FORM 8-A
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
DIGITAL BIOMETRICS, INC.
---------------------------
(Exact name of registrant as specified in its charter)
Delaware
(State of incorporation)
41-1545069
(I.R.S. Employer Identification No.)
5600 Rowland Road
Minnetonka, MN 55343
(Address of principal executive offices including zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class
to be registered
None
Name of each exchange
on which each class is
to be registered
None
Securities to be registered pursuant to Section 12(g) of the Act:
Rights to Purchase Common Shares
Item 1. Description of Registrant's Securities to be Registered
On May 2, 1996, the Board of Directors of Digital Biometrics, Inc. (the
"Company") declared a dividend of one common share purchase right (a "Right")
for each share of common stock, $.01 par value (a "Common Share"), of the
Company outstanding at the close of business on May 22, 1996 (the "Record
Date"). The Rights will be issued upon the terms and subject to the conditions
set forth in a Rights Agreement dated as of May 2, 1996 (the "Rights
Agreement"), between the Company and Norwest Bank Minnesota, National
Association, as Rights Agent (the "Rights Agent"). Each Right will entitle the
registered holder to purchase from the Company after the Distribution Date (as
described below), a number of Common Shares to be determined under the Rights
Agreement at an initial purchase price of $35 (the "Purchase Price"), subject to
adjustment.
The Rights become exercisable on the first day after the Distribution
Date. The Distribution Date is defined as the earlier of (i) ten business days
after a public announcement that a person or group of affiliated or associated
persons (not including the Company, any subsidiary of the Company, any person
holding Common Shares acquired in a transaction approved in advance in writing
by a majority of the Disinterested Directors of the Board of Directors of the
Company, any employee benefit plan of the Company or its subsidiaries or any
entity holding Common Shares for or pursuant to any such plan, or any person who
beneficially owns 7.5% or more of the Common Shares outstanding on the 20th day
preceding the Record Date, to the extent of such ownership), have acquired
beneficial ownership of 15% or more of the Common Shares (an "Acquiring
Person"), or (ii) ten business days after the commencement of, or the first
public announcement of an intention to make, a tender offer or exchange offer
the consummation of which would result in beneficial ownership by a person or
group (excluding the Company, any subsidiary of the Company, any employee
benefit plan of the Company or of its subsidiaries, any entity holding Common
Shares for or pursuant to any such plan, and any person holding Common shares
acquired in a transaction approved in advance in writing by a majority of the
Disinterested Directors of the Board of Directors of the Company) of 15% or more
of the Common Shares outstanding.
The Rights will expire on April 30, 2006 (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are earlier
redeemed or exchanged by the Company, in each case as described below.
Until the Distribution Date, the Rights will be evidenced, with respect
to any certificate for Common Shares outstanding as of the Record Date, by such
certificate together with a copy of a Summary of Rights and, with respect to any
certificate for Common Shares issued after the Record Date and before the
Distribution Date (or earlier redemption or expiration of the Rights), by such
certificate, which will bear a notation incorporating the Rights Agreement by
reference. Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), (i) the Rights will be transferred with and only with
the Common Shares, and (ii) the surrender for transfer of any certificate for
Common Shares will also constitute the transfer of the Rights associated with
the Common Shares represented by such certificate. As soon as practicable
following the Distribution Date, separate certificates evidencing the Rights
("Right Certificates") will be mailed to holders of record of the Common Shares
as of the close of business on the Distribution Date, and such separate Right
Certificates alone will evidence the Rights.
Each outstanding Common Share on May 22, 1996, will entitle the holder
thereof to receive one Right. In addition, the Company will issue one Right for
each Common Share that becomes outstanding between the Record Date and the
Distribution Date (or the earlier expiration, exchange or redemption of the
Rights) so that all such shares will have attached Rights.
In the event any person becomes an Acquiring Person, proper provision
will be made so that each holder of a Right, other than Rights that were or are
beneficially owned by the Acquiring Person (which Rights will thereafter be null
and void and the holder thereof shall have no rights with respect to such
Rights, whether under the Rights Agreement or otherwise), will thereafter have
the right to receive, upon the exercise thereof at the then current Purchase
Price, a number of Common Shares equal to the result obtained by dividing the
then current Purchase Price by 50% of the market price per Common Share at the
date such person became an Acquiring Person. Under certain circumstances, other
securities, property, cash or combinations thereof, including a combination with
Common Shares, that are equal in value to the number of Common Shares for which
the Right is exercisable, may be issued in lieu of Common Shares for which the
Right is exercisable.
The Purchase Price payable, and the number of Common Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Shares, (ii) upon the issuance of certain rights, options or warrants to
subscribe for or purchase Common Shares at a price, or securities convertible
into Common Shares with a conversion price, less than the then current market
price of the Common Shares, or (iii) upon the distribution to holders of the
Common Shares of evidences of indebtedness or assets (excluding regular periodic
cash dividends or dividends payable in Common Shares) or of subscription rights
or warrants (other than those referred to above). The number of outstanding
Rights and the number of Common Shares issuable upon exercise of each Right are
also subject to adjustment in the event of a stock split of the Common Shares or
a stock dividend on the Common Shares payable in Common Shares or subdivisions,
consolidations or combinations of the Common Shares occurring, in any such case,
prior to the Distribution Date.
In the event that the Company does not have sufficient authorized but
unissued Common Shares to permit the delivery of the required number of Common
Shares upon the exercise in full of the Rights, then each Rights Certificate
shall entitle the holder thereof to purchase the number of Common Shares equal
to a fraction, (i) the numerator of which shall be the number of Common Shares
authorized as of the Distribution Date, less: (A) the number of Common Shares
issued and outstanding as of the Distribution Date, (B) the number of Common
Shares reserved for issuance pursuant to stock options, warrants, and other
rights to purchase Common Shares from the Company outstanding on the
Distribution Date, and (C) the number of Common Shares reserved for issuance by
the Company under convertible debentures, preferred stock, or other securities
outstanding on the Distribution Date and convertible into or exchangeable for
Common Shares; and (ii) the denominator of which shall be the number of Common
Shares issued and outstanding as of the Distribution Date, less Common Shares of
which an Acquiring Person is the Beneficial Owner. In such event, the purchase
price per Common Share will be fifty percent (50%) of the then current per share
market price of the Common Shares.
In the event, following the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become such (the
"Shares Acquisition Date"), the Company is, in effect, acquired in a merger or
other business combination transaction, or more than 50% of its consolidated
assets or earning power is sold, proper provision will be made so that each
holder of a Right, other than Rights that were or are beneficially owned by the
Acquiring Person (which Rights will thereafter be null and void and the holder
thereof shall have no rights with respect to such Rights, whether under the
Rights Agreement or otherwise), will thereafter have the right to receive, upon
the exercise thereof at the then current Purchase Price, that number of shares
of common stock of the Acquiring Person equal to the result obtained by dividing
(x) the then current Purchase Price multiplied by the number of Common Shares
for which a Right is then exercisable, by (y) 50% of the market price per share
of common stock of the Acquiring Person at the time of such transaction.
As described in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person shall become null and void.
Under certain circumstances, after a person becomes an Acquiring
Person, the Board of Directors of the Company may exchange the Rights (other
than Rights owned by the Acquiring Person), in whole or in part, at an exchange
ratio of one Common Share per Right (subject to adjustment). With certain
exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in such Purchase
Price. No fractional Common Shares will be issued, and in lieu thereof, an
adjustment in cash will be made based on the market price of the Common Shares
on the last trading day prior to the date of exercise.
At any time prior to the close of business on the tenth business day
after the Shares Acquisition Date, the Company may redeem the Rights in whole,
but not in part, at a price of $0.01 per Right (the "Redemption Price"), which
may be paid in cash, with Common Shares or other consideration deemed
appropriate by the Board of Directors of the Company. Immediately upon the
action of the Board of Directors of the Company to redeem the Rights, the
Company shall announce the redemption, the right to exercise the Rights will
terminate, and the only right of the holders of Rights will be to receive the
Redemption Price.
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 by the Board of Directors of the
Company without the consent of the holders of the Rights at any time to cure any
ambiguity or to correct or supplement any defective or inconsistent provisions
and may, prior to the Distribution Date, be amended to change, delete or
supplement any other provision in any manner that the Company may deem necessary
or desirable. After the Distribution Date, 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 the holders of the Rights (not including an Acquiring Person,
in whose hands all Rights are void).
As of April 30, 1995, the Company had 20,000,000 Common Shares
authorized for issuance. As of April 30, 1996, there were 10,424,781 Common
Shares outstanding. In addition, there are 1,500,000 Common Shares reserved for
issuance under the Company's 1990 Stock Option Plan, as amended, 762,100 shares
of which are subject to outstanding options; 250,000 Common Shares reserved for
issuance under the Company's 1992 Restricted Stock Plan, 104,362 shares of which
have been granted under such plan; 150,000 Common Shares reserved for issuance
under the Company's Non-Employee Director Stock Option Plan, 67,500 shares of
which are subject to outstanding options; 13,500 Common Shares subject to
issuance under various employment agreements; 212,893 Common Shares subject to
outstanding warrants; and 3,600,000 Common Shares reserved for issuance upon the
conversion of the Company's 8% convertible debentures. As of April 30, 1996, a
total of $3.0 million in subordinated debentures were convertible into Common
Shares.
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 since the Board of Directors
may, at its option, at any time prior to the close of business on the tenth
business day after the Shares Acquisition Date, redeem all but not less than all
the then outstanding Rights at the Redemption Price.
A copy of the Rights Agreement has been filed as an exhibit to this
Registration Statement. This summary description of the Rights does not purport
to be complete and is qualified in its entirety by reference to the Rights
Agreement, which is hereby incorporated herein by reference.
Item 2. Exhibits
1. Rights Agreement dated as of May 2, 1996, between Digital
Biometrics, Inc. and Norwest Bank Minnesota, National
Association, as Rights Agent, which includes, as exhibits, the
form of Right Certificate and the Summary of Rights to
Purchase Common Shares.
2. Letter to Digital Biometrics, Inc. stockholders dated May 3,
1996.
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Dated: May 3, 1996. DIGITAL BIOMETRICS, INC.
By:/s/ Jack A. Klingert
Jack A. Klingert
Chairman of the Board,
Chief Executive Officer
INDEX TO EXHIBITS
Sequentially
Exhibit Numbered
Number Pages
1. Rights Agreement dated as of May 2, 1996,
between Digital Biometrics, Inc. and Norwest
Bank Minnesota, National Association, as Rights
Agent, which includes as exhibits, the form of
Right Certificate and the Summary of Rights to
Purchase Common Shares
2. Letter to stockholders of Digital Biometrics, Inc.
dated May 3, 1996
EXHIBIT 1
RIGHTS AGREEMENT
between
DIGITAL BIOMETRICS, INC.
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION
(as Rights Agent)
Dated as of May 2, 1996
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TABLE OF CONTENTS
Page
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Section 1. Certain Definitions.................................................... 1
Section 2. Appointment of Rights Agent............................................ 6
Section 3. Issue of Right Certificates............................................ 6
Section 4. Form of Right Certificates............................................. 9
Section 5. Countersignature and Registration...................................... 10
Section 6. Transfer, Split Up, Combination and Exchange of Right Certificate;
Mutilated, Destroyed, Lost or Stolen Right Certificates................ 11
Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.......... 12
Section 8. Cancellation and Destruction of Right Certificate...................... 15
Section 9. Availability of Common Shares.......................................... 15
Section 10. Common Shares Record Date............................................. 18
Section 11. Adjustment of Purchase Price, "Flip-In" Provision, Number of Shares
or Number of Rights................................................... 18
Section 12. Certificate of Adjusted Purchase Price or Number of Shares............ 28
Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning
Power ("Flip-Over" Provision.......................................... 28
Section 14. Fractional Rights and Fractional Shares............................... 32
Section 15. Agreement of Right Holders............................................ 34
Section 16. Right Certificate Holder Not Deemed a Stockholder..................... 34
Section 17. Concerning the Rights Agent........................................... 35
Section 18. Merger or Consolidation or Change of Name of Rights Agent............. 36
Section 19. Duties of Rights Agent................................................ 37
Section 20. Change of Rights Agent................................................ 40
Section 21. Issuance of New Right Certificates.................................... 41
Section 22. Redemption............................................................ 42
Section 23. Exchange.............................................................. 44
Section 24. Notice of Certain Events.............................................. 46
Section 25. Notices............................................................... 48
Section 26. Supplements and Amendments............................................ 48
Section 27. Successors............................................................ 49
Section 28. Benefits of this Agreement............................................ 49
Section 29. Severability.......................................................... 50
Section 30. Determinations and Actions by the Board of Directors.................. 50
Section 31. Governing Law......................................................... 51
Section 32. Counterparts.......................................................... 52
Section 33. Descriptive Headings.................................................. 52
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RIGHTS AGREEMENT
Rights Agreement, dated as of May 2, 1996, between Digital Biometrics,
Inc., a Delaware corporation (the "Company"), and Norwest Bank Minnesota,
National Association (the "Rights Agent").
The Board of Directors of the Company has authorized and declared a
dividend of one Common Share (as hereinafter defined) Purchase Right (a "Right")
for each Common Share of the Company outstanding on May 22, 1996 (the "Record
Date"), each Right representing the right to purchase a number of Common Shares
determined in accordance with, and upon the terms and subject to, the conditions
herein set forth, and has further authorized and directed the issuance of one
Right with respect to each Common Share of the Company that shall become
outstanding between the Record Date and the earliest of the Distribution Date,
the Redemption Date and the Final Expiration Date (as such terms are hereinafter
defined).
Accordingly, in consideration of the premises and the mutual agreements
herein set forth, the parties hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms (in addition to those defined above) shall have the meanings
indicated:
(a) "Acquiring Person" shall mean any Person (as such term is
hereinafter defined) who or which, together with all Affiliates and Associates
(as such terms are hereinafter defined) of such Person, shall be the Beneficial
Owner (as such term is hereinafter defined) of fifteen percent (15%) or more of
the Common Shares then outstanding, but shall not include (i) the Company, (ii)
any wholly owned Subsidiary (as such term is hereinafter defined) of the
Company, (iii) any Person holding Common Shares issued to that Person by the
Company in a transaction occurring after the Record Date and approved in advance
in writing by a majority of Disinterested Directors (as such term is hereinafter
defined in Section 22 hereof) of the Company's Board of Directors to the extent,
and only to the extent, of the Common Shares so held (a "Company-Approved
Issuance"), (iv) any employee benefit plan of the Company or of any Subsidiary
of the Company, (v) any Person holding Common Shares for or pursuant to the
terms of any such employee benefit plan to the extent, and only to the extent,
of the Common Shares so held, or (vi) any Person who or which, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner of seven
and one-half percent (7.5%) or more of the Common Shares outstanding on the 20th
day preceding the Record Date, provided, however, that such Person shall be
deemed to be an Acquiring Person upon becoming the Beneficial Owner, together
with all Affiliates and Associates of such Person, of any additional Common
Shares representing an incremental increase of fifteen percent (15%) or more of
the Common Shares then outstanding, which were acquired at any time after the
20th day preceding the Record Date. Notwithstanding the foregoing, no Person
shall become an "Acquiring Person" solely as the result of an acquisition of
Common Shares by the Company which, by reducing the number of shares
outstanding, increases the proportionate number of shares beneficially owned by
such Person.
(b) "Affiliate" and "Associate" shall have the respective meanings
ascribed to such terms in Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), as in
effect on the date of this Agreement.
(c) A Person shall be deemed the "Beneficial Owner" of and shall be
deemed to "beneficially own" any securities:
(i) which such Person or any such Person's Affiliates or
Associates beneficially owns, directly or indirectly;
(ii) which such Person or any of such Person's Affiliates or
Associates has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding (whether or not in writing),
other than customary agreements with and between underwriters and
selling group members with respect to a bona fide public offering of
securities, or upon the exercise of conversion rights, exchange rights,
rights (other than the Rights), warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the Beneficial
Owner of, or to beneficially own, securities tendered pursuant to a
tender or exchange offer made by or on behalf of such Person or any of
such Person's Affiliates or Associates until such tendered securities
are accepted for purchase or exchange;
(iii) which such Person or any of such Person's Affiliates or
Associates has the right to vote pursuant to any agreement, arrangement
or understanding (whether or not in writing); provided, however, that a
Person shall not be deemed the Beneficial Owner of, or to beneficially
own, any security if the agreement, arrangement or understanding to
vote such security (A) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable
rules and regulations promulgated under the Exchange Act, and (B) is
not also then reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report); or
(iv) which are beneficially owned, directly or indirectly, by
any other Person with which such Person or any of such Person's
Affiliates or Associates has any agreement, arrangement or
understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona fide
public offering of securities) for the purpose of acquiring, holding,
voting (except to the extent contemplated by the "provided, however"
clause contained in Section 1(c) (iii)), or disposing of any securities
of the Company.
Notwithstanding the foregoing, any securities that are owned or held by (i) the
Company, (ii) any Subsidiary of the Company, (iii) any Person pursuant to a
Company-Approved Issuance, or (iv) any employee benefit plan of the Company or
of any Subsidiary of the Company (and any securities that are owned or held by
any Person pursuant to the terms of any such employee benefit plan), shall not
be deemed to be beneficially owned by any other Person and no other Person shall
be deemed to be the Beneficial Owner of such securities to the extent, and only
to the extent, of the securities so held.
(d) "Business Day" shall mean any day other than a Saturday, a Sunday,
or a day on which banking institutions in the State of Minnesota or the State of
New York are authorized or obligated by law or executive order to close.
(e) "Close of Business" on any given date shall means 5:00 p.m.,
Minneapolis, Minnesota time, on such date; provided, however, that if such date
is not a Business Day it shall mean 5:00 p.m., Minneapolis, Minnesota time, on
the next succeeding Business Day.
(f) "Common Shares" when used with reference to the Company
(specifically or in context) shall mean the shares of common stock, par value
$.01 per share, of the Company. "Common Shares" when used with reference to any
Person other than the Company shall mean the capital stock (or equity interest)
with the greatest voting power of such other Person or, if such other Person is
a Subsidiary of another Person, the Person or Persons which ultimately control
such first-mentioned Person.
(g) "Company-Approved Issuance" shall have the meaning set forth in
Section 1(a) hereof.
(h) "Disinterested Director" shall have the meaning set forth in
Section 22 hereof.
(i) "Distribution Date" shall have the meaning set forth in Section 3
hereof.
(j) "Final Expiration Date" shall have the meaning set forth in Section
7 hereof.
(k) "Person" shall mean any individual, firm, corporation, incorporated
or unincorporated association, limited liability company, partnership or other
entity, and shall include any successor (by merger or otherwise) of such entity.
(l) "Purchase Price" shall have the meaning set forth in Section 7
hereof, as the same may be adjusted from time to time in accordance with the
terms of this Agreement.
(m) "Redemption Date" shall have the meaning set forth in Section 7
hereof.
(n) "Shares Acquisition Date" shall mean the first date of public
announcement (which, for purposes of this definition, shall include, without
limitation, a report filed pursuant to Section 13(d) of the Exchange Act) by the
Company or an Acquiring Person that an Acquiring Person has become such.
(o) "Subsidiary" of any Person shall mean any corporation, incorporated
or unincorporated association, limited liability company, partnership or other
entity of which a majority of the voting power of the voting equity securities
or equity interest is owned, directly or indirectly, by such Person.
Certain additional terms used wholly within a subsequent Section of
this Agreement shall have the meaning given them in the relevant Section of this
Agreement for purposes of such Section.
SECTION 2. APPOINTMENT OF RIGHTS AGENT. The Company hereby appoints the
Rights Agent to act as agent for the Company and the holders of the Rights (who,
in accordance with Section 3 hereof, shall prior to the Distribution Date also
be the holders of the Common Shares of the Company) in accordance with the terms
and conditions hereof, and the Rights Agent hereby accepts such appointment. The
Company may from time to time appoint such co-Rights Agents as it may deem
necessary or desirable.
SECTION 3. ISSUE OF RIGHT CERTIFICATES.
(a) Until the earlier (the earlier of such dates being herein referred
to as the "Distribution Date") of (i) the close of business on the tenth
Business Day after the Shares Acquisition Date, or (ii) the close of business on
the tenth Business Day after the date of the commencement by any Person (other
than the Company, any wholly owned Subsidiary of the Company, any Person holding
Common Stock acquired in a Company- Approved Issuance, any employee benefit plan
of the Company or of any wholly owned Subsidiary of the Company, or any entity
holding Common Shares for or pursuant to the terms of any such plan to the
extent such entity is so acting with the approval or consent of the Company) of,
or of the first public announcement of the intention of any Person (other than
the Company, any Person holding Common Stock acquired in a Company-Approved
Issuance, any wholly owned Subsidiary of the Company, any employee benefit plan
of the Company or of any wholly owned Subsidiary of the Company, or any entity
holding Common Shares for or pursuant to the terms of any such plan to the
extent such entity is so acting with the approval or consent of the Company or
as part of its ordinary activities with respect to any such plan) to commence, a
tender or exchange offer the consummation of which would result in any Person
becoming the Beneficial Owner of fifteen percent (15%) or more of the Common
Shares then outstanding (including any such date which is after the date of this
Agreement and prior to the issuance of the Rights), (x) the Rights will be
evidenced (subject to the provisions of Section 3(b) hereof) solely by the
certificates for Common Shares registered in the names of the holders thereof
(which certificates shall also be deemed to be Right Certificates) and not by
separate Right Certificates, and (y) the right to receive Right Certificates
will be transferable only in connection with the transfer of Common Shares of
the Company. As soon as practicable after the Distribution Date, the Company
will prepare and execute, the Rights Agent will countersign, and the Company
will send or cause to be sent (and the Rights Agent will, if requested, send),
by first-class, insured, postage prepaid mail, to each record holder of Common
Shares as of the close of business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right Certificate, in
substantially the form of Exhibit A hereto (a "Right Certificate"), evidencing
one Right for each Common Share of the Company so held. As of and after the
Distribution Date, the Rights will be evidenced solely by such Right
Certificates.
(b) As promptly as practicable following the Record Date, the Company
will send a copy of a Summary of Rights to Purchase Common Shares, in
substantially the form of Exhibit B hereto (the "Summary of Rights"), by
first-class, postage prepaid mail, to each record holder of Common Shares as of
the close of business on the Record Date, at the address of such holder shown on
the records of the Company. With respect to certificates for Common Shares of
the Company outstanding as of the Record Date, until the Distribution Date, the
Rights associated with the Common Shares represented by such certificates shall
be evidenced by such certificates together with a copy of the Summary of Rights
attached thereto. Until the Distribution Date (or the earlier of the Redemption
Date and the Final Expiration Date), the surrender for transfer of any
certificate for Common Shares outstanding on the Record Date, with or without a
copy of the Summary of Rights attached thereto, shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby.
(c) Certificates for Common Shares which become outstanding (including,
without limitation, reacquired Common Shares referred to in the last sentence of
this paragraph (c) after the Record Date but prior to the earliest of the
Distribution Date, the Redemption Date or the Final Expiration Date) shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend:
This certificate also evidences and entitles the holder hereof
to certain rights as set forth in a Rights Agreement between
Digital Biometrics, Inc. and Norwest Bank Minnesota, National
Association, dated as of May 2, 1996 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference
and a copy of which is on file at the principal executive
offices of Digital Biometrics, Inc. Under certain
circumstances, as set forth in the Rights Agreement, the
Rights described therein will be evidenced by separate
certificates and will no longer be evidenced by this
certificate. Digital Biometrics, Inc. will mail to the holder
of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. As
described in the Rights Agreement, Rights issued to any Person
who becomes an Acquiring Person (as those terms are defined in
the Rights Agreement) shall become null and void. The Rights
shall not be exercisable by a holder in any jurisdiction
where the requisite qualification to the issuance to such
holder of the Rights, or the exercise by such holder of the
Rights in such jurisdiction, shall not have been obtained or
obtainable.
With respect to such certificates containing the foregoing legend, until the
Distribution Date, the Rights associated with the Common Shares represented by
such certificates shall be evidenced by such certificates alone, and the
surrender for transfer of any such certificate shall also constitute the
transfer of the Rights associated with the Common Shares represented thereby. In
the event that the Company purchases or acquires any Common Shares after the
Record Date but prior to the Distribution Date, any Rights associated with such
Common Shares shall be deemed canceled and retired so that the Company shall not
be entitled to exercise any Rights associated with the Common Shares which are
no longer outstanding.
(d) Notwithstanding anything in this Agreement to the contrary, from
and after the time any Person becomes an Acquiring Person, any Rights that are
or were acquired or beneficially owned by such Acquiring Person (or any
Associate or Affiliate of such Acquiring Person) shall be null and void without
any further action and any holder of such Rights shall thereafter have no rights
whatsoever with respect to such Rights, whether under this Agreement (including
the right to exercise such Rights under any provision of this Agreement) or
otherwise.
SECTION 4. FORM OF RIGHT CERTIFICATES. The Right Certificates (and the
forms of election to purchase Common Shares and of assignment to be printed on
the reverse thereof) shall be in substantially the form of Exhibit A hereto and
may have such marks of identification or designation and such legends, summaries
or endorsements printed thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange on which the Rights
may from time to time be listed, or to conform to usage. Subject to the
provisions of Section 22 and Section 23 hereof, the Right Certificate shall
entitle the holder thereof to purchase such number of Common Shares as shall be
set forth therein at the price per Common Share set forth therein (the "Purchase
Price"), but the number of such Common Shares and the Purchase Price shall be
subject to adjustment as provided herein.
SECTION 5. COUNTERSIGNATURE AND REGISTRATION. The Right Certificates
shall be executed on behalf of the Company by its Chairman of the Board of
Directors, its President or any Vice President, either manually or by facsimile
signature, may have affixed thereto the Company's seal or a facsimile thereof,
and shall be attested by the Secretary or an Assistant Secretary of the Company,
either manually or by facsimile signature. The Right Certificates shall be
manually countersigned by the Rights Agent and shall not be valid for any
purpose unless countersigned. In case any officer of the Company who shall have
signed any of the Right Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery by
the Company, such Right Certificates, nevertheless, may be countersigned by the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who signed such Right Certificates had not ceased to
be such officer of the Company; and any Right Certificate may be signed on
behalf of the Company by any person who, at the actual date of the execution of
such Right Certificate, shall be a proper officer of the Company to sign such
Right Certificate, although at the date of the execution of this Agreement any
such person was not such an officer.
Following the Distribution Date, the Rights Agent will keep or cause to
be kept, at its principal office or offices, books for registration and transfer
of the Right Certificates issued hereunder. Such books shall show the names and
addresses of the respective holders of the Right Certificates, the number of
rights evidenced on its face by each of the Right Certificates, and the date of
each of the Right Certificates.
SECTION 6. TRANSFER, SPLIT UP, COMBINATION AND EXCHANGE OF RIGHT
CERTIFICATE; MUTILATED, DESTROYED, LOST OR STOLEN RIGHT CERTIFICATES. Subject to
the provisions of Section 14 hereof, at any time after the close of business on
the Distribution Date, and at or prior to the close of business on the earlier
of the Redemption Date or the Final Expiration Date, any Right Certificate or
Right Certificates (other than Right Certificates representing Rights that have
become void pursuant to Section 11(a)(iii) hereof or that have been exchanged
pursuant to Section 23 hereof) may be transferred, split up, combined or
exchanged for another Right Certificate or Right Certificates, entitling the
registered holder to purchase a like number of Common Shares as the Right
Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up, combine or
exchange any Right Certificate or Right Certificates shall make such request in
writing delivered to the Rights Agent and shall endorse and surrender the Right
Certificate or Right Certificates to be transferred, split up, combined or
exchanged at the principal office of the Rights Agent. Neither the Rights Agent
nor the Company shall be obligated to take any action whatsoever with respect to
the transfer of any such surrendered Right Certificate until the registered
holder shall have completed and signed the certificate contained in the form of
assignment on the reverse side of such Right Certificate and shall have provided
such additional evidence of the identify of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company shall
reasonably request. Thereupon the Rights Agent shall countersign and deliver to
the person entitled thereto a Right Certificate or Right Certificates, as the
case may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Right
Certificates.
Upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right
Certificate, and, in case of loss, theft or destruction, of indemnity or
security reasonably satisfactory to them, and, at the Company's request,
reimbursement to the Company and the Rights Agent of all reasonable expenses
incidental thereto, and upon surrender to the Rights Agent and cancellation of
the Right Certificate if mutilated, the Company will make and deliver a new
Right Certificate of like tenor to the Rights Agent for delivery to the
registered holder in lieu of the Right Certificate so lost, stolen, destroyed or
mutilated.
SECTION 7. EXERCISE OF RIGHTS; PURCHASE PRICE; EXPIRATION DATE OF
RIGHTS.
(a) The registered holder of any Right Certificate may exercise the
Rights evidenced thereby (except as otherwise provided herein) in whole or in
part at any time, subject to Section 22(a) hereof, after the Distribution Date
upon surrender of the Right Certificate, with the form of election to purchase
on the reverse side thereof duly executed, to the Rights Agent at the principal
office of the Rights Agent, together with payment of the Purchase Price (or the
Alternative Purchase Price, if applicable) to be paid upon exercise of the
Right, at or prior to the earliest of (i) the close of business on April 30,
2006 (the "Final Expiration Date"), (ii) the time at which the Rights are
redeemed as provided in Section 22 hereof (the "Redemption Date"), and (iii) the
time at which such Rights are exchanged as provided in Section 23 hereof.
(b) In the event that there are sufficient authorized but unissued
Common Shares to permit the exercise in full of the Rights pursuant to Section
11(a)(ii) hereof, the purchase price to be paid upon the exercise of a Right
shall initially be $35 and shall be subject to adjustment from time to time as
provided in Sections 11 and 13 hereof (the "Purchase Price"). In the event there
shall not be sufficient authorized but unissued Common Shares to permit the
exercise in full of the Rights pursuant to Section 11(a)(ii), then the purchase
price per Common Share shall be fifty percent (50%) of the then current per
share market price of the Common Shares (determined pursuant to Section 11(d)
hereof) (the "Alternative Purchase Price"). In either case the purchase price
shall be payable in lawful money of the United States of America in accordance
with paragraph (c) below.
(c) Subject to the provisions of Section 11(a)(v) hereof, upon receipt
of a Right Certificate representing exercisable Rights, with the form of
election to purchase duly executed, accompanied by payment of the Purchase Price
for the shares to be purchased (plus an amount equal to any applicable transfer
tax required to be paid by the holder of such Right Certificate in accordance
with Section 9 hereof) by certified check, cashier's check or money order
payable to the order of the Company, the Rights Agent shall thereupon promptly
(i) requisition from any transfer agent of the Common Shares certificates for
the number of Common Shares to be purchased, and the Company hereby irrevocably
authorizes its transfer agent to comply with all such requests, (ii) when
appropriate, requisition from the Company the amount of cash to be paid in lieu
of issuance of fractional shares in accordance with Section 14 hereof, or the
amount of cash, property or other securities to be paid or issued in lieu of the
issuance of Common Shares in accordance with Section 11(a)(v) hereof, (iii)
after receipt of such certificates, cause the same to be delivered to or upon
the order of the registered holder of such Right Certificate, registered in such
name or names as may be designated by such holder, and (iv) when appropriate,
after receipt, deliver such cash, property or other securities to or upon the
order of the registered holder of such Right Certificate.
(d) In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate
evidencing Rights equivalent to the Rights remaining unexercised shall be issued
by the Rights Agent to the registered holder of such Right Certificate or to
such holder's duly authorized assigns, subject to the provisions of Section 14
hereof.
(e) Subject to Section 9 hereof, and further subject to the Company's
rights under Section 11(a)(v) hereof to fulfill its obligations otherwise, the
Company may, but need not, cause to be kept available, out of its authorized and
unissued Common Shares, the number of Common Shares that will be sufficient to
permit the exercise in full of all outstanding Rights.
(f) Notwithstanding anything in this Agreement to the contrary, neither
the Rights Agent nor the Company shall be obligated to undertake any action with
respect to a registered holder of Rights upon the occurrence of any purported
exercise as set forth in this Section 7 unless such registered holder shall have
(i) completed and signed a certificate contained in the form of election to
purchase set forth on the reverse side of the Right Certificate surrendered for
such exercise, and (ii) provided such additional evidence of the identity of the
Beneficial Owner (or former Beneficial Owner) or Affiliates or Associates
thereof as the Company shall reasonably request.
SECTION 8. CANCELLATION AND DESTRUCTION OF RIGHT CERTIFICATE. All Right
Certificates surrendered for the purpose of exercise, transfer, split up,
combination or exchange shall, if surrendered to the Company or to any of its
agents, be delivered to the Rights Agent for cancellation or in canceled form,
or, if surrendered to the Rights Agent, shall be canceled by it, and no Right
Certificates shall be issued in lieu thereof except as expressly permitted by
any of the provisions of this Agreement. The Company shall deliver to the Rights
Agent for cancellation and retirement, and the Rights Agent shall so cancel and
retire, any Right Certificate representing Rights purchased or acquired by the
Company otherwise than upon the exercise thereof. The Rights Agent shall deliver
all canceled Right Certificates to the Company, or shall, at the written request
of the Company, destroy such canceled Right Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
SECTION 9. AVAILABILITY OF COMMON SHARES.
(a) The Company covenants and agrees that it will take all such action
as may be necessary to ensure that all Common Shares delivered upon exercise of
Rights shall, at the time of delivery of the certificates for such Common Shares
(subject to payment of the Purchase Price), be duly and validly authorized and
issued and fully paid and nonassessable shares.
(b) Notwithstanding anything in this Agreement to the contrary, in the
event that there shall not be sufficient Common Shares authorized but unissued
to permit the exercise in full of the Rights, then, in such case, each Rights
Certificate shall entitle the holder thereof to purchase the number of Common
Shares equal to a fraction, (i) the numerator of which shall be the number of
Common Shares authorized as of the Distribution Date, less: (A) the number of
Common Shares issued and outstanding as of the Distribution Date, (B) the number
of Common Shares reserved for issuance pursuant to stock options, warrants, and
other rights to purchase Common Shares from the Company outstanding on the
Distribution Date, and (C) the number of Common Shares reserved for issuance by
the Company under convertible debentures, preferred stock, or other securities
outstanding on the Distribution Date and convertible into or exchangeable for
Common Shares; and (ii) the denominator of which shall be the number of Common
Shares issued and outstanding as of the Distribution Date, less Common Shares of
which an Acquiring Person is the Beneficial Owner.
(c) The Company further covenants and agrees that it will pay when due
and payable any and all federal and state transfer taxes and charges which are
payable in respect of the issuance or delivery of the Right Certificates or of
any Common Shares (or other securities which may become or be issuable under the
terms of this Agreement) upon the exercise of Rights. The Company shall not,
however, be required to pay any transfer tax which may be payable in respect of
any transfer or delivery of Right Certificates to a Person other than, or the
issuance or delivery of certificates for the Common Shares (or other securities
which may become or be issuable under the terms of this Agreement) in a name
other than that of, the registered holder of the Right Certificates evidencing
Rights surrendered for transfer, delivery or exercise or to issue or to deliver
any certificates for Common Shares (or other securities which may become or be
issuable under the terms of this Agreement) upon the exercise of any Rights
until any such tax shall have been paid (any such tax being payable by the
holder of such Right Certificates at the time of surrender) or until it has been
established to the Company's reasonable satisfaction that no such tax is due.
(d) The Company covenants and agrees that, so long as Common Shares
issuable and deliverable upon the exercise of Rights may be listed on any
national securities exchange or the Nasdaq Stock Market, from and after such
time as the Rights become exercisable the Company shall use its best efforts to
cause all Common Shares reserved for issuance to be listed on such exchange or
market upon official notice of issuance upon such exercise.
(e) The Company shall (i) prepare and file, as soon as possible
following the Distribution Date, a registration statement under the Securities
Act of 1933 (the "Act") with respect to the securities purchasable upon exercise
of the Rights on an appropriate form, (ii) cause such registration statement to
become effective as soon as possible after such filing, and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Act) until no longer required to do so under the
Act with respect to securities purchasable upon exercise of the Rights. The
Company will also take all such action as may be required or as is appropriate
under the securities or blue sky laws of such jurisdictions as may be necessary
or appropriate with respect to the securities purchasable upon the exercise of
the Rights. The Company may temporarily suspend, for a period not to exceed
ninety (90) days following the Distribution Date, the exercisability of the
Rights in order to prepare and file such registration statement and permit it to
become effective. Upon any such suspension of exercisability of Rights referred
to in this paragraph, the Company shall issue a public announcement stating that
the exercisability of the Rights has been temporarily suspended, as well as a
public announcement at such time as the suspension is no longer in effect.
(f) Notwithstanding any provision in this Agreement to the contrary,
the Rights shall not be exercisable by a holder in any jurisdiction where the
requisite qualification to the issuance to such holder, or the exercise by such
holder of the Rights in such jurisdiction, shall not have been obtained or be
obtainable, or the exercise thereof shall not be permitted under applicable law
or a registration statement shall not have been declared effective.
SECTION 10. COMMON SHARES RECORD DATE. Each Person in whose name any
certificate for Common Shares is issued upon the exercise of Rights shall for
all purposes be deemed to have become the holder of record of the Common Shares
represented thereby on, and such certificate shall be dated, the date upon which
the Right Certificate evidencing such Rights was duly surrendered and payment of
the Purchase Price (and any applicable transfer taxes) was made; provided,
however, that if the date of such surrender and payment is a date upon which the
Common Shares 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 Common Shares
transfer books of the Company are open.
SECTION 11. ADJUSTMENT OF PURCHASE PRICE, "FLIP-IN" PROVISION, NUMBER
OF SHARES OR NUMBER OF RIGHTS. The Purchase Price, the number of Common Shares
that the holder of a Right Certificate is entitled to purchase on the exercise
of the Rights evidenced thereby, and the number of Rights outstanding, are
subject to an adjustment from time to time as provided in this Section 11.
(a) (i) In the event the Company shall at any time after the
date of this Agreement (A) declare a dividend on the Common Shares
payable in Common Shares, (B) subdivide the outstanding Common Shares,
(C) combine the outstanding Common Shares into a smaller number of
Common Shares, or (D) issue any shares of its capital stock in a
reclassification of the Common Shares (including any such
reclassification in connection with a consolidation or merger in which
the Company is the continuing or surviving corporation), except as
otherwise provided in this Section 11(a), the Purchase Price in effect
at the time of the record date for such dividend or at the effective
date of such subdivision, combination or reclassification, and the
number and kind of shares of capital stock issuable on such date, shall
be proportionately adjusted so that the holder of any Right exercised
after such time shall be entitled to receive the aggregate number and
kind of shares of capital stock which, if such Right had been exercised
immediately prior to such date and at a time when the Common Shares
transfer books of the Company were open, such holder would have owned
upon such exercise and been entitled to receive by virtue of such
dividend, subdivision, combination or reclassification. If an event
occurs which would require an adjustment under both this Section
11(a)(i) and Section 11(a)(ii) hereof, the adjustment provided for in
this Section 11(a)(i) shall be in addition to, and shall be made prior
to, any adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) Subject to Sections 9, 22 and 23 of this
Agreement, in the event any Person shall become an Acquiring Person,
proper provisions shall be made so that each holder of a Right shall
thereafter have a right to receive, upon exercise thereof in accordance
with Section 7 hereof, at a price equal to the then current Purchase
Price, such number of Common Shares as shall equal the result obtained
by (A) dividing the then current Purchase Price by (B) 50% of the then
current per share market price of the Company's Common Shares
(determined pursuant to Section 11(d) hereof) on the date such Person
became an Acquiring Person; provided, however, that in the event there
shall not be sufficient Common Shares authorized but unissued to permit
the exercise in full of the Rights, Section 11(a)(vi) shall set forth
the proper calculation.
(iii) Notwithstanding the foregoing or anything in
this Agreement to the contrary, from and after the time any Person
becomes an Acquiring Person, any Rights that are or were acquired or
beneficially owned by such Acquiring Person (or any Associate or
Affiliate of such Acquiring Person) shall be null and void without any
further action, and any holder of such Rights shall thereafter have no
rights whatsoever with respect to such Rights, whether under this
Agreement (including the right to exercise such Rights under any
provision of this Agreement) or otherwise.
(iv) No Right Certificate shall be issued pursuant to
Section 3 that represents Rights beneficially owned by an Acquiring
Person; no Right Certificate shall be issued at any time upon the
transfer of any Rights to an Acquiring Person or any Associate or
Affiliate thereof or to any nominee of such Acquiring Person, Associate
or Affiliate; and any Right Certificate delivered to the Rights Agent
for transfer to an Acquiring Person shall be canceled.
(v) In lieu of issuing Common Shares in accordance
with Section 11(a)(ii) hereof, the Company may, if the Board of
Directors of the Company determines in its sole discretion that such
action is necessary or appropriate: (A) determine the excess of (1) the
value of the Adjustment Shares issuable upon the exercise of a Right
(the "Current Value") over (2) the Purchase Price (such excess, the
"Spread") and (B) with respect to each Right (subject to the provisions
of Section 11(a)(ii) hereof), make adequate provision to substitute for
the Adjustment Shares, upon exercise of a Right in payment of the
applicable Purchase Price, cash, a reduction in the Purchase Price,
other equity securities of the Company (including, without limitation,
shares or units of shares or (if applicable) preferred stock which the
Board of Directors has deemed to have the same value as the Common
Shares (such shares of preferred stock herein called "common stock
equivalents"), debt securities of the Company, other assets or any
combination of the foregoing, having an aggregate value equal to the
Current Value, where such aggregate value has been determined by the
Board of Directors in its sole discretion after having consulted with
an investment banking firm selected by the Board of Directors;
provided, however, if the Company shall not have made adequate
provision to deliver value pursuant to clause (B) within 30 days
following the later of (x) the date any Person shall have become an
Acquiring Person, or (y) the date on which the Company's right of
redemption pursuant to Section 22(a) hereof expires, then the Company
shall be obligated to deliver, upon surrender for exercise of a Right
and without requiring payment of the Purchase Price, shares of Common
Stock (to the extent available) and then, if necessary, cash, which
shares and cash would have an aggregate value equal to the Spread. For
purposes of this Section 11(a)(v), the value of the Common Shares shall
be the current market price as determined pursuant to Section 11(d)
hereof per Common Share on the date the Company's right of redemption
pursuant to Section 22(a) hereof expires. With respect to any such
action by the Company with respect to the Rights or this Agreement at
any time after any Person becomes an Acquiring Person, such action
shall be taken only if (A) there are Disinterested
Directors then in office, and (B) the Board of Directors of the
Company, with the concurrence of a majority of the Disinterested
Directors then in office, approves such action.
(vi) Notwithstanding anything in this Section 11 to
the contrary, in the event that there shall not be sufficient
authorized but unissued Common Shares to permit the exercise in full of
the Rights in accordance with subparagraph (ii) of this paragraph (a),
then, in such case, each Rights Certificate shall entitle the holder
thereof to purchase, at the Alternative Purchase Price, the number of
Common Shares equal to a fraction, (i) the numerator of which shall be
the number of Common Shares authorized as of the Distribution Date,
less: (A) the number of Common Shares issued and outstanding as of the
Distribution Date, (B) the number of Common Shares reserved for
issuance pursuant to stock options, warrants, and other rights to
purchase Common Shares from the Company outstanding on the Distribution
Date, and (C) the number of Common Shares reserved for issuance by the
Company under convertible debentures, preferred stock, or other
securities outstanding on the Distribution Date and convertible into or
exchangeable for Common Shares; and (ii) the denominator of which shall
be the number of Common Shares issued and outstanding as of the
Distribution Date, less Common Shares of which an Acquiring Person is
the Beneficial Owner. The Alternative Purchase Price shall be
determined as set forth in Section 7(b) hereof.
(b) In case the Company shall fix a record date for the issuance of
rights, options or warrants to subscribe for or purchase Common Shares or
securities convertible into Common Shares at a price per Common Share (or having
a conversion price per share, if a security convertible into Common Shares) less
than the then current per share market price of the Common Shares (as defined in
Section 11(d)) on such record date, the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the number of Common Shares outstanding on such record date plus the
number of Common Shares which the aggregate offering price of the total number
of Common Shares so to be offered (and/or the aggregate initial conversion price
of the convertible securities so to be offered) would purchase at such current
market price, and the denominator of which shall be the number of Common Shares
outstanding on such record date plus the number of additional Common Shares to
be offered for subscription or purchase (or into which the convertible
securities so to be offered are initially convertible). In case such
subscription price may be paid in a consideration part or all of which shall be
in a form other than cash, the value of such consideration shall be as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent.
Common Shares owned by or held for the account of the Company shall not be
deemed outstanding for the purpose of any such computation. Such adjustments
shall be made successively whenever such a record date is fixed; and in the
event that such rights, options or warrants are not so issued, the Purchase
Price shall be adjusted to be the Purchase Price which would then be in effect
if such record date had not been fixed.
(c) In case the Company shall fix a record date for the making of a
distribution to all holders of the Common Shares (including any such
distribution made in connection with a consolidation or merger in which the
Company is the continuing or surviving corporation) of evidences of indebtedness
or assets (other than a regular periodic cash dividend paid out of earnings or
retained earnings or a dividend payable in Common Shares) or subscription rights
or warrants (excluding those referred to in Section 11(b) hereof), the Purchase
Price to be in effect after such record date shall be determined by multiplying
the Purchase Price in effect immediately prior to such record date by a
fraction, the numerator of which shall be the then current per share market
price of the Common Shares on such record date, less the fair market value (as
determined in good faith by the Board of Directors of the Company, whose
determination shall be described in a statement filed with the Rights Agent) of
the portion of the assets or evidences of indebtedness so to be distributed or
of such subscription rights or warrants applicable to one Common Share, and the
denominator of which shall be such current per share market price of the Common
Shares. Such adjustments shall be made successively whenever such a record date
is fixed; and in the event that such distribution is not so made, the Purchase
Price shall again be adjusted to be the Purchase Price which would then be in
effect if such record date had not been fixed.
(d) For the purposes of any computation hereunder, the "current per
share market price" of the Common Shares on any date shall be deemed to be the
average of the daily closing prices per share of such Common Shares for the 30
consecutive Trading Days (as such term in hereinafter defined) immediately prior
to such date; provided, however, that in the event that the current per share
market price of the Common Shares is determined during a period following the
announcement by the issuer of such Common Shares of (A) a dividend or
distribution on such Common Shares payable in Common Shares or securities
convertible into Common Shares, or (B) any subdivision, combination or
reclassification of the Common Shares, and prior to the expiration of 30 Trading
Days after the ex-dividend date for such dividend or distribution, or the record
date for such subdivision, combination or reclassification, then, and in each
such case, the current per share market price shall be appropriately adjusted to
reflect the current market price per share equivalent of Common Shares taking
into account ex-dividend trading. The closing price for each day shall be the
last sale price, regular way, or, in case no such sale takes place on such day,
the average of the closing bid and asked prices, regular way, in either case as
reported in the principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the Nasdaq Stock Market or, if
the Common Shares are not listed or admitted to trading on the Nasdaq Stock
Market, as reported in the principal national securities exchange on which the
Common Shares are listed or admitted to trading or, if the Common Shares are not
listed or admitted to trading on any national securities exchange, the last
quoted sales price or, if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the National
Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ")
or such other system then in use or, if on any such date the Common Shares are
not quoted by any such organization, the average of the closing bid and asked
prices as furnished by a professional market maker making a market in the Common
Shares selected by the Board of Directors of the Company. If the Common Shares
are not publicly held or so listed or traded, and no market maker is making, or
has made during the relevant period, a market in the Common Shares, "current per
share market price" shall mean the fair value per share as determined in good
faith by the Board of Directors of the Company, whose determination shall be
described in a statement filed with the Rights Agent. The term "Trading Day"
shall mean a day on which the principal national securities exchange on which
the Common Shares are listed or admitted to trading is open for the transaction
of business or, if the Common Shares are not listed or admitted to trading on
any national securities exchange, a Business Day.
(e) No adjustment in the Purchase Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the Purchase
Price; provided, however, that any adjustments which by reason of this Section
11(e) are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. All calculations under this Section 11
shall be made to the nearest cent or to the nearest one ten-thousandth interest
in a Common Share. Notwithstanding the first sentence of this Section 11(e), any
adjustment required by this Section 11 shall be made no later than the earlier
of (i) three years from the date of the transaction which requires such
adjustment, or (ii) the date of the expiration of the right to exercise any
Rights.
(f) If as a result of an adjustment made pursuant to Section 11(a) or
Section 13(a) hereof, the holder of any Right thereafter exercised shall become
entitled to receive any shares of capital stock of the Company other than Common
Shares, thereafter the number of such other shares so receivable upon exercise
of any Right shall be subject to adjustment from time to time in a manner and on
terms as nearly equivalent as practicable to the provisions of this Section 11
with respect to the Common Shares, and the provisions of Sections 7, 9, 10, 12,
13 and 14 with respect to the Common Shares shall apply on like terms to any
such other shares.
(g) Anything in this Section 11 to the contrary notwithstanding, the
Company shall be entitled to make such reductions in the Purchase Price, in
addition to those adjustments expressly required by this Section 11, as and to
the extent that the Company in its sole discretion shall determine to be
advisable in order that any consolidation or subdivision of the Common Shares,
issuance wholly for cash of any Common Shares at less than the current market
price, issuance wholly for cash of Common Shares or securities which by their
terms are convertible into or exchangeable for Common Shares, dividends on
Common Shares payable in Common Shares or issuance of rights, options or
warrants referred to in Section 11(b) hereafter made by the Company to holders
of Common Shares shall not be taxable to such stockholders.
(h) Unless a majority of the Disinterested Directors agree in writing
to the contrary, the Company covenants and agrees that it shall not, at any time
after the Distribution Date, (i) consolidate with any other Person (other than a
wholly owned Subsidiary of the Company in a transaction which complies with
Section 11(i) hereof), (ii) merge with or into any other Person (other than a
wholly owned Subsidiary of the Company in a transaction which complies with
Section 11(i) hereof), (iii) effect a share exchange with any other Person or
conversion of the Company into another entity (other than with a wholly owned
Subsidiary of the Company in a transaction which complies with Section 11(i)
hereof), or (iv) sell or transfer (or permit any Subsidiary to sell or
transfer), in one transaction or series of related transactions, assets or
earning power aggregating more than 50% of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any other Person or Persons
(other than the Company and/or any of its wholly owned Subsidiaries in one or
more transactions, each of which complies with the requirements of this
Section), if (x) at the time of or immediately after such consolidation, merger,
exchange, conversion or sale, there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
materially diminish or otherwise eliminate the benefits intended to be afforded
by the Rights, or (y) prior to, simultaneously with or immediately after such
consolidation, merger, exchange, conversion or sale, the stockholders or
interest holders of the Person who constitutes, or would constitute, the
"Principal Party" for purposes of Section 13(a) hereof, would have received a
distribution of Rights previously owned by such Person or any of its Affiliates
and Associates. Nothing in this Section 11 shall be construed to limit or
otherwise restrict in any manner the rights of redemption contained in Section
22 hereof.
(i) The Company covenants and agrees that, after the Distribution Date,
it will not, except as permitted by Section 22, Section 23 or Section 26 hereof,
take (or permit any Subsidiary to take) any action if, at the time such action
is taken, it is reasonably foreseeable that such action will diminish in any
material manner or otherwise eliminate the benefits intended to be afforded by
the Rights.
SECTION 12. CERTIFICATE OF ADJUSTED PURCHASE PRICE OR NUMBER OF SHARES.
Whenever an adjustment is made as provided in Section 11 or 13 hereof, the
Company shall promptly (a) prepare a certificate setting forth such adjustment
and a brief statement of the facts accounting for such adjustment, (b) file with
the Rights Agent and with each transfer agent for the Common Shares a copy of
such certificate, and (c) mail a brief summary thereof to each holder of a Right
Certificate in accordance with Section 24 hereof.
SECTION 13. CONSOLIDATION, MERGER OR SALE OR TRANSFER OF ASSETS OR
EARNING POWER ("FLIP-OVER" PROVISION).
(a) If, following the Shares Acquisition Date, directly or indirectly,
(i) the Company shall consolidate with, merge with and into, or effect a share
exchange or conversion with or into any Person, (ii) any Person shall merge with
and into the Company or effect a share exchange or conversion with or into the
Company, the Company shall be the continuing or surviving corporation in such
transaction and, in connection with such transaction, all or part of the Common
Shares shall be changed into or exchanged for stock or other securities of any
Person (including the Company) or cash or any other property, or (iii) the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer), in one or more transactions, assets or
earning power aggregating 50% or more of the assets or earning power of the
Company and its Subsidiaries (taken as a whole) to any Person or Persons 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 a price equal to the then current Purchase
Price multiplied by the number of Common Shares for which a Right is then
exercisable, in accordance with the terms of this Agreement and in lieu of
Common Shares, such number of validly authorized and issued, fully paid and
non-assessable Common Shares of the Principal Party (as defined in Section 13(b)
hereof) as shall equal the result obtained by (A) multiplying the then current
Purchase Price by the number of Common Shares for which a Right is then
exercisable and dividing that product by (B) 50% of the then current per share
market price of the Common Shares of the Principal Party (determined pursuant to
Section 11(d) hereof) on the date of consummation of such transaction; (ii) the
Principal Party shall thereafter be liable for, and shall assume, by virtue of
such transaction, all the obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company", as used in this Agreement, shall thereafter
be deemed to mean the Principal Party; and (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient
number of its Common Shares in accordance with this Agreement) in connection
with such consummation as may be necessary to assure that the provisions hereof
shall thereafter be applicable, as nearly as reasonably may be, in relation to
the Common Shares of the Principal Party thereafter deliverable upon the
exercise of the Rights (the foregoing is the "Flip-Over" provision hereof). The
Company shall not consummate any such transaction unless prior thereto the
Company and the Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement so providing and further providing that,
immediately after the date of any such transaction mentioned in this paragraph
(a) of this Section 13, the Principal Party at its own expense will (i) prepare
and file a registration statement under the Act with respect to the Rights and
the securities purchasable upon exercise of the Rights on an appropriate form,
will cause such registration statement to become effective as soon as possible
after such filing and will cause such registration statement to remain effective
(with a prospectus at all times meeting the requirements of the Act) until no
longer required under the Act with respect to securities purchasable upon
exercise of the Rights; and (ii) qualify or register the Rights and the
securities purchasable upon exercise of the Rights, and take all such other
action as may be required or as is appropriate, under the securities or blue sky
laws of such jurisdictions as may be necessary or appropriate. Unless a majority
of Disinterested Directors agree in writing to the contrary, the Company shall
not enter into any transaction of the kind referred to in this Section 13 if at
the time of such transaction there are any rights, warrants, instruments or
securities outstanding or any agreements or arrangements which, as a result of
the consummation of such transaction, would eliminate or substantially diminish
the benefits intended to be afforded by the Rights. The provisions of this
Section 13 shall similarly apply to successive mergers, consolidations,
exchanges, conversations, sales or other transfers.
(b) "Principal Party" shall mean
(i) in the case of any transaction described in clause (i) or
(ii) of the first sentence of Section 13(a), the Person that is the
issuer of any securities into which Common Shares are converted in such
transaction, and if no securities are so issued, the Person that is the
other party to the transaction; and
(ii) in the case of any transaction described in clause (iii)
of the first sentence in Section 13(a), the Person that is the party
receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions;
provided, however, that in any such case, (1) if the securities of such Person
are not at such time or have not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is a
direct or indirect Subsidiary of another Person the securities of which are and
have been so registered, "Principal Party" shall mean such other Person; (2) in
case such Person is a Subsidiary, directly or indirectly, of more than one other
Person, the securities of two or more of which are and have been so registered,
"Principal Party" shall mean whichever of such other Persons is the issuer of
the securities so registered having the greatest aggregate market value; and (3)
in case such Person is owned, directly or indirectly, by a joint venture formed
by two or more other Persons that are not owned, directly or indirectly, by a
joint venture formed by two or more other Persons that are not owned, directly
or indirectly, by the same Person, the rules set forth in (1) and (2) above
shall apply to each of the chains of ownership having an interest in such joint
venture as if such Person were a "Subsidiary" of both or all of such other
Persons and the Principal Parties in each such chain shall bear the obligations
set forth in this Section 13 in the same ratio as their direct and indirect
interests in such Person bear to the total of such interests.
(c) Notwithstanding the foregoing or anything in this Agreement to the
contrary, from and after the time any Person becomes an Acquiring person, any
Rights that are or were acquired or beneficially owned by such Acquiring Person
(or any Associate or Affiliate of such Acquiring Person) shall be null and void
without any further action, and any holder of such Rights shall thereafter have
no rights whatsoever with respect to such Rights, whether under this Agreement
(including the right to exercise such Rights under any provision of this
Agreement) or otherwise.
SECTION 14. FRACTIONAL RIGHTS AND FRACTIONAL SHARES.
(a) The Company may, but shall not be required to, issue fractions of
Rights or to distribute Right Certificates which evidence fractional Rights. In
lieu of such fractional Rights, the Board of Directors, in its discretion, may
direct the Company to pay to the registered holders of the Right Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a whole
Right. For purposes of this Section 14(a), the current market value of a whole
Right shall be the closing price of the Rights for the Trading Day immediately
prior to the date on which such fractional Rights would otherwise be issuable.
The closing price for any day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed or
admitted to trading on the Nasdaq Stock Market, or, if the rights are not listed
or admitted to trading on the Nasdaq Stock Market, as reported in the principal
consolidated transaction reporting system with respect to securities listed on
the principal national securities exchange on which the Rights are listed or
admitted to trading or, if the Rights are not listed or admitted to trading on
any national securities exchange, the last quoted price or, if not so quoted,
the average of the high bid and low asked prices in the over-the-counter market,
as reported by NASDAQ or such other system then in use or, if on any such date
the Rights are not quoted by any such organization, the average of the closing
bid and asked prices as furnished by a professional market maker making a market
in the Rights selected by the Board of Directors of the Company. If on any such
date no such market maker is making a market in the Rights, the fair value of
the Rights on such date as determined in good faith by the Board of Directors of
the Company shall be used to determine the current market value of a Right for
purposes of this Section 14(a). Notwithstanding anything in this Section 14(a)
to the contrary, prior to the Distribution Date, the current market value of the
Right for purposes of this Section 14(a) shall for all purposes hereof be deemed
to be zero.
(b) The Company may, but shall not be required to, issue fractional
interests in Common Shares upon exercise of the Rights or to distribute
certificates which evidence fractional interests in Common Shares. In lieu of
fractional interests in Common Shares, the Board of Directors may, in its
discretion, direct the Company to pay to the registered holders of Right
Certificates, at the time such Rights are exercised as herein provided, an
amount in cash equal to the same fraction of the current market value of one
Common Share. For purposes of this Section 14(b), the current market value of a
Common Share shall be the closing price of a Common Share (as determined
pursuant to the second sentence of Section 11(d) hereof) for the Trading Day
immediately prior to the date of such exercise.
(c) The holder of a Right by the acceptance of the Right expressly
waives his right to receive any fractional Rights or any fractional shares upon
exercise of a Right (except as provided above).
SECTION 15. AGREEMENT OF RIGHT HOLDERS. Every holder of a Right, by
accepting the same, consents and agrees with the Company and the Rights Agent
and with every other holder of a Right that:
(a) prior to the Distribution Date, the Rights will be transferable
only in connection with the transfer of the Common Shares of the Company;
(b) after the Distribution Date, the Right Certificates are
transferable only on the registry books of the Rights Agent if surrendered at
the principal office of the Rights Agent, duly endorsed or accompanied by a
proper instrument of transfer; and
(c) the Company and the Rights Agent may deem and treat the Person in
whose name any Right Certificate (or, prior to the Distribution Date, the
associated Common Shares certificate) is registered as the absolute owner
thereof and of the Rights evidenced thereby (notwithstanding any notations of
ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all
purposes whatsoever, and neither the Company nor the Rights Agent shall be
affected by any notice to the contrary.
SECTION 16. RIGHT CERTIFICATE HOLDER NOT DEEMED A STOCKHOLDER. No
holder, as such, of any Right Certificate shall be entitled to vote, receive
dividends or be deemed for any purpose the holder of the Common Shares or
interests therein or any other securities of the Company which may at any time
be issuable on the exercise of the Rights represented thereby, nor shall
anything contained herein or in any Right Certificate be construed to confer
upon the holder of any Right Certificate, as such, any of the rights of a
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 24 hereof),
or to receive dividends or subscription rights, or otherwise, until the Right or
Rights evidenced by such Right Certificate shall have been exercised in
accordance with the provisions hereof.
SECTION 17. CONCERNING THE RIGHTS AGENT. The Company agrees to pay to
the Rights Agent reasonable compensation for all services rendered by it
hereunder and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and other disbursements incurred in the administration
and execution of this Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for, and to
hold it harmless against, any loss, liability, or expense, incurred without
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 in the premises.
The Rights Agent shall be protected and shall incur no liability for,
or in respect of, any action taken, suffered or omitted by it in connection
with, its administration of this Agreement in reliance upon any Right
Certificate or certificate for the Common Shares or for other securities of the
Company, instrument of assignment or transfer, power of attorney, endorsement,
affidavit, letter, notice, direction, consent, certificate, statement, or other
paper or document believed by it to be genuine and to be signed, executed and,
where necessary, verified or acknowledged, by the proper Person or Persons, or
otherwise upon the advice of counsel as set forth in Section 20 hereof.
SECTION 18. MERGER OR CONSOLIDATION OR CHANGE OF NAME OF RIGHTS AGENT.
Any corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the stock transfer or
corporate trust business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that such corporation would be eligible for appointment
as a successor Rights Agent under the provisions of Section 20 hereof. In case,
at the time such successor Rights Agent shall succeed to the agency created by
this Agreement, any of the Right Certificates shall have been countersigned but
not delivered, any such successor Rights Agent may adopt the countersignature of
the predecessor Rights Agent and deliver such Right Certificates so
countersigned; and in case at that time any of the Right Certificates shall not
have been countersigned, any successor Rights Agent may countersign such Right
Certificates either in the name of the predecessor Rights Agent or in the name
of the successor rights Agent; and in all such cases such Right Certificates
shall have the full force provided in the Right Certificates and in this
Agreement.
In case at any time the name of the Rights Agent shall be changed and
at such time any of the Right Certificates shall have been countersigned but not
delivered, the Rights Agent may adopt the countersignature under its prior name
and deliver Right Certificates so countersigned, and in case at that time any of
the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed
name; and in all such case Certificates shall have the full forces provided in
the Right Certificates and in this Agreement.
SECTION 19. DUTIES OF RIGHTS AGENT. The Rights Agent undertakes the
duties and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Right Certificates,
by their acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel shall be full and
complete authorization and protection to the Rights Agent as to any action taken
or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent shall deem it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be
herein specifically prescribed) may be deemed to be conclusively proved and
established by a certificate signed by any one of the Chairman of the Board of
Directors, President, any Vice President, the Secretary or the Treasurer of the
Company and delivered to the Rights Agent; and such certificate shall be full
authorization to the Rights Agent for any action taken or suffered in good faith
by it under the provisions of this Agreement in reliance upon such certificates.
(c) The Rights Agent shall be liable hereunder to the Company and any
other Person only for the Rights Agent's own gross negligence, bad faith or
willful misconduct.
(d) The Rights Agent shall not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the Right
Certificates (except its countersignature thereof) or be required to verify the
same, but all such statements and recitals are and shall be deemed to have been
made by the Company only.
(e) The Rights Agent shall not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery hereof (except
the due execution hereof by the Rights Agent) or in respect of the validity or
execution of any Right Certificate (except its countersignature thereof); nor
shall it be responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Right Certificate; nor shall it
be responsible for any change in the exercisability of the Rights (including any
Rights that become void pursuant to Section 11(a)(iii) hereof) or any adjustment
in the terms of the Rights (including the manner, method or amount thereof)
provided for in Sections 3, 11, 13, 22 or 23 hereof, or the ascertaining of the
existence of facts that would require any such change or adjustment (except with
respect to the exercise of Rights evidenced by Right Certificates after actual
notice that such change or adjustment is required); nor shall it by any act
hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any Common Shares to be issued pursuant to this
Agreement or any Right Certificate or as to whether any Common Shares will, when
issued, be validly authorized and issued, 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
one of the Chairman of the Board of Directors, President, any Vice President,
the Secretary or the Treasurer of the Company, and to apply to such officers for
advice or instructions in connection with its duties, and it shall not be liable
for any action taken or suffered by it in good faith in accordance with
instructions of any such officer or for any delay in acting while waiting for
those instructions.
(h) The Rights Agent and any stockholder, director, officer or employee
of the Rights Agent may buy, sell or deal in any of the Rights or other
securities of the Company or become pecuniarily interested in any transaction in
which the Company may be interested, or contract with or lend money to the
Company or otherwise act as fully and freely as though it were not Rights Agent
under this Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company (including, without limitation, acting as
transfer agent for the Common Shares of the Company) or for any other legal
entity.
(i) The Rights Agent may execute and exercise any of the rights or
power hereby vested in it or perform any duty hereunder either itself or by or
through its attorneys or agents, and the Rights Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such attorneys or
agents or for any loss to the Company resulting from any such act, default,
neglect or misconduct, provided reasonable care was exercised in the selection
and continued employment thereof.
SECTION 20. CHANGE OF RIGHTS AGENT. The Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer agent
of the Common Shares by registered or certified mail, and to the holders of the
Right Certificates by first-class mail. The Company may remove the Rights Agent
or any successor Rights Agent upon 30 days' notice in writing, mailed to the
Rights Agent or successor Rights Agent, as the case may be, and to each transfer
agent of the Common Shares by registered or certified mail, and to the holders
of the Right Certificates by first-class mail. If the Rights Agent shall resign
or be removed or shall otherwise become incapable of acting, the Company shall
appoint a successor to the Rights Agent. If the Company shall fail to make such
appointment within a period of 30 days after giving notice of such removal or
after it has been notified in writing of such resignation or incapacity by the
resigning or incapacitated Rights Agent or by the holder of a Right Certificate
(who shall, with such notice, submit his Right Certificate for inspection by the
Company), then the registered holder of any Right Certificate may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of the States of New York or Minnesota (or of any other state of the
United States so long as such corporation is authorized to do business as a
banking institution in the State of New York or the State of Minnesota), in good
standing, which is authorized under such laws to exercise corporate trust or
stock transfer powers and is subject to supervision or examination by federal or
state authority and which has at the time of its appointment as Rights Agent a
combined capital and surplus of at least $50 million. After appointment, the
successor Rights Agent shall be vested with the same powers, rights, duties and
responsibilities as if it had been originally named as Rights Agent without
further act or deed; but the predecessor Rights Agent shall deliver and transfer
to the successor Rights Agent any property at the time held by the predecessor
Rights Agent hereunder, and execute and deliver any further assurance,
conveyance, act or deed necessary for the purpose. Not later than the effective
date of any such appointment the Company shall file notice thereof in writing
with the predecessor Rights Agent and each transfer agent of the Common Shares,
and mail a notice thereof in writing to the registered holders of the Right
Certificates. Failure to give any notice provided for in this Section 20,
however, or any defect therein, shall not affect the legality or validity of the
resignation or removal of the Rights Agent or the appointment of the successor
Rights Agent, as the case may be.
SECTION 21. ISSUANCE OF NEW RIGHT CERTIFICATES. Notwithstanding any of
the provisions of this Agreement or of the Rights to the contrary, the Company
may, at its option, issue new Right Certificates evidencing Rights in such form
as may be approved by its Board of Directors to reflect any adjustment or change
in the Purchase Price and the number or kind or class of shares or other
securities or property purchasable under the Right Certificates made in
accordance with the provisions of this Agreement.
SECTION 22. REDEMPTION.
(a) The Rights may be redeemed by action of the Board of Directors of
the Company pursuant to paragraph (b) of this Section 22 and shall not be
redeemed in any other manner. Notwithstanding anything contained or implied in
this Agreement to the contrary, the Rights shall not be exercisable after any
Person becomes an Acquiring Person until such time as the Company's rights of
redemption hereunder have expired.
(b) The Board of Directors of the Company may, at its option, at any
time prior to the close of business on the tenth Business Day after the Shares
Acquisition Date, redeem all, but not less than all, the then outstanding Rights
at a redemption price of $.01 per Right, appropriately adjusted to reflect any
stock split, stock dividend or similar transaction occurring after the date
hereof (such redemption price being hereinafter referred to as the "Redemption
Price"); provided, however, that with respect to any redemption of Rights under
either of the circumstances set forth in clauses (i) and (ii) below, the Rights
may be redeemed only if there are Disinterested Directors then in office and the
Board of Directors of the Company, with the concurrence of a majority of the
Disinterested Directors then in office, approve such redemption; (i) such
approval occurs at any time after any Person becomes an Acquiring Person, or
(ii) such approval occurs at any time after a change (resulting from a proxy
solicitation or from a vote of stockholders or in any other manner) in a
majority of the directors in office at the commencement of such solicitation, or
prior to such vote, if any Person who is a participant in such solicitation or
vote has stated (or, if the majority of the directors in office at the
commencement of such solicitation or prior to such vote has determined in good
faith) that such Person (or any of its Affiliates or Associates) intends to take
or may consider taking, any action that would result in such Person becoming an
Acquiring Person or that would result in the occurrence of an event described in
Section 11(a)(ii) hereof. The Company may, at its option, pay the Redemption
Price in cash, Common Shares (based on the current per share market price of the
Common Shares at the time of redemption determined pursuant to Section 11(d)
hereof) or any other form of consideration deemed appropriate by the Board of
Directors of the Company; provided that if the Company elects to pay the
Redemption Price in Common Shares, the Company shall not be required to issue
fractional Common Shares and the number of Common Shares issuable to each holder
of Rights shall be rounded down to the next whole shares.
(c) "Disinterested Director" shall mean (i) any member of the Board of
Directors of the Company who is not an officer or employee of the Company or any
of its Subsidiaries and who is not an Acquiring Person or an Affiliate or
Associate of an Acquiring Person, or (ii) any successor to a director meeting
the requirements of clause (i) of this sentence (a "Prior Director") if such
successor is a member of the Board of Directors of the Company who is not an
officer or employee of the Company or any of its Subsidiaries and who is not an
Acquiring Person or an Affiliate or Associate of an Acquiring Person or a
nominee or representative of an Acquiring Person or of any such Affiliate or
Associate, and who was recommended for election or elected to succeed the Prior
Director by a majority of the Disinterested Directors then on the Board of
Directors of the Company.
(d) Immediately upon the action of the Board of Directors of the
Company ordering the redemption of the Rights pursuant to paragraph (b) of this
Section 22, and without any further action and without any notice, the right to
exercise the Rights will terminate and the only right thereafter of the holders
of Rights shall be to receive the Redemption Price. The Company shall promptly
give public notice of any such redemption; provided, however, that the failure
to give, or any defect in, any such notice shall not affect the validity of such
redemption. Within 10 days after such action of the Board of Directors ordering
the redemption of the Rights pursuant to paragraph (b), the Company shall mail a
notice of redemption to all the holders of the then outstanding Rights at their
addresses as they appear upon the registry books of the Rights Agent or, prior
to the Distribution Date, on the registry books of the transfer agent for the
Common Shares of the Company. Any notice which is mailed in the manner herein
provided shall be deemed given, whether or not the holder receives the notice.
Each such notice of redemption will state the method by which the payment of the
Redemption Price will be made. Neither the Company nor any of its Affiliates or
Associates may redeem, acquire or purchase for value any rights at any time in
any manner other than that specifically set forth in this Section 22 or in
Section 23 hereof, and other than in connection with the purchase of Common
Shares prior to the Distribution Date.
SECTION 23. EXCHANGE.
(a) The Board of Directors of the Company may, at its option, at any
time when Rights are outstanding and exercisable, exchange all or any part of
the then outstanding and exercisable Rights (which shall not include Rights that
have become void pursuant to the provisions of Section 11(a)(iii) hereof) for
Common Shares at an exchange ratio of one Common Share for each Right
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such exchange ratio being
hereinafter referred to as the "Exchange Ratio"); provided, however, that with
respect to any such action by the Board of Directors as to such an exchange, the
Rights may be so exchanged only if (i) there are Disinterested Directors then in
office, and (ii) the Board of Directors of the Company approves such exchange
with the concurrence of a majority of the Disinterested Directors then in
office.
(b) Immediately upon the action of the Board of Directors of the
Company ordering the exchange of any Rights pursuant to paragraph (a) of this
Section 23, and without any further action and without any notice, the right to
exercise such Rights shall terminate and the only right thereafter of a holder
of such Rights shall be to receive that number of Common Shares equal to the
number of such Rights held by such holder multiplied by the Exchange Ratio. The
Company shall promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall not
affect the validity of such exchange. The Company shall promptly mail a notice
of any such exchange to all of the holders of such Rights at their addresses as
they appear upon the registry books of the Rights Agent. Any notice which is
mailed in the manner herein provided shall be deemed given, whether or not the
holder receives the notice. Each such notice of exchange will state the method
by which the exchange of the Common Shares for Rights will be effected and, in
the event of any partial exchange, the number of Rights which will be exchanged.
Any partial exchange shall be effected pro rata based on the number of Rights
(other than Rights which have become void pursuant to the provisions of Section
11(a)(ii) hereof) held by each holder of Rights.
(c) Notwithstanding anything in this Section 23 to the contrary, in the
event there shall not be sufficient authorized but unissued Common Shares to
permit the exchange in full of the Rights as provided in paragraph (a) of this
Section 23, then, in such case, each Rights Certificate shall entitle the holder
thereof to exchange each Right for the number of Common Shares equal to a
fraction, (i) the numerator of which shall be the number of Common Shares
authorized as of the Distribution Date, less: (A) the number of Common Shares
issued and outstanding as of the Distribution Date, (B) the number of Common
Shares reserved for issuance pursuant to stock options, warrants, and other
rights to purchase Common Shares from the Company outstanding on the
Distribution Date, and (C) the number of Common Shares reserved for issuance by
the Company under convertible debentures, preferred stock, or other securities
outstanding on the Distribution Date and convertible into or exchangeable for
Common Shares; and (ii) the denominator of which shall be the number of Common
Shares issued and outstanding as of the Distribution Date, less Common Shares of
which an Acquiring Person is the Beneficial Owner.
(d) The Company may, but need not be required to, issue fractions of
Common Shares or to distribute certificates which evidence fractional Common
Shares. In lieu of such fractional Common Shares, the Company may pay to the
registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal to
the same fraction of the current market value of a whole Common Share. For the
purpose of this paragraph (d), the current market value of a whole Common Share
of the Company shall be the closing price of a Common Share of the Company (as
determined pursuant to the second and third sentences of Section 11(d) hereof)
for the Trading Day immediately prior to the date of exchange pursuant to this
Section 23.
SECTION 24. NOTICE OF CERTAIN EVENTS.
(a) In case the Company shall propose (i) to pay any dividend payable
in stock of any class to the holders of Common Shares or to make any other
distribution to the holders of Common Shares (other than a regular periodic cash
dividend), (ii) to offer to the holders of Common Shares rights or warrants to
subscribe for or to purchase any additional Common Shares or shares of stock of
any class or any other securities, rights or options, (iii) to effect any
reclassification of Common Shares (other than a reclassification involving only
the subdivision of outstanding Common Shares), (iv) to effect any consolidation
or merger into or with, or to effect any sale or other transfer (or to permit
one or more of its Subsidiaries to effect any sale or other transfer), in one or
more transactions, of 50% of more of the assets or earning power of the Company
and its Subsidiaries (taken as a whole) to, any other Person, or (v) to effect
the liquidation, dissolution or winding up of the Company, then, in each such
case, the Company shall give to each holder of a Right Certificate, in
accordance with Section 25 hereof, a notice of such proposed action, which shall
specify the record date for purposes of such stock dividend, or distribution of
rights or warrants, or the date on which such reclassification, consolidation,
merger, sale, transfer, liquidation, dissolution, or winding up is to take place
and the date of participation therein by the holders of the Common Shares, if
any such date is to be fixed, and such notice shall be so given in the case of
any action described by clause (i) or (ii) above at least 10 days prior to the
record date for determining holders of the Common Shares for purposes of such
action, and in the case of any such other action, at least 10 days prior to the
date of the taking of such proposed action or the date of participation therein
by the holders of the Common Shares, whichever shall be the earlier.
(b) In case the event set forth in Section 11(a)(ii) hereof shall
occur, then the Company shall as soon as practicable thereafter give to each
holder of a Right Certificate, in accordance with Section 25 hereof, a notice of
the occurrence of such event, which notice shall describe the event and the
consequences of the event to holders of Rights under Section 11(a)(ii) hereof.
SECTION 25. NOTICES. Notices or demands authorized by this Agreement to
be given or made by the Rights Agent or by the holder of any Right Certificate
to or on the Company shall be sufficiently given or made if sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Digital Biometrics, Inc.
5600 Rowland Road
Minnetonka, Minnesota 55343
Attention: Chief Financial Officer
Subject to the provisions of Section 20 hereof, any notice or demand authorized
by this Agreement to be given or made by the Company or by the holder of any
Right Certificate to or on the Rights Agent shall be sufficiently given or made
if sent by first-class mail, postage prepaid, addressed (until another address
is filed in writing with the Company) as follows:
Norwest Bank Minnesota, National Association
Shareowner Services
161 North Concord Exchange Street
South St. Paul, Minnesota 55075-1139
Attention: Manager, Administrations
Notices or demands authorized by this Agreement to be given or made by the
Company or the Rights Agent to the holder of any Right Certificate shall be
sufficiently given or made if sent by first-class mail, postage prepaid,
addressed to such holder at the address of such holder as shown on the registry
books of the Company.
SECTION 26. SUPPLEMENTS AND AMENDMENTS. The Company may (and the Rights
Agent shall at the direction of the Company) from time to time supplement or
amend this Agreement without the approval of any holders of Right Certificates
in order (i) at any time, to cure any ambiguity, (ii) at any time, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provisions herein, (iii) prior to the Distribution Date, to
cancel this agreement in its entirety, or to change, delete or supplement any of
the provisions hereof in any manner which the Company may deem necessary or
desirable (including, but without any limitation, changing the percentage of
ownership of Common Shares at which a Person becomes an Acquiring Person, the
Distribution Date, the time for redemption of Rights or the time for, or limits
on, amendment of this Agreement), or (iv) after the Distribution Date, to
change, delete or supplement the provisions hereof in any manner which the
Company may deem necessary or desirable and which shall not adversely affect the
interests of the holders of the Rights Certificates (other than an Acquiring
Person or an Affiliate or Associate of an Acquiring Person), any such supplement
or amendment to be evidenced by a writing signed by the Company and the Rights
Agent; provided, however, that with respect to any amendment or supplement at
any time after any Person becomes an Acquiring Person, such amendment or
supplement shall be made only if (a) there are Disinterested Directors then in
office and (b) the Board of Directors of the Company, with the concurrence of a
majority of the Disinterested Directors then in office, approves such amendment
or supplement.
SECTION 27. SUCCESSORS. All the covenants and provisions of this
Agreement by or for the benefit of the Company or the Rights Agent shall bind
and inure to the benefit of their respective successors and assigns hereunder.
SECTION 28. 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 registered holders of the Right Certificates (and, prior to the Distribution
Date, the Common Shares of the Company) any legal or equitable right, remedy or
claim under this Agreement; and this Agreement shall be for the sole and
exclusive benefit of the Company, the Rights Agent and the registered holders of
the Right Certificates (and, prior to the Distribution Date, the Common Shares
of the Company).
SECTION 29. SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding the foregoing, if any such term,
provision, covenant or restriction is held by such court or authority to be
invalid, void or unenforceable and the Board of Directors of the Company, with
the concurrence of the majority of the Disinterested Directors then in office,
determines in its good faith judgment that severing the invalid language from
this Agreement would materially and adversely affect the purpose and effect of
this Agreement, the right of redemption set forth in Section 22 hereof shall be
reinstated and shall not expire until the Close of Business on the tenth day
following the date of such determination by the Board of Directors.
SECTION 30. DETERMINATIONS AND ACTIONS BY THE BOARD OF DIRECTORS. For
all purposes of this Agreement, Common Shares shall be deemed outstanding when
and as actually issued by the Company, but shall not include Common Shares
reacquired by the Company in any manner, whether held as treasury shares or
canceled. The calculation for the purpose of determining the particular
percentage of the outstanding Common Shares of which any Person is the
Beneficial Owner shall be made in accordance with the last sentence of Rule
13d-3(d)(1)(i) of the General Rules and Regulations under the Exchange Act. The
Board of Directors of the Company (with, where specifically provided for herein,
the concurrence of the Disinterested Directors) shall have the exclusive power
and authority to administer this Agreement and to exercise all rights and powers
specifically granted to the Board of Directors (with, where specifically
provided for herein, the concurrence of the Disinterested Directors) or to the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to (i) interpret
the provisions of this Agreement, and (ii) make all determinations deemed
necessary or advisable for the administration of this Agreement (including a
determination to redeem or not redeem the Rights or to amend the Agreement). All
such actions, calculations, interpretations and determinations (including, for
purposes of clause (y) below, all omissions with respect to the foregoing) that
are done or made by the Board of Directors (with, where specifically provided
for herein, the concurrence of the Disinterested Directors) in good faith, shall
(x) be final, conclusive and binding on the Company, the Rights Agent, the
holders of the Rights and all other Persons, and (y) not subject the Board of
Directors or the Disinterested Directors to any liability to the holders of the
Rights.
SECTION 31. GOVERNING LAW. This Agreement and each Right Certificate
issued hereunder shall be deemed to be a contract made under the laws of the
State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State without giving effect to the conflicts of
law provisions thereof.
SECTION 32. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
SECTION 33. DESCRIPTIVE HEADINGS. Descriptive headings of the several
Sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and attested, all as of the day and year first above written.
Attest:
DIGITAL BIOMETRICS, INC.
By /s/ Jack A. Klingert
Jack A. Klingert
Chairman of the Board
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ Susan J. Roeder
Its: Assistant Vice President
Exhibit A
FORM OF RIGHT CERTIFICATE
Certificate No. R. _________________ _________ Rights
NOT EXERCISABLE AFTER APRIL 30, 2006, OR EARLIER IF REDEMPTION OR
EXCHANGE OCCURS. THE RIGHTS ARE SUBJECT TO REDEMPTION AT $ .01 PER
RIGHT AND TO EXCHANGE ON THE TERMS SET FORTH IN THE RIGHTS AGREEMENT.
RIGHT CERTIFICATE
DIGITAL BIOMETRICS, INC.
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 Rights Agreement, dated as of May 2, 1996 (the "Rights
Agreement"), between Digital Biometrics, Inc., a Delaware corporation (the
"Company"), and Norwest Bank Minnesota, National Association (the "Rights
Agent"), to purchase from the Company at any time after the Distribution Date
(as such term is defined in the Rights Agreement) and prior to the close of
business (as defined in the Rights Agreement) on April 30, 2006, at the
principal offices of the Rights Agent, or at the offices of its successor as
Rights Agent, __________ (______) shares of Common Stock, $.01 par value (the
"Common Shares"), of the Company, at a purchase price of __________ ($______)
(the "Purchase Price"), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase duly executed. As provided in
the Rights Agreement, the Purchase Price and the number of Common Shares which
may be purchased upon the exercise of the Rights evidenced by this Right
Certificate are subject to modification and adjustment upon the happening of
certain events.
As described in the Rights Agreement, Rights issued to any Person who
becomes an Acquiring Person shall become null and void.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned offices of the Rights Agent.
This Right Certificate, with or without other Right Certificates, upon
surrender at the principal office of the Rights Agent, may be exchanged for
another Right Certificate or Right Certificate of like tenor and date evidencing
Rights entitling the holder to purchase a like aggregate number of interests in
Common Shares as the Rights evidenced by the Right Certificate or Right
Certificates surrendered shall have entitled such holder to purchase. If this
Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates
for the number of whole Rights no exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced
by this Certificate (i) may be redeemed by the Company at a redemption price of
$ .01 per Right payable in cash, Common Shares or other consideration, or (ii)
may be exchanged in whole or in part for Common Shares.
Fractional interests in Common Shares may, but need not, be issued upon
the exercise of any Right or Rights evidenced hereby, and in lieu thereof a cash
payment may be made, as provided in the Rights Agreement.
No holder of this Right Certificate shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Common Shares
or of any other securities of the Company which may at any time be issuable on
the exercise hereof, nor shall anything contained in the Rights Agreement or
herein be construed to confer upon the holder hereof, as such, any of the rights
of a 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 actions, or to receive notice of
meetings or other actions affecting stockholders (except as provided in the
Rights Agreement), or to receive dividends or subscription rights, or otherwise,
until the Right or Rights evidenced by this Right Certificate shall have been
exercised as provided in the Rights Agreement.
This Right Certificate shall not be valid or obligatory for any 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:
___________________________________
Countersigned:
DIGITAL BIOMETRICS, INC.
By_________________________________
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By_________________________________
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE
FORM OF ASSIGNMENT
(To be executed by the registered holder if such
holder desires to transfer the Right Certificate.)
FOR VALUE RECEIVED ___________________________________________ hereby
sells, assigns and transfers unto ______________________________ this Right
Certificate, together with all right, title and interest therein, and does
hereby irrevocably constitute and appoint _____________________ Attorney, to
transfer the within Right Certificate on the books of the within-named Company,
with full power of substitution.
Dated: _______________, _____.
______________________________
Signature
Signature Guarantee:
Signatures must be medallion guaranteed by a member firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in the United States.
________________________________________________________________________________
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and that
after due inquiry and to the best of the knowledge of the undersigned, it did
not acquire the Rights evidenced by this Rights Certificate for any Person who
is, was or subsequently became an Acquiring Person or an Affiliate or Associate
of such Person.
______________________________
Signature
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE - CONTINUED
FORM OF ELECTION TO PURCHASE
(To be executed if holder desires to exercise the Right Certificate.)
To: Digital Biometrics, Inc.
The undersigned hereby irrevocably elects to exercise ______________
Rights represented by this Right Certificate to purchase the interests in Common
Shares issuable upon the exercise of such Rights and requests that certificates
for such Common Shares be issued in the name of:
Please provide Social Security or other tax identification number:
______________________________________
______________________________________
(Please print name and address)
If such number of Rights shall not be all the Rights evidenced by this Right
Certificate, a new Right Certificate for the balance remaining of such Rights
shall be registered in the name of and delivered to:
Please provide Social Security or other tax identification number: _____________
______________________________________
______________________________________
(Please print name and address)
Dated:_______________, _____.
______________________________
Signature
Signature Guarantee:
Signatures must be medallion guaranteed by a member firm of a
registered national securities exchange, a member of the National Association of
Securities Dealers, Inc., or a commercial bank or trust company having an office
or correspondent in the United States.
FORM OF REVERSE SIDE OF RIGHT CERTIFICATE -- CONTINUED
The undersigned hereby certifies that the Rights evidenced by this
Right Certificate are not beneficially owned by an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and that
after due inquiry and to the best of the knowledge of the undersigned, it did
not acquire the Rights evidenced by this Rights Certificate for any Person who
is, was or subsequently became an Acquiring Person or Affiliate or Associate of
such Person.
______________________________
Signature
NOTICE
The signature in the foregoing Forms of Assignment and Election must
conform to the name as written upon the face of this Right Certificate in every
particular, without alternation or enlargement or any change whatsoever.
In the event the certificate set forth above in the Form of Assignment
or the Form of Election to Purchase, as the case may be, is not completed, the
Company and the Rights Agent will deem the beneficial owner of the Rights
evidenced by this Right Certificate to be an Acquiring Person or an Affiliate or
Associate thereof (as defined in the Rights Agreement) and such Assignment or
Election to Purchase will not be honored.
Exhibit B
SUMMARY OF RIGHTS TO PURCHASE COMMON SHARES
On May 2, 1996, the Board of Directors of Digital Biometrics, Inc. (the
"Company") declared a dividend of one Common Share purchase right (a "Right")
for each outstanding share of common stock, par value $ .01 per share (the
"Common Shares"), of the Company and authorized the issuance of one Right for
each Common Share which shall become outstanding between the Record Date and the
earlier of the Distribution Date (as hereinafter defined) or the final
expiration date of the Rights. The dividend is payable on May 22, 1996 (the
"Record Date"), to the stockholders of record on that date. Each Right will
entitle the registered holder to purchase from the Company a number of Common
Shares of the Company to be determined upon the issuance of the certificates
evidencing the Rights at a price of $35 (the "Purchase Price"), subject to
adjustment. The description and terms of the Rights are set forth in a Rights
Agreement (the "Rights Agreement") between the Company and Norwest Bank
Minnesota, National Association, as Rights Agent (the "Rights Agent").
The Rights become exercisable on the first day after the Distribution
Date. The Distribution Date is defined as the earlier to occur of (i) ten
business days following a public announcement that a person or group of
affiliated or associated persons (not including the Company, any subsidiary of
the Company, any Person holding Common Shares acquired in a transaction approved
in advance in writing by a majority of the Disinterested Directors of the Board
of Directors of the Company, any employee benefit plan of the Company or its
subsidiaries or any entity holding Common Shares for or pursuant to any such
plan, or any person who beneficially owns 7.5% or more of the Common Shares
outstanding on the 20th day preceding the Record Date, to the extent of such
ownership) (an "Acquiring Person"), has acquired beneficial ownership of 15% or
more of the outstanding Common Shares, or (ii) ten business days following the
commencement of, or announcement of an intention to make, a tender offer or
exchange offer the consummation of which would result in the beneficial
ownership by a person or group of 15% or more of such outstanding Common Shares.
The Rights will expire on April 30, 2006 (the "Final Expiration Date"),
unless the Final Expiration Date is extended or unless the Rights are earlier
redeemed or exchanged by the Company, in each case, as described below.
Until the Distribution Date, the Rights will be evidenced, with respect
to any Common Share certificate outstanding as of the Record Date, by such
Common Share certificate together with a copy of this Summary of Rights attached
thereto. The Rights Agreement provides that, until the Distribution Date, the
Rights will be transferred with and only with the Common Shares. Until the
Distribution Date (or earlier redemption, exchange or expiration of the Rights),
new Common Share certificates issued after the Record Date, upon transfer or new
issuance of Common Shares, will contain a notation incorporating the Rights
Agreement by reference. Until the Distribution Date (or earlier redemption,
exchange or expiration of the Rights), the surrender for transfer of any
certificates for Common Shares outstanding as of the Record Date, even without
such notation or copy of this Summary of Rights being attached thereto, will
also constitute the transfer of the Rights associated with the Common Shares
represented by such certificate. As soon as practicable following the
Distribution Date, separate certificates evidencing the Rights ("Right
Certificates") will be mailed to holders of record of the Common Shares as of
the close of business on the Distribution Date and such separate Right
Certificates alone will evidence the Rights.
In the event that any person becomes an Acquiring Person, proper
provision shall be made so that each holder of a Right, other than Rights
beneficially owned by the Acquiring Person (which Rights will thereafter be null
and void for all purposes of the Rights Agreement and the holder thereof shall
thereafter have no rights with respect to such Rights, whether under the Rights
Agreement or otherwise), will thereafter have the right to receive upon exercise
thereof, at the then current Purchase Price, a number of Common Shares equal to
the result obtained by dividing the then current Purchase Price by 50% of the
market price per Common Share at the date such person became an Acquiring
Person. Under certain circumstances, other equity and debt securities, property,
cash or combinations thereof, including a combination with Common Shares that
are equal in value to the number of Common Shares for which the Right is
exercisable, may be issued in lieu of Common Shares for which the Right is
exercisable. In such event, the purchase price per Common Share will be fifty
percent (50%) of the then current per share market price of the Common Shares.
The Purchase Price payable, and the number of Common Shares or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Shares, (ii) upon the issuance of certain rights, options or warrants to
subscribe for or purchase Common Shares at a price, or securities convertible
into Common Shares, with a conversion price less than the then current market
price of the Common Shares, or (iii) upon the distribution to holders of the
Common Shares of evidences of indebtedness or assets (excluding regular periodic
cash dividends paid out of earnings or retained earnings or dividends payable in
Common Shares) or of subscription rights or warrants (other than those referred
to above). The number of outstanding Rights and the number of Common Shares
issuable upon exercise of each Right are also subject to adjustment in the event
of a stock split of the Common Shares or a stock dividend on the Common Shares
payable in Common Shares or subdivisions, consolidations or combinations of the
Common Shares occurring, in any such case, prior to the Distribution Date.
In the event, following the first date of public announcement by the
Company or an Acquiring Person that an Acquiring Person has become such (a
"Shares Acquisition Date"), that the Company is, in effect, acquired in a merger
or other business combination transaction or 50% or more of its consolidated
assets or earning power is sold, proper provision will be made so that each
holder of a Right, other than Rights that were or are beneficially owned by an
Acquiring Person (which will thereafter be null and void for all purposes of the
Rights Agreement and the holder thereof shall thereafter have no rights with
respect to such Rights, whether under the Rights Agreement or otherwise), will
thereafter generally have the right to receive, upon the exercise thereof at the
then current exercise price of the Right, that number of shares of common stock
of the acquiring company which at the time of such transaction will have a
market value of two times the exercise price of the Right.
Under certain circumstances, after a Person has become an Acquiring
Person, the Board of Directors of the Company may exchange the Rights (other
than Rights that were or are beneficially owned by an Acquiring Person), in
whole or in part, at an exchange ratio to be determined in accordance with the
Rights Agreement.
In the event that the Company does not have sufficient authorized but
unissued Common Shares to permit the delivery of the required number of Common
Shares upon the exercise in full of the Rights, then each Rights Certificate
shall entitle the holder thereof to purchase the number of Common Shares equal
to a fraction, (i) the numerator of which shall be the number of Common Shares
authorized as of the Distribution Date, less: (A) the number of Common Shares
issued and outstanding as of the Distribution Date, (B) the number of Common
Shares reserved for issuance pursuant to stock options, warrants, and other
rights to purchase Common Shares from the Company outstanding on the
Distribution Date, and (C) the number of Common Shares reserved for issuance by
the Company under convertible debentures, preferred stock, or other securities
outstanding on the Distribution Date and convertible into or exchangeable for
Common Shares; and (ii) the denominator of which shall be the number of Common
Shares issued and outstanding as of the Distribution Date, less Common Shares of
which an Acquiring Person is the Beneficial Owner. In such event, the purchase
price per Common Share will be fifty percent (50%) of the then current per share
market price of the Common Shares.
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments require an adjustment of at least 1% in
such Purchase Price. No fractional Common Shares will be issued and in lieu
thereof, an adjustment in cash will be made based on the market price of the
Common Shares on the last trading day prior to the date of exercise.
At any time prior to the close of business on the tenth business day
after a Shares Acquisition Date, the Board of Directors of the Company may
redeem the Rights in whole, but not in part, at a price of $ .01 per right (the
"Redemption Price") which may be paid in cash or with Common Shares or other
consideration deemed appropriate by the Board of Directors of the Company.
Immediately upon any redemption of the Rights, the right to exercise the Rights
will terminate and the only right of the holders of Rights will be to receive
the Redemption Price.
The terms of the Rights may be amended by the Board of Directors of the
Company without the consent of the holders of the Rights at any time to cure any
ambiguity or to correct or supplement any defective or inconsistent provisions
and may, prior to the Distribution Date, be amended to change, delete or
supplement any other provision in any manner which the Company may deem
necessary or desirable. After the Distribution Date the terms of the Rights may
be amended (other than to cure ambiguities or correct or supplement defective or
inconsistent provisions) only so long as such amendment shall not adversely
affect the interests of the holders of the Rights (which may not be an Acquiring
Person in whose hands Rights are void).
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.
A copy of the Rights Agreement has been filed with the Securities and
Exchange Commission as an Exhibit to a Registration Statement on Form 8-A dated
May 2, 1996. A copy of the Rights Agreement is available free of charge from the
Company. This summary description of the Rights does not purport to be complete
and is qualified in its entirety by reference to the Rights Agreement, which is
hereby incorporated herein by reference.
