Exhibit 4.3
SECOND AMENDMENT
to the
PREFERRED SHARES RIGHTS AGREEMENT
between
GLENAYRE TECHNOLOGIES, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
This Second Amendment (this "Amendment") to the Preferred Shares Rights
Agreement is made and entered into as of June 2, 2000 between GLENAYRE
TECHNOLOGIES, INC., a Delaware corporation (the "Company"), and AMERICAN STOCK
TRANSFER & TRUST COMPANY, as Rights Agent (the "Rights Agent").
R E C I T A L S
WHEREAS, the Company and the Rights Agent entered into the Preferred
Shares Rights Agreement dated as of May 21, 1997, as amended as of January 14,
1999 (as amended, modified, restated or supplemented from time to time, the
"Rights Agreement"); and
WHEREAS, Section 27 of the Rights Agreement provides that prior to the
Distribution Date (as defined in the Rights Agreement), the Company may
supplement or amend the Rights Agreement in any respect without the approval of
any holders of Rights; and
WHEREAS, pursuant to a request by the State of Wisconsin Investment
Board (SWIB") in January 1999, the Rights Agreement was amended to exclude SWIB,
for the period from January 14, 1999 through January 14, 2000, from the
definition of Acquiring Person until such time as SWIB became the Beneficial
Owner of a percentage of the Common Shares of the Company then outstanding which
equals or exceeds 20% and as a result of such amendment, SWIB will now not
become an Acquiring Person until such time as SWIB's percentage of the
outstanding Common Shares equals or exceeds 16%;
WHEREAS, SWIB has requested that the Company again amend the Rights
Agreement to exclude SWIB from the definition of Acquiring Person until such
time as SWIB becomes the Beneficial Owner of a percentage of the Common Shares
of the Company then outstanding which equals or exceeds 20%; and
WHEREAS, pursuant to its letter dated June 1, 2000 requesting this
Amendment and in consideration of such Amendment, SWIB has reconfirmed that it
will not seek election or placement of a representative of SWIB on the Company's
Board of Directors while SWIB is the Beneficial Owner of 15% or more of the
outstanding Common Shares of the Company; and
WHEREAS, the Company, with the approval of the Board of Directors of
the Company, has determined to modify the terms of the Rights Agreement in
certain respects as set forth
<PAGE>
herein, and in connection therewith, is entering into this Amendment and
directing the Rights Agent to enter into this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Effect of Amendment. Except as expressly provided herein, the Rights
Agreement shall be and remain in full force and effect.
2. Capitalized Terms. All capitalized, undefined terms used in this
Amendment shall have the meanings assigned thereto in the Rights Agreement.
3. Amendment to Definitions. The following definitions contained in
Section 1 of the Rights Agreement are hereby deleted in their entirety and
amended to read as follows:
"ACQUIRING PERSON" shall mean any Person who, itself or
together with all Affiliates and Associates of such Person, shall be the
Beneficial Owner of 15% or more of the Common Shares then outstanding, but shall
not include the Company, any Subsidiary of the Company, SWIB unless and until
SWIB shall have become the Beneficial Owner of a percentage of Common Shares
then outstanding which equals or exceeds the SWIB Percentage at which such time
SWIB shall be an Acquiring Person, or any employee benefit plan of the Company
or of any Subsidiary of the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person
shall be deemed to be an Acquiring Person: (i) as the result of an acquisition
of Common Shares 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, in the case of SWIB, to a percentage equal to or
greater than the SWIB Percentage) of the Common Shares of the Company then
outstanding; provided, that if a Person shall become the Beneficial Owner of 15%
or more (or, in the case of SWIB, of a percentage equal to or greater than the
SWIB Percentage) of the Common Shares of the Company then outstanding by reason
of share purchases by the Company and shall, after such share purchases by the
Company, become the Beneficial Owner of any additional Common Shares of the
Company, then such Person shall be deemed to be an Acquiring Person, or (ii) if
within eight (8) days after such Person would otherwise become an Acquiring
Person (but for the operation of this clause (ii)), such Person notifies the
Board of Directors that such Person did so inadvertently and within two (2) days
after such notification, such Person is the Beneficial Owner of less than 15%
(or, in the case of SWIB, of a percentage less than the SWIB Percentage) of the
outstanding Common Shares.
"DISTRIBUTION DATE" shall mean the earlier of (i) the Close of
Business on the tenth day (or such later date as may be determined by action of
a majority of the members of the Board of Directors then in office) after the
Shares Acquisition Date (or, if the tenth day after the Shares Acquisition Date
occurs before the Record Date, the Close of Business on the Record Date) or (ii)
the Close of Business on the tenth day (or such later date as may be determined
by action of a majority of the members of the Board of Directors then in office)
after the date that a tender or exchange offer by any Person (other than the
Company, any Subsidiary of the Company, SWIB unless and until SWIB shall have
become the Beneficial Owner of a percentage of Common Shares
2
<PAGE>
then outstanding which equals or exceeds the SWIB Percentage, any employee
benefit plan of the Company or of any Subsidiary of the Company, or any Person
or entity organized, appointed or established by the Company for or pursuant to
the terms of any such plan) is first published or sent or given within the
meaning of Rule 14d-2(a) of the General Rules and Regulations under the Exchange
Act, if, assuming the successful consummation thereof, such Person would be the
Beneficial Owner of 15% or more (or, in the case of SWIB, of a percentage equal
to or greater than the SWIB Percentage) of the shares of Common Stock then
outstanding.
"SWIB PERCENTAGE" shall mean 20% to and including June 15,
2001 at which time the SWIB Percentage shall be reduced to (i) 16% if SWIB is
not the Beneficial Owner of 16% or more of the Common Shares of the Company
outstanding at the close of business on June 15, 2001 or (ii) if SWIB is the
Beneficial Owner of 16% or more of the Common Shares of the Company outstanding
at the close of business on June 15, 2001, the next highest whole percentage in
excess of the percentage of Common Shares of the Company then outstanding
beneficially owned by SWIB (but in no event more than 20%).
"TRIGGERING EVENT" shall mean an event pursuant to which any
Person (other than the Company, any Subsidiary of the Company, SWIB unless and
until SWIB shall have become the Beneficial Owner of a percentage of Common
Shares then outstanding which equals or exceeds the SWIB Percentage, any
employee benefit plan of the Company or any Subsidiary of the Company, or any
entity holding Common Shares for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes an Acquiring
Person.
4. Effective Date. This Amendment shall become effective as of the date
first above written but such effectiveness is contingent upon (a) the execution
of this Amendment by the Company; (b) delivery of a certificate from an
appropriate officer of the Company stating that this Amendment is in compliance
with Section 27 of the Rights Agreement; and (c) the execution and delivery of
this Amendment by the Rights Agent.
5. Governing Law. This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware without reference
to the conflicts or choice of law principles thereof.
6. Counterparts. This Amendment may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
7. Fax Transmission. A facsimile, telecopy or other reproduction of
this Amendment may be executed by one or more parties hereto, and an executed
copy of this Amendment may be delivered by one or more parties hereto by
facsimile or similar instantaneous electronic transmission device pursuant to
which the signature of or on behalf of such party can be seen, and such
execution and delivery shall be considered valid, binding and effective for all
purposes. At the request of any party hereto, all parties hereto agree to
execute an original of the Amendment as well as any facsimile, telecopy or other
reproduction thereof.
3
<PAGE>
IN WITNESS WHEREOF, the Company and the Rights Agent have caused this
Amendment to be duly executed as of the day first above written.
GLENAYRE TECHNOLOGIES, INC.
By s/ Bert C. Klein
------------------------------
Name Bert C. Klein
Title Chief Financial Officer
AMERICAN STOCK TRANSFER
& TRUST COMPANY, as Rights Agent
By s/ Herbert J. Lemmer
------------------------------
Name Herbert J. Lemmer
Title Vice President
4
