EXHIBIT B
Form of Rights Agreement Amendment
AMENDMENT NO. 1, dated as of _________ __, 1997, to
AMENDED AND RESTATED RIGHTS AGREEMENT, dated as of December 13,
1996 (the "Amended and Restated Rights Agreement"), between
Pioneer Hi-Bred International, Inc., an Iowa corporation (the
"Company"), and Bank Boston N.A. (formally known as The First
National Bank of Boston), a national banking association ("Rights
Agent").
On April 6, 1989, the Board of Directors of the Company
(the "Board") authorized and declared a dividend of one common
share purchase right (a "Right") for each share of Common Stock,
par value $1.00 per share, of the Company ("Common Stock")
outstanding at the Close of Business (as defined in the Amended
and Restated Rights Agreement) on April 6, 1989 (the "Record
Date"), each Right representing the right to purchase one
(subject to adjustment as provided in the Amended and Restated
Rights Agreement) share of Common Stock, upon the terms and
subject to the conditions set forth in the Amended and Restated
Rights Agreement, and has further authorized the issuance of one
Right with respect to each share of Common Stock that shall
become outstanding between the Record Date and the Distribution
Date (as defined in the Amended and Restated Rights Agreement);
provided, however, that Rights may be issued with respect to
shares of Common Stock that shall become outstanding after the
Distribution Date and prior to the earlier of the Redemption Date
and the Final Expiration Date in accordance with the provisions
of Section 23 of the Amended and Restated Rights Agreement.
On December 13, 1994, the Board amended and modified,
and on December 13, 1996, the Board amended and restated, the
terms of the Rights Agreement, dated as of April 6, 1989, between
the Company and the Rights Agent, to, among other things, modify
the Rights so that each Right represents the right to purchase
one one-thousandth of a Preferred Share (as defined in the
Amended and Restated Rights Agreement). On _________ __, 1997,
the Board authorized the execution and delivery of this Amendment
No. 1, which amends such Amended and Restated Rights Agreement.
Accordingly, in consideration of the premises and the
mutual agreements herein set forth, the parties hereby agree as
follows:
SECTION 1. AMENDMENTS. (a) The definition of
"Acquiring Person" contained in subsection 1(a) of the Amended
and Restated Rights Agreement is hereby amended in its entirety
to read as follows:
"(a) "Acquiring Person" shall mean any Person who or
which, together with all Affiliates and Associates of such
Person, shall be the Beneficial Owner of the Trigger Amount or
more of the then outstanding Common Shares or was such a
Beneficial Owner at any time after the date hereof, whether or
not such person continues to be the Beneficial Owner of the
Trigger Amount or more of the then outstanding Common Shares.
Notwithstanding the foregoing, (i) the term "Acquiring Person"
shall not include (A) the Company, (B) any Subsidiary of the
Company, (C) any employee benefit plan of the Company or of any
Subsidiary of the Company, (D) any Person or entity organized,
appointed or established by the Company for or pursuant to the
terms of any such plan acting in such capacity, (E) any
Grandfathered Person or (F) the Investor or any Permitted
Investor Transferee, but only to the extent of Common Shares held
or acquired by the Investor and any Permitted Investor Transferee
during the term of the Investment Agreement in accordance with
the terms of the Investment Agreement and, following the
termination of the Investment Agreement, only to the extent of
Common Shares Beneficially Owned by the Investor and any
Permitted Investor Transferee on the date of the termination (the
"Termination Date") of the Investment Agreement, it being
understood that (I) if, after the Termination Date, the Investor
or any Permitted Investor Transferee acquires Beneficial
Ownership of any Common Shares not owned by such person on the
Termination Date, the Investor or such Permitted Investor
Transferee will be deemed an Acquiring Person if, after giving
effect to such acquisition, such person would be an Acquiring
Person but for the provisions of this clause (F) and (II) if any
Permitted Investor Transferee ceases to be a wholly-owned (other
than directors' qualifying shares) United States Subsidiary of
the Investor, such Permitted Investor Transferee will be deemed
an Acquiring Person if such person would be an Acquiring Person
at such time but for the provisions of this clause (F); and
(ii) no Person shall become an "Acquiring Person" (x) as a result
of the acquisition of Common Shares by the Company which, by
reducing the number of Common Shares outstanding, increases the
proportional number of shares beneficially owned by such Person
together with all Affiliates and Associates of such Person,
provided, that if (1) a Person would become an Acquiring Person
(but for the operation of this clause (x)) as a result of the
acquisition of Common Shares by the Company, and (2) after such
share acquisition by the Company, such Person, or an Affiliate or
Associate of such Person, becomes the Beneficial Owner of any
additional Common Shares, then such Person shall be deemed an
Acquiring Person, or (y) if (1) within five Business Days after
such Person would otherwise have become or, if such Person did so
inadvertently, after such Person discovers that such Person would
otherwise have become, an Acquiring Person (but for the operation
of this clause (y)), such Person notifies the Board that such
Person did so inadvertently, and (2) within two Business Days
after such notification (or such greater period of time as may be
determined by action of the Board, but in no event greater than
five Business Days), such Person divests itself of a sufficient
number of Common Shares so that such Person is the Beneficial
Owner of such number of Common Shares that such Person no longer
would be an Acquiring Person."
(b) The definition of "Common Shares" contained in
subsection 1(g) of the Amended and Restated Rights Agreement is
hereby amended in its entirety to read as follows:
"(g) "Common Shares" when used with reference to the
Company shall mean the shares of Common Stock, par value of One
Dollar ($1.00) per share, of the Company or, in the event of a
subdivision, combination or consolidation with respect to such
shares of Common Stock, the shares of Common Stock resulting from
such subdivision, combination or consolidation; provided that, so
long as any Series A Convertible Preferred Stock remains
outstanding, (i) the number of Common Shares outstanding at any
time shall include all shares of Common Stock, par value $1.00
per share, of the Company issuable upon conversion of such
outstanding Series A Convertible Preferred Stock, whether or not
then convertible, and (ii) for purposes of Sections 3(a), (b)
(except for the first three sentences) and (c), Section 12,
Section 13, Section 15, Sections 16(a) and (c), Section 18,
Section 21, Section 22, Section 23 (except for the provisions of
(a)(i)), Section 26, Section 27 and Section 30 hereof, "Common
Shares" shall be deemed to mean both the shares of Common Stock,
par value $1.00 per share, then outstanding and shares of Series
A Convertible Preferred Stock, used in the conjunctive or the
alternative, as the context may require. "Common Shares" when
used with reference to any Person other than the Company shall
mean the capital stock (or equity interest) with the greatest
combined economic and 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."
(c) The definition of "Disinterested Directors" contained
in subsection 1(h) of the Amended and Restated Rights Agreement
is hereby deleted in its entirety.
(d) The definition of "Permitted Offer" contained in
subsection 1(k) of the Amended and Restated Rights Agreement is
hereby deleted in its entirety.
(e) The definition of "Trigger Amount" contained in
subsection 1(r) of the Amended and Restated Rights Agreement is
hereby amended in its entirety to read as follows:
"(r) "Trigger Amount" shall mean the lesser of:
(i) 15% or more of the Common Shares
then outstanding; or
(ii)10% or more of the Common Shares
then outstanding, but only when and if
such Common Shares represent one-fourth
(1/4) or more of the combined voting
power of the shares of Common Stock, par
value $1.00 per share, of the Company,
and the shares of Series A Convertible
Preferred Stock then outstanding. As to
any Beneficial Owner (and its Affiliates
and Associates) with respect to which
the Trigger Amount is being determined,
the voting power will be determined by
the Company in the ordinary course of
corporate governance relating to the
determination of voting power with
respect to actions submitted to a vote
of stockholders assuming such holder has
taken the necessary documentation steps
to have effectuated the right to have
five votes per Common Share with no
other estimation or assumption as to
holdings."
(f) Section 1 of the Amended and Restated Rights Agreement
shall be amended to add the following subsections (t) through
(x):
"(t) "Investment Agreement" means the Investment
Agreement, dated as of _____ __, 1997, between the Company and
the Investor.
(u) "Investor" shall have the meaning set forth in
the Investment Agreement.
(v) "Permitted Investor Transferee" shall mean any
wholly owned (other than directors' qualifying shares) United
States Subsidiary of the Investor which, at the time of
determination continues to be a wholly-owned (other than
directors' qualifying shares) United States Subsidiary of the
Investor and, owns shares of Series A Convertible Preferred Stock
acquired from the Holder or from the Company during the term of
the Investment Agreement and in accordance with the terms
thereof.
(w) "Series A Convertible Preferred Stock" means the
Series A Convertible Preferred Stock of the Company, par value
$.01 per share and, following any reclassification of the
Series A Convertible Preferred Stock into Class B Common Stock in
accordance with Section 8.8 of the Investment Agreement, the
Class B Common Stock (as defined in the Investment Agreement).
(x) "13D Group" shall mean any group of Persons who,
with respect to those acquiring, holding, voting or disposing of
Voting Securities would be required under Section 13(d) of the
Exchange Act and the rules and regulations thereunder to file a
statement on Schedule 13D with the Securities and Exchange
Commission as a "person" within the meaning of Section 13(d)(3)
of the Exchange Act, or who would be considered a "person" for
purposes of Section 13(g)(3) of the Exchange Act."
(g) Section 13(d) of the Amended and Restated Rights
Agreement is hereby deleted in its entirety.
(h) The penultimate sentence of Section 3(a) of the
Amended and Restated Rights Agreement is hereby amended in its
entirety to read as follows: "As soon as practicable after the
Distribution Date, the Company will prepare and execute, the
Rights Agent will countersign and send, or cause to be sent, by
first-class, insured, postage prepaid mail, to each record holder
of Common Shares and Series A Convertible Preferred Stock as of
the Close of Business on the Distribution Date, at the address of
such holder shown on the records of the Company, a Right
Certificate, substantially in the form of Exhibit B hereto (a
"Right Certificate"), evidencing, in the case of holders of
Common Shares, one Right for each Common Share so held, and, in
the case of holders of Series A Convertible Preferred Stock, one
Right for each share of Common Stock, par value $1.00 per share,
into which such Series A Convertible Preferred Stock is
convertible (whether or not then convertible)."
(i) The third sentence of Section 7(b) of the Amended
and Restated Rights Agreement is hereby amended in its entirety
to read as follows: "Anything in this Agreement to the contrary
notwithstanding, in the event that at any time after the date
hereof and prior to the Distribution Date, the Company shall (i)
declare or pay any dividend on the Common Shares payable in
Common Shares or (ii) effect a subdivision, combination or
consolidation of the Common Shares (by reclassification or
otherwise than by payment of dividends in Common Shares) into a
greater or lesser number of Common Shares, then in any such case,
each Common Share outstanding following such subdivision,
combination or consolidation shall continue to have one Right
(or, in the case of Series A Convertible Preferred Stock, one
Right for each share of Common Stock, par value $1.00 per share,
into which such Series A Convertible Preferred Stock is
convertible (whether or not then convertible) following such
subdivision, combination or consolidation) (subject to adjustment
as provided here) associated therewith and the Purchase Price
following any such event shall be proportionately adjusted to
equal the result obtained by multiplying the Purchase Price
immediately prior to such event by a fraction the numerator of
which shall be the total number of Common Shares outstanding
immediately prior to the occurrence of the event and the
denominator of which shall be the total number of Common Shares
outstanding immediately following the occurrence of such event."
SECTION 2. EFFECT OF AMENDMENT. Except as modified by
this Amendment No. 1, the Amended and Restated Rights Agreement
shall remain in full force and effect.
SECTION 3. SEVERABILITY. If any term, provision,
covenant or restriction of this Amendment No. 1 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.
SECTION 4. GOVERNING LAW. This Amendment No. 1 shall
be deemed to be a contract made under the laws of the State of
Iowa and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts
made and to be performed entirely within such State.
SECTION 5. COUNTERPARTS. This Amendment No. 1 may be
executed in any number of counterparts and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and attested, all as of the date
and year first above written.
PIONEER HI-BRED INTERNATIONAL, INC.
By:
Name: Charles S. Johnson
Title: President and CEO
By:
Name: Jerry Chicoine
Title: Vice President and Chief
Financial Officer
BANK BOSTON N.A.
the Rights Agent
By:
Name: Kathryn Anderson
Title: Administrative Manager