share market price of the shares of
Common Stock of the other party. In the event that any Person
should become an Acquiring Person, each holder of a Right shall
thereafter have a right to receive, upon exercise thereof at a
price equal to the then current Purchase Price multiplied by the
number of one one-hundredths of a share of Preferred Stock for
which a Right is then exercisable, and in lieu of shares of
Preferred Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the number of one one-hundredths of
a share of Preferred Stock for which a Right is then exercisable
and dividing that product by (y) 50% of the then current per share
market price of the Common Stock of the Company. Each Right is
exercisable once only, with such exercise, depending upon the
conditions and circumstances existing at such time, for the
purpose of acquiring either shares of Preferred Stock or the other
shares, as the case may be. After Rights Certificates have been
issued, exercise of the Rights to acquire shares of Preferred
Stock or for any other purpose requires surrender of the Rights
Certificates and other documents, and the taking of the other
action, called for by the Rights Agreement.
The Company may, at its option, upon action of the Board of
Directors, at any time prior to such time as any Person becomes an
Acquiring Person, redeem all but not less than all the Rights at
a price of $.01 per Right. The redemption of the Rights by the
Board of Directors 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. Except as otherwise required by
law, immediately upon the action of the Board of Directors
ordering the redemption of the Rights, evidence of which shall
<PAGE> 13
have been filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights
shall terminate and the only right thereafter of the holders of
Rights shall be to receive the price to be paid on redemption.
Within 15 days of the action of the Board of Directors ordering
redemption of the Rights, the Company shall give notice of such
redemption, by mail, to all holders of the then outstanding Rights
at their last known addresses as they appear on the registry books
of the Rights Agent, or, prior to the Distribution Date, on the
registry books of the transfer agent for the Common Stock.
The Board of Directors may, at its option, at any time after any
Person becomes an Acquiring Person and before any Person (other
than the Company or any Subsidiary of the Company or any employee
benefit plan of them or any Shore Affiliate), together with all
its Affiliates and Associates, becomes the beneficial owner of 50%
or more of the Common Stock of the Company then outstanding,
exchange all or part of the then outstanding and exercisable
Rights (which shall not include Rights that have become void) for
Common Stock at an exchange ratio of one share of Common Stock per
Right.
Neither the Rights nor the Rights Certificates, themselves, confer
upon a holder thereof, as such, any rights as a stockholder of the
Company, including, without limitation, the right to vote or to
receive dividends. At no time shall the holder of a Right or a
Rights Certificate have any rights other than as specifically set
forth in the Rights Agreement.
Item 4. Submission of Matters to a Vote of Security Holders.
At the Annual Meeting of Shareholders held on July 12, 1995:
(a) the persons elected as directors of the Company and the voting
for such persons were as follows:
Authority
Name Votes For Withheld
------------- --------- ---------
Anthony Chiesa 5,288,372 1,351
Lloyd Frank 5,287,102 2,621
Norman M. Schneider 5,284,147 5,576
Brian E. Shore 5,288,496 1,227
Jerry Shore 5,288,481 1,242
E. Philip Smoot 5,287,802 1,921
(b) An Amendment to the Company's Certificate of Incorporation was
authorized by the Shareholders to increase the number of
authorized shares of Common Stock of the Company from
15,000,000 shares to 30,000,000 shares. There were 4,724,789
votes for this Amendment, 571,274 votes against, and 22,927
abstentions.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits:
No. 3.01 Restated Certificate of Incorporation filed with
the Secretary of State of the State of New York on
April 10, 1989, as amended.
<PAGE> 14
No. 4.01 Amended and Restated Rights Agreement, dated as of
July 12, 1995, between Park Electrochemical Corp.
and Registrar & Transfer Company, as Rights Agent.
The Rights Agreement includes the form of
Certificate of Amendment of the Certificate of
Incorporation of the Registrant setting forth the
terms of the Series A Preferred Stock, $1.00 par
value per share, as Exhibit A thereto, and the
form of Rights Certificate, as Exhibit B thereto.
No. 11.01 Computation of Fully Diluted Earnings Per Common
Share.
No. 27.01 Summary financial information for the six-month
period ended August 27, 1995.
(b) There were no reports on Form 8-K filed during the fiscal
quarter ended August 27, 1995.
<PAGE> 15
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
SIGNATURES
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 thereunto duly authorized.
Park Electrochemical Corp.
--------------------------
(Registrant)
Date: October 10, 1995 /s/Jerry Shore
---------------- -------------------------
Jerry Shore
Chairman of the Board and
President
Date: October 10, 1995 /s/Paul R. Shackford
---------------- -------------------------
Paul R. Shackford
Vice President and
Principal Financial Officer
RESTATED
CERTIFICATE OF INCORPORATION
OF
PARK ELECTROCHEMICAL CORP.
Under Section 807 of the Business Corporation Law,
The undersigned, being respectively a Vice President and the
Secretary of Park Electrochemical Corp., for the purposes of
changing and restating the Certificate of Incorporation of Park
Electrochemical Corp., pursuant to Section 807 of the Business
Corporation Law of the State of New York, do hereby certify as
follows:
1. (a) The name of the corporation is "PARK ELECTROCHEMICAL
CORP.,
(b) The corporation was originally formed under the name of
"Park Name Plate Inc.".
2. The Certificate of Incorporation of the corporation was
filed by the Department of State on the 31st day of March, 1954.
3. The Certificate of Incorporation of the corporation is
hereby changed to effect the following changes authorized by
paragraph (b) of Section 803 of the Business Corporation Laws.
(a) to change the location of the office of the Corpora-
tion from the City of New York, County of New York and State of New
York, to: the County of Nassau and State of New York.
(b) to change the address to which the Secretary of State
of the State of New York in directed to mail a copy of process in
any action or proceeding against the corporation which may be
served upon him from: Parker, Chapin and Flattau, Esqs., 530 Fifth
Avenue, New York 10036 New York, to: Park Electrochemical Corp., 5
Dakota Drive, Lake Success, New York 11042, Attention: General
Counsel.
The text of the Certificate of Incorporation of the corpora-
ion is hereby restated as heretofore amended and as changed hereby
to read in full as set forth in Paragraph 4 hereof.
<PAGE>
4. CERTIFICATE OF INCORPORATION
OF
PARK ELECTROCHEMICAL CORP.
I. The name of the corporation shall be PARK ELECTROCHEMICAL
CORP.
II. The purposes for which the corporation is formed are,
A. To carry on the general business of manufacturing and
distributing metal nameplates and decorative trim and other
components and/or products and generally to do all acts and
things which may be necessary or convenient to the further-
ance of the aforementioned purposes.
B. To acquire, and pay for in cash, stock or bonds of this
corporation or otherwise, the goodwill, rights, assets and
property, and to undertake or assume the whole or any part of
the obligations or liabilities of any person, firm, associa-
tion or corporation.
C. To manufacture, purchase, or otherwise acquire in any
lawful manner, and to hold, own, mortgage, pledge, sell,
transfer, convert, store, import, export or deal in any other
manner, dispose of and to invest, trade, deal in and deal with
all goods, wares, merchandise and property of every class and
description.
D. To acquire, hold, use, sell, assign, lease, grant
licenses in respect of, mortgage or otherwise dispose of
letters patent of the United States or any foreign country
patent rights inventions, improvements and processes, copy-
rights, trademarks and trade names, relating to or useful in
connection with any business of this corporation.
E. To acquire by purchase, subscription or otherwise, and
to receive, hold, own, guarantee, sell, assign, exchange,
transfer, mortgage, pledge or otherwise dispose of or deal in
and with any of the shares of the capital stock, or any voting
trust certificates in respect of the shares of capital stock,
scrip, warrants, rights, bonds, debentures, notes, trust
receipts, and other securities, obligations, choses in action
and evidences of indebtedness or interest issued or created by
any corporations, joint stock companies, syndicates, associa-
tions, partnerships, firms, trusts or persons, public or
private, or by the government of the United States of America,
or by any foreign government, or by any state territory,
province, municipality or other political subdivision or by
any governmental agency, and as owner thereof, to possess and
exercise all the rights do any and all acts and things
necessary or advisable for the preservation, protection,
improvement and enhancement in value thereof.
F. To borrow, or raise moneys for any of the purposes of the
corporation, and, from time to time without limit as to
amount, to draw, make, accept, endorse, execute and issue
promissory notes, drafts,bills of exchange, warrants, bonds,
debentures and other negotiable or non-negotiable instruments
and evidences of indebtedness, and to secure the payment of
any thereof and of the interest thereon by mortgage upon,
pledge, conveyance or assignment in trust of the whole or any
part of the property of the corporation, whether at the time
owned or thereafter acquired, and to sell, pledge or otherwise
dispose of such bonds or other obligations of the corporation
for its Corporate purposes.
To make any guarantee respecting dividends, shares of stock,
bonds, debentures, contracts or other obligations to the
extent that such power may be exercised by corporations
organized under the Stock Corporation Law.
G. To loan to any person, firm, partnership or corporation
any of its surplus funds, either with or without security.
H. To purchase, hold, sell and transfer the shares of its
capital stock; provided it shall not use its funds or property
for the purchase of its own shares of capital stock when such
use would cause any impairment of its capital except as
otherwise permitted by law, and provided further that shares
of its own capital stock belonging to it shall not be voted
upon directly or indirectly.
I. To have one or more offices, to carry on all or any of
its operations and business and without restriction or limit
as to amount to purchase or otherwise acquire, hold, own,
mortgage, sell, convey or otherwise dispose of, real and
personal property of every class and description in any of the
states, districts, territories or colonies of the United
states, and in any and all foreign countries, subject to the
laws of such state, district, territory, colony or country.
J. To enter into, make, perform and carry out contracts of
every kind, which may be necessary for or incidental to the
business of the corporation with any person, firm, corpora-
tion, private, public or municipal, body politic, under the
government of the United States, or any territory district,
protectorate, dependency or insular or other possession or
acquisition of the United States, or any foreign governments
so far as, and to the extent that, the same may be done and
performed by a corporation organized under the Stock Corpora-
tion Law.
K. To do any and all things necessary, suitable, convenient
or proper for, or in connection with, or incidental to, the
accomplishment of any of the purposes or the attainment of any
one or more of the objects herein enumerated, or designed
directly or indirectly to promote the interests of the
corporation, or to enhance the value of any of its properties
and in general to do any and all things and exercise any and
all powers which it may now or hereafter be lawful for the
corporation to do or to exercise under any of the laws of the
State of New York that may now or hereafter be applicable to
the corporation.
L. The purposes and powers specified in the foregoing
clauses are to be construed both as purposes and powers and shall,
except where otherwise expressed be in no way limited or restricted
by reference to or inference from, the terms of any other clause in
this certificate of incorporation, but the purposes and powers
specified in each of the foregoing clauses of this article shall be
regarded as independent purposes and powers.
III. The aggregate number of shares which the Corporation shall
have authority to issue shall consist of 15,000,000 shares of
Common Stock of the par value of $.10 per share, And 500,000 shares
of Preferred stock of the par value of $1 per share. The Preferred
stock shall be issuable in series with such designations relative
rights, preferences and limitations as may be fixed from time to
time by the Board of Directors.
The designations, relative voting, dividend, liquidation and
other right, preferences and limitations of the Preferred Stock
(unless otherwise fixed by the Board of Directors) and the Common
Stock are as follows:
1. The shares of Preferred Stock may be divided into and
issued in one or more series, and each series shall be so
designated so as to distinguish the shares thereof from the
shares of all other series. All shares of Preferred Stock
shall be identical except in respect of particulars which may
be fixed by the Board of Directors as hereinafter provided
pursuant to authority which is hereby expressly vested in the
Board of Directors. Each share of a series shall be identical
in all respects with all other shares of such series, except
as to the date from which dividends thereon shall be cumula-
tive on any series as to which dividends are cumulative.
Shares of Preferred Stock of any series which have been
cancelled in any manner, including shares redeemed or reac-
quired by the Corporation and shares which have been converted
into or exchanged for shares of any other class, or any series
of the same or any other class, shall have the status of
authorized but unissued shares of Preferred Stock and may be
reissued as shares of the series of which they were originally
a part or may be issued as shares of a new series or any other
series of the same class.
2. Before any shares of Preferred Stock of any series shall
be issued, the Board of Directors, pursuant to authority
hereby expressly vested in it, shall fix by resolution or
resolutions the following provisions in respect of the shares
of each such series so far as the same are not inconsistent
with the provisions of this Article III applicable to all
series of Preferred Stock.
(a) the distinctive designations of such series and the
number of shares which shall constitute such Series which
number may be increased (except where otherwise provided
by the Board of Directors in creating such series) or
decreased (but not below the number of shares thereof
then outstanding) from time to time by like action of the
Board of Directors.
(b) the annual rate or amount of dividends payable on
shares of such series, whether such dividends shall be
cumulative or noncumulative, the conditions upon which
and/or the dates when such dividends shall be payable and
the date from which dividends on cumulative series shall
accrue and be cumulative on all shares of such series
issued prior to the payment date for the first dividend
of such series;
(c) whether such series shall be redeemable and, if so,
the terms and conditions of such redemption, including
the time or times when and the price or prices at which
shares of such series shall be redeemed;
(d) the rights of the shares of such series in the event
of liquidation, dissolution or winding up of the affairs
of the Corporation;
(e) whether such series shall be convertible into or
exchangeable for shares of any other class, or any series
of the same or any other class, and, if so, the terms and
conditions thereof, including the date or dates when such
shares shall be convertible into or exchangeable for
shares of any other class, or any series of the same or
any other class, the price or prices or the rate or rates
at which shares of such series shall be so convertible or
exchangeable, and any adjustments which shall be made,
and the circumstances in which any such adjustments shall
be made, in such conversion or exchange prices or rates;
(f) whether such series shall have any voting rights in
addition to those prescribed by law and, if so, the terms
and conditions of exercise of such voting rights; and
(g) any other designations, relative rights, preferences
or limitations.
3. (a) So long as any shares of Preferred Stock of any
series shall be outstanding, the Corporation will not
declare or pay any dividends on the Common Stock (other
than dividends payable solely in shares of Common Stock)
or make any distributions of any kind, either directly or
indirectly, in respect of shares of Common stock, or make
any payment on account of the purchase, redemption or
other acquisition of Common Stock, unless on the payment,
distribution or redemption date, as the case may be, all
dividends on the then outstanding shares of Preferred
Stock of all series for all past dividend periods shall
have been paid to the full extent of the preference, if
any, to which each series of Preferred Stock is entitled.
(b) In case the Corporation shall not pay in full all
stated dividends required to be paid on all shares of all
series of Preferred Stock at the time outstanding to the
full extent of the preference, if any, to which each such
series is entitled, the shares of all series of Preferred
Stock shall share ratably in the payment of dividends,
including accumulations, if any, in accordance with the
sums which would be payable on such shares if all
dividends were declared and aid in full. Accumulations of
dividends shall not bear interest.
(c) In case the Corporation shall not pay in full all
amounts required to be paid on all shares of all series
of Preferred Stock at the time outstanding in the event
of the liquidation, dissolution or winding up of the
affairs of the Corporation, the shares of all series of
Preferred Stock shall share ratably in the payment of all
amounts payable in the event of such liquidation,
dissolution or winding up in accordance with the sums
which would be payable on such shares if all amounts
payable on such liquidation, dissolution or winding up
were paid in full.
(d) When dividends shall have been paid (or declared and
set aside for payment) on the Preferred Stock to the full
extent of the preference, if any, to which the Preferred
Stock is entitled, dividends on the remaining class or
classes of stock may then be paid out of the funds of the
Corporation which are legally available therefor.
(e) Subject to the limitations prescribed in this
Article III and any further limitations which may f rom
time to time be prescribed by the Board of Directors in
accordance herewith the holders of Common Stock shall be
entitled to receive dividends on the Common Stock, when,
as and if declared by the Board of Directors out of the
funds of the Corporation which are legally available
therefor.
4. The authorized but unissued shares of Common Stock and
the authorized but unissued shares of Preferred stock may be issued
for such consideration, not less than the par value thereof, as may
be fixed from time to time by the Board of Directors.
5. (a) Except as otherwise determined pursuant to authority
of the Board of Directors an hereinbefore provided, or by
the Business Corporation Law of the State of New York,
all voting rights shall be vested exclusively in the
holders of the outstanding shares of Common Stock and
each such holder shall be entitled to one vote per share
for all purposes for each share of Common Stock held of
record by him.
(b) Except as otherwise determined pursuant to authority
of the Board of Directors as hereinbefore provided, or by
the Business Corporation Law of the State of New York,
the holders of Preferred Stock shall not be entitled to
vote for any purpose nor shall they be entitled to notice
of meetings of shareholders.
6. The Board of Directors has authorized a series of
Preferred Stock which series shall be designated as Series A
Preferred Stock (the "Series A Preferred Stock") and this number of
shares constituting such series shall be 150,000.
(a) The holders of record of shares of Series A Pre-
ferred Stock shall be entitled to receive, when, as and
if declared by the Board of Directors or a duly autho-
rized committee thereof out of funds legally available
for the purpose, dividends in cash at the rate per share
of 5% per annum (calculated an a percentage of the
liquidation value per share of $100). Dividends shall be
payable quarterly, on the dates on which a quarterly
dividend or distribution on the Common Stock, $.10 par
value per share ("Common Stock") of the Corporation is
payable (other than a dividend payable in Common Stock)
(each such date being referred to herein as a "Dividend
Payment Date"), commencing on the first Dividend Payment
Date after the first issuance of a share or fraction of
a share of Series A Preferred Stock, or, if no such
dividends on the Common Stock are payable then on such
quarterly dates designated by the Board of Directors or
a duly authorized committee thereof. To the extent the
Board of Directors or a duly authorized committee thereof
does not declare the full 5% dividend or, if so declared,
such dividend is not fully paid in cash the amount not so
declared or paid shall accumulate as provided in para-
graph (b) of this Section 6. The Board of Directors or
a duly authorized committee thereof may fix a record date
for the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of a dividend
declared thereon, which record data shall be not less
than 10 days nor more that 50 days prior to the date
fixed for the payment thereof.
(b) Dividends on the outstanding shares of Series A
Preferred Stock shall be cumulative from the date of
issue of such shares. Accrued dividends, whether or not
declared, that are not paid shall compound quarterly at
5% per annum until the date of payment of such dividends.
The amounts with respect to such compounding shall also
constitute accrued dividends. Accumulated but unpaid
dividends may be declared and paid at any time, without
reference to any regular Dividend Payment Date, to
holders of record on such date, not less than 10 days nor
more than 50 days preceding the payment date thereof, as
may be fixed by the Board of Directors of the Corporation
or a duly authorized committee thereof.
(c) So long as any of the shares of Series A Preferred
Stock are outstanding, no dividends shall be paid or
declared, nor any distribution be made, on the Common
Stock, or any other security junior to the Series A
Preferred Stock, other than a dividend payable in common
stock or such other junior security, nor shall any shares
of Common Stock, or any other security junior to the
Series A Preferred Stock, be acquired for consideration
by the Corporation, unless all dividends on the Series A
Preferred Stock for all past dividend dates shall have
been paid and the full dividends thereon for the most
recent dividend date shall have been paid or declared and
a sum sufficient for the payment thereof set apart.
Subject to the foregoing provisions, dividends on the
Common stock (payable in cash, stock or otherwise) as may
be determined by the Board of Directors may be declared
and paid from time to time out of the remaining funds
legally available for the payment of dividends, and the
Series A Preferred Stock shall not be entitled to
participate in any such dividends, whether payable in
cash, stock or otherwise.
(d) The holders of record of shares of Series A Pre-
ferred Stock shall not be entitled to any voting rights,
except as otherwise provided by law.
(e) The Corporation may at the discrimination of a
majority of the Continuing Directors (as hereinafter
defined) redeem, at any time, in whole but not in part,
all of the shares and fractional shares of Series A
Preferred stock at a redemption price of $6,060 per whole
share, reduced pro rata for redemptions of fractional
shares, plus accrued and unpaid dividends thereon (as
provided in paragraphs (a), (b) and (c) of this Section
6 above) to the date fixed for optional redemption, and
adjusted if, and to the extent that, the price at which
the Series A Preferred Stock is issued is more or less
than $6,000 per share.
(f) In the event the Corporation shall redeem the shares
of Series A Preferred Stock, notice of such redemption
shall be given by first class mail, postage prepaid,
mailed not less than 15 days nor more than 60 days prior
to the redemption date, to each holder of record of such
shares at such holder's address as the same appears on
the stock register of the Corporation, provided however,
that no failure to mail such notice nor any defect
therein shall affect the validity of the redemption of
the shares of Series A Preferred Stock to be redeemed.
Each such notice shall state: (i) the redemption date;
(ii) the place or places where certificates for shares
are to be surrendered for payment of the redemption price
and (iii) that dividends on the shares will cease to
accrue on such redemption date.
(g) Notice having been mailed as aforesaid, from and
after the redemption date (unless default shall be made
by the Corporation in providing money for the payment of
the redemption price) dividends on the share of Series A
Preferred stock shall cease to accrue and all rights of
the holders thereof as stockholders of the Corporation
(except the right to receive from the corporation the
redemption price and any accrued and unpaid dividends)
shall cease. Upon surrender in accordance with said
notice of the certificates for shares (properly endorsed
or assigned for transfer, if the Continuing Directors of
the Corporation shall so require and the notice shall so
state), such shares shall be redeemed by the Corporation
at the redemption price aforesaid.
(h) "Continuing Director" shall mean a member of the
Corporation's Board of Directors who was a member of the
Corporation's Board of Directors prior to the time an
Acquiring Person (as hereinafter defined) became an
Acquiring Person, and any successor of a Continuing
Director who is recommended in writing to succeed a
Continuing Director by a majority of Continuing Directors
then on the Corporation's Board of Directors.
(i) "Acquiring Person" shall mean any person who or
which, together with all affiliates and associates of
such person, is the Beneficial Owner (as hereinafter
defined) of 30% or more of the shares of Common Stock
then outstanding but shall not include the Corporation,
any employee benefit plan of the Corporation or any
person holding shares of Common Stock and which was
organized appointed or established by the Corporation for
or pursuant to the terms of any such plan.
(j) 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, direct 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 (whether or not in writing) or upon the
exercise of conversion rights,exchange rights, 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 of or made by such person or any of
such person's affiliates or associates until such
tendered securities are accepted for purchase or exchang-
er or (B) the right to vote pursuant to any agreement,
arrangement or understanding (whether or not in writing),
provided, however, that a person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own", any
security under this clause (3) if the agreement, arrange-
ment or understanding to vote such security (1) arises
solely from a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to,
and in accordance with, the applicable rules and regula-
tions of the Securities Exchange Act of 1934, as amended,
and (2) is not also then reportable by such person on
Schedule 13D under said Securities 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 or has had any agreement,
arrangement or understanding (whether or not in writing),
for the purpose of acquiring, holding, voting (except
pursuant to a revocable proxy as described in clause (B)
of subparagraph (ii) of this paragraph (j)) or disposing
of any securities of the Corporation.
(k) Any shares of Series A Preferred Stock which shall
have been redeemed shall, after such redemption, have the
status of authorized but unissued shares of Preferred
Stock, without designation as to series until such shares
are once more designated as part of a particular series
by the Board of Directors.
(l) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of
the CorporatIon, the holders of shares of Series A
Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for
distribution to its stockholders an amount in cash equal
to the greater of (i) $100 for each whole share outstand-
ing, or (ii) an aggregate amount for each whole share
outstanding equal to 100 times the aggregate amount
distributable per share with respect to the Common Stock;
such amount in either case to be reduced pro rata for any
fractional shares outstanding, plus an amount in cash
equal to all accrued but unpaid dividends thereon (as
provided in paragraphs (a), (b) and (c) of this Section
6 above) to the date fixed for liquidation, dissolution
or winding up before any payment shall be made or any
assets distributed to the holders of any shares of Common
Stock or to the holders of any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock. If the assets of the Corporation are not suffi-
cient to pay in full the liquidation payments payable to
the holders of outstanding shares of series A Preferred
Stock, than the holders of all such shares shall share
ratably in such distribution of assets in accordance with
the amount which would be payable on such distribution if
the amounts to which the holders of outstanding shares of
Series A Preferred Stock are entitled were paid in full.
(m) For the purposes of this Section 6 neither the
voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration)
of all or substantially all the property or assets of the
Corporation nor the consolidation or merger of the
Corporation with one or more other corporations shall be
deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, unless such voluntary sale,
conveyance, exchange or transfer shall be in connection
with a dissolution or winding up the business of the
Corporation.
(n) The Series A Preferred Stock shall be pari passu to
all other series of the Corporation's Preferred Stock as
to the payment of dividends and the distribution of
assets, except to the extent a series is made junior or
subordinate to the Series A Preferred Stock.
(o) Each fractional share of the Series A Preferred
Stock outstanding shall be entitled to a ratably propor-
tionate amount of all rights relating to the shares of
the Series A Preferred Stock, including dividend and
voting rights. The liquidation payment or redemption
payment with respect to each fractional share of Series
A Preferred Stock shall be equal to a ratably proportion-
ate amount of the liquidation payment or redemption
payment with respect to each outstanding share of Series
A Preferred Stock.
IV. The office of the corporation in to be located in the
County of Nassau and State of New York.
V. Its duration in to be perpetual.
VI. The Board of Directors is expressly authorized and
empowered from time to time (a) to fix, by resolution adopted by a
majority of the entire Board, the number of directors which shall
constitute the entire Board of Directors, such number to be not
less than three (3), and (b) to amend or repeal any By-Laws or
adopt any new By-Laws, but any By-Law adopted by the Board of
Directors may be amended or repealed by the shareholders at any
Annual Meeting or at any Special Meeting.
VII. Shares of stock in other corporations held by this
corporation, shall be voted by such officer or officers of this
corporation as the board of directors, by a majority vote shall
designate for this purpose, or by a proxy thereunto duly authorized
by a like vote of said board.
VIII. It is hereby provided, pursuant to section 74 of the
Stock Corporation Law, that this corporation shall have power to
issue the whole or any part of the shares of its capital stock as
partly paid stock, subject to calls thereon until the whole thereof
shall have been paid in.
IX. No contract or other transaction between the corporation
and any other corporation shall be affected, or invalidated by the
fact that any one or more of the directors of this corporation is
or are interested in, or is a director or officer, or are directors
or officers of such other corporation and any director or direc-
tors, individually or jointly, may be a party or parties to, or may
be interested in, any contract or transaction of this corporation
or in which this corporation is interested) and no contract, act or
transaction of this corporation with any person or persons, firm,
or corporations, shall be affected, or invalidated by the fact that
any director or directors of this corporation is a party, or are
parties to or interested in such contract, act or transaction, or
in any way connected with such person or persons, firm, associa-
tion or corporation, and each and every person who may become a
director of this corporation is hereby relieved from any liability
that might otherwise exist from contracting with the corporation
for the benefit of himself or any firm or association or corpora-
tion in which he may be anywise interested.
X. No holder of either class of stock shall be entitled an
of right, to purchase or subscribe for any part of unissued stock
of either class, or any additional stock to be issued by reason of
any increase of the authorized capital stock of the company, or any
bonds, certificates of indebtedness, debentures or other securities
convertible into stock of the corporation, but any such unissued
stock or such additional authorized issue of now stock, or of other
securities convertible into stock may be issued and disposed of
pursuant to resolution of the board of directors to such persons,
firms, corporations or associations and upon such terms as may be
deemed advisable by the board of directors in the exercise of their
discretion.
XI. The corporation shall indemnify any person made a party
to any action, suit or proceeding, by reason of the fact that he,
his testator or intestate, is or was a directors officer or
employee of the corporation, or of any firm, corporation, or
association which he served an such at the request of the corpora-
tion, against the reasonable expenses (including attorney's fees
and, to the extent permitted by law, any amount paid in a court
approved settlement) actually and necessarily incurred by him in
connection with the defense of such action, suit or proceeding, or
in connection with any appeal therein, except in relation to
matters as to which it shall be adjudged in such action, suit or
proceeding that such officer, director or employee is liable for
negligence or misconduct in the performance of his duties.
XII. The Secretary of State is designated as agent of the
corporation for the service of process, and directed to mail a copy
of such process to the corporation at the following address: Park
Electrochemical Corp., 5 Dakota Drive, Lake Success, New York
11042, Attention: General Counsel.
5. The changes set forth in paragraph 3 hereof, and the
restatement of the Certificate Of Incorporation set forth in
Paragraph 4 hereof, were duly authorized by the affirmative vote of
the Board of Directors of the corporation at a duly convened
meeting thereof held the 28th day of March, 1989.
IN WITNESS WHEREOF, we, the undersigned have executed and
subscribed this certificate and do affirm the foregoing as true
under the penalties of perjury this 28th day of March, 1989.
__________________________________
Allen Levine, Vice President
_________________________________
Harry Linzer, Secretary
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
PARK ELECTROCHEMICAL CORP.
Under Section 805 of the Business Corporation Law
The undersigned, being respectively an Executive Vice
President and the Secretary of Park Electrochemical Corp. (a
corporation organized under the laws of the State of New York), Do
Hereby Certify as follows:
(1) The name of the Corporation is Park Electrochemical
Corp. The name under which it was originally incorporated is Park
Name Plate Inc.
(2) The Certificate of Incorporation of the Corporation
was filed by the Department of State of the State of New York on
March 31, 1954. The Restated Certificate of Incorporation of the
Corporation was filed by the Department of State of the State of
New York on April 10, 1989.
(3) The provisions of the Certificate of Incorporation
are hereby amended to increase the aggregate number of the class of
shares designated Common Stock, $.10 par value per share, which the
Corporation shall have authority to issue from 15,000,000 shares to
30,000,000 shares. To effect the foregoing, the first sentence of
the first paragraph of Article III of the Certificate of Incorpora-
tion which states the aggregate number of shares the Corporation
shall have authority to issue is hereby amended to read as follows:
The aggregate number of shares which the Corporation shall
have authority to issue shall consist of 30,000,000 shares of
Common Stock of the par value of $.10 per share, and 500,000
shares of Preferred Stock of the par value of $1 per share.
(4) The foregoing amendment to the Certificate of
Incorporation was authorized by a majority vote of the Board of
Directors of the Corporation followed by the required vote of the
holders of a majority of all outstanding shares of Common Stock
entitled to vote thereon at a meeting of shareholders of the
Corporation duly called and held for such purpose on July 12, 1995.
<PAGE>
In Witness Whereof, the undersigned have signed this
certificate this 12th day of July, 1995, and affirm the foregoing
statements as true under the penalties of perjury.
/s/ Brian E. Shore
Brian E. Shore
Executive Vice President
/s/ Allen Levine
Allen Levine
Secretary
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
PARK ELECTROCHEMICAL CORP.
(Under Section 805 of the Business Corporation Law)
It is hereby certified that:
FIRST: The name of the Corporation is PARK ELECTRO-
CHEMICAL CORP. and the name under which the Corporation was formed
was PARK NAME PLATE INC.
SECOND: The Certificate of Incorporation of the
Corporation was filed with the Department of State of the State of
New York on March 31, 1954. The Restated Certificate of Incorpora-
tion of the Corporation was filed by the Department of State of the
State of New York on April 10, 1989.
THIRD: The amendment of the Certificate of Incorpora-
tion effected by this Certificate of Amendment is to amend certain
provisions in the Certificate of Incorporation relating to the
relative rights, preferences and limitations of the shares of a
series of Preferred Stock, as fixed by the Board of Directors
pursuant to authority expressly vested in them in the Certificate
of Incorporation.
FOURTH: To accomplish the foregoing amendment, Section
6 of Article IV of the Certificate of Incorporation shall be
deleted and a new Section 6 shall be added to Article IV of the
Certificate of Incorporation which shall read as follows:
"The Board of Directors has authorized a series of
Preferred Stock which series shall be designated as
Series A Preferred Stock (the "Series A Preferred Stock")
and the number of shares constituting such series shall
be 300,000.
(a) The holders of record of shares of Series A
Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors or a duly
authorized committee thereof out of funds legally
available for the purpose, dividends in cash at the rate
per share of 5% per annum (calculated as a percentage of
the liquidation value per share of $100). Dividends
shall be payable quarterly, on the dates on which a
quarterly dividend or distribution on the Common Stock,
$.10 par value per share ("Common Stock") of the Corpora-
tion is payable (other than a dividend payable in Common
Stock) (each such date being referred to herein as a
"Dividend Payment Date"), commencing on the first
Dividend Payment Date after the first issuance of a share
or fraction of a share of Series A Preferred Stock, or,
if no such dividends on the Common Stock are payable,
then on such quarterly dates designated by the Board of
Directors or a duly authorized committee thereof. To the
extent the Board of Directors or a duly authorized
committee thereof does not declare the full 5% dividend
or, if so declared, such dividend is not fully paid in
cash, the amount not so declared or paid shall accumulate
as provided in paragraph (b) of this Section 6. The
Board of Directors or a duly authorized committee thereof
may fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive
payment of a dividend declared thereon, which record date
shall be not less than 10 days nor more than 50 days
prior to the date fixed for the payment thereof.
(b) Dividends on the outstanding share of Series A
Preferred Stock shall be cumulative from the date of
issue of such shares. Accrued dividends, whether or not
declared, that are not paid shall compound quarterly at
5% per annum until the date of payment of such dividends.
The amounts with respect to such compounding shall also
constitute accrued dividends. Accumulated but unpaid
dividends may be declared and paid at any time, without
reference to any regular Divided Payment Date, to holders
of record on such date, not less than 10 days nor more
that 50 days preceding the payment date thereof, as may
be fixed by the Board of Directors of the Corporation of
a duly authorized committee thereof.
(c) So long as any of the shares of Series A
Preferred Stock are outstanding, no dividends shall be
paid or declared, nor any distribution be made, on the
Common Stock, or any other security junior to the Series
A Preferred Stock, other than a dividend payable in
Common Stock or such other junior security, nor shall any
shares of Common Stock, or any other security junior to
the Series A Preferred Stock, be acquired for consider-
ation by the Corporation, unless all dividends on the
Series A Preferred Stock for all past dividend dates
shall have been paid and the full dividends thereon for
the most recent dividend date shall have been paid, or
declared and a sum sufficient for the payment thereof set
apart. Subject to the foregoing provisions, dividends on
the Common Stock (payable in cash, stock or otherwise) as
may be determined by the Board of Directors may be
declared and paid from time to time out of the remaining
funds legally available for the payment of dividends, and
the Series A Preferred Stock shall not be entitled to
participate in any such dividends, whether payable; in
cash, stock or otherwise.
(d) The holders of record of shares of Series A
Preferred Stock shall not be entitled to any voting
rights, except as otherwise provided by law.
(e) The shares of Series A Preferred Stock shall
not be redeemable.
(f) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of
the Corporation, the holders of shares of Series A
Preferred Stock then outstanding shall be entitled to be
paid out of the assets of the Corporation available for
distribution to its stockholders an amount in cash equal
to the greater of (i) $100 for each whole share outstand-
ing or (ii) an aggregate amount for each whole share
outstanding equal to 100 times the aggregate amount
distributable per share with respect to the Common Stock;
such amount in either case to be reduced pro rata for any
fractional shares outstanding, plus an amount in cash
equal to all accrued by unpaid dividends thereon (as
provided in paragraphs (a), (b) and (c) of this Section
6 above) to the date fixed for liquidation, dissolution
or winding up before any payment shall be made or any
assets distributed to the holders of any shares of Common
Stock or to the holders of any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock. If the assets of the Corporation are not suffi-
cient to pay in full the liquidation payments payable to
the holders of outstanding shares of Series A Preferred
Stock, then the holders of all such shares shall share
ratably in such distribution of assets in accordance with
the amount which would be payable on such distribution if
the amounts to which the holders of outstanding shares of
Series A Preferred Stock are entitled were paid in full.
(g) For the purposes of this Section 6, neither the
voluntary sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration)
of all or substantially all the property or assets of the
Corporation nor the consolidation or merger of the
Corporation with one or more other corporations shall be
deemed to be a liquidation, dissolution or winding up,
voluntary or involuntary, unless such voluntary sale,
conveyance, exchange or transfer shall be in connection
with a dissolution or winding up the business of the
Corporation.
(h) The Series A Preferred Stock shall be pari
passu to all other series of the Corporation's Preferred
Stock as to the payment of dividends and the distribution
of assets, except to the extent a series is made junior
or subordinate to the Series A Preferred Stock.
(i) Each fractional share of the Series A Preferred
Stock outstanding shall be entitled to a ratably propor-
tionate amount of all rights relating to the shares of
the Series A Preferred Stock, including dividend and
voting rights. The liquidation payment or redemption
payment with respect to each fractional share of Series
A Preferred Stock shall be equal to a ratably proportion-
ate amount of the liquidation payment or redemption
payment with respect to each outstanding share of Series
A Preferred Stock.
FIFTH: The foregoing amendment of the
Certificate of Incorporation of the Corporation was
authorized by the vote at a meeting of the Board of
Directors of the Corporation.
<PAGE>
IN WITNESS WHEREOF, we have executed and subscribed this
Certificate and do affirm the foregoing as true under the penalties
of perjury as of the 7th day of August, 1995.
/s/ Brian E. Shore
Brian E. Shore
Executive Vice President
/s/ Allen Levine
Allen Levine
Secretary
PARK ELECTROCHEMICAL CORP.
and
REGISTRAR & TRANSFER COMPANY, as Rights Agent
AMENDED AND RESTATED RIGHTS AGREEMENT
Dated as of July 12, 1995
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Certain Definitions. . . . . . . . . . . . . . . . 2
Section 2. Appointment of Rights Agent. . . . . . . . . . . . 7
Section 3. Issue of Right Certificates. . . . . . . . . . . . 8
Section 4. Form of Right Certificates . . . . . . . . . . . . 10
Section 5. Countersignature and Registration. . . . . . . . . 11
Section 6. Transfer, Split Up, Combination and Exchange of
Right Certificates; Mutilated, Destroyed, Lost
or Stolen Right Certificates . . . . . . . . . . . 12
Section 7. Exercise of Rights; Purchase Price; Expiration
of Rights. . . . . . . . . . . . . . . . . . . . . 14
Section 8. Cancellation and Destruction of Right
Certificates . . . . . . . . . . . . . . . . . . . 15
Section 9. Reservation and Availability of Preferred Stock. . 16
Section 10. Preferred Stock Record Date. . . . . . . . . . . . 17
Section 11. Adjustment of Purchase Price, Number of Shares
or Number of Rights. . . . . . . . . . . . . . . . 18
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares . . . . . . . . . . . . . . . . . 23
Section 13. Consolidation, Merger, Sale or Transfer of
Assets or Earning Power or Certain Other
Transactions.. . . . . . . . . . . . . . . . . . . 24
Section 14. Depositary Receipts. . . . . . . . . . . . . . . . 31
Section 15. Rights of Action . . . . . . . . . . . . . . . . . 32
Section 16. Agreement of Right Holders . . . . . . . . . . . . 33
Section 17. Right Certificate Holder Not Deemed a
Stockholder. . . . . . . . . . . . . . . . . . . . 33
Section 18. Concerning the Rights Agent. . . . . . . . . . . . 34
Section 19. Merger or Consolidation or Change of Name of
Rights Agent . . . . . . . . . . . . . . . . . . . 35
Section 20. Duties of Rights Agent . . . . . . . . . . . . . . 36
Section 21. Change of Rights Agent . . . . . . . . . . . . . . 39
Section 22. Issuance of New Right Certificates. . . . . . . . 41
Section 23. Redemption and Termination.. . . . . . . . . . . . 41
Section 24. Exchange . . . . . . . . . . . . . . . . . . . . . 43
Section 25. Notice of Certain Events After the Distribution
Date . . . . . . . . . . . . . . . . . . . . . . . 46
Section 26. Notices. . . . . . . . . . . . . . . . . . . . . . 46
Section 27. Supplements and Amendments . . . . . . . . . . . . 47
Section 28. Successors . . . . . . . . . . . . . . . . . . . . 48
Section 29. Benefits of This Agreement . . . . . . . . . . . . 48
Section 30. Severability . . . . . . . . . . . . . . . . . . . 48
Section 31. Governing Law. . . . . . . . . . . . . . . . . . . 48
Section 32. Counterparts . . . . . . . . . . . . . . . . . . . 49
Section 33. Descriptive Headings . . . . . . . . . . . . . . . 49
Exhibit A - Form of Certificate of Designations
Exhibit B - Form of Right Certificate
<PAGE>
AMENDED AND RESTATED RIGHTS AGREEMENT
This Amended and Restated Rights Agreement, dated as of
July 12, 1995, between Park Electrochemical Corp., a New York
corporation (the "Company"), and Registrar & Transfer Company
(the "Rights Agent").
W I T N E S S E T H
WHEREAS, on February 2, 1989 the Board of Directors of
the Company authorized and declared a distribution of one Right
for each share of Common Stock, $.10 par value per share, of the
Company outstanding on February 15, 1989 (the "Record Date") and
authorized the issuance of one Right for each share of such Com-
mon Stock of the Company issued between the Record Date and the
Distribution Date (as such term is hereinafter defined in Section
3 hereof), each Right representing the right to purchase one one-
hundredth of a share of Series A Preferred Stock, $1.00 par value
per share, of the Company having the rights and preferences set
forth in a Certificate of Amendment to the Certificate of
Incorporation in the form of Exhibit A hereto (the "Preferred
Stock"), upon the terms and subject to the conditions set forth
in a Rights Agreement (the "Original Rights Agreement") dated as
of February 15, 1989 (the "Rights"); and
WHEREAS, the Company desires to amend and restate the
Original Rights Agreement in its entirety pursuant to Section 26
of the Original Rights Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual agreements herein set forth, the parties hereby agree
to amend and restate the Original Rights Agreement in its
entirety 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 (as such term is hereinafter defined) and Associates
(as such term is hereinafter defined) of such Person, is the
Beneficial owner (as such term is hereinafter defined) of 15% or
more of the shares of Common Stock then outstanding, but shall
not include the Company, any subsidiary of the Company, any
employee benefit plan of the Company or any subsidiary of the
Company or any entity holding shares of Common Stock and which
was organized, appointed or established by the Company or any
subsidiary of the Company for or pursuant to the terms of any
such plan. Notwithstanding the foregoing (i) no Shore Affiliate
(as such term is hereinafter defined) shall be deemed an
Acquiring Person unless such Shore Affiliate becomes the
Beneficial owner of more than 25% of the shares of Common Stock
then outstanding and (ii) no Person (including any Shore
Affiliate) shall become an "Acquiring Person" as the result of an
acquisition of shares of Common Stock by the Company which, by
reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person
to 15% or more (or more than 25% in the case of any Shore
Affiliate) of the Common Stock of the Company then outstanding;
provided, however, that if a Person shall become the Beneficial
owner of 15% or more (or more than 25% in the case of any Shore
Affiliate) of the Common Stock 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 Stock of the Company, then such Person
shall (unless after giving effect to such purchase such Person is
not the Beneficial owner of 15% or more (or 25% or more in the
case of a Shore Affiliate) of the Common Stock then outstanding)
be deemed to be an "Acquiring Person". Notwithstanding the
foregoing, if the Board of Directors (as such term is hereinafter
defined) determines in good faith that a Person who would
otherwise be an "Acquiring Person", as defined pursuant to the
foregoing provisions of this paragraph (a), has become such
inadvertently, and such Person divests as promptly as practicable
a sufficient number of shares of Common Stock so that such Person
would no longer be an "Acquiring Person", as defined pursuant to
the foregoing provisions of this paragraph (a), then such Person
shall not be deemed to be an "Acquiring Person" for any purposes
of this Agreement.
(b) "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations, as in effect on the date hereof,
under the Securities Exchange Act of 1934 (the "Exchange Act").
(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 Af-
filiates 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 (whether or not in writing and 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 the 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 (whether or not in writing);
provided, however, that a Person shall not be deemed the
"Beneficial owner" of, or to "beneficially own", any
security under this clause (B) 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 of the Exchange Act and (2) is not also then
reportable by such person 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 or has had
any agreement, arrangement or understanding (whether or not
in writing and 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 pursuant to a
revocable proxy as described in clause (B) of subparagraph
(ii) of this paragraph (c)) or disposing of any securities
of the Company.
Notwithstanding anything in this paragraph (c) 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 own beneficially hereunder.
(d) "Board of Directors" shall mean the Board of
Directors of the Company.
(e) "Business Day" shall mean any day other than a
Saturday, a Sunday, or a day on which banking institutions in the
State of New York are authorized or obligated by law or executive
order to close.
(f) "Close of Business" on any given date shall mean
5:00 P.M., New York City time, on such date; provided, however,
that if such date is not a Business Day it shall mean 5:00 P.M.,
New York City time, on the next succeeding Business Day.
(g) "Common Stock" shall mean the Common Stock, $.10
par value per share, of the Company except that "Common Stock"
when used with reference to any Person other than the Company
shall mean the capital stock with the greatest voting power of
such Person or, if such other Person is a subsidiary of another
Person which is a corporation, the corporation which ultimately
controls such first-mentioned Person. For purposes of this
Agreement, a corporation "ultimately controls" another
corporation if the controlling corporation, directly or
indirectly, through one or more subsidiaries or otherwise,
beneficially owns 50% or more of the outstanding principal voting
securities of the controlled corporation, but no other
corporation beneficially owns more than 50% of the controlling
corporation's outstanding principal voting securities; provided
that if pursuant to the foregoing there would be more than one
corporation "ultimately controlling" another corporation, then
the corporation with the greatest tangible net worth as of the
date of measurement shall be deemed the sole "ultimately
controlling" corporation.
(h) "Person" shall mean any individual, firm,
corporation, partnership or other entity and may, unless the
context otherwise requires include an Acquiring Person or the
Company.
(i) "Shares Acquisition Date" shall mean the date of
the first public announcement by the Company or an Acquiring
Person that an Acquiring Person has become such.
(j) "Shore Affiliate" shall mean Jerry Shore, his
estate or any trust or foundation created by him to hold any of
his shares of Common Stock, any of his lineal descendents and any
transferee of shares of Common Stock owned by Jerry Shore by will
or pursuant to the laws of descent and distribution or any
corporation, partnership or other entity which is an Affiliate of
Jerry Shore or his estate or of any such trust, foundation,
lineal descendent or transferee by reason of the control of such
corporation, partnership or other entity by Jerry Shore or his
estate or any one or more of such trusts, foundations, lineal
descendents or transferees.
Any determination required by the definitions contained
in this Section 1 shall be made by the Board of Directors and
such determination shall be final and binding.
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 (as such term is
hereinafter defined) also be the holders of the Common Stock) 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. Issue of Right Certificates. (a) Until the
earlier of (i) the tenth day after the Shares Acquisition Date,
or (ii) 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 of, or first public announcement of the intent of
any Person or Persons (other than the Company, any subsidiary of
the Company, any employee benefit plan of the Company or any
subsidiary of the Company or any entity holding shares of Common
Stock and which was organized, appointed or established by the
Company or any subsidiary of the Company for or pursuant to the
terms of any such plan or any Shore Affiliate) to commence, a
tender or exchange offer for 15% or more of the then outstanding
shares of Common Stock (such date being herein referred to as the
"Distribution Date"), (x) the Rights shall be evidenced by the
certificates for the Common Stock registered in the names of the
holders of the Common Stock (which certificates for Common Stock
shall be deemed also to be certificates for Rights) and not by
separate certificates, (y) the Rights will be transferable only
in connection with the transfer of Common Stock and only to the
transferee thereof, and (z) the transfer of Common Stock shall
constitute the transfer of the Rights evidenced by the
certificate for such Common Stock. As soon as practicable after
the Distribution Date, the Rights Agent shall send by
first-class, postage-prepaid mail, which may in its discretion be
insured, to each record holder of the Common Stock as of the
Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a right
certificate, in substantially the form of Exhibit B hereto (the
"Right Certificates"), evidencing, in one or more certificates as
determined by the Rights Agent, one Right for each share of
Common Stock held. As of and after the Distribution Date, the
Rights shall be evidenced solely by such Right Certificates.
(b) As soon as practicable after the Record Date, the
Agent sent a copy of a summary of the Rights, in substantially
the form of Exhibit C to the Original Rights Agreement (the
"Summary of Rights"), by first-class, postage-prepaid mail, to
each record holder of Common Stock as of the Close of Business on
the Record Date, at the address of such holder shown on the
records of the Company. With respect to certificates for Common
Stock outstanding as of the Record Date, until the Distribution
Date the Rights shall be evidenced by such certificates and the
registered holders thereof shall also be the registered holders
of the associated Rights. Until the Distribution Date (or
earlier redemption or expiration of the Rights), the surrender
for transfer of any of the certificates for Common Stock shall
also constitute the transfer of the Rights associated with such
Common Stock represented by such certificates.
(c) Certificates for Common Stock which become
outstanding after the date hereof but prior to the earlier of the
Distribution Date, the Redemption Date (as such term is
hereinafter defined) and the Final Expiration Date (as such term
is hereinafter defined) shall be deemed also to be certificates
for Rights, and shall have impressed on, printed on, written on
or otherwise affixed to them the following legend (or, until
certificates containing such legend are available, the legend
provided by Section 3(c) of the Original Rights Agreement):
This certificate also evidences and entitles the holder
hereof to certain Rights (the "Rights") as set forth in
an Amended and Restated Rights Agreement between Park
Electrochemical Corp. and Registrar & Transfer Company,
as Rights Agent, dated as of July 12, 1995 (the "Rights
Agreement"), the terms of which are hereby incorporated
herein by reference and a copy of which is on file at
the executive offices of Park Electrochemical Corp.
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. Park Electrochemical Corp. will mail to
the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a written
request therefor. Under certain circumstances, Rights
issued to Acquiring Persons (as defined in the Rights
Agreement) and any subsequent holder of such Rights may
be limited.
With respect to such certificates containing the
foregoing legend (or the legend provided by Section 3(c) of the
Original Rights Agreement), until the Distribution Date, the
Rights associated with the Common Stock represented by such
certificates shall be evidenced by such certificates alone, and
the surrender for transfer of any of such certificates shall also
constitute the transfer of the Rights associated with the Common
Stock represented by such certificate.
Section 4. Form of Right Certificates. The Right
Certificates (and the forms of election to purchase shares of
Preferred Stock and of assignment to be printed on the reverse
thereof) shall each be substantially in the form of Exhibit B
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 any stock
exchange on which the Rights may from time to time be listed, or
to conform to usage. Subject to the provisions of Section 22
hereof, the Right Certificates, whenever distributed, shall be
dated as of the Distribution Date, and shall entitle the holders
thereof to purchase such number of one-hundredths of a share of
Preferred Stock as shall be set forth therein at the price for
each one-hundredth of a share set forth therein (the "Purchase
Price"), as stated in Section 7(b), but the number of such one-
hundredths of a share and the Purchase Price for each one-
hundredth of a share shall be subject to adjustment as provided
herein.
Section 5. Countersignature and Registration. The
Right Certificates shall be executed on behalf of the Company by
its Chairman of the Board, its President or any Vice President,
either manually or by facsimile signature, and shall have affixed
thereto the Company's seal or a facsimile thereof which shall be
attested by the Secretary or an 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 so 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
Certificates 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.
Following the Distribution Date, the Rights Agent will
keep or cause to be kept, at its offices in Cranford, New Jersey,
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 (which, subject to
the provisions of Section 22 hereof, shall be as of the
Distribution Date).
Section 6. Transfer, Split Up, Combination and
Exchange of Right Certificates; Mutilated, Destroyed, Lost or
Stolen Right Certificates. After the Distribution Date, any
Right Certificate or Certificates 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 one-hundredths of a share of Preferred Stock as the
Right Certificate or Right Certificates surrendered then entitled
such holder to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Right Certificate
shall make such request in writing delivered to the Rights Agent,
and shall surrender the Right Certificate or Right Certificates
to be transferred, split up, combined or exchanged at the office
of the Rights Agent. 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.
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 the
case of loss, theft or destruction, of indemnity or security
reasonably satisfactory to them, and 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 execute
and deliver a new Right Certificate of like tenor to the Rights
Agent for countersignature and delivery to the registered owner
in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
Notwithstanding any provision herein to the contrary,
Right Certificates may only be issued in denominations entitling
the registered holder thereof to purchase one-hundredth of a
share of Preferred Stock or an integral multiple thereof.
Section 7. Exercise of Rights; Purchase Price;
Expiration of Rights.
(a) Except as otherwise provided herein, the
registered holder of any unexercised Right Certificate may,
subject to the second paragraph of Section 11(a)(ii), exercise
the Rights evidenced thereby at any time after the Distribution
Date and prior to the earliest of (i) July 12, 2005 (the "Final
Expiration Date"), (ii) the date on which the Rights are redeemed
as provided in Section 23 hereof (the "Redemption Date") or (iii)
the time at which such Rights are exchanged as provided in
Section 24 hereof, 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,
together with payment of the Purchase Price for each one-
hundredth of a share of Preferred Stock for which such Rights are
being exercised.
(b) The Purchase Price for each one-hundredth of a
share of Preferred Stock upon the exercise of a Right shall be
$150.00, shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof but at no time shall be
less than required by applicable law and shall be payable in
lawful money of the United States of America in accordance with
paragraph (c) below.
(c) Upon receipt of a Right Certificate representing
exercisable Rights, with the form of election to 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 in cash, or by certified check or bank draft payable
to the order of the Company, the Rights Agent shall thereupon
promptly (i) requisition from the Company or any transfer agent
of the Preferred Stock certificates (or scrip if the Company
determines, or is required by law or the rules of any exchange,
to use same) for the number of shares of Preferred Stock to be
purchased and the Company hereby agrees to comply and hereby
irrevocably authorizes its transfer agent to comply with all such
requests, and (ii) promptly after receipt of such certificates or
scrip, cause the same to be delivered to or upon the order of the
registered holder of such Right Certificate previously
surrendered, registered in such name or names as may be
designated by such holder.
(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 and delivered to the registered holder of such Right
Certificate or to such holder's duly authorized assigns.
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 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 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. Reservation and Availability of Preferred
Stock. The Company covenants and agrees that it will cause to be
reserved and kept available out of its authorized and unissued
shares of Preferred Stock or any authorized and issued shares of
Preferred Stock held in its treasury, a number of shares of
Preferred Stock sufficient to permit the exercise in full of all
outstanding Rights.
So long as the shares of Preferred Stock issuable upon
the exercise of the Rights may be listed on any national
securities exchange, the Company shall use its best efforts to
cause, from and after the time the Rights become exercisable, all
shares reserved for such issuance to be listed on such exchange
upon official notice of issuance upon such exercise.
The Company covenants and agrees that it will take all
such action as may be necessary to ensure that all shares of
Preferred Stock delivered upon exercise of Rights shall, at the
time of delivery of the certificates for such shares (subject to
payment of the Purchase Price), be duly and validly authorized
and issued and fully paid and non-assessable shares.
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 certificates for
shares of Preferred Stock 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, or the issuance of the shares of Preferred
Stock in the name of, or delivery of such shares to, a Person
other than the registered holder of the Right Certificates
evidencing Rights surrendered upon the exercise thereof, or be
required to issue any certificates or script for shares of
Preferred Stock in a name other than that of, or deliver such
shares to a Person other than, the registered holder upon the
exercise of any Rights until such tax shall have been paid (any
such tax being payable by the holder of such Right Certificate at
the time of surrender) or until it has been established to the
Company's satisfaction that no such tax is due.
Section 10. Preferred Stock Record Date. Each Person
in whose name a certificate for shares of Preferred Stock is
issued upon the exercise of Rights shall for all purposes be
deemed to have become the holder of record of the shares of
Preferred Stock represented thereby on, and such certificate
shall be dated, the date upon which the Right Certificate
evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable transfer taxes and charges)
was made; provided, however, that if the date of such surrender
and payment is a date upon which the Preferred Stock transfer
books of the Company are closed, such Person shall be deemed to
have become the record holder of such shares on, and such
certificate shall be dated, the next succeeding Business Day on
which the Preferred Stock transfer books of the Company are open.
Prior to the exercise of the Rights evidenced thereby and payment
of the Purchase Price (and any applicable transfer taxes and
charges), the holder of a Right Certificate shall not be entitled
to any rights of a stockholder of the Company with respect to
shares for which the Rights shall be exercisable, including,
without limitation, to receive dividends or other distributions,
and shall not be entitled to receive any notice of any
proceedings of the Company, except as provided herein.
Section 11. Adjustment of Purchase Price, Number of
Shares or Number of Rights. The Purchase Price, the number of
one-hundredths of a share of Preferred Stock for which a Right is
exercisable 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 subdivide, combine, reclassify
or otherwise change the Preferred Stock, the Purchase Price in
effect at the time of the effective date of such subdivision,
combination, reclassification or other change, 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 Stock transfer books of the Company
were open, such holder would have owned upon such exercise and
been entitled to receive by virtue of such subdivision,
combination, reclassification or other change.
(ii) Subject to Section 24 of this Agreement, in
the event that any Person should become an Acquiring Person, each
holder of a Right shall thereafter have a right to receive, upon
exercise thereof at a price equal to the then current Purchase
Price multiplied by the number of one one-hundredths of a share
of Preferred Stock for which a Right is then exercisable, in
accordance with the terms of this Agreement and in lieu of shares
of Preferred Stock, such number of shares of Common Stock of the
Company as shall equal the result obtained by (x) multiplying the
then current Purchase Price by the number of one one-hundredths
of a share of Preferred Stock for which a Right is then
exercisable and dividing that product by (y) 50% of the then
current per share market price of the Common Stock of the Company
(determined pursuant to Section 13(g) hereof) on the date of the
occurrence of such event; provided, however, that if the
transaction that would otherwise give rise to the foregoing
adjustment is also subject to the provisions of Section 13
hereof, then the provisions of Section 13 hereof shall apply to
such transaction and the provisions of this Section 11(a)(ii)
shall not apply to such transaction and no adjustment shall be
made pursuant to this Section 11(a)(ii). 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.
From and after the occurrence of such event, any Rights that
are or were acquired or beneficially owned by any 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 shall be cancelled.
(iii) In the event that there shall not be suf-
ficient shares of Common Stock 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 shares of Common Stock for issuance upon
exercise of the Rights. In the event the Company shall, after
good faith effort, be unable to take all such action as may be
necessary to authorize such additional shares of Common Stock,
the Company shall substitute, for each share of Common Stock that
would otherwise be issuable upon exercise of a Right, a number of
shares of Preferred Stock or fraction thereof such that the
current per share market price of one share of Preferred Stock
multiplied by such number or fraction is equal to the current per
share market price of one share of Common Stock as of the date of
issuance of such shares of Preferred Stock or fraction thereof.
(b) For the purpose of any computation hereunder, the
"current per share market price" of the Preferred Stock shall be
determined in accordance with the method set forth in
Section 13(g). If the Preferred Stock is not publicly traded,
the "current per share market price" of the Preferred Stock shall
be conclusively deemed to be the current per share market price
of the Common Stock as determined pursuant to Section 13(g)
(appropriately adjusted to reflect any stock split, stock
dividend or similar transaction occurring after the date hereof),
multiplied by one hundred. If neither the Common Stock nor the
Preferred Stock is 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, whose
determination shall be described in a statement filed with the
Rights Agent.
(c) If as a result of an adjustment made pursuant to
Section 11(a), the holder of any Right thereafter exercised shall
become entitled to receive any shares of capital stock of the
Company other than Preferred Stock, thereafter the number of such
other shares 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 shares of the Preferred Stock contained in
Sections 7, 9, 10, 11 and 13, which provisions shall apply on
like terms to any such other shares.
(d) In the event there shall be a stock dividend,
split (by way of dividend or otherwise), subdivision, combination
or reclassification of the Common Stock prior to the Distribution
Date, the Rights shall be properly adjusted to take account
thereof.
(e) Irrespective of any adjustment or change in the
Purchase Price or the number of shares of Preferred Stock (or
fractions thereof) issuable upon the exercise of the Rights, the
Right Certificates theretofore and thereafter issued may continue
to express the Purchase Price per one-hundredth of a share and
the number of shares which were expressed in the initial Right
Certificates issued hereunder and under the Original Rights
Agreement.
(f) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then par value
of the shares of Preferred Stock issuable upon exercise of the
Rights, the Company shall take any lawful 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 shares of Preferred Stock at such adjusted Purchase
Price.
Section 12. Certificate of Adjusted Purchase Price or
Number of Shares. Whenever an adjustment is made as provided in
Sections 11 and 13 hereof, the Company shall (a) promptly prepare
a certificate setting forth such adjustment and a brief statement
of the facts accounting for such adjustment, (b) promptly file
with the Rights Agent and with each transfer agent for the Common
Stock and the Preferred Stock a copy of such certificate and (c)
mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 25 hereof. The Rights
Agent shall be fully protected in relying on any such certificate
and on any adjustment therein contained.
Section 13. Consolidation, Merger, Sale or Transfer of
Assets or Earning Power or Certain Other Transactions.
(a) In the event, directly or indirectly, at any
time after a Person becomes an Acquiring Person (1) the Company
shall, or shall agree or become obligated to, consolidate with,
or merge with or into, any other Person, (2) any other Person
shall, or shall agree or become obligated to, consolidate with,
or merge with or into the Company, whether or not the Company's
securities remain outstanding and unchanged thereby, or (3) the
Company shall, or shall agree or become obligated to, sell or
otherwise transfer (or one or more of its subsidiaries shall
sell, or shall agree or become obligated to sell or otherwise
transfer), in one or more transactions, more than 50% of the
assets of the Company and its subsidiaries (taken as a whole) or
assets which, during any of the immediately preceding three
fiscal years, accounted for more than 50% of the net profits or
more than 50% of the gross revenue of the Company and its
subsidiaries (taken as a whole) to any other Person or Persons,
other than the Company or one or more of its wholly-owned
subsidiaries, then, and in any of the cases referred to in this
subsection (a) above, to the extent permitted by applicable law,
the Company shall take such action as will be necessary to
ensure, and will not enter into or consummate any such merger,
consolidation, sale, transfer or other transaction which does not
provide, that each holder of a Right (other than Rights which
have become void pursuant to Section 11(a)(ii) hereof) 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 one one-hundredths of a share of Preferred Stock
for which a Right is then exercisable, in accordance with the
terms of this Agreement and in lieu of shares of Preferred Stock,
such number of shares of Common Stock of the Principal Party (as
such term is hereinafter defined) as shall equal the result
obtained by (A) multiplying the then current Purchase Price by
the number of one one-hundredths of a share of Preferred Stock
for which a Right is then exercisable and dividing that product
by (B) 50% of the then current per share market price of the
shares of Common Stock of the Principal Party (determined pursu-
ant to Section 13(g) hereof) on the date of consummation of such
consolidation, merger, sale, transfer or other transaction. The
Company shall not consummate any consolidation, merger, sale,
transfer or other transaction unless prior thereto the Company
and the other party or parties thereto shall have executed and
delivered to the Rights Agent one or more supplemental agreements
providing the holders of Rights with the foregoing rights and the
other party or parties shall have expressly assumed all
obligations to be incurred by them under this Section 13.
(b) "Principal Party" shall mean: (A) in the case of
any transaction described in clause (1) or (2) of Section 13(a),
the Acquiring Person or other Person (excluding the Company) that
is the other party to the merger or consolidation; or (B) in the
case of any transaction described in Clause (3) of Section 13(a),
the Acquiring Person or other Person (excluding the Company) that
is the other party to such transaction or the largest transaction
or aggregation of transactions in a series of transactions;
provided, however, that if such Principal Party does not have
Common Stock (and therefore by definition is not ultimately
controlled by a Person which has Common Stock), or if any
transaction referred to in Clauses (1) through (3) of Section
13(a) is consummated but the provisions of Section 13(a) cannot
be enforced against or applied to such Principal Party to cause
it to issue the securities at the price called for thereby, then
"Principal Party" shall, for purposes only of any transaction
described in Clause (1) or (2) of Section 13(a), refer to the
Person which survives or results from such merger or
consolidation and, for purposes only of any transaction referred
to in Clause (3) of Section 13(a), refer to the Company.
(c) In every instance in which the obligation to issue
shares or to purchase Rights arising under this Section 13 may be
required to be incurred by the Acquiring Person or any other
Person other than the Company, then this Agreement shall be
construed so as to cause such obligation to be incurred by such
Acquiring Person or other Person and not by the Company.
(d) (i) In the event any Person (other than the
Company but including any Person surviving or resulting from any
transaction referred to in Clause (1) or (2) of Section 13(a))
incurs an obligation to issue shares under this Section 13, and
any rights or warrants with respect to such shares have
previously been distributed and are, at the time such obligation
is incurred, transferable only with such shares, the shares of
such Common Stock shall be delivered together with such rights or
warrants or with rights or warrants having substantially the same
terms as such previously distributed rights or warrants.
(ii) In every instance in which a Person (other than
the Company but including any Person surviving or resulting from
any transaction referred to in Clause (1) or (2) of Section
13(a)) incurs an obligation to issue shares under this Section
13, such Person shall take such steps (including, but not limited
to, the authorization and reservation of a sufficient number of
shares of its Common Stock in the same manner as provided in
Section 9 hereof with respect to Preferred Stock, and compliance
with all applicable requirements under federal or state
securities laws) as may be necessary to assure all holders the
ability to exercise their Rights in full, and shall, in addition,
use its best efforts to remove any legal or contractual
restrictions preventing the fulfillment of its obligations
hereunder, as soon as possible.
(iii) In the event the Company should but for this
subsection be required to issue a given number of shares pursuant
to this Section 13 but (A) does not have as authorized but
unissued shares or as treasury shares the number of shares
otherwise proposed to be issued, or (B) the issuance of said
number of shares to be issued shall require, pursuant to any
applicable law, any rule or regulation made pursuant thereto or
pursuant to any rule or regulation of any stock exchange to which
the Company may be subject, the approval of the shareholders of
the Company, then the Company's obligation to issue said number
of shares shall be reduced to an obligation to issue the greatest
number of shares or fractional shares which (x) is less than one
share per Right and which will comport with the requirements of
law applicable to such issuance, or (y) shall not require the
approval of the shareholders of the Company, as the case may be,
and the purchase price for such shares shall also be reduced pro
rata (the aforesaid reduction in the number of shares and
purchase price being herein called the "Issuance Reduction"), it
being specifically agreed, however, that no Person, other than
the Company, shall be entitled to the reductions permitted by the
Issuance Reduction.
(iv) In the event that any Person (other than the
Company but including any Person surviving or resulting from any
transaction referred to in Clause (1) or (2) of Section 13(a))
incurs the obligation to issue shares contemplated by this
Section 13 but does not fulfill such obligation, the Company may,
by action of the Board of Directors, set off any amounts it may
owe to such Person and distribute such amounts, pro rata, to
holders who have chosen, and taken all available steps, to
exercise their Rights until such Person's obligation to the
holders of Rights shall be fulfilled.
(v) In the event that at any time the holder of a
Right shall become entitled to purchase shares under this Section
13, thereafter the number of such shares so purchasable upon
exercise of such Right shall be subject to adjustment from time
to time in a manner and on terms as nearly as practicable to the
provisions with respect to Preferred Stock contained in Section
11(a) hereof.
(e) The provisions of this Section 13 shall similarly
apply to successive mergers, consolidations or sales or other
transfers.
(f) For the purposes of this Section 13,
"subsidiaries" shall mean any corporations or other entities of
which a majority of the voting power of the equity securities or
equity interests is owned, directly or indirectly, by the
Company.
(g) For the purpose of any computation hereunder, the
"current per share market price" of any security (a "Security")
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 (i) following the announcement by the issuer of
such Security of (x) a dividend or distribution on such Security
payable in shares of such Security or securities convertible into
shares of such Security, or (y) any subdivision, combination or
reclassification of such Security, and (ii) prior to the
expiration of 30 Trading Days after the ex-dividend date for such
dividend or distribution, or the record date for such
subdivision, combination or reclassification, then, and in each
such case, the "current per share market price" shall be properly
adjusted to take into account ex-dividend trading; and provided
further however, that if during any 30 Trading Day period with
respect to which current per share market price of Common Stock
is determined, any rights or warrants theretofore transferable
only with such Common Stock are detached and transferable
separately, the current per share market price of Common Stock on
such date will be deemed to be the average of the daily closing
prices per share of such Common Stock for the remainder of such
30 days occurring after such detachment. The closing price for
each day shall be the last sale price or, in case no such sale
takes place on such day, the average of the closing bid and asked
prices 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 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. If on
any such date no market maker is making a market in the Security,
the fair value of such Security on such date, as determined
reasonably and with good faith by the Board of Directors, shall
be used. 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.
Section 14. Depositary Receipts. Notwithstanding any
other provision of this Agreement, the Company may (i) deposit
Preferred Stock or Common Stock, as the case may be, pursuant to
a depository arrangement and issue depository receipts rather
than issuing fractional shares of such Preferred Stock or Common
Stock, as the case may be, (ii) issue scrip rather than issuing
fractional shares of Preferred Stock or Common Stock, as the case
may be, or (iii) take such other action and exercise such other
alternatives with respect to fractional shares of its Preferred
Stock or Common Stock as are permitted pursuant to Section 500 of
the New York Business Corporation Law or any other provisions of
applicable law.
Section 15. Rights of Action. All rights of action in
respect of this Agreement are vested in the respective registered
holders of the Right Certificates (and, prior to the Distribution
Date, the registered holders of the Common Stock); and any
registered holder of any Right Certificate (or, prior to the
Distribution Date, of the Common Stock), 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 Stock), may,
on such holder's own behalf and for such holder's own benefit,
enforce, and may institute and maintain any suit, action or
proceeding against the Company or against any other Person as to
which a right of action may exist 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 shall be entitled to specific performance of the obligations
hereunder and injunctive relief against actual or threatened
violations of the obligations hereunder of any Person subject to
or bound by 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 Common
Stock;
(b) after the Distribution Date, the Right
Certificates are transferable only on the registry books of the
Rights Agent and then only if surrendered at the office of the
Rights Agent, 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 a Right Certificate (or, prior to
the Distribution Date, the associated Common Stock certificate)
is registered as the absolute owner thereof and of the Rights
evidenced thereby (notwithstanding any notations of ownership or
writing on the Right Certificates or the associated Common Stock
certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary.
Section 17. Right Certificate Holder Not Deemed a
Stockholder. No holder, as such, of any Right Certificate shall
be entitled to receive dividends or be deemed for any purpose the
holder of the shares of Preferred Stock or any other securities
of the Company which may at any time be issuable on the exercise
of the Rights represented thereby, nor shall anything contained
herein or in any Right Certificate be construed to confer upon
the holder of any Right Certificate, as such, any of the rights
of a shareholder of the Company or any right to vote for the
election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold
consent to any corporate action, or to receive notice of meetings
or other actions affecting shareholders (except as provided in
Section 25 hereof), 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.
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 incurred in
the exercise and performance of its duties under this Agreement.
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 wilful 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 Preferred Stock or, in connection herewith, 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.
Section 19. Merger or Consolidation or Change of Name
of Rights Agent. Any corporation into which the 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 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 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.
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 (including, without limitation,
the identity of any Acquiring Person) 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 the Chairman of
the Board, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant 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 only
for its own negligence, bad faith or wilful 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 as to 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
adjustment required under the provisions of Section 11 or 13
hereof or responsible for the manner, method or amount of any
such adjustment or the ascertaining of the existence of facts
that would require any such adjustment (except with respect to
the exercise of Rights evidenced by Right Certificates after
actual notice of any such adjustment); nor shall it by any act
hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of Preferred Stock
to be issued pursuant to this Agreement or any Right Certificate
or as to whether any shares of Preferred Stock will, when so
issued, be validly authorized and issued, fully paid and non-
assessable.
(f) The Company agrees that it will perform, execute,
acknowledge and deliver or cause to be performed, executed,
acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the
Rights Agent for the carrying out or performing by the Rights
Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its
duties hereunder from the Chairman of the Board, the President,
any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant 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 to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The Rights Agent and any stockholder, 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 the Company or, consistent
with its obligation to the Company hereunder, 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 any other legal
entity.
Section 21. Change of Rights Agent. The Rights Agent
or any successor Rights Agent may resign and be discharged from
its further duties under this Agreement upon 30 days' notice in
writing mailed to the Company, and to each transfer agent of the
Preferred Stock (if any), by registered or certified mail, and by
giving public notice of such resignation, and if required by law,
giving notice 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 Stock (if any) by
registered or certified mail, and by giving public notice of any
such removal and, if required by law, giving notice 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 a corporation organized
and doing business under the laws of the United States or of any
state of the United States, in good standing, which is authorized
under such laws to exercise corporate trust powers and is subject
to supervision or examination by Federal or state authority and
which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $5,000,000 or such
lesser amount as the Board of Directors shall determine. 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, or
thereafter acquired, 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
Preferred Stock (if any), and give public notice of such
appointment and, if required by law, 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 the Board of Directors to reflect any adjustment or
change made in accordance with the provisions of this Agreement.
Section 23. Redemption and Termination.
(a) The Company may, at its option, upon action of the
Board of Directors, at any time prior to such time as any Person
becomes an Acquiring Person, redeem all but not less than all the
Rights at a redemption price of $.01 per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption
price being hereinafter referred to as the "Redemption Price").
The redemption of the Rights by the Board of Directors 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.
(b) Except as otherwise may be required by applicable
law, immediately upon the action of the Board of Directors
ordering the redemption of the Rights, evidence of which shall
have been filed with the Rights Agent, and without any further
action and without any notice, the right to exercise the Rights
will terminate and the only right thereafter of the holders of
Rights shall be to receive the Redemption Price. Within fifteen
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 Common Stock. 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. The Company shall also promptly
give public notice of any such redemption; provided, however,
that the failure to give, or any defect in, any such notice shall
not affect the validity of such redemption.
(c) Payment of the Redemption Price will only be made
upon surrender of the Right Certificate (if after the
Distribution Date). If redemption is made prior to the
Distribution Date, payment of the Redemption Price will be made
to the holders of Common Stock on the date fixed for redemption,
as reflected on the registry books of the transfer agent for the
Common Stock.
Section 24. Exchange. (a) The Board of Directors
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 Stock at an exchange ratio of one share of
Common Stock per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring
after the date hereof (such exchange ratio being hereinafter
referred to as the "Exchange Ratio"). Notwithstanding the
foregoing, the Board of Directors shall not be empowered to
effect such exchange at any time after any Person (other than the
Company, any subsidiary of the Company, any employee benefit plan
of the Company or any such subsidiary, or any entity holding
shares of Common Stock for or pursuant to the terms of any such
plan or any Shore Affiliate), together with all Affiliates and
Associates of such Person, becomes the Beneficial owner of 50% or
more of the Common Stock then outstanding.
(b) Immediately upon the action of the Board of
Directors ordering the exchange of any Rights pursuant to
paragraph (a) of this Section 24 and without any further action
and without any notice, the right to exercise such Rights shall
terminate and the only right thereafter of a holder of such
Rights shall be to receive that number of shares of Common Stock
equal to the number of such Rights held by such holder multiplied
by the Exchange Ratio. The Company shall promptly give public
notice of any such exchange; provided, however, that the failure
to give, or any defect in, such notice shall not affect the
validity of such exchange. The Company promptly shall mail a
notice of any such exchange to all of the holders of such Rights
at their last addresses as they appear upon the registry books of
the Rights Agent. Any notice which is mailed in the manner
herein provided shall be deemed given, whether or not the holder
receives the notice. Each such notice of exchange will state the
method by which the exchange of the Common Stock for Rights will
be effected and, in the event of any partial exchange, the number
of Rights which will be exchanged. Any partial exchange shall be
effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of
Section 11(a)(ii) hereof) held by each holder of Rights.
(c) In the event that there shall not be sufficient
Common Stock issued but not outstanding or authorized but
unissued to permit any exchange of Rights as contemplated in
accordance with this Section 24, the Company shall take all such
action as may be necessary to authorize additional Common Stock
for issuance upon exchange of the Rights. In the event the
Company shall, after good faith effort, be unable to take all
such action as may be necessary to authorize such additional
Common Stock, the Company shall substitute, for each share of
Common Stock that would otherwise be issuable upon exchange of a
Right, a number of shares of Preferred Stock or fraction thereof
such that the current per share market price of one share of
Preferred Stock multiplied by such number or fraction is equal to
the current per share market price of one share of Common Stock
as of the date of issuance of such shares of Preferred Stock or
fraction thereof.
(d) The Company shall not be required to issue
fractions of shares of Common Stock or to distribute certificates
which evidence fractional shares of Common Stock. In lieu of
such fractional shares of Common Stock, the Company shall pay to
the registered holders of the Right Certificates with regard to
which such fractional shares of Common Stock would otherwise be
issuable an amount in cash equal to the same fraction of the
current market value of a whole share of Common Stock. For the
purposes of this paragraph (d), the current market value of a
whole share of Common Stock shall be the closing price of a share
of Common Stock (as determined pursuant to the second sentence of
Section 13(g) hereof) for the Trading Day immediately prior to
the date of exchange pursuant to this Section 24.
Section 25. Notice of Certain Events After the
Distribution Date. In case after the Distribution Date any of
the events set forth in Section 13(a) of this Agreement shall
occur, then, in any such case, 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 shall specify the event and
the consequences of the event to holders of Rights under Section
13 hereof.
The failure to give the notice required by this Section
25 or any defect therein shall not affect the legality or
validity of the action taken by the Company or the vote upon any
such action.
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:
Park Electrochemical Corp.
5 Dakota Drive
Lake Success, New York 11042
Subject to the provisions of Section 21, any notice or demand
authorized by this Agreement to be given or made by the Company
or by the holder of any Right Certificate to or on the Rights
Agent shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed
in writing with the Company) as follows:
Registrar and Transfer Company
10 Commerce Drive
Cranford, New Jersey 07016
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 (and, prior to the Distribution Date, the
holder of any Rights) shall be sufficiently given or made if sent
by first-class mail, postage prepaid, addressed to such holder of
any Right Certificates at the address of such holder as shown on
the registry books of the Company or the Rights Agent (and, prior
to the Distribution Date, addressed to the holder at the address
of such holder as shown on the stock transfer books maintained by
the Company's transfer agent).
Section 27. Supplements and Amendments. The Company,
by action of the Board of Directors, and the Rights Agent may
from time to time supplement, or amend this Agreement, the Rights
and the Right Certificates without the approval of any holders of
Rights or 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, add, delete or change any other provisions hereunder which
the Board of Directors and the Rights Agent may deem necessary or
desirable and which shall not materially adversely affect the
interest of the holders of Rights or Right Certificates, as
determined in good faith by the Board of Directors.
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 any Person other than
the Company, the Rights Agent and the registered holders of the
Right Certificates (and, prior to the Distribution Date, the
Common Stock) any legal or equitable right, remedy or claim under
this Agreement; but this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the
registered holders of the Right Certificates (and, prior to the
Distribution Date, the Common Stock).
Section 30. Severability. If any term, provision,
covenant, right, obligation, directive, requirement or
restriction of this Agreement is held by a court of competent
jurisdiction or other binding authority to be invalid, unlawful,
tolled, limited, void or unenforceable for any reason whatsoever,
the remainder of the terms, provisions, covenants, rights,
obligations, directives, requirements and restrictions of this
Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, it being
specifically agreed that all such remaining items are fully
severable, separate, distinct and enforceable.
Section 31. Governing Law. This Agreement and each
Right Certificate issued hereunder shall be deemed to be a
contract made under the laws of the State of New York and for all
purposes shall be governed by and construed and enforced in
accordance with the laws of such State applicable to contracts to
be made and performed entirely within such State and without
reference to concepts of conflicts of law.
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.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
Attest: Park Electrochemical Corp.
By By
Name: Name:
Title: Title:
Attest: Registrar & Transfer Company
By By
Name: Name:
Title: Title:<PAGE>
EXHIBIT A
CERTIFICATE OF AMENDMENT
of the
CERTIFICATE OF INCORPORATION
of
PARK ELECTROCHEMICAL CORP.
(Under Section 805 of the Business Corporation Law)
It is hereby certified that:
FIRST: The name of the Corporation is PARK
ELECTROCHEMICAL CORP. and the name under which the Corporation
was formed was PARK NAME PLATE INC.
SECOND: The Certificate of Incorporation of the
Corporation was filed with the Department of State of the State
of New York on March 31, 1954. The Restated Certificate of
Incorporation of the Corporation was filed by the Department of
State of the State of New York on April 10, 1989.
THIRD: The amendment of the Certificate of
Incorporation effected by this Certificate of Amendment is to
amend certain provisions in the Certificate of Incorporation
relating to the relative rights, preferences and limitations of
the shares of a series of Preferred Stock, as fixed by the Board
of Directors pursuant to authority expressly vested in them in
the Certificate of Incorporation.
FOURTH: To accomplish the foregoing amendment, Section
6 of Article IV of the Certificate of Incorporation shall be
deleted and a new Section 6 shall be added to Article IV of the
Certificate of Incorporation which shall read as follows:
"The Board of Directors has authorized a series of
Preferred Stock which series shall be designated as
Series A Preferred Stock (the "Series A Preferred
Stock") and the number of shares constituting such
series shall be 300,000.
(a) The holders of record of shares of Series A
Preferred Stock shall be entitled to receive, when, as
and if declared by the Board of Directors or a duly
authorized committee thereof out of funds legally
available for the purpose, dividends in cash at the
rate per share of 5% per annum (calculated as a
percentage of the liquidation value per share of $100).
Dividends shall be payable quarterly, on the dates on
which a quarterly dividend or distribution on the
Common Stock, $.10 par value per share ("Common Stock")
of the Corporation is payable (other than a dividend
payable in Common Stock) (each such date being referred
to herein as a "Dividend Payment Date"), commencing on
the first Dividend Payment Date after the first
issuance of a share or fraction of a share of Series A
Preferred Stock, or, if no such dividends on the Common
Stock are payable, then on such quarterly dates
designated by the Board of Directors or a duly
authorized committee thereof. To the extent the Board
of Directors or a duly authorized committee thereof
does not declare the full 5% dividend or, if so
declared, such dividend is not fully paid in cash, the
amount not so declared or paid shall accumulate as
provided in paragraph (b) of this Section 6. The Board
of Directors or a duly authorized committee thereof may
fix a record date for the determination of holders of
shares of Series A Preferred Stock entitled to receive
payment of a dividend declared thereon, which record
date shall be not less than 10 days nor more than 50
days prior to the date fixed for the payment thereof.
(b) Dividends on the outstanding share of Series
A Preferred Stock shall be cumulative from the date of
issue of such shares. Accrued dividends, whether or
not declared, that are not paid shall compound
quarterly at 5% per annum until the date of payment of
such dividends. The amounts with respect to such
compounding shall also constitute accrued dividends.
Accumulated but unpaid dividends may be declared and
paid at any time, without reference to any regular
Divided Payment Date, to holders of record on such
date, not less than 10 days nor more that 50 days
preceding the payment date thereof, as may be fixed by
the Board of Directors of the Corporation of a duly
authorized committee thereof.
(c) So long as any of the shares of Series A
Preferred Stock are outstanding, no dividends shall be
paid or declared, nor any distribution be made, on the
Common Stock, or any other security junior to the
Series A Preferred Stock, other than a dividend payable
in Common Stock or such other junior security, nor
shall any shares of Common Stock, or any other security
junior to the Series A Preferred Stock, be acquired for
consideration by the Corporation, unless all dividends
on the Series A Preferred Stock for all past dividend
dates shall have been paid and the full dividends
thereon for the most recent dividend date shall have
been paid, or declared and a sum sufficient for the
payment thereof set apart. Subject to the foregoing
provisions, dividends on the Common Stock (payable in
cash, stock or otherwise) as may be determined by the
Board of Directors may be declared and paid from time
to time out of the remaining funds legally available
for the payment of dividends, and the Series A
Preferred Stock shall not be entitled to participate in
any such dividends, whether payable; in cash, stock or
otherwise.
(d) The holders of record of shares of Series A
Preferred Stock shall not be entitled to any voting
rights, except as otherwise provided by law.
(e) The shares of Series A Preferred Stock shall
not be redeemable.
(f) In the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs
of the Corporation, the holders of shares of Series A
Preferred Stock then outstanding shall be entitled to
be paid out of the assets of the Corporation available
for distribution to its stockholders an amount in cash
equal to the greater of (i) $100 for each whole share
outstanding or (ii) an aggregate amount for each whole
share outstanding equal to 100 times the aggregate
amount distributable per share with respect to the
Common Stock; such amount in either case to be reduced
pro rata for any fractional shares outstanding, plus an
amount in cash equal to all accrued by unpaid dividends
thereon (as provided in paragraphs (a), (b) and (c) of
this Section 6 above) to the date fixed for
liquidation, dissolution or winding up before any
payment shall be made or any assets distributed to the
holders of any shares of Common Stock or to the holders
of any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding
up) to the Series A Preferred Stock. If the assets of
the Corporation are not sufficient to pay in full the
liquidation payments payable to the holders of
outstanding shares of Series A Preferred Stock, then
the holders of all such shares shall share ratably in
such distribution of assets in accordance with the
amount which would be payable on such distribution if
the amounts to which the holders of outstanding shares
of Series A Preferred Stock are entitled were paid in
full.
(g) For the purposes of this Section 6, neither
the voluntary sale, conveyance, exchange or transfer
(for cash, shares of stock, securities or other
consideration) of all or substantially all the property
or assets of the Corporation nor the consolidation or
merger of the Corporation with one or more other
corporations shall be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary,
unless such voluntary sale, conveyance, exchange or
transfer shall be in connection with a dissolution or
winding up the business of the Corporation.
(h) The Series A Preferred Stock shall be pari
passu to all other series of the Corporation's
Preferred Stock as to the payment of dividends and the
distribution of assets, except to the extent a series
is made junior or subordinate to the Series A Preferred
Stock.
(i) Each fractional share of the Series A
Preferred Stock outstanding shall be entitled to a
ratably proportionate amount of all rights relating to
the shares of the Series A Preferred Stock, including
dividend and voting rights. The liquidation payment or
redemption payment with respect to each fractional
share of Series A Preferred Stock shall be equal to a
ratably proportionate amount of the liquidation payment
or redemption payment with respect to each outstanding
share of Series A Preferred Stock.
FIFTH: The foregoing amendment of the Certificate of
Incorporation of the Corporation was authorized by the vote at a
meeting of the Board of Directors of the Corporation.
IN WITNESS WHEREOF, we have executed and subscribed
this Certificate and do affirm the foregoing as true under the
penalties of perjury as of the this 7th day of August, 1995.
_____________________________
_____________________________
EXHIBIT B
FORM OF RIGHT CERTIFICATE
Certificate No. R- __________ Rights
NOT EXERCISABLE AFTER JULY 12, 2005 OR EARLIER IF REDEMPTION
OR EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION,
AND TO EXCHANGE AT THE OPTION OF THE COMPANY ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN CIRCUMSTANCES,
AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS OWNED BY ANY
PERSON WHO IS OR BECOMES AN ACQUIRING PERSON (AS DEFINED IN
THE RIGHTS AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH
RIGHTS MAY BE LIMITED.
Right Certificate
Park Electrochemical Corp.
This certifies that ___________, or registered
assigns, is the registered owner of the number of Rights set
forth above, each of which entitles such registered owner,
subject to the terms, provisions and conditions of the
Amended and Restated Rights Agreement dated as of July 12,
1995 (the "Rights Agreement") between Park Electrochemical
Corp. a New York corporation (the "Company"), and Registrar &
Transfer Company (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.
(New York City time) on July 12, 2005 at the office of the
Rights Agent, or its successors as Rights Agent, in Cranford,
New Jersey, one one-hundredth of a fully paid, nonassessable
share of the Series A Preferred Stock (the 'Preferred Stock')
of the Company, at a purchase price of $150.00 (the "Purchase
Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase on the
reverse hereof duly executed. The number of Rights evidenced
by this Right Certificate (and the number of one one-
hundredths of a share which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per one one-
hundredth of a share of Preferred Stock set forth above, are
the number and Purchase Price as of July 12, 1995 based on
the Preferred Stock as constituted at such date.
As provided in the Rights Agreement, the Purchase
Price and the number of shares of Preferred Stock which may
be purchased upon the exercise of the Rights evidenced by
this Right Certificate are subject to modification and
adjustment upon the happening of certain events.
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 or rights obligations,
duties and immunities hereunder of the Rights Agent, the
Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the executive offices of
the Company and are also available upon written request to
the Company.
This Right Certificate, with or without other Right
Certificates, upon surrender at the office 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
shares of Preferred Stock as the Rights evidence 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
Rights Certificates for the number of whole Rights not
exercised. A Right may be exercised only once, regardless of
the purpose of such exercise.
Subject to the provisions of the Right Agreement,
the Rights evidenced by this Certificate (1) may be redeemed
by the Company at its option at a redemption price of $.01
per Right or (2) may be exchanged by the Company in whole or
in part for shares of the Company's Common Stock.
No holder of this Right Certificate shall be deemed
for any purpose the holder of shares of Preferred Stock or of
any other securities of the Company which may at any time be
issuable on the exercise hereof, nor shall anything contained
in the Rights Agreement or herein be construed to confer upon
the holder hereof, as such, any of the rights of a
stockholder of the Company, including any right to receive
notice of meetings or other actions affecting stockholders
(except as provided in the Rights Agreement), or to receive
dividends, until the Right or Rights evidenced by this Right
Certificate shall have been exercised as provided in the
Rights Agreement and then only to the extent therein
provided.
This Right Certificate shall not be valid or
obligatory for any purpose until it shall have been
countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper
officers of the Company and its corporate seal.
Dated as of _______, ____
ATTEST: Park Electrochemical Corp.
By:_____________________
By:_________________________ Secretary
Chairman of the Board
Countersigned:
Registrar & Transfer Company
By:__________________________
Authorized Signature<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer this 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
and of the Rights Agent, with full power of substitution.
Dated:__________, ____
______________________________
Signature
NOTICE
The signature on the foregoing Form of Assignment
must correspond to the name as written upon the face of this
Right Certificate in every particular, without alteration or
enlargement or any change whatsoever.
<PAGE>
[On Reverse Side of Right Certificate]
FORM OF ELECTION TO PURCHASE
(To be executed by the registered holder if
such holder desires to exercise the Rights
represented by the certificate to
Purchase Preferred Stock.)
To the Rights Agent:
The undersigned hereby irrevocably elects to
exercise ______________ Rights represented by this Right
Certificate to purchase the shares of Preferred Stock
issuable upon the exercise of such Rights and requests that
certificates for such shares of Preferred Stock 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 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: ________________, ____
Signature
<PAGE>
NOTICE
The signature on the foregoing Form of Election to
Purchase must correspond to the name as written upon the face
of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.
<TABLE>
EXHIBIT NO. 11.01
PARK ELECTROCHEMICAL CORP.
AND SUBSIDIARIES
COMPUTATION OF FULLY DILUTED EARNINGS PER COMMON SHARE
(Unaudited - in thousands, except per share data)
<CAPTION>
13 weeks ended 26 weeks ended
August 27, August 28, August 27, August 28,
1995 1994 1995 1994
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
ADJUSTMENT OF NET EARNINGS:
Net earnings before
adjustment $ 5,366 $ 3,756 $11,390 $ 7,426
Adjustments resulting from
assumed conversion of 7 1/4%
Convertible Subordinated
Debentures:
Reduction of interest expense
and amortization of deferred
debt financing costs - - - 389
Related tax effect of above - - - (136)
------- ------- ------- --------
Net earnings as adjusted $ 5,366 $ 3,756 $11,390 $ 7,679
======= ======= ======= ========
ADJUSTMENT OF WEIGHTED AVERAGE
NUMBER OF COMMON SHARES
OUTSTANDING:
Weighted average number of
common shares outstanding 11,478 11,344 11,463 10,312
Additional shares assuming:
Conversion of Convertible
Subordinated Debentures - - - 1,008
Exercise of Stock Options 351 200 351 192
------- ------- ------- --------
Adjusted weighted average number
of common shares outstanding
during the period 11,829 11,544 11,814 11,512
======= ======= ======= ========
Earnings per share fully
diluted $ .45 $ .33 $ .96 $ .67
======= ======= ======= ========
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
financial statements of Park Electrochemical Corp. and is qualified in it
entirety by reference to such financial statements.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-03-1996
<PERIOD-END> AUG-27-1995
<CASH> 18,046
<SECURITIES> 23,199
<RECEIVABLES> 36,635
<ALLOWANCES> 0
<INVENTORY> 21,767
<CURRENT-ASSETS> 103,627
<PP&E> 139,002
<DEPRECIATION> 68,096
<TOTAL-ASSETS> 176,480
<CURRENT-LIABILITIES> 47,037
<BONDS> 0
<COMMON> 1,358
0
0
<OTHER-SE> 121,043
<TOTAL-LIABILITY-AND-EQUITY> 176,480
<SALES> 145,349
<TOTAL-REVENUES> 146,468
<CGS> 112,423
<TOTAL-COSTS> 128,910
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 17,558
<INCOME-TAX> 6,168
<INCOME-CONTINUING> 11,390
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,390
<EPS-PRIMARY> $.97
<EPS-DILUTED> $.96<F1>
<FN>
<F1>On July 12, 1995 the Company's Board of Directors voted a two-for-one stock
split in the form of a 100% common stock dividend. The stock dividend was
distributed on August 15, 1995 to stockholders of record on July 24, 1995. All
share and per share data for prior periods have been retroactively restated to
reflect the stock split. Accordingly, the earnings per share amounts above
reflect the impact of the stock split.
</FN>
</TABLE>
