SECOND AMENDMENT TO RIGHTS AGREEMENT
------------------------------------
This SECOND AMENDMENT, dated as of June 27, 2000 (the
"Amendment"), to the Rights Agreement dated as of October 15, 1999 (the "Rights
Agreement"), between Laser Power Corporation, a Delaware corporation (the
"Company"), and American Securities Transfer and Trust, Inc., as Rights Agent
(the "Rights Agent").
RECITALS
--------
WHEREAS, the Company and Rights Agent entered into an
Amendment to Rights Agreement dated as of May 31, 2000, providing for certain
changes in the Rights Agreement to facilitate the consummation of the Agreement
and Plan of Merger entered into between Company, ACEC, Inc., a Delaware
corporation and Union Miniere U.S.A., Inc., a Delaware corporation on June 1,
2000, which Agreement and Plan of Merger has been subsequently terminated.
WHEREAS, as a result of such termination, the Board of
Directors of the Company has determined that the May 31, 2000 Amendment to the
Rights Agreement ("First Amendment") should be terminated and be of no further
force and effect; and
WHEREAS, the Company, II-VI Acquisition Corp., a Delaware
corporation ("Purchaser") and II-VI Incorporated, a Pennsylvania corporation
("Parent") are entering into an Agreement and Plan of Merger, dated as of June
28, 2000 (as amended or supplemented from time to time, the "Merger Agreement"),
contemplating an exchange offer and merger pursuant to which Purchaser shall
make an offer to purchase all of the outstanding common stock of the Company
(the "Offer") and after the consummation of the Offer, Purchaser shall be merged
with and into the Company (the "Merger").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company may, in its sole and absolute discretion, supplement and amend the
Rights Agreement;
WHEREAS, the Board of Directors of the Company has determined
that an amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the foregoing and the Company and the Rights Agent
desire to evidence such amendment in writing; and
WHEREAS, all acts and things necessary to make this Amendment
a valid agreement, enforceable according to its terms have been done and
performed and the execution and delivery of this Amendment by the Company and
the Rights Agent have been in all respects duly authorized by the Company.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements set forth herein, the parties hereto agree as
follows:
1. DEFINED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Rights Agreement.
<PAGE>
2. TERMINATION OF PRIOR AMENDMENT. The Company and the Rights Agent
hereby terminate the First Amendment and agree that such amendment shall be of
no further force and effect. In no event shall the termination of the First
Amendment be deemed as triggering or giving effect to any rights defined under
the terms of the Rights Agreement.
3. AMENDMENT OF SECTION 1.
(a) The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, neither Parent, Purchaser nor any of their
Affiliates or Associates shall be deemed to be an
Acquiring Person solely by virtue of (i) the
approval, execution, delivery or performance of the
Merger Agreement, (ii) the making or consummation of
the Offer or the Merger in accordance with the
provisions of the Merger Agreement or any public
announcement relating thereto, (iii) the acquisition
of Common Shares in accordance with the provisions of
the Merger Agreement pursuant to the Offer or the
Merger or (iv) the consummation of any other
transaction to be effected pursuant to the Merger
Agreement in accordance with the provisions thereof."
(b) Section 1 of the Rights Agreement is supplemented by adding the
following definitions in the appropriate locations therein:
"Agreement" shall mean this Rights Agreement between
Laser Power Corporation, a Delaware corporation, and
American Securities Transfer and Trust, Inc., as
Rights Agent, amended as of June 27, 2000, and as may
be amended thereafter from time to time.
"Merger" shall have the meaning set forth in the
Merger Agreement.
"Merger Agreement" shall mean the Agreement and Plan
of Merger, dated as of June 28, 2000, between the
Company, Parent and Purchaser, as it may be amended,
supplemented or replaced from time to time.
"Offer" shall have the meaning set forth in the
Merger Agreement.
<PAGE>
(c) The definition of "Shares Acquisition Date" in Section
1(n) of the Rights Agreement is amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the
contrary, a Shares Acquisition Date shall not be
deemed to have occurred solely as the result of (i)
the approval, execution, delivery or performance of
or public announcements of the approval, execution,
delivery or performance of the Merger Agreement, (ii)
the making or consummation of the Offer or the Merger
in accordance with the provisions of the Merger
Agreement or any public announcement relating
thereto, (iii) the acquisition of Common Shares in
accordance with the Merger Agreement pursuant to the
Offer or the Merger or (iv) the consummation of any
other transaction to be effected pursuant to the
Merger Agreement in accordance with the provisions
thereof or any public announcement relating thereto."
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights Agreement is
amended by adding the following sentence immediately following the first
sentence:
"Notwithstanding anything in this Agreement to the
contrary, a Distribution Date shall not be deemed to
have occurred solely as the result of (1) the
approval, execution, delivery or performance of or
public announcement of the approval, execution,
delivery or performance of the Merger Agreement, (2)
the commencement, making or consummation of the Offer
or the consummation of the Merger in accordance with
the provisions of the Merger Agreement or any public
announcement relating thereto, (3) the acquisition of
Common Shares in accordance with the Merger Agreement
pursuant to the Offer or the Merger or (4) the
consummation of any other transaction to be effected
pursuant to the Merger Agreement in accordance with
the provisions thereof or any public announcement
relating thereto."
5. AMENDMENT OF SECTION 7(a). Clauses numbered (i), (ii) and (iii) in
Section 7(a) of the Rights Agreement are hereby deleted and replaced in their
entirety as follows:
"(i) the close of business on October 14, 2009 (the
"Final Expiration Date"), (ii) immediately prior to
the time at which the consummation of the Offer
<PAGE>
occurs, (iii) the time at which the Rights are
redeemed as provided in Section 23 hereof (the
"Redemption Date") or (iv) the time at which the
Rights are exchanged as provided in Section 24
hereof."
6. AMENDMENT OF SECTION 11(a)(ii). Section 11(a)(ii) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary, none of (1) the approval, execution,
delivery or performance of the Merger Agreement, (2)
the consummation of the Offer or the Merger in
accordance with the provisions of the Merger
Agreement, (3) the acquisition of Common Shares in
accordance with the Merger Agreement pursuant to the
Offer or the Merger or (4) the consummation of any
other transaction to be effected pursuant to the
Merger Agreement in accordance with the provisions of
the Merger Agreement shall cause the Rights to be
adjusted or become exercisable in accordance with
this Section 11(a)(ii)."
7. AMENDMENT OF SECTION 13. Section 13 of the Rights Agreement is
amended by adding the following sub-section (e) at the end thereof:
"(e) Notwithstanding anything in this Agreement to
the contrary, none of (i) the approval, execution,
delivery or performance of the Merger Agreement, (ii)
the consummation of the Offer or the Merger in
accordance with the provisions of the Merger
Agreement, (iii) the acquisition of Common Shares in
accordance with the Merger Agreement pursuant to the
Offer or the Merger or (iv) the consummation of any
other transaction to be effected pursuant to the
Merger Agreement in accordance with the provisions of
the Merger Agreement shall be deemed an event of the
type described in clauses (a), (b) or (c) of this
Section 13 and shall not cause the Rights to be
adjusted or exercisable in accordance with the terms
of this Section 13."
8. AMENDMENT OF SECTION 29. Section 29 of the Rights Agreement is
amended by adding the following sentence at the end thereof:
<PAGE>
"Nothing in this Agreement shall be construed to give
any holder of Rights or any other Person any legal or
equitable rights, remedies or claims under this
Agreement by virtue of the execution, delivery,
approval or performance of the Merger Agreement or by
virtue of the commencement or consummation of any of
the transactions to be effected pursuant to the
Merger Agreement in accordance with the provisions of
the Merger Agreement.
9. EFFECTIVENESS. This Amendment shall be deemed effective as of the
date first written above, as if executed on such date. Except as amended hereby,
the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
10. MISCELLANEOUS. This Amendment 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. This Amendment
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 document. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
[signatures follow on the next page]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
COMPANY:
Laser Power Corporation,
a Delaware corporation
By: /s/ Dick Sharman
---------------------------------
Dick Sharman, CEO
By: /s/ Bernard Brady
---------------------------------
Bernard Brady, Secretary
RIGHTS AGENT:
American Securities Transfer and
Trust, Inc.
By: /s/ Laura Cisneros
--------------------------------
Name: Laura Cisneros
------------------------------
Title: Vice President
-----------------------------
By: /s/ Kellie Gwinn
--------------------------------
Name: Kellie Gwinn
------------------------------
Title: Vice President
-----------------------------
