EXHIBIT 2.2
FIRST AMENDMENT TO
RIGHTS AGREEMENT
This First Amendment is made as of the 23rd day of August 1995 by and
between Exabyte Corporation, a Delaware corporation (the "Company"), and the
First National Bank of Boston, as Rights Agent (the "Bank of Boston"), as that
term is defined in that certain Rights Agreement, dated January 24, 1991 (the
"Rights Agreement").
WHEREAS, holders of the Common Shares (as defined in the Rights
Agreement) of the Company were granted certain common stock purchase rights (the
"Rights") subject to the conditions set forth in the Rights Agreement;
WHEREAS, the Company deems it desirable to amend such conditions to
preserve for stockholders the long-term value of the Company; and
WHEREAS, the Bank of Boston as Rights Agent has determined that such
amendments would not adversely affect its interest under the Rights Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. Certain capitalized terms used herein shall have the respective
meanings given them in the Rights Agreement.
2. Section 1(a) of the Rights Agreement is hereby amended and
restated to read in full as follows:
(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 15% or more of the Common Shares of the Company then outstanding,
but shall not include the Company, any Subsidiary (as such term is
hereinafter defined) of the Company, any employee benefit plan of the
Company or any Subsidiary of the Company, or any entity holding
Common Shares for or pursuant to the terms of any such plan.
Notwithstanding the foregoing, no Person shall become an "Acquiring
Person" as the result of an acquisition of Common Shares by the
Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by
such Person to 15% or more of the Common Shares of the Company then
outstanding; provided, however, that if a Person shall become the
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Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding by reason of share purchases by the Company and
shall, after such share purchases by the Company, become
the Beneficial Owner of any additional Common Shares of the Company,
then such Person shall be deemed to be an "Acquiring Person."
3. Section 3(a) of the Rights Agreement is hereby amended and
restated to read in full as follows:
(a) Until the earlier of (i) the tenth day after the Shares
Acquisition Date or (ii) the tenth day (or such later date as may be
determined by action of the Board of Directors prior to such time as
any Person becomes an Acquiring Person) after the date of the
commencement (determined in accordance with Rule 14d-2 under the
Exchange Act) by any Person (other than the Company, any Subsidiary
of the Company, any employee benefit plan of the Company or of any
Subsidiary of the Company or any entity holding Common Shares for or
pursuant to the terms of any such plan) of, or of the first public
announcement of the intention of any Person (other than the Company,
any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company or any entity holding
Common Shares for or pursuant to the terms of any such plan) to
commence, a tender or exchange offer the consummation of which would
result in any Person becoming the Beneficial Owner of Common Shares
aggregating 15% or more of the then outstanding Common Shares
(including any such date which is after the date of this Agreement
and prior to the issuance of the Rights; the earlier of such dates
being herein referred to as the "Distribution Date"), (x) the Rights
will be evidenced 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 Rights (and the right to receive Right
Certificates therefor) will be transferable only in connection with
the transfer of Common Shares. 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 so held. As
of the Distribution Date, the Rights will be evidenced solely by such
Right Certificates.
4. Section 11(d)(i) of the Rights Agreement is amended and restated
to read in full as follows:
(d) (i) A dividend or distribution on such Security payable in
shares of such Security or securities convertible into such shares,
or (b) any subdivision, combination or reclassification of such
Security or securities convertible into such shares, or (c) any
subdivision, combination or reclassification of such Security 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 such Security. 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 New York Stock
Exchange or, if the Security is not listed or admitted to trading on
the New York Stock Exchange, as reported in the principal
consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the
Security is listed or admitted to trading or as reported on the
Nasdaq National Market or, if the Security is 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 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 Security is 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 Security selected by the Board of
Directors of the Company. The term "Trading Day" shall mean a day on
which the principal national securities exchange on which the
Security is listed or admitted to trading is open for the transaction
of business or, if the Security is not listed or admitted to trading
on any national securities exchange, a Business Day.
5. Section 23(b) of the Rights Agreement is amended and restated
to read in full as follows:
(b) The Board of Directors of the Company may, at its option,
at any time prior to the earlier of (i) the close of business on the
Shares Acquisition Date; or (ii) the Final Expiration Date, redeem
all but not less than all of 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"), and the Company may, at its
option, pay the Redemption Price in Common Shares (based on the
"current per share market price," as defined in Section 11(d) hereof,
of the Common Shares at the time of redemption), cash or any other
form of consideration deemed appropriate by the Board of Directors.
The Company's redemption option pursuant to this Section 23 shall
terminate at such time on or after the Shares Acquisition Date as
there shall occur a Change of Control. The redemption of the Rights
by the Board of Directors may be made effective at such time, on such
basis and subject to such conditions as the Board of Directors in its
sole discretion may establish. Notwithstanding anything contained in
this Agreement to the contrary, the Rights shall not be exercisable
pursuant to Section 11(a)(ii) hereof prior to the expiration or
termination of the Company's right of redemption hereunder.
6. Section 27 of the Rights Agreement is hereby amended and
restated to read in full as follows:
The Company may from time to time supplement or amend this Agreement
without the approval of any holders of Right Certificates in order to cure
any ambiguity, to correct or supplement any provision contained herein
which may be defective or inconsistent with any other provisions herein, or
to make any other provisions which the Company may deem necessary or
desirable, any such supplement or amendment to be evidenced by a writing
signed by the Company and the Rights Agent; provided, however, that from
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and after such time as any Person becomes an Acquiring Person, this
Agreement shall not be amended in any manner which would adversely affect
the interests of the holders of Rights. Without limiting the foregoing,
the Company may at any time prior to such time as any Person becomes an
Acquiring Person amend this Agreement to lower the thresholds set forth in
Section 1(a) and 3(a) hereof from 15% to any percentage which is (i)
greater than the largest percentage of the outstanding Common Shares then
known by the Company to be beneficially owned by any Person and (ii) not
less than 10%. Upon delivery of a certificate from an appropriate officer
of the Company which states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights Agent shall
execute such supplement or amendment unless the Rights Agent shall have
determined in good faith that such supplement or amendment would adversely
affect its interest under this Agreement. Prior to the Distribution Date,
the interests of the holders of Rights shall be deemed coincident with the
interests of the holders of Common Shares
7. The Summary of Rights to Purchase Preferred Shares attached to the
Rights Agreement as Exhibit C is amended and restated as set forth in Exhibit C
attached hereto.
IN WITNESS WHEREOF, the Company and the Bank of Boston have executed this
Amendment as of the date first above written.
EXABYTE CORPORATION THE FIRST NATIONAL BANK OF BOSTON
By /s/ WILLIAM L. MARRINER By /s/ COLEEN H. SHEA
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Executive Vice President Administration Manager
Chief Financial Officer
(Prinipal Financial Officer)
EXHIBIT C
SUMMARY OF RIGHTS TO PURCHASE
COMMON SHARES
AS AMENDED THROUGH AUGUST 23, 1995
On January 24, 1991, the Board of Directors of Exabyte Corporation
(the "Company") declared a dividend of one common share purchase right (a
"Right") for each outstanding share of common stock, par value $.001 per share
(the "Common Shares"), of the Company. The dividend was paid on February 1,
1991 (the "Record Date") to the stockholders of record on that date, and a Right
accompanied each Common Share issued after that date. Each Right entitles the
registered holder to purchase from the Company one Common Share of the Company,
at a price of $75 per Common Share (the "Purchase Price"), subject to adjustment
for certain events occurring after January 25, 1991. The description and terms
of the Rights are set forth in a Rights Agreement, dated as of January 24, 1991,
and a First Amendment to Rights Agreement, dated as of August 23, 1995 (as so
amended, the "Rights Agreement"), between the Company and First National Bank of
Boston, as Rights Agent (the "Rights Agent").
Initially, the Rights will be evidenced by the stock certificates
representing the Common Shares then outstanding, and no separate Right
Certificates, as defined, will be distributed. Until the earlier to occur of
(i) 10 days following a public announcement that a person, entity or group of
affiliated or associated persons (an "Acquiring Person") have acquired
beneficial ownership of 15% or more of the outstanding Common Shares or (ii) 10
business days (or such later date as may be determined by action of the Board of
Directors prior to such time as any person or entity becomes an Acquiring
Person) 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 such outstanding Common
Shares (the earlier of such dates being called the "Distribution Date"), the
Rights will be evidenced, with respect to any of the Common Share certificates
outstanding as of the Record Date, by such Common Share certificate 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 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 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 a
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.
The Rights are not exercisable until the Distribution Date. The
Rights will expire on February 15, 2001 (the "Final Expiration Date"), unless
the Final Expiration Date is extended or unless the Rights are earlier redeemed
by the Company, in each case, as described below.
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 after August 23, 1995 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 grant to holders of the
Common Shares of certain rights 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
exercise of Rights for Common Shares is at all times subject to the availability
of a sufficient number of authorized but unissued Common Shares.
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 will thereafter be void), will
have the right to receive upon exercise that number of Common Shares having a
market value of two times the Purchase Price of the Right (or, if such number of
shares is not authorized, the Company may issue cash, debt, stock, or a
combination thereof in exchange for the Rights). This right will terminate 60
days after the date on which the Rights become nonredeemable (as described
below), unless there is an injunction or similar obstacle to exercise of the
Rights, in which event this right will terminate 60 days after the rights again
become exercisable.
In the event that the Company is acquired in a merger or other
business combination transaction or 50% or more of its consolidated assets or
earning power are sold, proper provision will be made so that each holder of a
Right will thereafter 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.
At any time after the acquisition by a person or group of affiliated
or associated persons of beneficial ownership of 15% or more of the outstanding
Common Shares and prior to the acquisition by such person or group of 50% or
more of the outstanding Common Shares, the Board of Directors of the Company may
exchange the Rights (other than Rights owned by such person or group which have
become void), in whole or in part, at an exchange ratio of one Common Share per
Right (or, if the number of shares is not authorized, the Company may issue
cash, debt, stock or a combination thereof in exchange for the Rights), 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 earliest of (i) the close of business on the
twentieth day following the first public announcement that a person has become
an Acquiring Person (subject to extension for one or more successive periods
pursuant to the Rights Agreement), (ii) such time on or after the first public
announcement that a person has become an Acquiring Person as there shall have
occurred a Change of Control (as defined in the Rights Agreement) of the
Company, or (iii) the Final Expiration 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, subject to adjustment for certain events occurring after January 24, 1991
(the "Redemption Price"). Following the expiration of these periods, the Rights
become nonredeemable.
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, including an
amendment to lower the threshold for exercisability of the Rights from 15% to
not less than the greater of (i) the largest percentage of the outstanding
Common Shares then known to the Company to be beneficially owned by any Person
and (ii) 10%, except that from and after such time as any person becomes an
Acquiring Person no such amendment may adversely affect the interests of the
holders of the Rights.
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 ("SEC") as an Exhibit to a Current Report on Form 8-K dated
January 24, 1991, a copy of the First Amendment to Rights Agreement has been
filed with the SEC as an Exhibit to a Current Report on Form 8-K dated August
23, 1991. Copies of the Rights Agreement and the First Amendment to Rights
Agreement are available free of charge by writing to: Corporate Secretary,
Exabyte Corporation, 1685 38th Street, Boulder, CO 80301. 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.