-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, VvwUYgI0flKQCBfbEsfM9JTWpEYjBuuRNrOEzWCsOVt05n8eQe/5s06F3EM1Pwj0 wWRT+UPpPfG+GS8VBy6dxA== 0000950117-94-000184.txt : 19940819 0000950117-94-000184.hdr.sgml : 19940819 ACCESSION NUMBER: 0000950117-94-000184 CONFORMED SUBMISSION TYPE: 8-A12B/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19940818 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN CYANAMID CO CENTRAL INDEX KEY: 0000004829 STANDARD INDUSTRIAL CLASSIFICATION: 2800 IRS NUMBER: 130430890 STATE OF INCORPORATION: ME FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-A12B/A SEC ACT: 1934 Act SEC FILE NUMBER: 001-03426 FILM NUMBER: 94544931 BUSINESS ADDRESS: STREET 1: 1 CYANAMID PLAZA CITY: WAYNE STATE: NJ ZIP: 07470 BUSINESS PHONE: 2018312000 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN CYANAMID/ME DATE OF NAME CHANGE: 19930928 FORMER COMPANY: FORMER CONFORMED NAME: CYANAMID DATE OF NAME CHANGE: 19930928 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN CYANAMID CO DATE OF NAME CHANGE: 19930928 8-A12B/A 1 ACC 8-A, AM. #3 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- FORM 8-A/A AMENDMENT TO REGISTRATION STATEMENT ON FORM 8-A Filed pursuant to Section 12 of THE SECURITIES EXCHANGE ACT OF 1934 -------------------------- AMERICAN CYANAMID COMPANY (Exact name of registrant as specified in charter) MAINE (State or other jurisdiction of incorporation) -------------------------- AMENDMENT NO. 3 (to Registration Statement on Form 8-A dated March 18, 1986) ------------------------------------------------------------ ------------------------------------------------------------ Exhibit Index Appears at Page 5. The undersigned registrant, American Cyanamid Company (the 'Company'), hereby amends and supplements Items 1 and 2 of its Registration Statement on Form 8-A (the 'Registration Statement'), as amended by Amendments No. 1 and 2 thereto, as set forth below: ITEM 1. DESCRIPTION OF SECURITIES Information concerning the Company's Rights is contained in the Company's Registration Statement on Form 8-A dated March 18, 1986 (the 'Form 8-A'), in Amendment No. 1 thereto on Form 8 dated April 30, 1986 (the 'Form 8 Amendment No. 1') and in Amendment No. 2 to the Form 8-A on Form 8 dated May 18, 1987 (the 'Form 8 Amendment No. 2'), each of which is incorporated herein by this reference. All capitalized terms not otherwise defined herein have the meanings assigned in the Form 8-A. On August 17, 1994, the Board of Directors of the Company adopted an amendment (the 'Amendment') to the Rights Agreement (the 'Rights Agreement') dated as of March 10, 1986 between the Company and Mellon Bank, N.A., as Successor Rights Agent, as amended as of April 29, 1986 and as of April 21, 1987. The Amendment provides as follows: (i) Section 1(a) of the Rights Agreement is amended to provide that no person who acquires beneficial ownership of 20% or more of the Shares then issued and outstanding, pursuant to a cash tender offer for all of the Shares then issued and outstanding, at a price of at least $101.00 per Share shall be deemed an Acquiring Person. (ii) Section 3(a) of the Rights Agreement is amended to provide that the Distribution Date shall be the earlier of (i) the close of business on the tenth day after the Stock Acquisition Date or (ii) the close of business on any day, as determined by the Board, acting in its sole discretion, following the tenth business day after the date that a tender or exchange offer to purchase at least 30% of the Company's Common Stock is commenced by any Person (other than the Company, any Subsidiary of the Company, any employee benefits plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed, or established by the Company for or pursuant to the terms of any such plan). (iii) Section 11(a)(ii)(B) of the Rights Agreement is amended to provide that in the event any Person (other than the Company, any Subsidiary of the Company, any employee benefits plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed, or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding, other than pursuant to any transaction set forth in Section 13(a) hereof, provisions shall be made so that each holder of a Right (except as provided in the Section 7(e) and elsewhere in the Rights Agreement) shall thereafter have the right to receive upon exercise of the Right, two shares of Common Stock (or in certain circumstances a combination of cash, other property, Common Stock and/or other securities) at 25% of the then per share market price of the Common Stock. (iv) Section 34 of the Rights Agreement is added to the agreement to provide that notwithstanding any provision of Section 13 or any other provision of the Rights Agreement to the contrary, if any Person consummates a cash tender offer for at least $101.00 per Share and then consummates a Merger whereby the remaining shares of Common Stock are converted into the right to receive $101.00 or any higher amount paid for Shares under such tender offer, the Rights shall in no event and under no circumstances be exercisable and no supplemental agreement pursuant to Section 13 shall be required in connection with a Second Step Merger. The full text of the Amendment is filed as Exhibit 5 hereto, and the foregoing summary is qualified in its entirety by reference to such Exhibit. ITEM 2. EXHIBITS 1. Rights Agreement dated as of March 10, 1986, between American Cyanamid Company and The Chase Manhattan Bank, N.A., as Rights Agent (previously filed as an exhibit to the Form 8-A). 2. Amendment, dated as of April 29, 1986, between American Cyanamid Company and The Chase Manhattan Bank, N.A., as Rights Agent. 3. Amendment, dated as of April 21, 1987, between American Cynamid Company and The Chase Manhattan Bank, N.A., as Rights Agent (previously filed as an exhibit to the Form 8 Amendment No. 2). 4. Letter Agreement, dated March 2, 1992 between American Cyanamid Company and Mellon Bank, N.A. (previously filed as an exhibit to Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1992). 5. Amendment Agreement, dated as of August 17, 1994, between American Cyanamid Company and Mellon Bank, N.A., as Rights Agent. Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this amendment to be signed on its behalf by the undersigned, thereunto duly authorized. AMERICAN CYANAMID COMPANY (Registrant) Dated: August 17, 1994 By /s/ Alice C. Brennan ------------------------- Alice C. Brennan Secretary EXHIBIT INDEX
Number Description Page No. ------ ----------- -------- 1. Rights Agreement dated March 18, 1986, between American Cyanamid Company and The Chase Manhattan Bank, N.A., as Rights Agent (previously filed as an exhibit to the Form 8-A). 2. Amendment, dated as of April 29, 1986, between American Cyanamid Company and The Chase Manhattan Bank, N.A., as Rights Agent. 3. Amendment, dated as of April 21, 1987, between American Cyanamid Company and The Chase Manhattan Bank, N.A., as Rights Agent (previously filed as an exhibit to the Form 8 Amendment No. 2). 6 4. Letter Agreement, dated March 2, 1992 between American Cyanamid Company and Mellon Bank, N.A., as Successor Rights Agent. (previously filed as an exhibit to Registrant's Quarterly Report on Form 10-Q for the quarter ended June 30, 1992). 5. Amendment Agreement, dated as of August 17, 1994, between American Cyanamid Company and Mellon Bank, N.A., as Rights Agent.
EX-99 2 EXHIBIT 2 EXHIBIT 2 AMENDMENT AGREEMENT Amendment Agreement, dated as of April 29, 1986, between American Cyanamid Company, a Maine corporation (the 'Company'), and The Chase Manhattan Bank, N.A. (the 'Rights Agent'). WHEREAS, the Company and the Rights Agent have heretofore executed and entered into a Rights Agreement, dated as of March 10, 1986 (the 'Rights Agreement'); WHEREAS, the Company and the Rights Agent may from time to time supplement or amend the Rights Agreement pursuant to the provisions of Section 26 of the Rights Agreement; and WHEREAS, all acts and things necessary to make this Amendment Agreement a valid, legal and binding instrument of the Company and the Rights Agent have been duly done, performed and fulfilled, and the execution and delivery hereof by each of the Company and the Rights Agent have been in all respects duly authorized by the Company and the Rights Agent, respectively; NOW, THEREFORE, the Company and the Rights Agent hereby agree as follows: 1. Pursuant to Section 26 of the Rights Agreement, Section 11 of the Rights Agreement is hereby modified and amended to read in its entirety as set forth in Exhibit A hereto. 2. This Amendment Agreement 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. Terms not defined herein shall, unless the context otherwise requires, have the meanings assigned to such terms in the Rights Agreement. 3. In all respects not inconsistent with the terms and provisions of this Amendment Agreement, the Rights Agreement is hereby ratified and confirmed. In executing and delivering this Amendment Agreement, the Rights Agent shall be entitled to all of the privileges and immunities afforded to the Rights Agent under the terms and conditions of the Rights Agreement. 12 IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. AMERICAN CYANAMID COMPANY By: ----------------------------------------- Name: James I. Wyer Title: Vice President and General Counsel By: -------------------------- Name: Edward P. Jackman Title: Secretary THE CHASE MANHATTAN BANK By: ----------------------------------------- Name: Title: By: -------------------------- Name: Title: EXHIBIT A Section 11. Adjustment of Purchase Price, Number and Kind of Shares or Number of Rights. The Purchase Price, the number and kind of shares covered by each Right and the number of Rights outstanding are subject to 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 Preferred Stock payable in shares of Preferred Stock, (B) subdivide the outstanding Preferred Stock, (C) combine the outstanding Preferred Stock into a smaller number of shares, or (D) issue any shares of its capital stock in a reclassification of the Preferred Stock (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) and Section 7(e) hereof, the Purchase Price in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of Preferred Stock or capital stock, as the case may be, 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 Preferred Stock or capital stock, as the case may be, which, if such Right had been exercised immediately prior to such date and at a time when the Preferred Stock transfer books of the Company were open, he would have owned upon such exercise and been entitled to receive by virtue of such 2 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) In the event: (A) any Acquiring Person or any Associate or Affiliate of any Acquiring Person, at any time after the date of this Agreement, directly or indirectly, (1) shall merge into the Company or otherwise combine with the Company and the Company shall be the continuing or surviving corporation of such merger or combination and the Common Stock of the Company shall remain outstanding and unchanged, (B) 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 Person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become the Beneficial Owner of 50% or more of the shares of Common Stock then outstanding, other than pursuant to any transaction set forth in Section 13(a) hereof, or (C) during such time as there is an Acquiring Person, there shall be any reclassification of securities (including any reverse stock split), or recapitalization of the Company, or merger or consolidation of the Company with any of its Subsidiaries or any other transaction or series of transactions involving the Company or any of its 3 Subsidiaries, other than a transaction or transactions to which the provisions of Section 13(a) apply (whether or not with or into or otherwise involving an Acquiring Person), which has the effect, directly or indirectly, of increasing by more than 1% the proportionate share of the outstanding shares of any class of equity securities of the Company or any of its Subsidiaries which is directly or indirectly beneficially owned by any Acquiring Person or any Associate or Affiliate of any Acquiring Person, then, promptly following five (5) days after the date of the occurrence of an event described in Section 11(a)(ii)(B) hereof and promptly following the occurrence of any event described in Section 11(a)(ii)(A) or (C) hereof, proper provision shall be made so that each holder of a Right (except as provided below and in Section 7(e) hereof) shall thereafter have the right to receive, upon exercise thereof, the number of shares of Common Stock equal to two times the number of one two-hundredths of a share of Preferred Stock for which a Right was exercisable immediately prior to the first occurrence of an event set forth in Section 11(a)(ii)(A), (B) or (C) above (such number of shares, the 'Adjustment Shares') at an adjusted Purchase Price equal to the product obtained by multiplying the number of Adjustment Shares by the greater of (x) 25% of the current market price (determined pursuant to Section 11(d) hereof) per share of Common Stock as of the date of such first occurrence and (y) the par value per share of the Common Stock; and following the first occurrence of an event set forth in Section 11(a)(ii)(A), (B) or (C), such adjusted Purchase 4 Price shall thereafter be referred to as the 'Purchase Price' for all purposes of this Agreement. (iii) In the event that the number of shares of Common Stock which are authorized by the Company's articles of incorporation but not outstanding or reserved for issuance for purposes other than upon exercise of the Rights are not sufficient to permit the exercise in full of the Rights in accordance with the foregoing subparagraph (ii), the Company shall: (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, make adequate provision to substitute for the Adjustment Shares, upon payment of the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Common Stock or other equity securities of the Company (including, without limitation, shares, or units of shares, of preferred stock which the Board of Directors of the Company has deemed to have the same value as shares of Common Stock (such shares of preferred stock, 'common stock equivalents')), (4) debt securities of the Company, (5) other assets, or (6) 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 of the Company based upon the advice of a nationally recognized investment banking firm selected by the Board of Directors of the Company; provided, however, if the Company shall not have made adequate provision to deliver value pursuant to clause (B) above within thirty (30) days 5 following the later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the date on which the Company's right of redemption pursuant to Section 23(a) expires (the later of (x) and (y) being referred to herein as the 'Section 11(a)(ii) Trigger Date'), then the Company shall be obligated to deliver, upon the 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/or cash have an aggregate value equal to the Spread. If the Board of Directors of the Company shall determine in good faith that it is likely that sufficient additional shares of Common Stock could be authorized for issuance upon exercise in full of the Rights, the thirty (30) day period set forth above may be extended to the extent necessary, but not more than ninety (90) days after the Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder approval for the authorization of such additional shares (such period, as it may be extended, the 'Substitution Period'). To the extent that the Company determines that some action need be taken pursuant to the first and/or second sentences of this Section 11(a)(iii), the Company (x) shall provide, subject to Section 7(e) hereof, that such action shall apply uniformly to all outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of the Substitution Period in order to seek any authorization of additional shares and/or to decide the appropriate form of distribution to be made pursuant to such first sentence and to determine the value thereof. In the event of any such suspension, the Company shall issue a public announcement stating that the exercisability of the 6 Rights has been temporarily suspended, as well as a public announcement at such time as the suspension is no longer in effect. For purposes of this Section 11(a)(iii), the value of the Common Stock shall be the current market price (as determined pursuant to Section 11(d) hereof) per share of the Common Stock on the Section 11(a)(ii) Trigger Date and the value of any 'common stock equivalent' shall be deemed to have the same value as the Common Stock on such date. (b) In case the Company shall fix a record date for the issuance of rights, options or warrants to all holders of Preferred Stock entitling them to subscribe for or purchase (for a period expiring within forty-five (45) calendar days after such record date) Preferred Stock (or shares having the same rights, privileges and preferences as the shares of Preferred Stock ('equivalent preferred stock')) or securities convertible into Preferred Stock or equivalent preferred stock at a price per share of Preferred Stock or per share of equivalent preferred stock (or having a conversion price per share, if a security convertible into Preferred Stock or equivalent preferred stock) less than the current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock 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 shares of Preferred Stock Outstanding on such record date, plus the number of shares of Preferred Stock which the aggregate offering price of the total number of shares of Preferred Stock and/or equivalent preferred stock so 7 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 denominator of which shall be the number of shares of Preferred Stock outstanding on such record date, plus the number of additional shares of Preferred Stock and/or equivalent preferred stock 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 by delivery of consideration part or all of which may be in a form other than cash, the value of such consideration shall be as determined in good faith by the Board, whose determination shall be described in a statement filed with the Rights Agent and shall be binding on the Rights Agent. Shares of Preferred Stock owned by or held for the account of the Company shall not be deemed outstanding for the purpose of any such computation. Such adjustment shall be made successively whenever such a record date is fixed; and in the event that such rights 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 a distribution to all holders of Preferred Stock (including any such distribution made in connection with a consolidation or merger in which the Company is the continuing corporation) of evidence of indebtedness, cash (other than a regular quarterly cash dividend out of the earnings or retained earnings of the Company), assets (other than a dividend payable in Preferred Stock, but including any dividend payable in stock other than Preferred Stock) or subscription rights 8 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 current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock on such record date, less the fair market value (as determined in good faith by the Board, whose determination shall be described in a statement filed with the Rights Agent) of the portion of the cash, assets or evidences of indebtedness so to be distributed or of such subscription rights or warrants applicable to a share of Preferred Stock and the denominator of which shall be such current market price (as determined pursuant to Section 11(d) hereof) per share of Preferred Stock. 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 be adjusted to be the Purchase Price which would have been in effect if such record date had not been fixed. (d)(i) For the purpose of any computation hereunder, other than computations made pursuant to Section 11(a)(iii)(A) hereof, the 'current market price' per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for the thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to such date, and for purposes of computations made pursuant to Section 11(a)(iii)(A) hereof, the 'current market' price per share of Common Stock on any date shall be deemed to be the average of the daily closing prices per share of such Common Stock for ten (10) consecutive Trading Days immediately following such date; 9 provided, however, that in the event that the current market price per share of the Common Stock is determined during a period following the announcement by the issuer of such Common Stock of (A) a dividend or distribution on such Common Stock payable in shares of such Common Stock or securities convertible into shares of such Common Stock (other than the Rights), or (B) any subdivision, combination or reclassification of such Common Stock, and prior to the expiration of the requisite thirty (30) Trading Day or ten (10) Trading Day period, as set forth above, 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 market price' shall be properly adjusted to take 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 New York Stock Exchange or, if the shares of Common Stock are 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 shares of Common Stock are listed or admitted to trading or, if the shares of Common Stock 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 the National Association of Securities Dealers, Inc. Automated Quotation System ('NASDAQ') or such other system then in use, or, if on any such date the 10 shares of Common Stock 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 Stock selected by the Board. If on any such date no market maker is making a market in the Common Stock, the fair value of such shares on such date as determined in good faith by the Board shall be used. The term 'Trading Day' shall mean a day on which the principal national securities exchange on which the shares of Common Stock are listed or admitted to trading is open for the transaction of business or, if the shares of Common Stock are not listed or admitted to trading on any national securities exchange, a Business Day. If the Common Stock is not publicly held or not so listed or traded, 'current market price' per share 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 and shall be conclusive for all purposes. (ii) For the purpose of any computation hereunder, the 'current market price' per share of Preferred Stock shall be determined in the same manner as set forth above for the Common Stock in clause (i) of this Section 11(d) (other than the last sentence thereof). If the current market price per share of Preferred Stock cannot be determined in the manner Provided above or if the Preferred Stock is not publicly held or listed or traded in a manner described in clause (i) of this Section 11(d), the 'current market price' per share of Preferred Stock shall be conclusively deemed to be an amount equal to 200 (as such number may be appropriately adjusted for such events as stock splits, stock dividends and recapitalization with respect to the 11 Common Stock occurring after the date of this Agreement) multiplied by the current market price per share of the Common Stock. If neither the Common Stock nor the Preferred Stock is publicly held or so listed or traded, 'current market price' per are 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 and shall be conclusive for all purposes. (e) Anything herein to the contrary notwithstanding, no adjustment in the Purchase Price shall be required unless such adjustment would require an increase or decrease of at least one percent (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 ten- thousandth of a share of Common Stock or other share or one- millionth of a share of Preferred Stock, as the case may be. 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 (3) years from the date of the transaction which mandates such adjustment, or (ii) the Expiration Date. (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 Preferred Stock, thereafter the number of such other shares so receivable upon exercise of any 12 Right and the Purchase Price thereof shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to the Preferred Stock contained in Section 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and (m), and the provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred Stock shall apply on like terms to any such other shares. (g) All Rights originally issued by the Company subsequent to any adjustment made to the Purchase Price hereunder shall evidence the right to purchase, at the adjusted Purchase Price, the number of shares of Preferred Stock purchasable from time to time hereunder upon exercise of the Rights, all subject to further adjustment as provided herein. (h) Unless the Company shall have exercised its election as provided in Section 11(i), upon each adjustment of the Purchase Price as a result of the calculations made in Sections 11(b) and (c), each Right outstanding immediately prior to the making of such adjustment shall thereafter evidence the right to purchase, at the adjusted Purchase Price, that number of one two-hundredth of a share of Preferred Stock (calculated to the nearest one-millionth) obtained by (i) multiplying (x) the number of one two-hundredth of a share covered by a Right immediately prior to this adjustment, by (y) the Purchase Price in effect immediately prior to such adjustment of the Purchase Price, and (ii) dividing the product so obtained by the Purchase Price in effect immediately after such adjustment of the Purchase Price. 13 (i) The Company may elect on or after the date of any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any adjustment in the number of shares of Preferred Stock purchasable upon the exercise of a Right. Each of the Rights outstanding after the adjustment in the number of Rights shall be exercisable for the number of one two-hundredth of a share of Preferred Stock for which a Right was exercisable immediately prior to such adjustment Each Right held of record prior to such adjustment of the number of Rights shall become that number of Rights (calculated to the nearest one ten- thousandth) obtained by dividing the Purchase Price in effect immediately prior to adjustment of the Purchase Price by the Purchase Price in effect immediately after adjustment of the Purchase Price. The Company shall make a public announcement of its election to adjust the number of Rights, indicating the record date for the adjustment, and, if known at the time, the amount of the adjustment to be made. This record date may be the date on which the Purchase Price is adjusted or any day thereafter, but, if the Right Certificates have been issued, shall be at least ten (10) days later than the date of the public announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights pursuant to this Section 11(i), the Company shall, as promptly as practicable, cause to be distributed to holders of record of Right Certificates on such record date Right Certificates evidencing, subject to Section 14 hereof, the additional Rights to which such holders shall be entitled as a result of such adjustment, or, at the option of the Company, shall cause to be distributed to such holders of record in substitution and replacement for the Right Certificates held by such holders prior to the date of adjustment, and upon surrender 14 thereof, if required by the Company, new Right Certificates evidencing all the Rights to which such holders shall be entitled after such adjustment. Right Certificates so to be distributed shall be issued, executed and countersigned in the manner provided for herein (and may bear, at the option of the Company, the adjusted Purchase Price) and shall be registered in the names of the holders of record of Right Certificates on the record date specified in the Public announcement. (j) Irrespective of any adjustment or change in the Purchase Price or the number of one two-hundredths of a share of Preferred Stock issuable upon the exercise of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the Purchase Price per share and the number of shares which were expressed in the initial Right Certificates issued hereunder. (k) Before taking any action that would cause an adjustment reducing the Purchase Price below the then par value or stated value, if any, of the shares of Preferred Stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable shares of Preferred Stock at such adjusted Purchase Price. (l) In any case in which this Section 11 shall require that an adjustment in the Purchase price be made effective as of a record date for a specified event, the Company may elect to defer until the occurrence of such event the issuance to the holder of any Right exercised after such record date the shares of Preferred Stock and other capital stock or 15 securities of the Company, if any, issuable upon such exercise over and above the shares of Preferred Stock and other capital stock or securities of the Company, if any, issuable upon such exercise on the basis of the Purchase Price in effect prior to such adjustment; provided, however, that the Company shall deliver to such holder a due bill or other appropriate instrument evidencing such holder's right to receive such additional shares or securities upon the occurrence of the event requiring such adjustment. (m) 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 in their good faith judgment the Board of Directors of the Company shall determine to be advisable in order that any (i) consolidation or subdivision of the Preferred Stock, (ii) issuance wholly for cash of any shares of Preferred Stock at less than the current market price, (iii) issuance wholly for cash of shares of Preferred Stock or securities which by their terms are convertible into or exchangeable for shares of Preferred Stock, (iv) stock dividends or (v) issuance of rights, options or warrants referred to in this Section 11, hereafter made by the Company to holders of its Preferred Stock shall not be taxable to such stockholders. (n) 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 Subsidiary of the Company in a transaction which complied with Section 11(o) hereof), (ii) merge with or into any other Person (other than a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof) or (iii) sell or transfer (or permit any Subsidiary to sell or 16 transfer), in one or more 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 a Subsidiary of the Company in a transaction which complies with Section 11(o) hereof) if (x) at the time of or immediately after such consolidation, merger or sale there are any rights, warrants or other instruments or securities outstanding or agreements in effect which would substantially 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 or sale, the shareholders of the Person who constitutes or would constitute, the 'Principal Party' for purposes of Section 13(a) hereof shall have received a distribution of Rights previously owned by such Person or any of its Affiliates and Associates. (o) The Company covenants and agrees that, after the Distribution Date, it will not, except as permitted by Section 23 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 substantially or otherwise eliminate the benefits intended to be afforded by the Rights. (p) Anything in this Agreement to the contrary notwithstanding, in the event that the Company shall at any time after the Rights Dividend Declaration Date and prior to the Distribution Date (i) declare a dividend on the outstanding shares of Common Stock payable in shares of Common Stock, (ii) subdivide the outstanding shares of Common Stock, (iii) combine the outstanding Common Stock into a smaller number of shares, or (iv) 17 issue any shares of its capital stock in a reclassification of the outstanding Common Stock, the number of Rights associated with each share of Common Stock then outstanding or issued or delivered thereafter but prior to the Distribution Date, shall be proportionately adjusted so that the number of Rights thereafter associated with each share of Common Stock following any such event shall equal the result obtained by multiplying the number of Rights associated with each share of Common Stock immediately prior to such event by a fraction the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to the occurrence of the event and the denominator of which shall be the total number of shares of Common Stock outstanding immediately following the occurrence of such event. EX-99 3 EXHIBIT 5 EXHIBIT 5 AMENDMENT AGREEMENT Amendment Agreement, dated as of August 17, 1994, between American Cyanamid Company, a Maine corporation (the 'Company'), and Mellon Bank, N.A., (the 'Rights Agent'). WHEREAS, the Company and The Chase Manhattan Bank, N.A. ('Chase'), the predecessor of the Rights Agent, have heretofore executed and entered into a Rights Agreement, dated as of March 10, 1986 (the 'Rights Agreement'), setting forth the terms of Preferred Stock Purchase Rights of the Company (the 'Rights'); WHEREAS, such Rights Agreement has been amended by Amendment Agreements dated as of April 29, 1986 and April 21, 1987; WHEREAS, by a Letter Agreement dated March 2, 1992, pursuant to the provisions of Section 21 of the Rights Agreement, the Company appointed the Rights Agent to succeed Chase as the Rights Agent under the Rights Agreement; WHEREAS, the Company and the Rights Agent may from time to time supplement or amend the Rights Agreement pursuant to the provisions of Section 26 of the Rights Agreement; and WHEREAS, all acts and things necessary to make this Amendment Agreement a valid, legal and binding instrument of the Company and the Rights Agent have been duly done, performed and fulfilled, and the execution and delivery hereof by each of the Company and the Rights Agent have been in all respects duly authorized by the Company and the Rights Agent, respectively: NOW, THEREFORE, the Company and the Rights Agent hereby agree as follows: 1. Pursuant to Section 26 of the Rights Agreement, Sections 3(a) and 11(a)(ii)(B) of the Rights Agreement are hereby modified and amended to read in their entirety as set forth in Exhibit A hereto. 2. This Amendment Agreement 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. Terms not defined herein shall, unless the context otherwise requires, have the meanings assigned to such terms in the Rights Agreement. 3. In all respects not inconsistent with the terms and provisions of this Amendment Agreement, the Rights Agreement is hereby ratified and confirmed. In executing and delivering this Amendment Agreement, the Rights Agent shall be entitled to all of the privileges and immunities afforded to the Rights Agent under the terms and conditions of the Rights Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be fully executed and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. AMERICAN CYANAMID COMPANY By: /s/ Joseph S. McAuliffe ------------------------------- Name: Joseph S. McAuliffe Title: Vice President and General Counsel By: /s/ Alice C. Brennan ------------------------- Name: Alice C. Brennan Title: Secretary MELLON BANK, N.A. By: /s/ Paul H. Buchbaum ------------------------------- Name: Paul H. Buchbaum Title: Senior Vice President By: /s/ John F. Keegan ------------------------- Name: John F. Keegan Title: Vice President EXHIBIT A SECTION 1(a) (a) 'Acquiring Person' shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates (as such term is hereinafter defined) and Associates (as such term is hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 20% or more of the shares of Common Stock then outstanding, but shall not include the Company, any Subsidiary of the Company, any employee benefit plan of the Company or of any Subsidiary of the Company, any person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan. Notwithstanding the foregoing, no Person who acquires beneficial ownership of 20% or more of the shares of Common Stock then outstanding, pursuant to a cash tender offer for all of the shares of Common Stock then outstanding, at a price of at least $101.00 per share of Common Stock shall be deemed an Acquiring Person. SECTION 3(a) (a) Until the earlier of (i) the close of business on the tenth day after the Stock Acquisition Date (or if the tenth day following the Stock Acquisition Date occurs before the Record Date, the close of business on the Record Date) or (ii) the close of business on any day, as determined by the Board, acting in its sole discretion, following the tenth business day after the date that a tender or exchange offer 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 person or entity organized, appointed or established by the Company for or pursuant to the terms of any such plan) is first published or sent or given within the meaning of Rule 14e-2(a) of the General Rules and Regulations under the Exchange Act, if upon consummation thereof, such Person would be the beneficial owner of 30% or more of the shares of Common Stock then outstanding, (the earlier of (i) and (ii) being herein referred to as the 'Distribution Date'), (x) the Rights will be evidenced (subject to the provisions of paragraph (b) of this Section 3) by the certificates for the Common Stock registered in the names of the holders of the Common Stock (which certificates for the Common Stock shall be deemed also to be certificates for Rights) and not be separate certificates, and (y) the Rights will be transferable only in connection with the transfer of the underlying shares of Common Stock (including a transfer to the Company). As soon as practicable after the Distribution Date, the Rights Agent will send by first class postage prepaid mail, to each record holder of the Common Stock as of the close of business on the Distribution Date, at the address of such holder shown on the records of the Company, one or more Rights certificates, in substantially the form of Exhibit B hereto (the 'Right Certificates'), evidencing one Right for each share of Common Stock so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common Stock has been made pursuant to Section 11(p) hereof, at the time of distribution of the Right Certificates, the Company shall make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) so that Right Certificates representing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Distribution Date, the Rights will be evidenced solely by such Right Certificates. SECTION 11(a)(ii)(B) (B) any Person (other than the Company, any Subsidiary of the Company, any employee benefits plan of the Company or of any Subsidiary of the Company, or any Person or entity organized, appointed, or established by the Company for or pursuant to the terms of any such plan), alone or together with its Affiliates and Associates, shall become the Beneficial Owner of 20% or more of the shares of Common Stock then outstanding, other than pursuant to any transaction set forth in Section 13(a) hereof, or SECTION 34. Second Step Merger. Notwithstanding any provision of Section 13 or any other provision of this Rights Agreement to the contrary, (a) following consummation by any Person of a cash tender offer for all of the shares of Common Stock then outstanding at a price of at least $101.00 per share, the Rights shall not be exercisable upon the subsequent consummation of, or in connection with, a merger of the Company with such Person or any of its Affiliates in which the shares of Common Stock then outstanding (other than shares of Common Stock owned by such Person or its Affiliates and shares of Common Stock the holders of which are seeking appraisal pursuant to Section 909 or 910 of the Maine Business Corporation Act) are to be converted into an amount in cash per share of Common Stock that is no less than the amount received by holders of shares of Common Stock in the cash tender offer referred to above (a 'Second Step Merger'); (b) from the effective time of a Second Step Merger through the Final Expiration Date, the Rights shall in no event and under no circumstances be exercisable; and (c) no supplemental agreement pursuant to Section 13 shall be required in connection with a Second Step Merger. -----END PRIVACY-ENHANCED MESSAGE-----