<PAGE>
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report: August 27, 1997
PROTEIN POLYMER TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
DELAWARE 0-19724 33-0311631
<S> <C> <C>
(State or other jurisdiction of (Commission (IRS Employer Identification No.)
incorporation or organization) File Number)
</TABLE>
10655 SORRENTO VALLEY ROAD
SAN DIEGO, CALIFORNIA 92121
(Address of Principal Executive Offices) (Zip Code)
(619) 558-6064
(Registrant's telephone number, including area code)
================================================================================
<PAGE>
Item 5. Other Events.
------------
Stockholder Protection Measures.
-------------------------------
On August 22, 1997, the Board of Directors of the Company declared a
dividend distribution of one right (a "Right") to purchase a certain number of
units (determined by a formula described herein) for each outstanding share of
common stock, $.01 par value per share (the "Common Stock") and Series D
Preferred Stock, $.01 per value per share (the "Series D Preferred Stock"), of
the Company at a purchase price of $8.00, subject to adjustment (the "Exercise
Price"). Each unit is equal to one one-hundredth of a share of a newly
designated Series X Junior Participating Preferred Stock (the "Series X
Preferred Stock") of the Company.
The distribution will be payable to stockholders of record as of the
close of business on September 10, 1997 (the "Record Date"). The Board of
Directors of the Company further declared that one Right be distributed with
each share of Common Stock and each share of Series D Preferred Stock of the
Company issued after the Record Date but prior to the Separation Time (as
defined below) or the earlier expiration, exchange, redemption or termination of
the Rights. The description and terms of the Rights are set forth in a
Stockholder Protection Agreement, dated as of August 22, 1997 (the "Rights
Agreement"), between the Company and Continental Stock Transfer & Trust Company,
as Rights Agent (the "Rights Agent"). The description of the Rights and of the
Rights Agreement contained herein is only a summary, and is qualified in its
entirety by reference to the Rights Agreement, a copy of which has been filed as
an exhibit to this Form 8-K.
Initially, the Rights will be attached to the Common Stock and Series
D Preferred Stock then outstanding, and no separate certificates evidencing the
rights ("Rights Certificates") will be issued. The Rights will separate from
the Common Stock and Series D Preferred Stock, Rights Certificates will be
issued and the Rights will become exercisable upon the earlier to occur of 10
business days (or such later date as may be determined by action of the Board of
Directors prior to the Separation Time) following the earlier to occur of (i) a
public announcement or resolution of the Board of Directors recognizing that a
person or group of affiliated or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership of 15% or more
of the outstanding shares of Common Stock, or (ii) the commencement or
announcement of an intention to make a tender or exchange offer for Common Stock
of the Company the consummation of which would result in the beneficial
ownership by a person or group of affiliated or associated persons of 15% or
more of such outstanding Common Stock (the earlier of such dates being referred
to as the "Separation Time"). However, a person or group of affiliated or
associated persons who acquires the beneficial ownership of 15% or more of the
Common Stock then outstanding either (i) by reason of share purchases by the
Company reducing the number of Common Stock outstanding, or (ii) inadvertently,
if such person or group notifies the Board of Directors of such inadvertent
purchase within five business days and within two business days after such
notice divests itself of enough Common Stock so as to no longer have beneficial
ownership of 15% or more of the outstanding Common Stock, will not be an
Acquiring Person. Pursuant to the terms of the Rights Agreement, certain types
of institutional investors, as well as designated minority and strategic
investors, will not be an Acquiring Person unless such investor (i) acquires,
(ii) attains the right to acquire or (iii) announces or commences a tender or
exchange offer to acquire beneficial ownership of in excess of that percentage
expressly permitted in writing by the Board of Directors up to 24% for
institutional or strategic investors and up to 30% for minority investors of the
outstanding Common Stock.
<PAGE>
The Rights Agreement provides that, until the Separation Time, the
Rights will be evidenced only by the certificates evidencing, and will be
transferred only with, the Common Stock or Series D Preferred Stock. Until the
Separation Time, new Common Stock and Series D Preferred Stock certificates
issued after the Record Date will contain a notation incorporating the Rights
Agreement by reference. Until the Separation Time, the surrender for transfer,
conversion or exchange of any certificates for Common Stock or Series D
Preferred Stock outstanding on or after the Record Date, even without such
notation, will also constitute the transfer of the Rights associated with the
Common Stock and Series D Preferred Stock represented by such certificates.
Immediately prior to the Separation Time the Rights associated with any
outstanding shares of Series D Preferred Stock will be converted into that
number of Rights to which the holders of such shares would have been entitled
had they converted the Series D Preferred Stock immediately prior to the
Separation Time. As soon as practicable following the Separation Time, separate
Rights Certificates will be mailed to holders of record of the Common Stock and
Series D Preferred Stock as of the close of business on the Separation Time, and
such separate Rights Certificates alone will evidence the Rights.
The Rights are not exercisable until the Separation Time. The Rights
will expire at the close of business on September 9, 2007, unless earlier
redeemed, exchanged or terminated as provided below.
Following the Separation Time, holders of the Rights (the "Rights
Holders") (other than Rights beneficially owned by the Acquiring Person or its
affiliates or associates, which will thereafter be void) will be entitled to
receive upon exercise and payment of the Exercise Price that number of units of
the Series X Preferred Stock which equals the result obtained by dividing the
Exercise Price by 50% of the Market Price (as defined in the Rights Agreement)
per share of Common Stock. The rights, preferences and restrictions with
respect to the Series X Preferred Stock are set forth in a Certificate of
Designation filed with the office of the Delaware Secretary of State, a copy of
which is filed as an exhibit to this Form 8-K. The Exercise Price payable, and
the number of shares of Series X Preferred Stock or other securities or property
issuable, upon exercise of the Rights are subject to adjustment from time to
time to prevent dilution.
In the event that, after the Separation Time, the Company consolidates
or merges with another entity or the Company sells or otherwise transfers 50% or
more of its consolidated assets or earning power, proper provision will be made
so that each Rights Holder (other than Rights beneficially owned by an Acquiring
Person or affiliates or associates thereof) will thereafter have the right to
receive, upon exercise, either that number of shares of Common Stock of the
Company, if the Company is the surviving corporation of the merger or
consolidation, or of common stock in the surviving acquiring company (or, in the
event there is more than one acquiring company, the acquiring company receiving
the greatest portion of the assets or earning power transferred), which at the
time of such transaction would have a market value of two times the Exercise
Price of the Right.
The Company may elect not to issue fractional shares of Series X
Preferred Stock upon exercise of a Right and in lieu thereof may evidence such
fractional shares by depositary receipts or may make an adjustment in cash based
on the market price of the Series X Preferred Stock on the last trading date
prior to the date of exercise of the Right.
At any time prior to the earlier to occur of: (i) the Separation Time
or (ii) the Expiration Date, the Company may redeem the Rights in whole, but not
in part, at a price of $.01 per Right (the "Redemption Price"). Immediately
upon the action of the Board of Directors of the Company ordering redemption of
the Rights, the right to exercise the Rights will terminate and the only right
of Rights Holders will be to receive the Redemption Price.
-2-
<PAGE>
Subject to applicable law, the Board of Directors, at its option, may,
at any time after a person or group becomes an Acquiring Person, exchange all or
part of the then outstanding Rights (other than Rights beneficially owned by an
Acquiring Person or affiliates or associates thereof) for Common Stock at an
exchange ratio equal to the Exercise Price divided by the Market Price of one
share of Common Stock per Right, subject to adjustment.
The Series X Preferred Stock purchasable upon exercise of the Rights
will not be redeemable and will be, in ranking as to dividends, on a parity
with, and as to liquidation preferences, senior to, the Common Stock but junior
to any other series of preferred stock the Company may issue or has issued
(unless otherwise provided in the terms of such preferred stock). Each Series X
Preferred Stock will have a dividend in an amount equal to 100 times any cash
dividend declared on each share of Common Stock. In the event of liquidation,
the holders of Series X Preferred Stock will be entitled to a preferred
liquidation payment equal to the greater of $100.00 or 100 times the payment
made per each share of Common Stock. Each share of Series X Preferred Stock
will have 100 votes, voting together with the Common Stock. In the event of any
merger, consolidation or other transaction in which shares of Common Stock are
exchanged, each share of Series X Preferred Stock will be entitled to receive
100 times the amount and type of consideration received per share of Common
Stock. The rights of the Series X Preferred Stock as to dividends, liquidation
and voting are protected by customary antidilution provisions.
Until a Right is exercised, the holder thereof, as such, will have no
rights as a stockholder of the Company, including, without limitation, the right
to vote or to receive dividends.
The terms of the Rights may be amended at any time by the Board of
Directors of the Company without the consent of Rights Holders in order to cure
any ambiguity or to correct or supplement any defective or inconsistent
provision and may, prior to the Separation Time, be amended to change or
supplement any other provision in any manner that the Board may deem necessary
or desirable. After the Separation Time, the terms of the Rights may be amended
(other than to cure ambiguities or to correct or supplement defective or
inconsistent provisions) only so long as the amendment does not adversely affect
the interests of Rights Holders (other than the Acquiring Person).
The issuance of the Series X Preferred Stock pursuant to the Rights
will be subject to the effectiveness of a registration statement under the
Securities Act of 1933 and a registration statement on Form 8-A under the
Securities Exchange Act of 1934. A copy of the Rights Agreement will be filed
with the Securities and Exchange Commission as an exhibit to such registration
statements, and Rights holders will be able to obtain a copy of the Rights
Agreement free of charge from the Company.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
without conditioning the offer on a substantial number of Rights being acquired.
The Rights should not interfere with any merger or other business combination
approved by the Board of Directors of the Company because the Board of Directors
may, at its option, at any time prior to the Separation Time, redeem all but not
less than all the then outstanding Rights at the Redemption Price.
-3-
<PAGE>
Exhibits
- --------
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 Certificate of Designation, Preferences and Rights
of Series X Preferred Stock.
4.1 Stockholder Protection Agreement, dated as of
August 22, 1997, between Protein Polymer
Technologies, Inc. and Continental Stock Transfer
& Trust Company, as Rights Agent.
</TABLE>
-4-
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PROTEIN POLYMER TECHNOLOGIES, INC.
By:/s/ J. Thomas Parmeter
-------------------------------
J. Thomas Parmeter
Chief Executive Officer
Date: August 27, 1997
-5-
<PAGE>
EXHIBIT INDEX
-------------
Exhibits
- --------
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
3.1 Certificate of Designation, Preferences and Rights of Series
X Preferred Stock.
4.1 Stockholder Protection Agreement, dated as of August 22,
1997, between Protein Polymer Technologies, Inc. and
Continental Stock Transfer & Trust Company, as Rights Agent.
</TABLE>
<PAGE>
EXHIBIT 3.1
-----------
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES X JUNIOR PARTICIPATING PREFERRED STOCK
of
PROTEIN POLYMER TECHNOLOGIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, J. Thomas Parmeter, President and Chief Executive Officer, and
Janis Neves, Assistant Secretary of PROTEIN POLYMER TECHNOLOGIES, INC., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation of the said Corporation, the said Board of
Directors on August 21, 1997, adopted the following resolution creating a series
of 2,000,000 shares of Preferred Stock designated as Series X Junior
Participating Preferred Stock:
RESOLVED, that a series of the Corporation's Preferred Stock
consisting of 2,000,000 shares of Preferred Stock, be and hereby is,
designated as "Series X Junior Participating Preferred Stock", par
value $.01 per share (the "Series X Preferred"), and that the Series X
Preferred shall have the designations, powers, preferences, rights and
qualifications, limitations and restrictions set forth in the
Certificate of Designation, Preferences and Rights of Series X Junior
Participating Preferred Stock (the "Certificate") attached as Exhibit
-------
B.
-
This Certificate states that the Board of Directors does hereby fix
and herein state and express such designations, powers, preferences and relative
and other special rights and qualifications, limitations and restrictions
thereof as follows (all terms used herein which
<PAGE>
are defined in the Certificate of Incorporation shall be deemed to have the
meanings provided therein).
Section 1. Designation and Amount. The shares of such series shall
----------------------
be designated as "Series X Junior Participating Preferred Stock" (the "Series X
Preferred Stock") and the number of shares constituting such series shall be
2,000,000. Such number of shares of Series X Preferred Stock may be increased
or decreased by resolution of the Board of Directors; provided, however, that no
-------- -------
decrease shall reduce the number of shares of Series X Preferred Stock to a
number less than the number of shares of Series X Preferred Stock then
outstanding plus the number of shares of Series X Preferred Stock reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible or exercisable into Series X Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of preferred stock ranking prior and superior to the shares
of Series X Preferred Stock with respect to dividends, the holders of shares of
Series X Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
dividends payable in cash in an amount per share (rounded to the nearest cent),
subject to the provision for adjustment hereinafter set forth, equal to 100 (the
"Dividend Factor") times the aggregate per share amount of all cash dividends,
and the Dividend Factor times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions (other than a dividend payable
in shares of the Common Stock, par value $.01 per share, of the Corporation (the
"Common Stock") or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise)), declared on the Common Stock since the first
issuance of any share or fraction of a share of Series X Preferred Stock. In
the event the Corporation shall at any time after September 10, 1997 (the
"Rights Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Dividend Factor in the immediately preceding sentence shall
be adjusted by multiplying the Dividend Factor by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the
<PAGE>
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on the
Series X Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series X Preferred Stock from the date of declaration of dividends on
the Common Stock (other than a dividend payable in shares of Common Stock).
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series X Preferred Stock in an amount less than the total amount of
such accrued dividends shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series X Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series X
-------------
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series X Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each case the number of votes per
share to which holders of shares of Series X Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except as otherwise provided herein or by law, the holders of
shares of Series X Preferred Stock and the holders of shares of Common Stock
shall vote together as
<PAGE>
one class on all matters submitted to a vote of stockholders of the Corporation.
(C) Except as otherwise provided herein or provided by law, the
holders of shares of Series X Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever dividends or distributions payable on the Series X
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series X Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distribution on,
or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series X Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series X
Preferred Stock, except dividends paid or distributions made ratably
on the Series X Preferred Stock and all such stock ranking on a parity
with respect to the particular dividend or distribution in proportion
to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series X
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire shares of any such parity stock in
exchange for shares of any stock of the Corporation ranking junior
(both as to dividends and upon dissolution, liquidation or winding up)
to the Series X Preferred Stock; or
<PAGE>
(iv) purchase or otherwise acquire for consideration any shares
of Series X Preferred Stock, or any shares of stock ranking on a
parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series X Preferred Stock, except in accordance
with a purchase offer made in writing or by publication (as determined
by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective
annual dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series X Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series X Preferred Stock unless, prior
thereto, the holders of shares of Series X Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends and
distributions thereon, whether or not declared, to the date of such payment
(the "Series X Liquidation Preference"). Following the payment of the full
amount of the Series X Liquidation Preference, no additional distributions shall
be made to the holders of shares of Series X Preferred Stock unless, prior
thereto, the holders of shares of Common Stock shall have
<PAGE>
received an amount per share (the "Common Stock Liquidation Amount") equal to
the quotient obtained by dividing (i) the Series X Liquidation Preference by
(ii) 100 (as appropriately adjusted as set forth in subparagraph (C) below to
reflect such events as stock splits, stock dividends and recapitalizations with
respect to the Common Stock) (such number in clause (ii), the "Adjustment
Number"). Following the payment of the full amount of the Series X Liquidation
Preference and the Common Stock Liquidation Amount in respect of all outstanding
shares of Series X Preferred Stock and Common Stock, respectively, holders of
Series X Preferred Stock and holders of shares of Common Stock shall receive
their ratable and proportionate share of remaining assets to be distributed in
the ratio of the Adjustment Number to one (1) with respect to such Preferred
Stock and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series X Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series X Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of the Series X Preferred
Stock and the holders of such parity shares in proportion to their respective
liquidation preferences.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, (iv) reclassify the
Common Stock or (v) effect a recapitalization of the Common Stock, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common Stock that
were outstanding immediately prior to such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
--------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series X Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
<PAGE>
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series X Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series X Preferred Stock
-------------
shall not be redeemable.
Section 9. Ranking. The Series X Preferred Stock shall rank junior
-------
to all other series of the Corporation's preferred stock, if any, as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise. Nothing in this Certificate shall limit
the power of the Board of Directors to create a new series of preferred stock
ranking senior to the Series X Preferred Stock in any respect.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series X
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of two-thirds or more of the outstanding shares of Series X
Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series X Preferred Stock may be
-----------------
issued in fractions of a share, which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series X Preferred Stock.
<PAGE>
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this 27th day
of August, 1997.
/s/ J. Thomas Parmeter
------------------------------
J. Thomas Parmeter, President
Attest:
/s/ Janis Neves
- --------------------------------
Janis Neves, Assistant Secretary
<PAGE>
EXHIBIT 4.1
-----------
STOCKHOLDER PROTECTION AGREEMENT
dated as of
August 22, 1997
between
PROTEIN POLYMER TECHNOLOGIES, INC.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
as Rights Agent
<PAGE>
STOCKHOLDER PROTECTION AGREEMENT
Table of Contents
-----------------
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
CERTAIN DEFINITIONS
1.1 Certain Definitions.............................................. 2
ARTICLE II
THE RIGHTS
2.1 Summary of Rights................................................ 9
2.2 Legend on Stock Certificates..................................... 9
2.3 Exercise Price; Exercise of Rights; Detachment of
Rights......................................................... 10
2.4 Adjustments to Exercise Price; Number of Rights;
Securities Purchasable......................................... 14
2.5 Date On Which Exercise Is Effective.............................. 17
2.6 Execution, Authentication, Delivery and Dating of
Rights Certificates............................................ 18
2.7 Registration, Registration of Transfer and
Exchange....................................................... 18
2.8 Mutilated, Destroyed, Lost and Stolen Rights
Certificates................................................... 19
2.9 Persons Deemed Owners............................................ 20
2.10 Delivery and Cancellation of Certificates........................ 20
2.11 Agreements of Rights Holders..................................... 21
2.12 Consolidation, Merger or Sale or Transfer of
Assets or Earning Power........................................ 22
2.13 Certificate of Adjusted Exercise Price or Number
of Shares...................................................... 24
ARTICLE III
THE RIGHTS AGENT
3.1 General.......................................................... 25
3.2 Merger or Consolidation or Change of Name of
Rights Agent................................................... 25
3.3 Duties of Rights Agent........................................... 26
3.4 Change of Rights Agent........................................... 29
</TABLE>
-i-
<PAGE>
Table of Contents
-----------------
(Continued)
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE IV
MISCELLANEOUS
4.1 Redemption, Termination and Exchange............................. 30
4.2 Provision in Event of Insufficient Shares of
Series X Preferred Stock....................................... 32
4.3 Issuance of New Rights Certificates.............................. 33
4.4 Supplements and Amendments....................................... 33
4.5 Fractional Shares................................................ 33
4.6 Transactions After the Separation Time........................... 34
4.7 Rights of Action................................................. 34
4.8 Holder of Rights Not Deemed a Stockholder........................ 35
4.9 Notice of Proposed Actions....................................... 35
4.10 Notices.......................................................... 35
4.11 Costs of Enforcement............................................. 36
4.12 Successors....................................................... 36
4.13 Benefits of this Agreement....................................... 36
4.14 Descriptive Headings............................................. 37
4.15 Governing Law.................................................... 37
4.16 Counterparts..................................................... 37
4.17 Severability..................................................... 37
EXHIBITS
Exhibit A Form of Certificate of Designation,
Preferences and Rights of Series X
Junior Participating Preferred Stock
Exhibit B Form of Summary of Stockholder Protection Plan
Exhibit C Form of Rights Certificate (Together
With Form of Election to Purchase)
</TABLE>
-ii-
<PAGE>
STOCKHOLDER PROTECTION AGREEMENT
--------------------------------
This Stockholder Protection Agreement (the "Agreement"), is entered
---------
into as of August 22, 1997, between PROTEIN POLYMER TECHNOLOGIES, INC., a
Delaware corporation (the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST
-------
COMPANY, as Rights Agent (the "Rights Agent", which term shall include any
------------
successor Rights Agent hereunder).
WHEREAS, on August 21, 1997, the Board of Directors of the Company
adopted a stockholder protection plan designed to provide protection to the
Company's stockholders in the event any person should attempt to acquire a 15%
or greater equity interest in the Company at a price, under circumstances or on
terms that are not in the best interests of the Company and its stockholders;
WHEREAS, the Board of Directors of the Company has (a) authorized and
declared a dividend of one contingent preferred stock purchase right ("Right")
-----
in respect of each share of Common Stock (as hereinafter defined) and each share
of Series D Preferred Stock (as hereinafter defined) held of record as of the
close of business on September 10, 1997 (the "Record Time"), (b) authorized the
-----------
issuance of one Right in respect of each share of Common Stock that shall become
outstanding after the Record Time and prior to the Separation Time (as
hereinafter defined) and (c) authorized the conversion, immediately prior to the
Separation Time, of the Rights associated with any outstanding shares of Series
D Preferred Stock into that number of Rights to which the holders of such shares
would have been entitled had they converted the Series D Preferred Stock
immediately prior to the Separation Time;
WHEREAS, each Right entitles the holder thereof, after the Separation
Time, to purchase that number of Units (as hereinafter defined) of a share of
the Company's Series X Preferred Stock (as hereinafter defined) which equals the
quotient obtained by dividing the Exercise Price (as hereinafter defined) by
fifty percent (50%) of the Market Price (as hereinafter defined) per share of
Common Stock, pursuant to the terms and subject to the conditions set forth
herein; and
WHEREAS, the Company desires to appoint the Rights Agent to act on
behalf of the Company, and the Rights Agent is willing to so act, in connection
with the issuance, transfer, exchange and replacement of Rights Certificates (as
<PAGE>
hereinafter defined), the exercise of Rights and other matters referred to
herein;
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein, the parties hereto agree as follows:
ARTICLE I - CERTAIN DEFINITIONS
--------- -------------------
1.1 Certain Definitions. For purposes of this Agreement, the
-------------------
following terms have the meanings indicated:
(a) "Acquiring Person" shall mean any Person who has (i) acquired or
----------------
obtained the right to acquire Beneficial Ownership of 15% or more of the
outstanding shares of Common Stock or (ii) has commenced or announced an
intention to commence a tender or exchange offer which would result in that
Person obtaining Beneficial Ownership of 15% or more of the outstanding shares
of Common Stock; provided, however, that the term "Acquiring Person" shall not
-------- -------
include the Company, any wholly-owned Subsidiary of the Company, any employee
stock ownership or other employee benefit plan of the Company or of a Subsidiary
of the Company (a "Plan"), any Person holding Common Stock for or pursuant to
----
the terms of any such Plan or any Exempted Person. Notwithstanding the
foregoing, any Person who acquires the Beneficial Ownership of 15% or more of
the shares of Common Stock of the Company either (i) by reason of share
purchases by the Company reducing the number of shares of Common Stock
outstanding (provided such Person does not acquire additional shares of Common
Stock), or (ii) inadvertently, if such Person notifies the Board of Directors of
such inadvertent purchase within five business days and within two business days
after such notice divests itself of enough shares of Common Stock so as to no
longer have the Beneficial Ownership of 15% of the outstanding Common Stock,
will not be an Acquiring Person.
(b) "Affiliate", when used to indicate a relationship with a specified
---------
Person, shall mean a Person that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such specified Person.
(c) "Associate" of a specified Person shall mean (i) any corporation,
---------
partnership or other organization of which such specified Person is an officer
or partner or is, directly or indirectly, the Beneficial Owner of 10% or more of
-2-
<PAGE>
any class of equity securities, (ii) any trust or other estate in which such
specified Person has a substantial beneficial interest or as to which such
specified Person serves as trustee or in a similar fiduciary capacity, (iii) any
relative or spouse of such specified Person, or any relative of such spouse, who
has the same home as such specified Person or who is a director or officer of
the Company or an Affiliate of the Company and (iv) any Person who is a
director, officer, partner or trustee of such specified Person or of any
corporation, partnership or other organization (other than the Company or any
wholly owned Subsidiary of the Company) that is an Affiliate or Associate of
such specified Person.
(d) A Person shall be deemed the "Beneficial Owner", and to have
----------------
"Beneficial Ownership", of, and to "Beneficially Own", any securities as to
- --------------------- ----------------
which such Person or any of such Person's Affiliates or Associates is or may be
deemed to be the Beneficial Owner pursuant to Rule 13d-3 or Rule 13d-5 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") (or pursuant to
------------
any comparable or successor laws or regulations or, if such Rules shall be
rescinded and there shall be no comparable or successor laws or regulations,
pursuant to Rule 13d-3 or Rule 13d-5 as in effect on the date of this
Agreement), as well as any securities as to which such Person or any of such
Person's Affiliates or Associates has the right to become a Beneficial Owner
(whether such right is exercisable immediately or only after the passage of
time) pursuant to any agreement, arrangement or understanding, 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, or to have Beneficial Ownership, of, or to
Beneficially Own, any security (i) solely because such Person or any of such
Person's Affiliates or Associates has or shares the power to vote or direct the
voting of such security pursuant to a revocable proxy given in response to a
public proxy or consent solicitation made pursuant to, and in accordance with,
the applicable rules and regulations under the Exchange Act, except if such
power (or the arrangements relating thereto) is then reportable under Item 6 of
Schedule 13D under the Exchange Act (or any similar provision of a comparable or
successor report) or (ii) held for or pursuant to the terms of any Plan; and
provided, however, that nothing in this paragraph 1.1(d) shall cause a Person
- -------- -------
engaged in business as an underwriter of securities to be the Beneficial Owner
of, to have Beneficial Ownership of, or to Beneficially Own, any
-3-
<PAGE>
securities acquired through such Person's participation in good faith in a firm
commitment underwriting until the expiration of 40 days after the date of such
acquisition. For purposes of this Agreement, in determining the percentage of
the outstanding shares of Common Stock with respect to which a Person is the
Beneficial Owner, all shares as to which such Person is deemed the Beneficial
Owner shall be deemed outstanding. For purposes of this Agreement, in
determining Beneficial Ownership of Common Stock by holders of the Series D
Preferred Stock, the conversion price of the Series D Preferred Stock shall be
deemed to be $3.75 until such time as the Series D Preferred Stock is actually
converted.
(e) "Business Day" shall mean any day other than a Saturday, Sunday or
------------
a day on which banking institutions in the City of New York are generally
authorized or obligated by law or executive order to close.
(f) "close of business" on any given day shall mean the time on such
-----------------
date (or, if such date is not a Business Day, the time on the next succeeding
Business Day) at which the offices of the transfer agent for the Common Stock
(or, after the Separation Time, the offices of the Rights Agent) are closed to
the public.
(g) "Common Stock" shall mean the Common Stock, par value $.01 per
------------
share, of the Company, or, in the event of a subdivision, combination, or
consolidation with respect to such Common Stock, the Common Stock resulting from
such subdivision, combination or consolidation.
(h) "Exempted Person" shall mean any Institutional Investor, any
---------------
Minority Investor and the Strategic Investor. Notwithstanding the foregoing, if
(i) any Institutional Investor or Minority Investor acquires Beneficial
Ownership of the outstanding Common Stock in excess of that percentage expressly
approved in writing by the Board of Directors of the Company or (ii) the
Strategic Investor acquires Beneficial Ownership of the outstanding Common Stock
in excess of 24%, in either case (w) by reason of share purchases by the Company
reducing the number of shares of Common Stock outstanding (provided such
Exempted Person does not acquire additional shares of Common Stock), (x)
inadvertently, if such Exempted Person notifies the Board of Directors of such
inadvertent purchase within five business days and within two business days
after such notice divests itself of enough shares of Common Stock so as to no
longer
-4-
<PAGE>
have the Beneficial Ownership of the outstanding Common Stock in excess of the
specified percentage, (y) by reason of accumulated dividends of Common Stock
accrued on the Series D Preferred Stock, or (z) by reason of the Minority
Investor's or Strategic Investor's conversion of Series D Preferred Stock,
provided, however, that the shares or other securities acquired in such
- -------- -------
conversion shall be counted with respect to determining whether the Beneficial
Owner thereof is an Exempted Person following any subsequent acquisition or
series of acquisitions in the aggregate of 2% or more of the outstanding shares
of Common Stock, such Institutional Investor, Minority Investor or Strategic
Investor will not cease to be an Exempted Person.
(i) "Exercise Price" shall initially be $8, subject to adjustment from
--------------
time to time as provided in Section 2.4 hereof.
(j) "Expiration Time" shall be (i) the close of business on September
---------------
9, 2007.
(k) "Institutional Investor" shall mean any Person (together with such
----------------------
Institutional Investor's Affiliates and Associates) (i) who, with the express
written approval of the Board of Directors of the Company, acquires aggregate
Beneficial Ownership of 15% or more but less than or equal to that percentage
expressly approved in writing by the Company upon resolution of its Board of
Directors, but in no event greater than 24% of the outstanding Common Stock of
the Company, provided, however, that the Institutional Investor acquires such
-------- -------
Beneficial Ownership in the ordinary course of business and not with the purpose
nor with the effect of changing or influencing the control of the Company, nor
in connection with or as a participant in any transaction having such purpose or
effect, including any transaction subject to Rule 13d-3(b) of the Exchange Act,
and (ii) who is: (A) a broker or dealer registered under Section 15 of the
Exchange Act; (B) a bank as defined in Section 3(a)(6) of the Exchange Act; (C)
an insurance company as defined in Section 3(a)(19) of the Exchange Act; (D) an
investment company registered under Section 8 of the Investment Company Act of
1940; (E) an investment adviser registered under Section 203 of the Investment
Advisers Act of 1940; (F) an employee benefit plan or pension fund which is
subject to the provisions of the Employee Retirement Income Security Act of 1974
or an endowment fund; (G) a parent holding company, provided the aggregate
amount held directly by the parent, and directly and
-5-
<PAGE>
indirectly by its subsidiaries which are not persons specified in Rule 13d-
1(b)(1)(ii)(A) through (F) of the Exchange Act, does not exceed one percent of
the securities of the subject class; or (H) a group, provided that all the
members are persons specified in Rule 13d-1(b)(1)(ii)(A) through (G) of the
Exchange Act.
(l) "Market Price" per share of Common Stock on any date of
------------
determination shall mean the average of the daily closing prices per share of
Common Stock (determined as described below) on each of the 20 consecutive
Trading Days through and including the fifth Trading Day immediately preceding
such determination date; provided, however, that if the first public
-------- -------
announcement of an event described in Section 2.4 hereof occurs within such 20
Trading Day period, Market Price per share of Common Stock on such determination
date shall mean the average of the daily closing prices per share of Common
Stock on each Trading Day from and including the day after the date of such
announcement through and including the fifth Trading Day immediately preceding
such determination date. The closing price per share of Common Stock on any
date shall be the last sale price, regular way, or, in case no such sale takes
place on such date, the average of the closing bid and asked prices, regular
way, for each share of Common Stock, 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 Common Stock is
not then 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
Common Stock is listed or admitted to trading or, if the Common Stock is not
then 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 for each share of Common Stock in the over-the-counter market, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other system then in use, or, if on any such
date the Common Stock is not then quoted by any such organization, the average
of the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of Directors of the
Company; provided, however, that if on any such date the Common Stock is not
-------- -------
listed or admitted for trading on a national securities exchange or traded in
the over-the-counter market, the closing price per share of Common Stock on such
-6-
<PAGE>
date shall mean the fair value per share of Common Stock on such date as
determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm with respect
to the fair value per share of Common Stock. Market Price per share of Series X
Preferred Stock on any date of determination shall be determined in the same
manner set forth above for Common Stock, other than as provided in the proviso
to the immediately preceding sentence. If the Market Price per share of Series
X Preferred Stock cannot be determined in the manner provided above, or if the
Series X Preferred Stock is not publicly held or listed or traded in a manner
described above, the Market Price per share of Series X Preferred Stock shall be
conclusively deemed to be an amount equal to 100 (as such number may be
appropriately adjusted for such events as subdivisions or combinations of stock,
stock dividends and recapitalizations with respect to the Common Stock occurring
after the date of this Agreement) multiplied by the Market Price per share of
Common Stock. Market Price of a Unit shall be equal to the Market Price of one
share of Series X Preferred Stock divided by 100.
(m) "Minority Investor" shall mean any Person (together with such
-----------------
Minority Investor's Affiliates and Associates) who, with the express, written
approval of the Board of Directors of the Company, acquires aggregate Beneficial
Ownership of 15% or more but less than or equal to that percentage expressly
approved in writing by the Company, as approved by its Board of Directors, but
in no event greater than 30% of the outstanding Common Stock of the Company.
(n) "Person" shall mean any individual, firm, partnership,
------
association, group (as such term is used in Rule 13d-5 under the Exchange Act,
as in effect on the date of this Agreement), corporation or other entity.
(o) "Series X Preferred Stock" shall mean the Series X Junior
------------------------
Participating Preferred Stock, par value $.01 per share, of the Company having
the rights, powers, privileges and restrictions, qualifications and limitations
set forth in the Certificate of Designation, Preferences and Rights of Series X
Junior Participating Preferred Stock in the form attached as Exhibit A.
---------
(p) "Series D Preferred Stock" shall mean the Series D Convertible
------------------------
Preferred Stock, par value $.01 per share, of the Company, or, in the event of a
subdivision,
-7-
<PAGE>
combination, or consolidation with respect to such Series D Preferred Stock, the
Series D Preferred Stock resulting from such subdivision, combination or
consolidation.
(q) "Separation Time" shall mean the close of business on the tenth
---------------
Business Day after (i) a public announcement establishing that an Acquiring
Person has become such or (ii) a resolution by the Board of Directors stating
that the majority of the Board of Directors is aware that a Person has become an
Acquiring Person; provided, however, that if the foregoing results in the
-------- -------
Separation Time being prior to the Record Time, the Separation Time shall be
extended to the Record Time.
(r) "Strategic Investor" shall mean Johnson & Johnson Development
------------------
Corporation, a New Jersey corporation (together with the Strategic Investor's
Affiliates and Associates, including without limitation Ethicon, Inc., an Ohio
corporation). Notwithstanding the foregoing, if Johnson & Johnson Development
Corporation (together with its Affiliates and Associates, including without
limitation Ethicon, Inc.) acquires Beneficial Ownership in excess of 24% of the
outstanding Common Stock, Johnson & Johnson Development Corporation shall no
longer be the Strategic Investor.
(s) "Subsidiary" of any specified Person shall mean any corporation or
----------
other entity of which a majority of the voting power of the equity securities or
a majority of the equity interest is Beneficially Owned, directly or indirectly,
or otherwise controlled by such Person.
(t) "Trading Day" shall mean a day on which the principal national
-----------
securities exchange or over-the-counter market on which the Common Stock is
listed or admitted to trading is open for the transaction of business or, if the
Common Stock is not then listed or admitted to trading on any national
securities exchange or over-the-counter market, a Business Day.
(u) A "Unit" of Series X Preferred Stock shall mean one one-hundredth
----
of a share of Series X Preferred Stock.
(v) "Voting Stock" shall mean (i) a Unit of Series X Preferred Stock,
------------
(ii) a share of Common Stock and (iii) any other share of capital stock of the
Company entitled to vote generally in the election of directors or entitled to
vote together with the Common Stock in respect of any merger,
-8-
<PAGE>
consolidation, sale of all or substantially all of the Company's assets,
liquidation, dissolution or winding up.
ARTICLE II - THE RIGHTS
---------- ----------
2.1 Summary of Rights. As soon as practicable after the date hereof,
-----------------
the Company will mail to each holder of record of Common Stock and Series D
Preferred Stock as of the Record Time, at such holder's address as shown by the
records of the Company, a copy of a Summary of Stockholder Protection Agreement
in substantially the form attached as Exhibit B.
---------
2.2 Legend on Stock Certificates.
----------------------------
Certificates for the Common Stock issued after the Record Time but prior to the
close of business on the Separation Time shall evidence one Right for each share
of Common Stock represented thereby and shall have impressed on, printed on,
written on or otherwise affixed to them the following legend:
Until the earlier of the Separation Time or the Expiration Time (as
such terms are defined in the Stockholder Protection Agreement
referred to below), this certificate also evidences and entitles the
holder hereof to certain Rights as set forth in a Stockholder
Protection Agreement, dated as of August 22, 1997 as amended,
supplemented or otherwise modified from time to time, (the
"Stockholder Protection Agreement"), between PROTEIN POLYMER
TECHNOLOGIES, INC. (the "Company") and CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Rights Agent, the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the
principal executive offices of the Company. Under certain
circumstances, as set forth in the Stockholder Protection Agreement,
such Rights may expire, may become void (if they are "Beneficially
Owned" by an "Acquiring Person" or an "Affiliate" or "Associate"
thereof, as such terms are defined in the Stockholder Protection
Agreement, or a transferee of any of the foregoing) or may be
evidenced by separate certificates and may no longer be evidenced by
this certificate. The Company will mail or arrange for the mailing of
a copy
-9-
<PAGE>
of the Stockholder Protection Agreement to the holder of this
certificate without charge within five days after the receipt of a
written request therefor.
Notwithstanding the absence of the foregoing legend, certificates representing
shares of Common Stock or Series D Preferred Stock that are issued and
outstanding at the Record Time shall evidence one Right for each share of the
Common Stock or Series D Preferred Stock evidenced thereby.
2.3 Exercise Price; Exercise of Rights; Detachment of Rights.
--------------------------------------------------------
(a) Subject to the terms and conditions of this Agreement, after
the Separation Time, each Right will entitle the holder thereof to receive, upon
the exercise thereof and payment of the Exercise Price, that number of Units of
Series X Preferred Stock which equals the quotient obtained by dividing the
Exercise Price by fifty percent (50%) of the Market Price per share of Common
Stock at the Separation Time, which number and type of securities are subject to
adjustment as provided in Section 2.12 hereof and in Section 2.4 hereof. The
Company shall calculate the Exercise Price and provide the Rights Agent with
notice of such Exercise Price immediately after the Separation Time.
(b) Until the Separation Time, (i) no Right may be exercised and
(ii) each Right will be evidenced by the certificate for the associated share of
Common Stock or Series D Preferred Stock (together, in the case of certificates
issued prior to the Record Time, with the letter or other communication mailed
to each holder of record of Common Stock or Series D Preferred Stock pursuant to
Section 2.1 hereof) and will be transferable and/or convertible only together
with, and will be transferred by a transfer or a conversion of, such associated
share (whether with or without such letter or other communication).
(c) After the Separation Time and prior to the Expiration Time,
and subject to the provisions of clause (g) and the second paragraph of clause
(h) of this Section 2.3, the Rights (i) may be exercised and (ii) will be
transferable independently of the Common Stock or the Series D Preferred Stock.
Immediately prior to the Separation Time, the number of Rights associated with
any outstanding shares of the Series D Preferred Stock shall be converted into
that number of
-10-
<PAGE>
Rights to which the holders of such shares would have been entitled had they
converted the Series D Preferred Stock in accordance with Section 2.11(f) hereof
immediately prior to the Separation Time. As soon as practicable following the
Separation Time, the Rights Agent will mail to each holder of record of Common
Stock and the Series D Preferred Stock as of the Separation Time (other than a
holder known by the Rights Agent to be an Acquiring Person or an Affiliate or
Associate thereof), at such holder's address as shown by the records of the
Company (the Company hereby agreeing to furnish copies of such records to the
Rights Agent for this purpose), (x) a certificate (a "Rights Certificate") in
------------------
substantially the form of Exhibit C hereto appropriately completed, representing
---------
the number of Rights held by such holder at the Separation Time and having 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 law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange or quotation system on which the
Rights may from time to time be listed or traded, or to conform to usage, and
(y) a disclosure statement describing the Rights.
(d) Subject to the provisions of clause (g) and the second paragraph
of clause (h) of this Section 2.3, Rights may be exercised on any Business Day
after the Separation Time and prior to the Expiration Time by submitting to the
Rights Agent the Rights Certificate evidencing such Rights with an Election to
Purchase (an "Election to Purchase") and certificate substantially in the form
--------------------
attached to the Rights Certificate duly completed, accompanied by payment of the
Exercise Price multiplied by the number of Rights being exercised and a sum
sufficient to cover any transfer tax or charge that may be payable in respect of
any transfer involved in the transfer or delivery of Rights Certificates or the
issuance or delivery of certificates for Series X Preferred Stock or depositary
receipts (or both) in a name other than that of the holder of the Rights being
exercised. Payment of the Exercise Price for the Units purchased upon the
exercise of the Rights hereunder shall be made by delivery to the Company of (i)
cash, (ii) certified check or money order payable to the order of the Company,
(iii) Common Stock, (iv) Series D Preferred Stock, (v) Rights to purchase Units
of the Company's Series X Preferred Stock or (vi) in such other form as may be
determined by the Board of Directors of the Company, in each case in an amount
equal to
-11-
<PAGE>
the aggregate Exercise Price of such Rights. For the purposes of the preceding
sentence, (x) Common Stock shall be valued at its Market Price, (y) Series D
Preferred Stock shall be valued at the Market Price of the shares of Common
Stock into which each share of Series D Preferred Stock is then convertible and
(z) Rights to purchase Units of the Company's Series X Preferred Stock shall be
valued at an amount equal to the fair market value of the Units subject to the
Rights (as determined by the Company's Board of Directors) less the Exercise
Price.
(e) Upon receipt of a Rights Certificate, with an Election to Purchase
and certificate duly executed accompanied by payment as set forth in Section
2.3(d) above, and subject to the provisions of clause (g) and the second
paragraph of clause (h) of this Section 2.3, the Rights Agent will thereupon
promptly (i)(A) requisition from the Company's transfer agent certificates for
the number of shares of stock to be purchased (the Company hereby irrevocably
authorizing its transfer agent to comply with all such requisitions) and (B) if
the Company elects pursuant to Section 4.5 hereof not to issue certificates
representing fractional shares of stock, requisition from the depositary
selected by the Company cash or depositary receipts, as the case may be,
representing the fractional shares of stock to be purchased and (ii) after
receipt of such certificates or depositary receipts, deliver such certificates
or depositary receipts to or upon the order of the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder.
(f) If the holder of any Rights shall exercise fewer than all the
Rights evidenced by such holder's Rights Certificate, a new Rights Certificate
evidencing the Rights remaining unexercised will be issued by the Rights Agent
to such holder or to such holder's duly authorized assigns, subject to the
provisions of Section 4.5 hereof.
(g) Anything in this Agreement or in the Rights Certificates to the
contrary notwithstanding, Rights Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof or any transferee of any of the foregoing cannot
validly be transferred or exercised and shall be for all purposes void.
(h) The Company covenants and agrees that it will (i) cause to be
reserved and kept available until the Expiration Time out of its authorized and
unissued shares of
-12-
<PAGE>
capital stock a number of shares of Series X Preferred Stock and/or Common Stock
or other preferred stock or equity securities of the Company satisfactory for
delivery pursuant to Section 4.2 hereof, sufficient to permit the exercise in
full of all outstanding Rights; (ii) take all such action as may be necessary to
ensure that all shares delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to payment of the Exercise
Price), be duly and validly authorized, executed, issued and delivered and fully
paid and nonassessable; (iii) take all such action as may be necessary to comply
with any applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), and the Exchange Act, and the rules and regulations
--------------
thereunder, and any other applicable law, rule or regulation, in connection with
the issuance of any shares upon exercise of Rights; (iv) use its best efforts to
cause all shares issued upon exercise of Rights to be listed on a national
securities exchange or traded in the over-the-counter market and quoted on
NASDAQ upon issuance; and (v) pay when due and payable any and all federal and
state transfer taxes and charges that may be payable in respect of the original
issuance or delivery of the Rights Certificates or of any shares issued upon the
exercise of Rights, provided that the Company shall not be required to pay any
transfer tax or charge that may be payable in respect of any transfer involved
in the transfer or delivery of Rights Certificates or the issuance or delivery
of certificates for shares in a name other than that of the holder of the Rights
being transferred or exercised.
The Company may temporarily suspend, at any time, the exercisability
of the Rights for such period of time as may be reasonably necessary to prepare
and file such documents and to perform such acts as are required to ensure
compliance with the Securities Act, the Exchange Act, the rules and regulations
thereunder, the "blue sky" laws of the various states and any other applicable
law, rule or regulation, as provided in clause (iii) above. The Company may
also suspend such exercisability for such period of time as may be reasonably
necessary to permit any registration statement or statements required by the
Securities Act or the Exchange Act or any registration or qualification required
by any other applicable law, rule or regulation, to be effective with respect to
any securities to be issued upon exercise of Rights. Upon any suspension of
exercisability, the Company shall issue a public announcement stating that the
exercisability of the Rights has been temporarily suspended.
-13-
<PAGE>
Notwithstanding any provision of this Agreement to the contrary, the Rights
shall not be exercisable in any jurisdiction if the requisite qualification in
such jurisdiction shall not have been obtained or the exercise thereof shall not
be permitted under applicable law.
2.4 Adjustments to Exercise Price; Number of Rights; Securities
-----------------------------------------------------------
Purchasable.
- -----------
(a) If the Company shall at any time after the Record Time and
prior to the Expiration Time (i) declare or pay a dividend on Common Stock
payable in Common Stock (or other capital stock), (ii) subdivide the outstanding
Common Stock or (iii) combine the outstanding Common Stock into a smaller number
of shares of Common Stock, the Exercise Price and number of Rights outstanding,
or, if the payment or effective date therefor shall occur after the Separation
Time, the securities purchasable upon exercise of Rights shall be adjusted in
the manner set forth below. If the Exercise Price and number of Rights are to be
adjusted, (x) the Exercise Price in effect after such adjustment will be equal
to the Exercise Price in effect immediately prior to such adjustment divided by
the number of shares of Common Stock (or other capital stock) (the "Expansion
---------
Factor") that a holder of one share of Common Stock or Series D Preferred Stock
- ------
immediately prior to such dividend, subdivision or combination would hold
thereafter as a result thereof and (y) each Right held prior to such adjustment
will become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the shares of
Common Stock and Series D Preferred Stock with respect to which the original
Rights were associated (if they remain outstanding) and the shares issued in
respect of such dividend, subdivision or combination, so that each such share of
Common Stock will have exactly one Right associated with it and each share of
Series D Preferred Stock shall have that number of Rights associated with it
equal to the Expansion Factor. If the securities purchasable upon exercise of
Rights are to be adjusted, the securities purchasable upon exercise of each
Right after such adjustment will be the securities that a holder of the
securities purchasable upon exercise of one Right immediately prior to such
dividend, subdivision or combination would hold immediately thereafter. If
after the Record Time and prior to the Expiration Time the Company shall issue
any shares of capital stock other than Common Stock in a transaction of a type
described in the first sentence of this Section 2.4(a) or shall issue any Voting
Stock in a
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reclassification of the Common Stock (including any such reclassification in
connection with a consolidation or merger in which the Company is the continuing
or surviving corporation), shares of such capital stock shall be treated herein
as nearly equivalent to shares of Common Stock as may be practicable and
appropriate under the circumstances and the Company and the Rights Agent agree
to amend this Agreement to effect such treatment.
Notwithstanding anything in this Section 2.4(a) to the contrary, with
respect to the Series D Preferred Stock, the Exercise Price and the number of
Rights associated with such shares will be adjusted on an "as converted basis."
For the purposes hereof, "as converted" shall mean that the Exercise Price and
the number of Rights associated with the shares of Series D Preferred Stock
shall be adjusted to equal the Exercise Price and the number of Rights to which
the holders of the Series D Preferred Stock would have been entitled had they
converted the Series D Preferred Stock immediately prior to the event which
results in the adjustment.
If the Company shall at any time after the Record Time and prior to
the Separation Time issue any shares of Common Stock otherwise than in a
transaction referred to in the preceding paragraph or in Section 2.4(b) hereof,
each such share of Common Stock so issued shall automatically have one new Right
associated with it (in the case of the Series D Preferred Stock on an as
converted basis), which Right shall be evidenced by the certificate representing
such share.
(b)(i) If the Company shall at any time after the Record Time and
prior to the Expiration Time (A) declare or pay any dividend on the Series X
Preferred Stock payable in Voting Stock, (B) subdivide the outstanding Series X
Preferred Stock, (C) combine the outstanding Series X Preferred Stock into a
smaller number of shares of Series X Preferred Stock or (D) issue Voting Stock
in a reclassification of the Series X Preferred Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation), then, and in each such
event, the number and kind of Units of Series X Preferred Stock or other
securities issuable upon the exercise of a Right on such date shall be
proportionately adjusted so that the holder of any Right exercised on or after
such date shall be entitled to receive, upon the exercise thereof and payment of
the Exercise Price, the aggregate number and kind of Units
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<PAGE>
of Series X Preferred Stock or other securities or other property, as the case
may be, that, if such Right had been exercised immediately prior to such date
and at a time when such Right was exercisable and the transfer books of the
Company were open, such holder would have owned upon such exercise and would
have been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs on or prior to the
Separation Time that would require an adjustment under this Section 2.4(b)(i),
the adjustment provided for in this Section 2.4(b)(i) shall be made prior to
giving effect to Section 2.3(a) or Section 2.12 hereof.
(ii) If the Company shall at any time after the Record Time and prior
to the Expiration Time fix a record date for the making of a distribution to all
holders of Series X Preferred Stock (including any such distribution made in
connection with a consolidation or merger in which the Company is the surviving
corporation) of securities or assets (other than a distribution solely of Voting
Stock for which an adjustment is required under Section 2.4(b)(i) hereof or a
regular quarterly cash dividend), the Exercise Price to be in effect after such
record date shall be determined by multiplying the Exercise Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be equal to the difference of the Market Price per share of Series X
Preferred Stock on such record date minus the fair market value of the portion
of the securities or assets to be so distributed applicable to one share of
Series X Preferred Stock, and the denominator of which shall be equal to such
Market Price per share of Series X Preferred Stock. Such adjustments shall be
made successively whenever such a record date is fixed, and if such a
distribution is not so made, the Exercise Price shall be adjusted to be the
Exercise Price that would then be in effect if such record date had not been
fixed. If the Company fixes a record date for the making of a distribution of
both Voting Stock and other securities or assets (other than a regular quarterly
cash dividend), such that the provisions of Section 2.4(b)(i) and Section
2.4(b)(ii) hereof would otherwise be applicable, then the provisions of each
such section shall be applicable to each such distribution, respectively,
according to the terms of each such section. If an event occurs on or prior to
the Separation Time that would require an adjustment under this Section
2.4(b)(ii), the adjustment provided for in this Section 2.4(b)(ii) shall be made
prior to giving effect to Section 2.3(a) or Section 2.12 hereof.
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<PAGE>
(c) Each adjustment made pursuant to this Section 2.4 shall be made as
of (i) the record date for the applicable issuance and distribution, in the case
of an adjustment made pursuant to Section 2.4(b) above, and (ii) the payment or
effective date for the applicable dividend, subdivision or combination, in the
case of an adjustment made pursuant to Section 2.4(a) above.
(d) Each adjustment to the Exercise Price made pursuant to this
Section 2.4 shall be calculated to the nearest cent. Whenever an adjustment to
the Exercise Price is made pursuant to this Section 2.4, the Company shall (i)
promptly prepare a certificate setting forth such adjustment and a brief
statement of the facts accounting for such adjustment, (ii) promptly file with
the Rights Agent and with the transfer agent for the Series X Preferred Stock,
the transfer agent for the Series D Preferred Stock, if any, and the transfer
agent for the Common Stock a copy of such certificate and (iii) mail a brief
summary thereof to each holder of Rights.
(e) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates theretofore and
thereafter issued may continue to express the securities so purchasable that
were expressed in the initial Rights Certificates issued hereunder.
2.5 Date On Which Exercise Is Effective. Each person in whose name
-----------------------------------
any certificates for shares are issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; provided, however,
-------- -------
that if the date of such surrender and payment is a date upon which the 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 stock transfer books of the
Company are open.
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<PAGE>
2.6 Execution, Authentication, Delivery and Dating of Rights
--------------------------------------------------------
Certificates.
- ------------
(a) The Rights Certificates shall be executed on behalf of the
Company by its Chairman of the Board, President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the Rights
Certificates may be manual or facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the countersignature and delivery of such Rights
Certificates.
Promptly after the Company learns of the Separation Time, the Company
will notify the Rights Agent of such Separation Time and will deliver Rights
Certificates executed by the Company to the Rights Agent for countersignature,
and the Rights Agent shall manually countersign and deliver such Rights
Certificates to the holders of the Rights pursuant to Section 2.3(c) hereof. No
Rights Certificate shall be valid for any purpose until manually countersigned
by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange.
---------------------------------------------------
(a) The Company will cause to be kept a register (the "Rights
Register") in which, subject to such reasonable regulations as it may prescribe,
the Company will provide for the registration and transfer of Rights. The
Rights Agent is hereby appointed "Rights Registrar" for the purpose of
maintaining the Rights Register for the Company and registering Rights and
transfers of Rights as herein provided. If the Rights Agent shall cease to be
the Rights Registrar, the Rights Agent will have the right to examine the Rights
Register at all reasonable times.
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<PAGE>
After the Separation Time and prior to the Expiration Time, upon
surrender for registration of transfer or exchange of any Rights Certificate,
and subject to the provisions of Sections 2.3(g) and 2.7(c) hereof, the Company
will execute, and the Rights Agent will countersign and deliver, in the name of
the holder or the designated transferee or transferees, as required pursuant to
the holder's instructions, one or more new Rights Certificates evidencing the
same aggregate number of Rights as did the Rights Certificate so surrendered.
(b) Subject to the provisions of Section 2.3(g) hereof, all
Rights issued upon any registration of transfer or exchange of Rights
Certificates shall be the valid obligations of the Company, and such Rights
shall be entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of
transfer or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights Agent,
as the case may be, duly executed by the holder thereof or such holder's
attorney-in-fact duly authorized in writing. As a condition to the issuance of
any new Rights Certificate under this Section 2.7, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.
---------------------------------------------------------
(a) If any mutilated Rights Certificate is surrendered to the
Rights Agent prior to the Expiration Time, the Company shall execute and the
Rights Agent shall countersign and deliver in exchange therefor a new Rights
Certificate evidencing the same number of Rights as did the Rights Certificate
so surrendered.
(b) If there shall be delivered to the Company and the Rights
Agent prior to the Expiration Time (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security or
indemnity as may be required by them to save each of them and any of their
agents harmless, then, in the absence of notice to the Company or the Rights
Agent that such Rights Certificate has been acquired by a bona fide purchaser,
the Company shall execute
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<PAGE>
and upon its request the Rights Agent shall countersign and deliver, in lieu of
any such destroyed, lost or stolen Rights Certificate, a new Rights Certificate
evidencing the same number of Rights as did the Rights Certificate so destroyed,
lost or stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Rights
Agent) connected therewith.
(d) Subject to the provisions of Section 2.3(g) hereof, every new
Rights Certificate issued pursuant to this Section 2.8 in lieu of any destroyed,
lost or stolen Rights Certificate shall evidence an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Rights Certificate shall be at any time enforceable by anyone, and shall
be entitled to all the benefits of this Agreement equally and proportionately
with any and all other Rights duly issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights
---------------------
Certificate (or, prior to the Separation Time, the associated Common Stock or
Series D Preferred Stock certificate) for registration of transfer, the Company,
the Rights Agent and any agent of the Company or the Rights Agent may deem and
treat the person in whose name such Rights Certificate (or, prior to the
Separation Time, such Common Stock or Series D Preferred Stock certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby for
all purposes whatsoever. As used in this Agreement, unless the context otherwise
requires, the term "holder" of any Right shall mean the registered holder of
such Rights (or, prior to the Separation Time, the associated shares of Common
Stock or Series D Preferred Stock).
2.10 Delivery and Cancellation of Certificates. All Rights Certificates
-----------------------------------------
surrendered upon exercise or for redemption, registration or transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder that the Company may have acquired in any manner
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<PAGE>
whatsoever, and all Rights Certificates so delivered shall be promptly cancelled
by the Rights Agent. No Rights Certificates shall be countersigned in lieu of
or in exchange for any Rights Certificates cancelled as provided in this Section
2.10, except as expressly permitted by this Agreement. The Rights Agent shall
destroy all cancelled Rights Certificates and deliver a certificate of
destruction to the Company.
2.11 Agreements of Rights Holders. Every holder of Rights by
----------------------------
accepting such Rights consents and agrees with the Company and the Rights Agent
and with every other holder of Rights that:
(a) prior to the Separation Time, each Right will be transferable
only together with, and will be transferred by a transfer of, the associated
share of Common Stock or Series D Preferred Stock;
(b) after the Separation Time, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) each Right Beneficially Owned by an Acquiring Person or an
Affiliate or Associate thereof or any transferee of any of the foregoing cannot
validly be transferred or exercised and shall for all purposes be void; to
effectuate the foregoing, each Rights Certificate shall be transferable or
exercisable only if the holder so transferring or exercising shall certify, for
the benefit of all holders of Rights, that such holder is not an Acquiring
Person or an Affiliate or Associate of an Acquiring Person and that, to the best
of such holder's knowledge, no Rights evidenced by such Rights Certificates have
ever been Beneficially Owned by an Acquiring Person or an Affiliate or Associate
of an Acquiring Person;
(d) prior to due presentment of a Rights Certificate (or, prior
to the Separation Time, the associated Common Stock or Series D Preferred Stock
certificate) for registration of transfer, the Company, the Rights Agent and any
agent of the Company or the Rights Agent may deem and treat the person in whose
name the Rights Certificate (or, prior to the Separation Time, the associated
Common Stock or Series D Preferred Stock certificate) is registered as the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on such
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<PAGE>
Rights Certificate 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; and
(e) any shares of Series D Preferred Stock presented for conversion
into Common Stock (in accordance with the terms and specifications governing
such a conversion) (i) after the Record Time and prior to the Separation Time,
shall automatically be deemed to include the Rights associated with such shares
of Series D Preferred Stock or (ii) after the Separation Time, shall not include
the Rights that were, prior to the Separation Time, associated with such shares
of Series D Preferred Stock; and
(f) any shares of Common Stock issued upon the conversion of Series D
Preferred Stock (in accordance with the terms and specifications governing such
a conversion) (i) after the Record Time and prior to the Separation Time, shall
be issued with one associated Right for each share of Common Stock so issued or
(ii) after the Separation Time, shall be issued without any Rights associated
with the shares of Common Stock so issued; and
(g) after the Record Time and prior to the earlier of the Separation
Time or the Expiration Time, the Rights associated with any share of Series D
Preferred Stock surrendered for the purposes of conversion into Common Stock (in
accordance with the terms and specifications governing such a conversion) shall
automatically terminate, on the date of such a conversion; and
(h) this Agreement may be supplemented or amended from time to time
pursuant to Section 4.4 or the last sentence of the first paragraph of Section
2.4(a) hereof.
2.12 Consolidation, Merger or Sale or Transfer of Assets or Earning Power.
--------------------------------------------------------------------
Subject to the terms and conditions of this Agreement, if after the Separation
Time, directly or indirectly, (a) the Company shall consolidate with, or merge
with and into, any other Person, (b) any Person shall consolidate with the
Company, or merge with and into the Company and the Company shall be the
continuing or surviving corporation of such merger and, in connection with such
merger, all or part of the Common Stock shall be changed into or exchanged for
stock or other securities of any Person
-22-
<PAGE>
(including the Company) or cash or any other property, or (c) the Company shall
sell or otherwise transfer (or one or more of its Subsidiaries shall sell or
otherwise transfer), in one or more transactions, assets or earning power
aggregating fifty percent (50%) or more of the assets or earning power 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, and in each such
case, proper provision shall be made so that (i) each holder of a Right (except
as otherwise provided herein) shall thereafter have the right to receive, upon
the exercise thereof at any time prior to the Expiration Time and payment of the
then current Exercise Price, in accordance with the terms of this Agreement,
such number of validly authorized and issued, fully paid and nonassessable
shares of common stock of such Person or of that Affiliate or Associate of such
Person which has the greatest aggregate market value, determined in the same
manner as the Market Price per share of Common Stock is determined pursuant to
Section 1.1(l) hereof, of outstanding shares of publicly traded common stock
(other than common stock held by its Affiliates, officers, directors or employee
benefit plans, or Associates of the foregoing) as shall be equal to the result
obtained by dividing the then current Exercise Price by fifty percent (50%) of
the Market Price per share of Common Stock on the date of consummation of such
consolidation, merger, sale or transfer of a share of the common stock that the
holder of a Right shall have the right to receive; (ii) the issuer of such
common stock shall thereafter be liable for, and shall assume, by virtue of such
consolidation, merger, sale or transfer, all the obligations and duties of the
Company pursuant to this Agreement; (iii) the term "Company" shall thereafter be
deemed to refer to such issuer; and (iv) such issuer shall take such steps
(including, but not limited to, the reservation of a sufficient number of shares
of its common stock) in connection with such consummation as may be necessary to
ensure that the provisions hereof shall thereafter be applicable, as nearly as
reasonably may be, in relation to the shares of common stock thereafter
deliverable upon the exercise of the Rights. The Company shall not enter into
any transaction of the kind referred to in this Section 2.12 if at the time of
such transaction there are any rights, warrants, instruments or securities
outstanding or any agreements or arrangements that, as a result of the
consummation of such transaction, would eliminate or substantially diminish the
benefits intended to be afforded by the Rights. The Company shall not
consummate any such consolidation, merger, sale or transfer unless such issuer
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<PAGE>
shall have a sufficient number of authorized shares of its common stock that
have not been issued or reserved for issuance to permit the exercise in full of
the Rights in accordance with this Section 2.12 and unless prior thereto the
Company and such issuer shall have executed and delivered to the Rights Agent a
supplemental agreement providing for the terms set forth in this Section 2.12
and further providing that, as soon as practicable after the date of any
consolidation, merger or sale of assets mentioned in this Section 2.12, such
issuer will (i) prepare and file a registration statement under the Securities
Act with respect to the Rights and the securities purchasable upon exercise of
the Rights on an appropriate form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as practicable after such
filing and (B) remain effective (with a prospectus at all times meeting the
requirements of the Securities Act) until the Expiration Time; and (ii) will
deliver to holders of the Rights historical financial statements for such issuer
and each of its Affiliates that comply in all respects with the requirements for
registration on Form 10 under the Exchange Act. The provisions of this Section
2.12 shall similarly apply to successive mergers or consolidations or sales or
other transfers.
2.13 Certificate of Adjusted Exercise Price or Number of Shares.
----------------------------------------------------------
Whenever an adjustment is made as provided in Sections 2.4 and 2.12 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment,
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with the transfer agent for the Series X Preferred Stock,
the transfer agent for the Series D Preferred Stock, if any, and the transfer
agent for the Common Stock a copy of such certificate and (c) mail a brief
summary thereof to each holder of a Rights Certificate (or, if prior to the
Separation Time, to each holder of a certificate representing shares of Common
Stock or Series D Preferred Stock) in accordance with Section 4.10 hereof.
Notwithstanding the foregoing sentence, the failure of the Company to make such
certification or to give such notice shall not affect the validity or the force
and effect of such adjustment. Any adjustment to be made pursuant to Sections
2.4 and 2.12 hereof shall be effective as of the date of the event giving rise
to such adjustment. The Rights Agent shall be fully protected in relying on any
such certificate and on
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<PAGE>
any adjustment therein contained and shall not be deemed to have knowledge of
any adjustment unless and until it shall have received such certificate.
ARTICLE III - THE RIGHTS AGENT
----------- ----------------
3.1 General.
-------
(a) The Company hereby appoints the Rights Agent to act as agent
for the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company agrees to pay to the
Rights Agent reasonable compensation for all services rendered by it hereunder
and, from time to time, on demand of the Rights Agent, its reasonable expenses
and counsel fees and other disbursements incurred in the administration and
execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability or expense incurred without gross
negligence, bad faith or willful misconduct on the part of the Rights Agent, for
anything done or omitted by the Rights Agent in connection with the acceptance
and administration of this Agreement, including the costs and expenses of
defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
certificate for Series X Preferred Stock, Rights Certificate, certificate for or
other securities of the Company, instrument of assignment or transfer, power of
attorney, endorsement, affidavit, letter, notice, direction, consent,
certificate, statement or other paper or document believed by it to be genuine
and to be signed, executed and, where necessary, verified or acknowledged, by
the proper person or persons, or otherwise upon the advice of counsel as set
forth in Section 3.3 hereof.
3.2 Merger or Consolidation or Change of Name of Rights Agent.
---------------------------------------------------------
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights Agent
or
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<PAGE>
any successor Rights Agent is a party, or any corporation succeeding to the
stockholder services business of the Rights Agent or any successor Rights Agent,
will 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 3.4 hereof. In case
at the time such successor Rights Agent succeeds to the agency created by this
Agreement any of the Rights Certificates have been countersigned but not
delivered, any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so countersigned;
and in case at that time any of the Rights Certificates have not been
countersigned, any successor Rights Agent may countersign such Rights
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor Rights Agent; and in all such cases such Rights Certificates
will have the full force provided in the Rights Certificates and in this
Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Rights Certificates so countersigned; and in case at that time any
of the Rights Certificates shall not have been countersigned, the Rights Agent
may countersign such Rights Certificates either in its prior name or in its
changed name; and in all such cases such Rights Certificates shall have the full
force provided in the Rights Certificates and in this Agreement.
3.3 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 Rights 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 will 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.
-26-
<PAGE>
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be proved
or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and established
by a certificate signed by a person believed by the Rights Agent to be the
Chairman of the Board, the President or any Vice President and by the Chief
Financial Officer or the Secretary or any Assistant Secretary of the Company and
delivered to the Rights Agent; and such certificate will be full authorization
to the Rights Agent for any action taken or omitted by it in good faith under
the provisions of this Agreement in reliance upon such certificate.
(c) The Rights Agent will be liable hereunder only for its own gross
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for Series X Preferred Stock or the Rights Certificates (except its
countersignature thereof) and will not be required to verify any of the
foregoing, and all such statements and recitals are and will be deemed to have
been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due authorization, execution and delivery hereof by the Rights Agent) or in
respect of the validity or execution of any certificate for Series X Preferred
Stock or Rights Certificate (except its countersignature thereof); nor will it
be responsible for any breach by the Company of any covenant or condition
contained in this Agreement or in any Rights Certificate; nor will it be
responsible for any change in the exercisability of the Rights (including the
Rights becoming void pursuant to Section 2.3(g) hereof) or any adjustment
required under the provisions of Section 2.4 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 after receipt of the certificate contemplated by
Section 2.4 describing any such adjustment); nor will it by any act hereunder be
deemed to make any
-27-
<PAGE>
representation or warranty as to the authorization or reservation of any shares
of Series X Preferred Stock to be issued pursuant to this Agreement or any
Rights or as to whether any shares of Series X Preferred Stock will, when
issued, be duly and validly authorized, executed, issued and delivered and fully
paid and nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all such
further and other acts, instruments and assurances as may reasonably be required
by the Rights Agent for the carrying out or performing by the Rights Agent of
the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from any
person believed by the Rights Agent to be the Chairman of the Board, the
President or any Vice President or the Chief Financial Officer or the Secretary,
any Assistant Secretary of the Company or any other person designated in writing
by such persons, and to apply to such persons for advice or instructions in
connection with its duties, and it shall not be liable for any action taken or
omitted by it in good faith in accordance with instructions of any such person.
Any application by the Rights Agent for written instructions from the Company
may, at the option of the Rights Agent, set forth in writing any action proposed
to be taken or omitted by the Rights Agent with respect to its duties or
obligations under this Agreement and the date on and/or after which such action
shall be taken or omitted and the Rights Agent shall not be liable for any
action taken or omitted in accordance with a proposal included in any such
application on or after the date specified therein (which date shall not be less
than ten business days after the date any such officer actually receives such
application, unless any such officer shall have consented in writing to any
earlier date) unless, prior to taking or omitting any such action, the Rights
Agent has received written instructions in response to such application
specifying the action to be taken or omitted.
(h) The Rights Agent and any stockholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Series X Preferred Stock,
Rights or other securities of the Company or become pecuniarily interested in
any transaction in which the Company may be interested, or
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<PAGE>
contract with or lend money to the Company or otherwise act fully and freely as
though it were not Rights Agent under this Agreement. Nothing herein shall
preclude the Rights Agent from acting in any other capacity for the Company or
for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent will not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
3.4 Change of Rights Agent. The Rights Agent may resign and be
----------------------
discharged from its duties under this Agreement upon 90 days' prior notice (or
such lesser notice as is acceptable to the Company) in writing mailed to the
Company and to each transfer agent of the Series X Preferred Stock, the Common
Stock and the Series D Preferred Stock, if any, by registered or certified mail,
and at the expense of the Company to the holders of the Rights in accordance
with Section 4.10. The Company may remove the Rights Agent upon 30 days' prior
notice in writing, mailed to the Rights Agent and to each transfer agent of the
Series X Preferred Stock, the Common Stock and the Series D Preferred Stock, if
any, by registered or certified mail, and to the holders of the Rights in
accordance with Section 4.10. If the Rights Agent should resign or be removed
or otherwise become incapable of acting, the Company will appoint a successor to
the Rights Agent. If the Company fails to make such appointment within a period
of 30 days after 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 any Rights (which holder shall, with such notice, submit such
holder's Rights Certificate for inspection by the Company), then the holder of
any Rights 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 the State of California or New York, in
good standing, having its principal office in the State of California or New
York, that is authorized under such laws to exercise the powers of the Rights
Agent contemplated by this Agreement and is subject to
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<PAGE>
supervision or examination by federal or state authority and which has at the
time of its appointment as Rights Agent a combined capital and surplus of at
least $50,000,000. After appointment, the successor Rights Agent will be vested
with the same powers, rights, duties and responsibilities as if it had been
originally named as Rights Agent without further act or deed; but the
predecessor Rights Agent shall deliver and transfer to the successor Rights
Agent any property at the time held by it hereunder, and execute and deliver any
further assurance, conveyance, act or deed necessary for the purpose. Not later
than the effective date of any such appointment, the Company will file notice
thereof in writing with the predecessor Rights Agent and each transfer agent of
the Series X Preferred Stock, the Common Stock and the Series D Preferred Stock,
if any, and mail a notice thereof in writing to the holders of the Rights in
accordance with Section 4.10. Failure to give any notice provided for in this
Section 3.4, 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.
ARTICLE IV - MISCELLANEOUS
---------- -------------
4.1 Redemption, Termination and Exchange.
------------------------------------
(a) The Board of Directors of the Company may, at its option, at any
time prior to the earlier of the Separation Time or the Expiration Time redeem
all but not less than all of the then outstanding Rights at a redemption price
of $.01 per Right, as such amount may be appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (the "Redemption Price"). The Company may, at its option, pay the
---------- -----
Redemption Price in cash, shares of Common Stock (based on the Market Price at
the time of redemption) or any other form of consideration deemed appropriate by
the Board of Directors.
(b) Immediately upon the action of the Board of Directors of the
Company 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 Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price for each Right so held.
Promptly after the action of the Board of Directors ordering the redemption of
the Rights, the Company shall give notice of such redemption
-30-
<PAGE>
to the Rights Agent and the holders of the then outstanding Rights. Any notice
that is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives such notice. Each such notice of redemption will state
the method by which the payment of the Redemption Price will be made.
(c)(i) The Board of Directors of the Company may, at its option, at
any time after any Person becomes an Acquiring Person, exchange all or part of
the then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 2.3(g) and the second
paragraph of Section 2.3(h) hereof) for shares of Common Stock at an exchange
ratio which equals the quotient obtained by dividing the Exercise Price by the
Market Price per share of Common Stock per Right, appropriately adjusted
pursuant to Section 2.4 hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board of
Directors shall not be empowered to effect such exchange at any time after any
Person (other than the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or any such Subsidiary, or any entity holding Common
Stock for or pursuant to the terms of any such plan), together with all
Affiliates and Associates of such Person, becomes the Beneficial Owner of 50% or
more of the Common Stock then outstanding.
(ii) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (c)(i) of this
Section 4.1 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 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
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<PAGE>
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 2.3(g) and
the second paragraph of Section 2.3(h) hereof) held by each holder of Rights.
(iii) 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 4.1(c), the Company shall
take all such action as may be necessary to authorize additional shares of
Common Stock for issuance upon exchange of the Rights. 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 Series X Preferred Stock or fraction
thereof having a current market price per share equal to the Market Price per
share of one share of Common Stock as of the date of issuance of such shares of
Series X Preferred Stock or fraction thereof.
(iv) The Company shall not be required to issue fractions of a share
of Common Stock or to distribute certificates which evidence fractional shares
of Common Stock. In lieu of such fractional shares, there shall be paid to the
registered holders of the Rights with regard to which such fractional shares of
Common Stock would otherwise be issuable, either (i) evidence of such fractional
shares by depository receipts, in accordance with the terms of Section 4.5
hereof or (ii) an amount in cash equal to the same fraction of the Market Price
of a whole share of Common Stock based upon the date of exchange pursuant to
this Section 4.1(c), subject to the terms of Section 4.6 hereof.
4.2 Provision in Event of Insufficient Shares of Series X Preferred Stock.
---------------------------------------------------------------------
If there shall not be sufficient authorized but unissued shares or reserved
shares of Series X Preferred Stock of the Company to permit the exercise in full
of the Rights in accordance with the terms hereof, the Company, with respect to
each Right being exercised and to the extent necessary, may make adequate
provision to substitute for the delivery of Units or shares or fractions of
shares of Series X Preferred Stock (i) cash, (ii) Common Stock, or other
preferred stock or equity securities of the Company, (iii) debt securities of
the Company, (iv) other assets or (v) any combination of the foregoing, having
an aggregate value equal
-32-
<PAGE>
to the Market Price of the Units of Series X Preferred Stock that would have
been purchasable upon exercise of such Right in the absence of this Section 4.2,
or may reduce the Exercise Price.
4.3 Issuance of New Rights Certificates. Notwithstanding any of the
-----------------------------------
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement.
4.4 Supplements and Amendments. Prior to the Separation Time, the
--------------------------
Company and the Rights Agent, upon receipt of the certificate described
hereinbelow, shall, if the Company so directs, supplement or amend any provision
of this Agreement in any respect without the approval of any holders of Rights.
From and after the Separation Time, the Company and Rights Agent, upon receipt
of the certificate described hereinbelow, shall, if the Company so directs,
supplement or amend this Agreement without the approval of any holders of Rights
(i) to cure any ambiguity, (ii) to correct or supplement any provision contained
herein that may be defective or inconsistent with any other provisions herein,
(iii) to shorten or lengthen any time period hereunder, other than the time
period during which the Rights may be exercised, or (iv) to change or supplement
the provisions hereunder in any manner that the Company may deem necessary or
desirable and which shall not materially and adversely affect the interests of
the holders of Rights (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person). Upon delivery of a certificate from an
appropriate officer of the Company stating that the proposed supplement or
amendment is in compliance with the terms of this Section 4.4, the Rights Agent
shall execute such supplement or amendment. Prior to the Separation Time, the
interests of the holders of Rights shall be deemed coincident with the interests
of the holders of Common Stock.
4.5 Fractional Shares. If the Company elects not to issue
-----------------
certificates representing fractional shares of Series X Preferred Stock or other
securities (pursuant to Section 4.2 hereof) upon exercise of Rights, the Company
may, in lieu thereof, either (i) evidence such fractional shares by depositary
receipts issued pursuant to an appropriate
-33-
<PAGE>
agreement between the Company and a depositary selected by it, provided that
such agreement shall provide that the holders of the depositary receipts shall
have all of the rights, privileges and preferences to which they are entitled as
Beneficial Owners of such stock, or (ii) subject to Section 4.6 hereof, pay an
amount in cash equal to the same fraction of the Market Price of a Unit of
Series X Preferred Stock.
4.6 Transactions After the Separation Time. After the Separation
--------------------------------------
Time and prior to the Expiration Time, the Company shall not engage in any
transaction not in the ordinary course of business that would eliminate or
otherwise diminish in any material respect the benefits intended to be afforded
by this Agreement to the holders of Rights (other than Acquiring Persons or
Affiliates or Associates thereof, or Persons who may become any of the
foregoing). Without limiting the foregoing, after the Separation Time and prior
to the Expiration Time, the Company shall not (i) sell or issue to an Acquiring
Person or any Affiliate or Associate thereof, any rights, options, warrants or
convertible securities on terms similar to, or that materially adversely affect
the value of, the Rights, or (ii) sell or issue to an Acquiring Person or any
Affiliate or Associate thereof, Series X Preferred Stock, Series D Preferred
Stock, Common Stock or shares of any other class of capital stock if such sale
or issue is intended to or would materially adversely affect the value of the
Rights.
4.7 Rights of Action. Subject to the terms of this Agreement, rights
----------------
of action in respect of this Agreement, other than rights of action vested
solely in the Rights Agent, are vested in the respective holders of the Rights
(other than Acquiring Persons or Affiliates or Associates thereof); and any
holder of any Rights (other than Acquiring Persons or Affiliates or Associates
thereof), without the consent of the Rights Agent or of the holder of any other
Rights, may, on such holder's own behalf and for such holder's own benefit and
the benefit of other holders of Rights, enforce, and may institute and maintain
any suit, action or proceeding against the Company to enforce, or otherwise act
in respect of, such holder's right to exercise such holder's Rights in the
manner provided in such holder's Rights Certificate and in this Agreement.
Without limiting the foregoing or any remedies available to the holders of
Rights, it is specifically acknowledged that the holders of Rights would not
have an adequate remedy at law for any breach of this Agreement and will be
entitled to specific performance of the obligations
-34-
<PAGE>
under, and injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Agreement.
4.8 Holder of Rights Not Deemed a Stockholder. No holder, as such,
-----------------------------------------
of any Right shall be entitled to vote, receive dividends or be deemed for any
purpose the holder of Series X Preferred Stock or any other securities that may
at any time be issuable on the exercise of such Rights, nor shall anything
contained herein or in any Rights Certificate be construed to confer upon the
holder of any Rights, as such, any of the rights of a stockholder of the Company
or any right to vote for the election of directors or upon any matter submitted
to stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stockholders (except as provided in Section 4.9 hereof), or to receive dividends
or subscription rights, or otherwise, until such Rights shall have been
exercised in accordance with the provisions hereof.
4.9 Notice of Proposed Actions. If the Company shall propose after
--------------------------
the Separation Time and prior to the Expiration Time to effect a liquidation, a
consolidation or merger with or a sale of all or substantially all of its assets
to any other Person or a reclassification of the Series X Preferred Stock, then,
in each such case, the Company shall give to each holder of a Right, in
accordance with Section 4.10 hereof, a notice of such proposed action, which
shall specify the date on which such action is to take place, and such notice
shall be so given at least 20 Business Days prior to the date of the taking of
such proposed action.
4.10 Notices. Notices or demands authorized or required by this
-------
Agreement to be given or made by the Rights Agent or by the holder of any Rights
to or on the Company shall be sufficiently given or made if delivered or sent by
first class mail, postage prepaid, addressed (until another address is filed in
writing with the Rights Agent) as follows:
PROTEIN POLYMER TECHNOLOGIES, INC.
10655 Sorrento Valley Road
San Diego, California 92121
Attention: Chief Executive Officer
-35-
<PAGE>
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
2 Broadway
New York, New York 10004
Attention: Compliance Department
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
deemed given or made when delivered or deposited in United States first class
mail, postage prepaid, addressed to such holder at the address of such holder as
it appears upon the Rights Register or, prior to the Separation Time, on the
registry books of the transfer agent for the Common Stock and the transfer agent
for the Series D Preferred Stock, if any. Any notice which is mailed in the
manner herein provided shall be deemed given, whether or not the holder receives
the notice.
4.11 Costs of Enforcement. The Company agrees that if the Company or
--------------------
any other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
4.12 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.
4.13 Benefits of this Agreement. Nothing in this Agreement shall be
--------------------------
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement, and this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
-36-
<PAGE>
4.14 Descriptive Headings. Descriptive headings appear herein for
--------------------
convenience of reference only and shall not control or affect the meaning or
construction of any of the provisions hereof.
4.15 Governing Law. This Agreement and each Right 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 in accordance with, the
laws of such state without regard to the laws of such state as to choice or
conflict of laws.
4.16 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, but all such counterparts shall together constitute one and the
same instrument.
4.17 Severability. If any term or provision hereof or the application
------------
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such terms or provision to circumstances other than
those as to which it is held invalid or unenforceable.
[SIGNATURE PAGE FOLLOWS]
-37-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested as of the date first above set forth.
PROTEIN POLYMER TECHNOLOGIES, INC.
By /s/ J. Thomas Parmeter
------------------------
J. Thomas Parmeter,
President and Chief
Executive Officer
Attest:
/s/ Janis Neves
- ---------------------------
Janis Neves
Assistant Secretary
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By /s/ Roger Bernhammer
------------------------
Name: __________________
Title:Vice President
Attest:
/s/ Thomas Janning
- --------------------------
Title: Assistant Secretary
Signature page of the Stock-holder Protection
Agreement, dated as of August 22, 1997, between
PROTEIN POLYMER TECHNOLOGIES, INC. and CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Rights Agent
-38-
<PAGE>
EXHIBIT A
---------
FORM OF
CERTIFICATE OF DESIGNATION, PREFERENCES AND RIGHTS
OF SERIES X JUNIOR PARTICIPATING PREFERRED STOCK
of
PROTEIN POLYMER TECHNOLOGIES, INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
We, J. Thomas Parmeter, President and Chief Executive Officer, and
Janis Neves, Assistant Secretary of PROTEIN POLYMER TECHNOLOGIES, INC., a
corporation organized and existing under the General Corporation Law of the
State of Delaware, in accordance with provisions of Section 103 thereof, DO
HEREBY CERTIFY:
That pursuant to the authority conferred upon the Board of Directors
by the Certificate of Incorporation of the said Corporation, the said Board of
Directors on August 21, 1997, adopted the following resolution creating a series
of 2,000,000 shares of Preferred Stock designated as Series X Junior
Participating Preferred Stock:
RESOLVED, that a series of the Corporation's Preferred Stock
consisting of 2,000,000 shares of Preferred Stock, be and hereby is,
designated as "Series X Junior Participating Preferred Stock", par
value $.01 per share (the "Series X Preferred"), and that the Series X
Preferred shall have the designations, powers, preferences, rights and
qualifications, limitations and restrictions set forth in the
Certificate of Designation, Preferences and Rights of Series X Junior
Participating Preferred Stock (the "Certificate") attached as Exhibit
-------
[ ].
---
This Certificate states that the Board of Directors does hereby fix
and herein state and express such designations, powers, preferences and relative
and other special rights and qualifications, limitations and restrictions
thereof as follows (all terms used herein which
<PAGE>
are defined in the Certificate of Incorporation shall be deemed to have the
meanings provided therein).
Section 1. Designation and Amount. The shares of such series shall
----------------------
be designated as "Series X Junior Participating Preferred Stock" (the "Series X
Preferred Stock") and the number of shares constituting such series shall be
2,000,000. Such number of shares of Series X Preferred Stock may be increased
or decreased by resolution of the Board of Directors; provided, however, that no
-------- -------
decrease shall reduce the number of shares of Series X Preferred Stock to a
number less than the number of shares of Series X Preferred Stock then
outstanding plus the number of shares of Series X Preferred Stock reserved for
issuance upon the exercise of outstanding options, rights or warrants or upon
the conversion of any outstanding securities issued by the Corporation
convertible or exercisable into Series X Preferred Stock.
Section 2. Dividends and Distributions.
---------------------------
(A) Subject to the prior and superior rights of the holders of any
shares of any series of preferred stock ranking prior and superior to the shares
of Series X Preferred Stock with respect to dividends, the holders of shares of
Series X Preferred Stock shall be entitled to receive, when, as and if declared
by the Board of Directors out of funds legally available for the purpose,
dividends payable in cash in an amount per share (rounded to the nearest cent),
subject to the provision for adjustment hereinafter set forth, equal to 100 (the
"Dividend Factor") times the aggregate per share amount of all cash dividends,
and the Dividend Factor times the aggregate per share amount (payable in kind)
of all non-cash dividends or other distributions (other than a dividend payable
in shares of the Common Stock, par value $.01 per share, of the Corporation (the
"Common Stock") or a subdivision of the outstanding shares of Common Stock (by
reclassification or otherwise)), declared on the Common Stock since the first
issuance of any share or fraction of a share of Series X Preferred Stock. In
the event the Corporation shall at any time after September 10, 1997 (the
"Rights Declaration Date") (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Dividend Factor in the immediately preceding sentence shall
be adjusted by multiplying the Dividend Factor
-2-
<PAGE>
by a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
(B) The Corporation shall declare a dividend or distribution on the
Series X Preferred Stock as provided in paragraph (A) above immediately after it
declares a dividend or distribution on the Common Stock (other than a dividend
payable in shares of Common Stock).
(C) Dividends shall begin to accrue and be cumulative on outstanding
shares of Series X Preferred Stock from the date of declaration of dividends on
the Common Stock (other than a dividend payable in shares of Common Stock).
Accrued but unpaid dividends shall not bear interest. Dividends paid on the
shares of Series X Preferred Stock in an amount less than the total amount of
such accrued dividends shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors may fix a
record date for the determination of holders of shares of Series X Preferred
Stock entitled to receive payment of a dividend or distribution declared
thereon, which record date shall be no more than 30 days prior to the date fixed
for the payment thereof.
Section 3. Voting Rights. The holders of shares of Series X
-------------
Preferred Stock shall have the following voting rights:
(A) Subject to the provision for adjustment hereinafter set forth,
each share of Series X Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Corporation.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each case the number of votes per
share to which holders of shares of Series X Preferred Stock were entitled
immediately prior to such event shall be adjusted by multiplying such number by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
-3-
<PAGE>
(B) Except as otherwise provided herein or by law, the holders of
shares of Series X Preferred Stock and the holders of shares of Common Stock
shall vote together as one class on all matters submitted to a vote of
stockholders of the Corporation.
(C) Except as otherwise provided herein or provided by law, the
holders of shares of Series X Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for taking
any corporate action.
Section 4. Certain Restrictions.
--------------------
(A) Whenever dividends or distributions payable on the Series X
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all accrued and unpaid dividends and distributions, whether or not declared, on
shares of Series X Preferred Stock outstanding shall have been paid in full, the
Corporation shall not
(i) declare or pay dividends on, make any other distribution on,
or redeem or purchase or otherwise acquire for consideration any
shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series X Preferred
Stock;
(ii) declare or pay dividends on or make any other distributions
on any shares of stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series X
Preferred Stock, except dividends paid or distributions made ratably
on the Series X Preferred Stock and all such stock ranking on a parity
with respect to the particular dividend or distribution in proportion
to the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or
upon liquidation, dissolution or winding up) with the Series X
Preferred Stock, provided that the Corporation may at any time redeem,
purchase or otherwise acquire
-4-
<PAGE>
shares of any such parity stock in exchange for shares of any stock of
the Corporation ranking junior (both as to dividends and upon
dissolution, liquidation or winding up) to the Series X Preferred
Stock; or
(iv) purchase or otherwise acquire for consideration any shares of
Series X Preferred Stock, or any shares of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or winding
up) with the Series X Preferred Stock, except in accordance with a
purchase offer made in writing or by publication (as determined by the
Board of Directors) to all holders of such shares upon such terms as
the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the
respective series and classes, shall determine in good faith will
result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
Section 5. Reacquired Shares. Any shares of Series X Preferred Stock
-----------------
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition thereof. All such
shares shall upon their cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth herein.
Section 6. Liquidation, Dissolution or Winding Up.
--------------------------------------
(A) Upon any liquidation (voluntary or otherwise), dissolution or
winding up of the Corporation, no distribution shall be made to the holders of
shares of stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series X Preferred Stock unless, prior
thereto, the holders of shares of Series X Preferred Stock
-5-
<PAGE>
shall have received $100 per share, plus an amount equal to accrued and unpaid
dividends and distributions thereon, whether or not declared, to the date of
such payment (the "Series X Liquidation Preference"). Following the payment of
the full amount of the Series X Liquidation Preference, no additional
distributions shall be made to the holders of shares of Series X Preferred Stock
unless, prior thereto, the holders of shares of Common Stock shall have received
an amount per share (the "Common Stock Liquidation Amount") equal to the
quotient obtained by dividing (i) the Series X Liquidation Preference by (ii)
100 (as appropriately adjusted as set forth in subparagraph (C) below to reflect
such events as stock splits, stock dividends and recapitalizations with respect
to the Common Stock) (such number in clause (ii), the "Adjustment Number").
Following the payment of the full amount of the Series X Liquidation Preference
and the Common Stock Liquidation Amount in respect of all outstanding shares of
Series X Preferred Stock and Common Stock, respectively, holders of Series X
Preferred Stock and holders of shares of Common Stock shall receive their
ratable and proportionate share of remaining assets to be distributed in the
ratio of the Adjustment Number to one (1) with respect to such Preferred Stock
and Common Stock, on a per share basis, respectively.
(B) In the event, however, that there are not sufficient assets
available to permit payment in full of the Series X Liquidation Preference and
the liquidation preferences of all other series of preferred stock, if any,
which rank on a parity with the Series X Preferred Stock, then such remaining
assets shall be distributed ratably to the holders of the Series X Preferred
Stock and the holders of such parity shares in proportion to their respective
liquidation preferences.
(C) In the event the Corporation shall at any time after the Rights
Declaration Date (i) declare any dividend on Common Stock payable in shares of
Common Stock, (ii) subdivide the outstanding Common Stock, (iii) combine the
outstanding Common Stock into a smaller number of shares, (iv) reclassify the
Common Stock or (v) effect a recapitalization of the Common Stock, then in each
such case the Adjustment Number in effect immediately prior to such event shall
be adjusted by multiplying such Adjustment Number by a fraction the numerator of
which is the number of shares of Common Stock outstanding immediately after such
event and the denominator of which is
-6-
<PAGE>
the number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Consolidation, Merger, etc. In case the Corporation shall
--------------------------
enter into any consolidation, merger, combination or other transaction in which
the shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case the shares of
Series X Preferred Stock shall at the same time be similarly exchanged or
changed in an amount per share (subject to the provision for adjustment
hereinafter set forth) equal to 100 times the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as the case may
be, into which or for which each share of Common Stock is changed or exchanged.
In the event the Corporation shall at any time after the Rights Declaration Date
(i) declare any dividend on Common Stock payable in shares of Common Stock, (ii)
subdivide the outstanding Common Stock, or (iii) combine the outstanding Common
Stock into a smaller number of shares, then in each such case the amount set
forth in the preceding sentence with respect to the exchange or change of shares
of Series X Preferred Stock shall be adjusted by multiplying such amount by a
fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to such
event.
Section 8. No Redemption. The shares of Series X Preferred Stock
-------------
shall not be redeemable.
Section 9. Ranking. The Series X Preferred Stock shall rank junior
-------
to all other series of the Corporation's preferred stock, if any, as to the
payment of dividends and the distribution of assets, unless the terms of any
such series shall provide otherwise. Nothing in this Certificate shall limit
the power of the Board of Directors to create a new series of preferred stock
ranking senior to the Series X Preferred Stock in any respect.
Section 10. Amendment. The Certificate of Incorporation of the
---------
Corporation shall not be further amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series X
Preferred Stock so as to affect them adversely without the affirmative vote of
the holders of two-thirds or more of the
-7-
<PAGE>
outstanding shares of Series X Preferred Stock, voting separately as a class.
Section 11. Fractional Shares. Series X Preferred Stock may be
-----------------
issued in fractions of a share, which shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series X Preferred Stock.
IN WITNESS WHEREOF, we have executed and subscribed this Certificate
and do affirm the foregoing as true under the penalties of perjury this [__] day
of August, 1997.
------------------------------
J. Thomas Parmeter, President
Attest:
- --------------------------------
Janis Neves, Assistant Secretary
-8-
<PAGE>
EXHIBIT B
---------
SUMMARY OF STOCKHOLDER PROTECTION AGREEMENT
-------------------------------------------
On August 21, 1997, the Board of Directors of PROTEIN POLYMER
TECHNOLOGIES, INC. (the "Company") declared a dividend distribution of one right
-------
(a "Right") to purchase a certain number of units (determined by a formula
-----
described herein) for each outstanding share of common stock, par value $.01 per
share (the "Common Shares") and each share of Series D Preferred Stock, par
-------------
value $.01 per share (the "Series D Preferred Shares"), of the Company at a
-------------------------
price of $8, subject to adjustment (the "Exercise Price"). Each unit is equal
-------- -----
to one one-hundredth of a share of a newly authorized Series X Junior
Participating Preferred Stock, par value $.01 per share ("Series X Preferred
------------------
Shares") of the Company. The distribution will be payable on September 10, 1997
- ------
(the "Record Date") to the stockholders of record on that date. The description
-----------
and terms of the Rights are set forth in the Stockholder Protection Agreement
(the "Agreement") between the Company and CONTINENTAL STOCK TRANSFER & TRUST
---------
COMPANY, as rights agent (the "Rights Agent").
------------
This summary is qualified in its entirety by reference to the
Agreement, copies of which are available from the Company.
The following is a general description only and is subject to the
detailed terms and conditions of the Agreement.
. Common Share Certificates Evidencing Rights
-------------------------------------------
Until the Separation Time (as defined below), the Rights are not
exercisable. Certificates for the Rights will not be sent to shareholders;
the Rights are deemed to attach to and trade together with the Common
Shares and the Series D Preferred Shares. Common Shares issued after the
Record Date and prior to the Separation Time will be issued with
accompanying Rights. Accordingly, the Common Share and Series D Preferred
Share certificates outstanding on the Record Date will represent the Rights
related thereto, and Common Share certificates issued after the Record Date
(upon the transfer of shares or the issuance of new shares) will also
contain a notation incorporating the Agreement by reference.
<PAGE>
. Separation Time
---------------
Subject to certain exceptions described in the Agreement, unless
earlier redeemed by the Company, the Rights will separate from the Common
Shares and the Series D Preferred Shares, separate certificates evidencing
the Rights (the "Rights Certificates") will be issued and the Rights will
-------------------
become exercisable 10 business days (the "Separation Time") following the
---------------
date on which a person (including its affiliates and associates) (i)
acquires, (ii) obtains the right to acquire or (iii) announces or commences
a tender or exchange offer to acquire Beneficial Ownership of 15% or more
of the outstanding Common Shares (such person thereby becoming an
"Acquiring Person")./1/
Immediately prior to the Separation Time the Rights associated with
any outstanding shares of Series D Preferred Stock will be converted into
that number of Rights to which the holders of such shares would have been
entitled had they converted the Series D Preferred Stock immediately prior
to the Separation Time
. Issuance of Rights Certificates; Expiration of Rights
-----------------------------------------------------
As soon as practicable following the Separation Time, the Rights
Certificates will be mailed to holders of record of the Common Shares and
Series D Preferred Shares as of the Separation Time and such separate
Rights Certificates alone will evidence the Rights from and after the
Separation Time. The Rights will expire on the tenth anniversary of the
adoption of the Agreement (the "Expiration Date").
---------------
- -------------------------------------------
/1/ Pursuant to the terms of the Agreement, certain types of institutional
investors, as well as designated minority and strategic investors, will not
become an Acquiring Person unless it (i) acquires, (ii) obtains the right to
acquire or (iii) announces or commences a tender or exchange offer to acquire
Beneficial Ownership of in excess of that percentage expressly approved in
writing by the Board of Directors of the Company of the outstanding Common
Shares.
-2-
<PAGE>
. Exercise of the Rights
----------------------
Following the Separation Time, holders of the Rights (the "Rights
------
Holders") (other than Rights beneficially owned by the Acquiring Person or
-------
its affiliates or associates, which will thereafter be void) will be
entitled to receive upon exercise and payment of the Exercise Price that
number of units of Series X Preferred Shares which equals the result
obtained by dividing the Exercise Price by 50% of the average market price
per Common Share over the 20 trading days immediately preceding the date of
such exercise (the "Market Price") (as defined in the Agreement). Assuming
------------
for purposes of illustration an unadjusted Exercise Price of $8 per Right
and a Common Share Market Price of $4, a payment by a Rights Holder of $8
would entitle him to 4 units or .04 Series X Preferred Shares. The Rights
Holder would receive 4 Series X Preferred Shares for each 100 Common Shares
held by him. The rights, preferences, privileges and restrictions with
respect to the Series X Preferred Shares are set forth in a Certificate of
Designation, Rights and Preferences filed with the office of the Delaware
Secretary of State.
. Right to Buy Acquiring Company Shares at Half Price
---------------------------------------------------
If, after the Separation Time, unless the Rights are earlier redeemed
or amended, (i) the Company were to be acquired in a merger or other
business combination transaction in which the Company was not the surviving
corporation or in which the Company's outstanding Common Shares were
changed or exchanged for cash, stock or assets of another person or (ii)
50% or more of the Company's consolidated assets or earning power were to
be sold (other than in transactions in the ordinary course of business),
then proper provision would be made so that each Rights Holder who has not
theretofore exercised his Rights (other than Rights beneficially owned by
the Acquiring Person or its affiliates or associates, which will thereafter
be void) will thereafter have the right to receive, upon exercise, a number
of shares of common stock of the acquiring company having a value equal to
two times the Exercise Price.
-3-
<PAGE>
Each Series X Preferred Share for which Rights had been exercised
prior to a business combination or other transaction of the type referred
to in clause (i) in the immediately preceding paragraph would be entitled
to receive upon consummation thereof 100 times the consideration (cash,
securities or other property, or a combination thereof) that one Common
Share would receive. Assuming again the illustrative facts set forth under
Exercise of the Rights above, and assuming also that each Common Share was
exchanged for $5 in cash and a debenture having a face amount of $2, the
holder of 100 Common Shares and 4 Series X Preferred Shares would be
entitled to receive $2,500 in cash and $1,000 face amount of debentures.
Without the Series X Preferred Shares, such holder would have only been
entitled to receive $500 in cash and $200 face amount of debentures.
. Redemption
----------
Any time on or prior to the earlier of (i) the Separation Time or
(ii) the Expiration Date of the Rights, the Company may redeem the Rights
in whole, but not in part, at a price of $.01 per Right (the "Redemption
----------
Price"). Immediately upon the action of the Board of Directors authorizing
-----
redemption of the Rights, the right to exercise the Rights will terminate
and the only right of the Rights Holders will be to receive the Redemption
Price.
. Amendment of Agreement
----------------------
The provisions of the Agreement may be supplemented or amended by the
Board of Directors, without approval of Rights Holders, in any manner
whatsoever prior to the Separation Time. Any amendment adopted by the
Board of Directors after the Separation Time may not materially and
adversely affect the interests of the holders of the Rights Certificates.
. Exchange for Common Shares
--------------------------
At any time following the Separation Time but before the Expiration
Date, the Company may, at its option, exchange all or any portion of the
Rights (except those Rights which are void) for Common Shares (or for units
of Series X Preferred Shares) at an
-4-
<PAGE>
exchange ratio which equals the Exchange Price divided by the Market Price
per Common Share per Right. The Company, however, may not effect such an
exchange if an Acquiring Person becomes the owner of 50% or more of the
then outstanding Common Shares.
. Adjustments to Prevent Dilution
-------------------------------
Each of the Exercise Price payable, the number of Rights issued per
Common Share or Series D Preferred Share and the number of Series X
Preferred Shares or other securities or property issuable upon exercise of
the Rights is subject to adjustment from time to time to prevent dilution,
as set forth in the Agreement.
. Fractional Shares
-----------------
The Company may elect not to issue fractional Series X Preferred
Shares, Common Shares or other securities of the Company upon exercise or
exchange of the Rights and in lieu thereof may evidence such fractional
shares by depositary receipts or may make an adjustment in cash based on
the value of the Series X Preferred Shares, Common Shares or other
securities of the Company. The holders of any such depositary receipts
will have all the rights, preferences and privileges to which they are
entitled as holders of Series X Preferred Shares.
. No Stock Rights Prior to Exercise
---------------------------------
Until a Right is exercised, the Rights Holder, as such, will have no
rights as a shareholder of the Company (other than rights resulting from
such Rights Holder's ownership of Common Shares or Series D Preferred
Shares), including, without limitation, the right to vote or to receive
dividends.
. Federal Securities Law Registration
-----------------------------------
The sale of Series X Preferred Shares pursuant to the Rights will be
subject to the effectiveness of a registration statement under the
Securities Act of 1933 and a Registration Statement on Form 8-A under the
Securities Exchange Act of 1934. A copy of the Agreement will be filed
with the Securities and Exchange Commission as an exhibit to such
registration
-5-
<PAGE>
statements and as an exhibit to the Company's Current Report on Form 8-K
relating to the Agreement. Rights Holders will be able to obtain a copy of
the Agreement free of charge from the Company.
-6-
<PAGE>
EXHIBIT C
---------
FORM OF RIGHTS CERTIFICATE
Certificate No. R- __________ Rights
Rights Certificate
PROTEIN POLYMER TECHNOLOGIES, INC.
NOT EXERCISABLE AFTER SEPTEMBER 9, 2007 OR EARLIER IF REDEEMED BY THE COMPANY.
THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE COMPANY, AT $.01 PER
RIGHT ON THE TERMS SET FORTH IN THE STOCKHOLDER PROTECTION AGREEMENT. UNDER
CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY AN ACQUIRING PERSON (AS SUCH
TERM IS DEFINED IN THE STOCKHOLDER PROTECTION AGREEMENT) AND ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS MAY BECOME NULL AND VOID. IF THE RIGHTS REPRESENTED BY
THIS RIGHTS CERTIFICATE ARE OR WERE BENEFI CIALLY OWNED BY A PERSON WHO WAS OR
BECAME AN ACQUIRING PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON
(AS SUCH TERMS ARE DEFINED IN THE STOCKHOLDER PROTECTION AGREEMENT), THIS RIGHTS
CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID AS
SPECIFIED IN SECTION 2.3(g) OF SUCH AGREEMENT.
This certifies that ________________________, or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Stockholder Protection Agreement, dated as of August 22, 1997 (the
"Stockholder Protection Agreement"), between PROTEIN POLYMER TECHNOLOGIES, INC.,
- ---------------------------------
a Delaware corporation (the "Company"), and CONTINENTAL STOCK TRANSFER & TRUST
-------
COMPANY (the "Rights Agent"), to purchase from the Company at any time after the
------------
Separation Time, as such term is defined in the Stockholder Protection
Agreement, and prior to the close of business on September 9, 2007, at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, at a purchase price of $8 per share (the "Exercise
--------
Price"), that number of one one-hundredths of a share (each one one-hundredth of
- -----
a share being referred to hereinafter as a "Unit") of the Company's Series X
----
Junior Participating Preferred Stock, par value of $.01 per share (the "Series X
--------
Preferred Stock"), which
- ---------------
<PAGE>
equals the quotient obtained by dividing the Exercise Price by 50% of the Market
Price (as defined in the Stockholder Protection Agreement) per share of the
Company's Common Stock, $.01 par value per share (the "Common Stock"), upon
------------
presentation and surrender of this Rights Certificate with the Form of Election
to Purchase and related Certificate duly executed. If, after the Separation
Time, (i) the Company is acquired in a merger or other business combination
transaction in which the Company is not the surviving corporation or in which
the Company's outstanding Common Stock is changed or exchanged for stock or
assets of another person or (ii) 50% or more of the Company's consolidated
assets or earning power is sold, then proper provision must be made so that each
holder of a Right which has not theretofore been exercised (except as otherwise
provided in the Stockholder Protection Agreement) will thereafter have the right
to receive, upon exercise, shares of common stock of the acquiring company
having a value equal to two times the Exercise Price. The Exercise Price shall
be paid, at the election of the holder, in cash, by certified check or money
order payable to the order of the Company, Common Stock, Series D Preferred
Stock, Rights to purchase Units of the Company's Series X Preferred Stock, or,
in the sole discretion of the Board of Directors of the Company, in such other
form as may be determined by the Board of Directors of the Company, in each case
in an amount equal to the aggregate Exercise Price of such Rights. The number
of Rights evidenced by this Rights Certificate (and the number of shares that
may be purchased upon exercise thereof) set forth above, and the Exercise Price
per share set forth above, are the number and Exercise Price as of September 10,
1997.
At the Separation Time (as such term is defined in the Stockholder
Protection Agreement), if the Rights evidenced by this Rights Certificate are
beneficially owned by (i) an Acquiring Person or an Affiliate or Associate of
any such Acquiring Person (as such terms are defined in the Stockholder
Protection Agreement) or (ii) a transferee of any such Acquiring Person,
Associate or Affiliate, such Rights cannot validly be transferred or exercised
and are for all purposes void.
As provided in the Stockholder Protection Agreement, the Exercise
Price is subject to adjustment upon the occurrence of certain events.
-2-
<PAGE>
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Stockholder Protection Agreement, which terms, provisions and
conditions are hereby incorporated herein by reference and made a part hereof
and to which Stockholder Protection Agreement refer ence is hereby made for a
full description of the rights, limitations of rights, obligations, duties and
immunities hereunder of the Rights Agent, the Company and the holders of the
Rights Certificates, which limitations of rights include the temporary
suspension of the exercisability of such Rights under the specific circumstances
set forth in the Stockholder Protection Agreement. Copies of the Stockholder
Protection Agreement are on file at the office of the Rights Agent and are also
available upon written request to the Rights Agent.
This Rights Certificate, with or without other Rights Certificates,
upon surrender at the principal office or offices of the Rights Agent designated
for such purpose, may be exchanged for another Rights Certificate or Rights
Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of shares of Series X Preferred Stock (or such
other securi ties) as the Rights evidenced by the Rights Certificate or Rights
Certificates surrendered shall have entitled such holder to purchase. If this
Rights Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Rights Certificate or Rights Certificates
for the number of whole Rights not exercised.
Subject to the provisions of the Stockholder Protection Agreement, the
Rights evidenced by this Certificate may be redeemed by the Company at its
option at a redemption price of $.01 per Right at any time prior to the earlier
of the Separation Time or the Expiration Time.
If the Company does not have a sufficient number of shares of Series X
Preferred Stock to permit the exercise in full of the Rights, the Company may
issue, in lieu of Units of Series X Preferred Stock, cash, Common Stock or other
preferred stock or equity securities, debt securities, other assets, or any
combination of the foregoing, or may reduce the Exercise Price.
The Company is not obligated to issue fractional shares of Series X
Preferred Stock (or such other securities of the Company) upon the exercise of
any Right or Rights
-3-
<PAGE>
evidenced hereby, but in lieu thereof may issue depository receipts, as provided
in the Stockholder Protection Agreement.
No holder, as such, of this Rights Certificate shall be entitled to
vote or receive dividends or be deemed for any purpose the holder of shares of
Series X Preferred Stock or of any other securities of the Company that may at
any time be issuable on the exercise hereof, nor shall anything contained in the
Stockholder Protection Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a stockholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
stockholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
stock holders (except as provided in the Stockholder Protection Agreement), or
to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by this Rights Certificate shall have been exercised as
provided in the Stockholder Protection Agreement.
This Rights 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: PROTEIN POLYMER TECHNOLOGIES, INC.
By
- ---------------------------- ----------------------------
Secretary Title:
Countersigned:
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By
----------------------------
Authorized Officer
-4-
<PAGE>
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
------------------
(To be executed by the registered holder if such
holder desires to transfer the Rights Certificate.)
FOR VALUE RECEIVED,
------------------------------------------------------------
hereby sells, assigns and transfers unto
---------------------------------------
- --------------------------------------------------------------------------------
(Please print name and address of transferee)
- --------------------------------------------------------------------------------
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint
-----------------------------
Attorney-in-Fact, to transfer the within Rights Certificate on the books of the
within-named Company, with full power of substitution.
Dated: ,
--------------- ----
------------------------------
Signature
Signature Guaranteed:
-5-
<PAGE>
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) this Rights Certificate [ ] is [ ] is not being sold, assigned and
transferred by or on behalf of a Person who is or was an Acquiring Person or an
Affiliate or Associate of any such Acquiring Person (as such terms are defined
pursuant to the Stockholder Protection Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or subsequently became an Acquiring Person or an
Affiliate or Associate of an Acquiring Person.
Dated: ,
---------- ----- -------------------------------
Signature
Signature Guaranteed:
- ----- ----- ----- ----- ----- ----- ----- -----
NOTICE
------
The signature to the foregoing assignment and Certificate must
correspond to the name as written upon the face of this Rights Certificate in
every particular, without alteration or enlargement or any change whatsoever.
-6-
<PAGE>
FORM OF ELECTION TO PURCHASE
----------------------------
(To be executed if holder desires to
exercise Rights represented by the
Rights Certificate.)
To: PROTEIN POLYMER TECHNOLOGIES, INC.
The undersigned hereby irrevocably elects to exercise
----------------
Rights represented by this Rights Certificate to purchase the shares of Series X
Preferred Stock issuable upon the exercise of the Rights (or such other
securities of the Company or of any other person which may be issuable upon the
exercise of the Rights) and requests that certificates for such shares be issued
in the name of and delivered to:
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
Rights Certificate, a new Rights 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
Signature Guaranteed:
-7-
<PAGE>
Certificate
-----------
The undersigned hereby certifies by checking the appropriate boxes
that:
(1) the Rights evidenced by this Rights Certificate [ ] are [ ] are
not being exercised by or on behalf of a Person who is or was an Acquiring
Person or an Affiliate or Associate of any such Acquiring Person (as such terms
are defined pursuant to the Stockholder Protection Agreement);
(2) after due inquiry and to the best knowledge of the undersigned, it
[ ] did [ ] did not acquire the Rights evidenced by this Rights Certificate from
any Person who is, was or became an Acquiring Person or an Affiliate or
Associate of an Acquiring Person.
Dated: ,
---------- ----- -------------------------------
Signature
Signature Guaranteed:
- ----- ----- ----- ----- ----- ----- ----- ----- ----- ----- -----
NOTICE
------
The signature to the foregoing Election to Purchase and Certificate
must correspond to the name as written upon the face of this Rights Certificate
in every particular, without alternation or enlargement or any change
whatsoever.
-8-
