Exhibit 10.34
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "Amendment"), dated as of
June 9, 2004, is between Milacron Inc., a Delaware corporation (the "Company"),
and Mellon Investor Services LLC (formerly known as ChaseMellon Shareholder
Services, L.L.C.), a New Jersey limited liability company, as rights agent (the
"Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of February 5, 1999, as amended by Amendment No. 1 to Rights
Agreement dated as of March 11, 2004, between the Company and the Rights Agent
(the "Rights Agreement"); and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the Company
and the Rights Agent desire to amend the Rights Agreement as set forth below;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment to the first paragraph.
The first paragraph of the Rights Agreement is hereby amended
by deleting the phrase "par value $1.00 per share" in the last sentence thereof
and substituting therefor the phrase "par value $0.01 per share".
2. Amendment to Section 1.
The definition of "Certificate of Designation" in Section 1 is
hereby amended by deleting the phrase "Preferred Stock" therein and substituting
therefor "Preferred Shares".
3. Amendment to Exhibit A.
Exhibit A to the Rights Agreement is hereby replaced with
Exhibit A to this Amendment.
4. Effectiveness.
This Amendment shall be deemed effective as of June 9, 2004 as if
executed by both parties hereto on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby. Upon the effectiveness
of this Amendment, the term "Rights Agreement" as used in the Rights Agreement
shall refer to the Rights Agreement as amended hereby.
5. 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 instrument. If any term, 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 affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed as of the date set forth above.
MILACRON INC.,
By:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman, President and Chief
Executive Officer
MELLON INVESTOR SERVICES LLC, as Rights
Agent,
By:
/s/ ▇▇▇▇▇ Furher
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
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EXHIBIT A
AMENDED AND RESTATED CERTIFICATE OF THE VOTING POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE
PARTICIPATING, OPTIONAL AND OTHER SPECIAL
RIGHTS AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS OF SERIES A
PARTICIPATING CUMULATIVE
PREFERRED STOCK OF
MILACRON INC.
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
Milacron Inc., a corporation organized and existing under the General
Corporation Law of the State of Delaware (the "Company"), in accordance with the
provisions of Sections 103 and 151(g) thereof, DOES HEREBY CERTIFY:
1. That by resolution of the Board of Directors of the Company dated
February 5, 1999, and by a Certificate of Designations filed in the office of
the Secretary of State of the State of Delaware on February 5, 1999, the Company
authorized a series of 300,000 shares of Serial Preference Stock of the Company
designated as Series A Participating Preferred Stock (the "Series A Preferred
Stock") and established the voting powers, preferences and relative,
participating, optional and other special rights of the Series A Preferred and
the qualifications, limitations or restrictions thereof.
2. As of the date hereof no shares of Series A Preferred Stock are
outstanding and no shares of Series A Preferred Stock have been issued.
3. That pursuant to the authority conferred on the Board of
Directors of the Company by its Restated Certificate of Incorporation and the
provisions of Section 151(g) of the General Corporation Law of the State of
Delaware, the Board of Directors on June 9, 2004 adopted the following
resolution amending the voting powers, preferences and relative, participating,
optional and other special rights of the Series A Preferred Stock and the
qualifications, limitations or restrictions thereof.
RESOLVED, that pursuant to the authority conferred upon the
Board of Directors of the Company and the Restated Certificate of
Incorporation and by the provisions of Section 151(g) of the General
Corporation Law of the State of Delaware, the voting powers, preferences
and relative, participating, optional and other special rights of the
Series A Participating Cumulative Preferred Stock of the Company, and the
qualifications, limitations or restrictions thereof be, and the same
hereby are, amended in their entirety as follows:
SECTION 1. Designation and Number of Shares. The shares of
such series shall be designated as "Series A Participating Cumulative
Preferred Stock" (the "Series A Preferred Stock"). The number of shares
initially constituting the Series A Preferred Stock shall be 300,000;
provided, however, that, if more than a total of 300,000 shares of Series
A Preferred Stock shall be issuable upon the exercise of Rights (the
"Rights") issued pursuant to the Rights Agreement dated as of February 5,
1999, between the Company and Mellon Investor Services LLC (formerly known
as ChaseMellon Shareholder Services, L.L.C.), a New Jersey limited
liability company, as Rights Agent (as such agreement may be amended from
time to time, the "Rights Agreement"), the Board of Directors of the
Company, pursuant to Section 151(g) of the General Corporation Law of the
State of Delaware, shall direct by resolution or resolutions that a
certificate be properly executed, acknowledged, filed and recorded, in
accordance with the provisions of Section 103 thereof, providing for the
total number of shares of Series A Preferred Stock authorized to be issued
to be increased (to the extent that the Restated Certificate of
Incorporation then permits) to the largest number of whole shares (rounded
up to the nearest whole number) issuable upon exercise of such Rights.
SECTION 2. Dividends or Distributions. (a) Subject to the
prior and superior rights of the holders of shares of the 4% Cumulative
Preferred Stock of the Company (the "Preferred Stock"), any other series
of Serial Preference Stock or any other class of capital stock of the
Company ranking prior and superior to the shares of Series A Preferred
Stock with respect to dividends, the holders of shares of the Series A
Preferred Stock shall be entitled to receive, when, as and if declared by
the Board of Directors, out of the assets of the Company legally available
therefor, (1) quarterly dividends payable in cash on the last day of each
fiscal quarter in each year, or such other dates as the Board of Directors
of the Company shall approve (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or a fraction of
a share of Series A Preferred Stock, in the amount of $.01 per whole share
(rounded to the nearest cent) less the amount of all cash dividends
declared on the Series A Preferred Stock pursuant to the following clause
(2) since the immediately preceding Quarterly Dividend Payment Date or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred Stock
(the total of which shall not, in any event, be less than zero) and (2)
dividends payable in cash on the payment date for each cash dividend
declared on the Common Stock in an amount per whole share (rounded to the
nearest cent) equal to the Formula Number (as hereinafter defined) then in
effect times the cash dividends then to be paid on each share of Common
Stock. In addition, if the Company shall pay any dividend or make any
distribution on the Common Stock payable in assets, securities or other
forms of noncash consideration (other than dividends or distributions
solely in shares of Common Stock), then, in each such case, the Company
shall simultaneously pay or make on each outstanding whole share of Series
A Preferred Stock a dividend or distribution in like kind equal to the
Formula Number then in effect times such dividend or distribution on each
share of the Common Stock. As used herein, the "Formula Number" shall be
1,000; provided, however, that, if at any time after February 5, 1999, the
Company shall (i) declare or pay any dividend on the Common Stock payable
in shares of Common Stock or make any distribution on the Common Stock in
shares of Common Stock, (ii) subdivide (by a stock
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split or otherwise) the outstanding shares of Common Stock into a larger
number of shares of Common Stock or (iii) combine (by a reverse stock
split or otherwise) the outstanding shares of Common Stock into a smaller
number of shares of Common Stock, then in each such event the Formula
Number shall be adjusted to a number determined by multiplying the Formula
Number in effect immediately prior to such event by a fraction, the
numerator of which is the number of shares of Common Stock that are
outstanding immediately after such event and the denominator of which is
the number of shares of Common Stock that are outstanding immediately
prior to such event (and rounding the result to the nearest whole number);
and provided further that, if at any time after February 5, 1999, the
Company shall issue any shares of its capital stock in a merger,
reclassification, or change of the outstanding shares of Common Stock,
then in each such event the Formula Number shall be appropriately adjusted
to reflect such merger, reclassification or change so that each share of
Preferred Stock continues to be the economic equivalent of a Formula
Number of shares of Common Stock prior to such merger, reclassification or
change.
(b) The Company shall declare a dividend or distribution on
the Series A Preferred Stock as provided in Section 2(a) immediately prior
to or at the same time it declares a dividend or distribution on the
Common Stock (other than a dividend or distribution solely in shares of
Common Stock); provided, however, that, in the event no dividend or
distribution (other than a dividend or distribution in shares of Common
Stock) shall have been declared on the Common Stock during the period
between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $.01 per share on the
Series A Preferred Stock shall nevertheless be payable on such subsequent
Quarterly Dividend Payment Date. The Board of Directors may fix a record
date for the determination of holders of shares of Series A Preferred
Stock entitled to receive a dividend or distribution declared thereon,
which record date shall be the same as the record date for any
corresponding dividend or distribution on the Common Stock.
(c) Dividends shall begin to accrue and be cumulative on
outstanding shares of Series A Preferred Stock from and after the
Quarterly Dividend Payment Date next preceding the date of original issue
of such shares of Series A Preferred Stock; provided, however, that
dividends on such shares which are originally issued after the record date
for the determination of holders of shares of Series A Preferred Stock
entitled to receive a quarterly dividend and on or prior to the next
succeeding Quarterly Dividend Payment Date shall begin to accrue and be
cumulative from and after such Quarterly Dividend Payment Date.
Notwithstanding the foregoing, dividends on shares of Series A Preferred
Stock which are originally issued prior to the record date for the
determination of holders of shares of Series A Preferred Stock entitled to
receive a quarterly dividend on the first Quarterly Dividend Payment Date
shall be calculated as if cumulative from and after the last day of the
fiscal quarter next preceding the date of original issuance of such
shares. Accrued but unpaid dividends shall not bear interest. Dividends
paid on the shares of Series A Preferred Stock in an amount less than the
total amount of such dividends at the time accrued and payable on such
shares shall be allocated pro rata on a share-by-share basis among all
such shares at the time outstanding.
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(d) So long as any shares of the Series A Preferred Stock are
outstanding, no dividends or other distributions shall be declared, paid
or distributed, or set aside for payment or distribution, on the Common
Stock unless, in each case, the dividend required by this Section 2 to be
declared on the Series A Preferred Stock shall have been declared.
(e) The holders of the shares of Series A Preferred Stock
shall not be entitled to receive any dividends or other distributions
except as provided herein.
SECTION 3. Voting Rights. The holders of shares of Series A
Preferred Stock shall have the following voting rights:
(a) Each holder of Series A Preferred Stock shall be entitled
to a number of votes equal to the Formula Number then in effect, for each
share of Series A Preferred Stock held of record on each matter on which
holders of the Common Stock or stockholders generally are entitled to
vote, multiplied by the maximum number of votes per share which any holder
of the Common Stock or stockholders generally then have with respect to
such matter (assuming any holding period or other requirement to vote a
greater number of shares is satisfied).
(b) Except as otherwise provided herein or by applicable law,
the holders of shares of Series A Preferred Stock and the holders of
shares of Common Stock shall vote together as one class for the election
of directors of the Company and on all other matters submitted to a vote
of stockholders of the Company.
(c) If, at the time of any annual meeting of stockholders for
the election of directors, the equivalent of six quarterly dividends
(whether or not consecutive) payable on any share or shares of Series A
Preferred Stock are in default, the number of directors constituting the
Board of Directors of the Company shall be increased by two. In addition
to voting together with the holders of Common Stock for the election of
other directors of the Company, the holders of record of the Series A
Preferred Stock, voting separately as a class to the exclusion of the
holders of Common Stock, shall be entitled at said meeting of stockholders
(and at each subsequent annual meeting of stockholders), unless all
dividends in arrears have been paid or declared and set apart for payment
prior thereto, to vote for the election of two directors of the Company,
the holders of any Series A Preferred Stock being entitled to cast a
number of votes per share of Series A Preferred Stock equal to the Formula
Number. Until the default in payments of all dividends which permitted the
election of said directors shall cease to exist, any director who shall
have been so elected pursuant to the next preceding sentence may be
removed at any time, without cause, only by the affirmative vote of the
holders of the shares of Series A Preferred Stock at the time entitled to
cast a majority of the votes entitled to be cast for the election of any
such director at a special meeting of such holders called for that
purpose, and any vacancy thereby created may be filled by the vote of such
holders. If and when such default shall cease to exist, the holders of the
Series A Preferred Stock shall be divested of the foregoing special voting
rights, subject to revesting in the event of each and every subsequent
like default in payments of dividends. Upon the termination of the
foregoing special voting rights, the terms of office of all persons who
may have been elected directors pursuant to said special voting rights
shall forthwith terminate, and
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the number of directors constituting the Board of Directors shall be
reduced by two. The voting rights granted by this Section 3(c) shall be in
addition to any other voting rights granted to the holders of the Series A
Preferred Stock in this Section 3.
(d) Except as provided herein, in Section 11 or by applicable
law, holders of Series A Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they
are entitled to vote with holders of Common Stock as set forth herein) for
authorizing or taking any corporate action.
SECTION 4. Certain Restrictions. (a) Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in Section 2 are in arrears, thereafter and
until all accrued and unpaid dividends and distributions, whether or not
declared, on shares of Series A Preferred Stock outstanding shall have
been paid in full, the Company shall not:
(i) declare or pay dividends on, make any other distributions on, or
redeem or purchase or otherwise acquire for consideration any shares of
stock ranking junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred Stock;
(ii) declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except dividends paid ratably on the Series A Preferred Stock and all such
parity stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled;
(iii) redeem or purchase or otherwise acquire for consideration
shares of any stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock;
provided that the Company may at any time redeem, purchase or otherwise
acquire shares of any such parity stock in exchange for shares of any
stock of the Company ranking junior (either as to dividends or upon
dissolution, liquidation or winding up) to the Series A Preferred Stock;
or
(iv) purchase or otherwise acquire for consideration any shares of
Series A Preferred Stock, or any shares of stock ranking on a parity with
the Series A Preferred Stock, except in accordance with a purchase offer
made in writing or by publication (as determined by the Board of
Directors) to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates and
other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(b) The Company shall not permit any subsidiary of the Company
to purchase or otherwise acquire for consideration any shares of stock of
the Company unless the Company could, under paragraph (a) of this Section
4, purchase or otherwise acquire such shares at such time and in such
manner.
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SECTION 5. Liquidation Rights. Upon the liquidation,
dissolution or winding up of the Company, whether voluntary or
involuntary, no distribution shall be made (1) to the holders of shares of
Common Stock or any other shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of shares of Series A
Preferred Stock shall have received an amount equal to the accrued and
unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment, plus an amount equal to the greater of (x) $.01
per whole share or (y) an aggregate amount per share equal to the Formula
Number then in effect times the aggregate amount to be distributed per
share to holders of Common Stock or (2) to the holders of stock ranking on
a parity (either as to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except distributions made
ratably on the Series A Preferred Stock and all other such parity stock in
proportion to the total amounts to which the holders of all such shares
are entitled upon such liquidation, dissolution or winding up.
SECTION 6. Consolidation, Merger, Etc. In case the Company
shall enter into any consolidation, merger, combination or other
transaction in which the shares of Common Stock are exchanged for or
changed into other stock or securities, cash or any other property, then
in any such case the then outstanding shares of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount
per share equal to the Formula Number then in effect times the aggregate
amount of stock, securities, cash or any other property (payable in kind),
as the case may be, into which or for which each share of Common Stock is
exchanged or changed. In the event both this Section 6 and Section 2
appear to apply to a transaction, this Section 6 will control.
SECTION 7. No Redemption; No Sinking Fund. (a) The shares of
Series A Preferred Stock shall not be subject to redemption by the Company
or at the option of any holder of Series A Preferred Stock; provided,
however, that the Company may purchase or otherwise acquire outstanding
shares of Series A Preferred Stock in the open market or by offer to any
holder or holders of shares of Series A Preferred Stock.
(b) The shares of Series A Preferred Stock shall not be
subject to or entitled to the operation of a retirement or sinking fund.
SECTION 8. Ranking. The Series A Preferred Stock shall rank
junior to the Preferred Stock and to all other series of Serial Preference
Stock of the Company with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up,
unless, in the case of a series of Serial Preference Stock, the Board of
Directors shall specifically determine otherwise in fixing the powers,
preferences and relative, participating, optional and other special rights
of the shares of such series and the qualifications, limitations and
restrictions thereof.
SECTION 9. Fractional Shares. The Series A Preferred Stock
shall be issuable upon exercise of the Rights issued pursuant to the
Rights Agreement in whole shares or in any fraction of a share that is one
one-thousandth (1/1,000) of a share or any integral multiple of such
fraction which shall entitle the holder, in proportion to such
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holder's fractional shares, to receive dividends, exercise voting rights,
participate in distributions and to have the benefit of all other rights
of holders of Series A Preferred Stock. In lieu of fractional shares, the
Company, prior to the first issuance of a share or a fraction of a share
of Series A Preferred Stock, may elect (a) to make a cash payment as
provided in the Rights Agreement for fractions of a share other than one
one-thousandth (1/1,000) of a share or any integral multiple thereof or
(b) to issue depository receipts evidencing such authorized fraction of a
share of Series A Preferred Stock pursuant to an appropriate agreement
between the Company and a depository selected by the Company; provided
that such agreement shall provide that the holders of such depository
receipts shall have all the rights, privileges and preferences to which
they are entitled as holders of the Series A Preferred Stock.
SECTION 10. Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Company in any
manner whatsoever shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their cancelation become
authorized but unissued shares of Serial Preference Stock, without
designation as to series until such shares are once more designated as
part of a particular series by the Board of Directors pursuant to the
provisions of Article FOURTH of the Restated Certificate of Incorporation.
SECTION 11. Amendment. None of the powers, preferences and
relative, participating, optional and other special rights of the Series A
Preferred Stock as provided herein or in the Restated Certificate of
Incorporation shall be amended in any manner which would alter or change
the powers, preferences, rights or privileges of the holders of Series A
Preferred Stock so as to affect them adversely without the affirmative
vote of the holders of at least 66-2/3% of the outstanding shares of
Series A Preferred Stock, voting as a separate class; provided, however,
that no such amendment approved by the holders of at least 66-2/3% of the
outstanding shares of Series A Preferred Stock shall be deemed to apply to
the powers, preferences, rights or privileges of any holder of shares of
Series A Preferred Stock originally issued upon exercise of the Rights
after the time of such approval without the approval of such holder.
IN WITNESS WHEREOF, the Company has caused this Certificate to
be duly executed in its corporate name on this 9th day of June, 2004.
MILACRON INC.,
by
______________________
Name:
Title:
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