SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Gentex Corporation
(Exact name of registrant as specified in its charter)
Michigan 38-2030505
(State of Incorporation or Organization) (I.R.S. Employer
Identification No.)
600 N. Centennial Street, Zeeland, Michigan 49464
(Address of Principal Executive Offices) (Zip Code)
If this form relates to the If this form relates to the
registration of a class of securities registration of a class of
pursuant to Section 12(b) of the securities pursuant to Section
Exchange Act and is effective pursuant 12(g) of the Exchange Act and
to General Instruction A. (c), please is effective pursuant to General
check the following box. [ ] Instruction A. (d), please check
the following box. [X]
Securities Act registration statement file number to which this form relates:
__________________________
(If applicable)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on which Each Class
to be so Registered is to be Registered
None None
Securities to be registered pursuant to Section 12(g) of the Act:
Junior Preferred Stock Purchase Rights
(Title of class)
Page 1 of 6 Pages
Exhibit Index is on Page 7
Item 1. Description of Securities To Be Registered
The Board of Directors of Gentex Corporation, a Michigan corporation (the
"Company"), declared a dividend payable August 30, 1991, of one right (a
"Right") for each outstanding share of common stock, $.06 par value ("Common
Stock") of the Company held of record at the close of business on that date (the
"Record Date"), or issued thereafter and prior to the Separation Date (as
hereinafter defined). The description and terms of the Rights are set forth in
the Amended and Restated Shareholder Protection Rights Agreement effective
August 26, 1991, between the American Stock Transfer & Trust Company, as Rights
Agent (the "Rights Agent"), which has been amended and restated effective as of
March 29, 2001 (the "Rights Agreement"). Each Right entitles its registered
holder to purchase from the Company, after the Separation Date, one
one-hundredth of a share of Junior Participating Preferred Stock ("Junior
Preferred Stock"), for $110.00 (the "Exercise Price"), subject to adjustment.
The Rights are evidenced by the Common Stock certificates until the close
of business on the earlier of (i) the later of (A) the tenth day after the date
on which any Person (other than the Company, a majority owned Subsidiary of the
Company or an employee stock ownership or other employee benefit plan of the
Company or a majority owned Subsidiary of the Company, and certain other Persons
as provided in the Rights Agreement) commences a tender or exchange offer which,
if consummated, would result in such Person's becoming the Beneficial Owner of
15% or more of the outstanding shares of Common Stock (any Person having such
Beneficial Ownership being referred to herein as an "Acquiring Person") and (B)
such later date as the Board of Directors may from time to time fix by
resolution adopted prior to the Separation Date, and (ii) the first date (the
"Flip-In Date") of public announcement by the Company or an Acquiring Person
that an Acquiring Person has become such other than as a result of a Flip-over
Transaction or Event (as defined below); provided that, if a tender or exchange
offer referred to in clause (i) is cancelled, terminated or otherwise withdrawn
prior to the Separation Date, such offer shall be deemed never to have been
made. The time described in either clause (i) or (ii) of the foregoing sentence
shall be referred to herein as the "Separation Date." The Rights Agreement
provides that, until the Separation Date, the Rights will be transferred with
and only with the Common Stock. Common Stock certificates issued after the
Record Date but prior to the Separation Date shall evidence one Right for each
share of Common Stock represented thereby and shall have printed thereon a
legend incorporating by reference the terms of the Rights Agreement (as such may
be amended from time to time). Notwithstanding the absence of the aforementioned
legend, certificates evidencing shares of Common Stock outstanding at the Record
Date shall also evidence one Right for each share of Common Stock evidenced
thereby. Promptly following the Separation Date, separate certificates
evidencing the Rights ("Right Certificates") will be mailed to holders of record
of Common Stock at the Separation Date.
The Rights will not be exercisable until the Business Day following the
Separation Date. The Rights will expire on the earlier of (i) the close of
business on March 29, 2011, and (ii) the date on which the Rights are redeemed
as described below (the "Expiration Date").
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The Exercise Price and the number of Rights outstanding, or in certain
circumstances the securities purchasable upon exercise of the Rights, are
subject to adjustment from time to time to prevent dilution in the event of a
Common Stock dividend on, or a subdivision or a combination into a smaller
number of shares of, Common Stock, or the issuance or distribution of any
securities or assets in respect of, in lieu of or in exchange for Common Stock.
In the event that prior to the Expiration Date, a Flip-In Date shall occur,
the Company shall take such action as shall be necessary to ensure and provide
that, if permitted by applicable law, each Right (other than Rights beneficially
owned by the Acquiring Person or any Affiliate or Associate thereof, which
Rights shall become void) shall constitute the right to purchase from the
Company, upon the exercise thereof in accordance with, and subject to, the terms
of the Rights Agreement, that number of shares of Common Stock of the Company
having an aggregate Market Price, on the date of the public announcement of an
Acquiring Person's becoming such (the "Stock Acquisition Date") that gave rise
to the Flip-in Date, equal to twice the Exercise Price for an amount in cash
equal to the then current Exercise Price. In addition, the Board of Directors of
the Company may, at its option, at any time after a Flip-in Date and prior to
the time that an Acquiring Person becomes the Beneficial Owner of more than 50%
of the outstanding shares of Common Stock, if permitted by applicable law, elect
to exchange all (but not less than all) the then outstanding Rights (other than
Rights Beneficially Owned by the Acquiring Person or any Affiliate or Associate
thereof, which Rights become void) for shares of Common Stock at an exchange
ratio of one share of Common Stock per Right, appropriately adjusted to reflect
any stock split, stock dividend or similar transaction occurring after the date
of the Separation Date (the "Exchange Ratio"). Immediately upon such action by
the Board of Directors, the right to exercise the Rights will terminate and each
Right will thereafter represent only the right to receive a number of shares of
Common Stock equal to the Exchange Ratio.
Whenever the Company shall become obligated as described in the preceding
paragraph to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of Junior
Preferred Stock, at a ratio of one one-hundredth of a share of Junior Preferred
Stock for each share of Common Stock so issuable.
In the event that prior to the Expiration Date the Company enters into,
consummates or permits to occur a transaction or series of transactions on or
after the time when an Acquiring Person has become such in which, directly or
indirectly, (i) the Company shall consolidate or merge with or into the
Acquiring Person or any Person acting together in any respect with the Acquiring
Person, or the Acquiring Person or any other Person acting together in any
respect with the Acquiring Person shall merge with or into the Company, (ii) the
Company shall sell or otherwise transfer (or one or more of its Subsidiaries
shall sell or otherwise transfer) assets (A) aggregating more than 50% of the
assets (measured by either book value or fair market value) or (B) generating
more than 50% of the operating income or cash flow, of the Company and its
Subsidiaries (taken as a whole) to the Acquiring Person or any other Person
acting together in any respect with the Acquiring Person (provided that for
purposes of clauses (i) and (ii), but without limitation, a Person shall be
deemed to be acting together in any respect with an Acquiring Person if such
Person enters into any transaction of the type described in clause (i) or (ii)
within one year after the time the Acquiring
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Person has become such, unless (x) such transaction was initiated by the Company
and (y) the Acquiring Person or any Person acting together in any respect with
the Acquiring Person has not acquired control of the Board of Directors of the
Company), (iii) any Acquiring Person shall (A) sell, purchase, lease, exchange,
mortgage, pledge, transfer or otherwise acquire or dispose of, to, from, or
with, as the case may be, the Company or any of its Subsidiaries, over any
period of 12 consecutive calendar months, assets or liabilities (x) having an
aggregate fair market value of more than $50,000,000 or (y) on terms and
conditions less favorable to the Company than the Company would be able to
obtain through arms-length negotiations with an unaffiliated third party, (B)
receive any compensation for services from the Company or any of its
Subsidiaries, other than compensation for full-time employment as a regular
employee at rates in accordance with the Company's (or its Subsidiaries') past
practices, or (C) receive the benefit, directly or indirectly (except
proportionately as a shareholder), over any period of 12 consecutive calendar
months, of any loans, advances, guarantees, pledges, insurance, reinsurance or
other financial assistance or any tax credits or other tax advantage provided by
the Company or any of its Subsidiaries involving an aggregate principal amount
in excess of $50,000,000 or an aggregate cost or transfer of benefits from the
Company or any of its Subsidiaries in excess of $50,000,000 or, in any case, on
terms and conditions less favorable to the Company than the Company would be
able to obtain through arms-length negotiations with a third party, or (iv) as a
result of any reclassification of securities (including any reverse stock
split), or recapitalization, of the Company, or any merger or consolidation of
the Company with any of its Subsidiaries or any other transaction or series of
transactions (whether or not with or into or otherwise involving an Acquiring
Person), the proportionate share of the outstanding shares of any class of
equity or convertible securities of the Company or any of its Subsidiaries which
is directly or indirectly owned by any Acquiring Person is increased by more
than 1% (each of the transactions or events or series of transactions or events
in clauses (i) through (iv) above being referred to herein as a "Flip-over
Transaction or Event"), the Company shall take such action as shall be necessary
to ensure, and shall not enter into, consummate or permit to occur any Flip-over
Transaction or Event, unless and until it shall have entered into a supplemental
agreement with the Person engaging in such Flip-over Transaction or Event (the
"Flip-over Entity"), for the benefit of the holders of the Rights, providing
that upon consummation or occurrence of the Flip-over Transaction or Event (i)
each Right shall thereafter constitute the right to purchase from the Flip-over
Entity, upon exercise thereof in accordance with the terms of the Rights
Agreement, that number of shares of common stock of the Flip-over Entity having
an aggregate Market Price on the date of consummation or occurrence of such
Flip-over Transaction or Event equal to twice the Exercise Price for an amount
in cash equal to the then current Exercise Price and (ii) the Flip-over Entity
shall thereafter be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations and
duties of the Company pursuant to the Rights Agreement. For purposes of the
foregoing definition of "Flip-over Transaction or Event", the term "Acquiring
Person" shall include any Acquiring Person and its Affiliates and Associates
(other than the Company, a wholly owned Subsidiary of the Company or an employee
stock ownership or other employee benefit plan of the Company or a wholly owned
Subsidiary of the Company, and certain other persons as provided in the Rights
Agreement), counted together as a single Person.
-4-
The Board of Directors of the Company may, at its option, at any time prior
to the Flip-in Date, redeem all (but not less than all) the then outstanding
Rights at a redemption price of $0.005 per Right subject to adjustment (the
"Redemption Price"), as provided in the Rights Agreement. Immediately upon the
action of the Board of Directors of the Company electing to redeem the Rights,
without any further action and without any notice, the right to exercise the
Rights will terminate and each Right will thereafter represent only the right to
receive the Redemption Price in cash for each Right so held.
The holders of Rights will, solely by reason of their ownership of Rights,
have no rights as shareholders of the Company, including, without limitation,
the right to vote or to receive dividends.
The Rights will not prevent a takeover of the Company. The Rights, however,
may have certain anti-takeover effects. The Rights may cause substantial
dilution to a person or group that acquires 15% or more of the Common Stock
unless the Rights are first redeemed by the Board of Directors of the Company.
Nevertheless, the Rights should not interfere with a transaction that is in the
best interests of the Company and its shareholders on or prior to the Flip-in
Date, because the Rights can be redeemed before the consummation of such
transaction.
As of March 1, 2001, there were 74,360,238 shares of Common Stock issued
and outstanding and 6,152,043 shares reserved for issuance pursuant to existing
option and employee benefit plans. As long as the Rights are attached to the
Common Stock, the Company will issue one Right with each new share of Common
Stock so that all such shares will have Rights attached. The Company's Board of
Directors has reserved for issuance upon exercise of the Rights 1,000,000 shares
of Junior Participating Preferred Stock.
The Rights Agreement (which includes as Exhibit A the form of Rights
Certificate and Election to Exercise and as Exhibit B the form of Certificate of
Adoption of Resolution Establishing the Junior Preferred Stock) is attached
hereto as an exhibit and is incorporated herein by reference. The foregoing
description of the Rights is qualified in its entirety by reference to the
Rights Agreement and such exhibits thereto, including the definitions therein of
certain terms. Whenever particular terms that are defined in the Rights
Agreement are referred to, it is intended that such defined terms shall be
incorporated herein by reference.
Item 2. Exhibits
Form of Rights Agreement, dated as of August 26, 1991, as amended and
restated effective March 29, 2001, between Gentex Corporation and American Stock
Transfer & Trust Company, which includes as Exhibit A thereto the Form of Rights
Certificate. Pursuant to the Rights Agreement, Rights Certificates will not be
mailed until after the Separation Date.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized.
GENTEX CORPORATION
Dated: March 29, 2001 By /s/ Enoch Jen
Enoch Jen
Its Chief Financial Officer
538895v2
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EXHIBIT INDEX
-------------
Sequentially
Exhibit No. Description Numbered Page
- ----------- ----------- -------------
(1) Amended and Restated Shareholder 8
Protection Rights Agreement, dated
as of March 29, 2001 (the "Rights
Agreement"), between Gentex
Corporation (the "Company") and
American Stock Transfer & Trust
Company, as Rights Agent, including
as Exhibit A the form of Rights
Certificate and of Election to
Exercise and as Exhibit B the form
of Certificate of Adoption of
Resolution Establishing Series of
Shares of Junior Participating
Preferred Stock of the Company
-7-
AMENDED AND RESTATED
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
effective August 26, 1999
and
Amended and Restated effective
March 29, 2001
between
GENTEX CORPORATION
and
AMERICAN STOCK TRANSFER AND TRUST COMPANY,
as Rights Agent
TABLE OF CONTENTS
ARTICLE I - CERTAIN DEFINITIONS................................................1
1.1 Certain Definitions............................................1
ARTICLE II - THE RIGHTS........................................................6
2.1 Continuation of Rights Agent...................................6
2.2 Legend on Common Stock Certificates............................6
2.3 Exercise of Rights; Separation of Rights.......................7
2.4 Adjustments to Exercise Price; Number of Rights................9
2.5 Date on Which Exercise is Effective...........................10
2.6 Execution, Authentication, Delivery and Dating
of Rights Certificates........................................10
2.7 Registration, Registration of Transfer and Exchange...........10
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.....11
2.9 Persons Deemed Owners.........................................12
2.10 Delivery and Cancellation of Certificates.....................12
2.11 Agreement of Rights Holders...................................12
ARTICLE III - ADJUSTMENTS TO THE RIGHTS IN THE EVENT
OF CERTAIN TRANSACTIONS.........................................13
3.1 Flip-in.......................................................13
3.2 Flip-over.....................................................14
ARTICLE IV - THE RIGHTS AGENT.................................................15
4.1 General.......................................................15
4.2 Merger or Consolidation or Change of Name of Rights Agent.....16
4.3 Duties of Rights Agent........................................16
4.4 Change of Rights Agent........................................18
i
ARTICLE V - MISCELLANEOUS.....................................................18
5.1 Redemption....................................................18
5.2 Expiration....................................................19
5.3 Issuance of New Rights Certificates...........................19
5.4 Supplements and Amendments....................................19
5.5 Fractional Shares.............................................19
5.6 Rights of Action..............................................19
5.7 Holder of Rights Not Deemed a Shareholder.....................20
5.8 Notice of Proposed Actions....................................20
5.9 Notices.......................................................20
5.10 Suspension of Exercisability..................................21
5.11 Costs of Enforcement..........................................21
5.12 Successors....................................................21
5.13 Benefits of this Agreement....................................21
5.14 Descriptive Headings..........................................21
5.15 Governing Law.................................................21
5.16 Counterparts..................................................21
5.17 Severability..................................................21
ii
EXHIBITS
Exhibit A Form of Rights Certificate
(Together with Form of Election of Exercise)
Exhibit B Form of Certificate of Adoption of Resolution
Establishing Series of Shares of Participating
Junior Preferred Stock
iii
AMENDED AND RESTATED
SHAREHOLDER PROTECTION RIGHTS AGREEMENT
AMENDED AND RESTATED SHAREHOLDER PROTECTION RIGHTS AGREEMENT (this
"Agreement"), dated effective August 26, 1991, and amended and restated
effective March 29, 2001, between GENTEX CORPORATION, a Michigan corporation
(the "Company"), and AMERICAN STOCK TRANSFER AND TRUST COMPANY, as Rights Agent
("Rights Agent"), which term shall include any successor Rights Agent hereunder;
WHEREAS, the Board of Directors of the Company (a) authorized and declared
a dividend of one right ("Right") in respect of each share of Common Stock (as
hereinafter defined) held of record as of the close of business on August 30,
1991 (the "Record Date") and (b) authorized the issuance of one Right in respect
of each share of Common Stock issued after the Record Date and prior to the
Separation Date (as hereinafter defined);
WHEREAS, each Right entitles the holder thereof after the Separation Date,
to purchase securities of the Company (or, in certain cases, of certain other
entities) pursuant to the terms and subject to the conditions set forth herein;
and
WHEREAS, the Company and the Rights Agent previously entered into an
agreement dated August 26, 1991, whereby the Company appointed the Rights Agent
to act on behalf of the Company, and the Rights Agent was willing so to act, in
connection with the issuance, transfer, exchange and replacement of Rights
Certificates (as hereinafter defined), the exercise of Rights and other matters
referred to therein; and
WHEREAS, the Company and the Rights Agent are authorized to supplement and
amend such August 26, 1991 agreement between them pursuant to Section 5.4 of
said agreement, and as such amend and restate said agreement to continue the
Rights Agent acting on behalf of the Company in connection with the issuance,
transfer, exchange, and replacement of Rights Certificates, the exercise of
Rights and other matters referred to herein;
NOW THEREFORE, in consideration of the premises and the respective
agreements set forth herein, the parties hereby agree as follows:
ARTICLE I - CERTAIN DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following
terms have the meanings indicated:
"Acquiring Person" shall mean any Person who or which, together with all
Affiliates and Associates, is a Beneficial Owner of 15% or more of the
outstanding shares of Common Stock; provided, however, that the term "Acquiring
Person" shall not include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any Person who shall become the Beneficial Owner of 15% or more of the
outstanding shares of Common Stock solely as a result of an acquisition by the
Company of shares of Common Stock, until such time thereafter as such Person
shall become the Beneficial Owner (other than by means of a stock dividend or
stock split) of any additional
shares of Common Stock, and (iv) any such Person who has reported or is required
to report such ownership (but less than 20%) on Schedule 13G under the Exchange
Act (or any comparable or successor report) or on Schedule 13D under the
Exchange Act (or any comparable or successor report) which Schedule 13D does not
state any intention to or reserve the right to control or influence the
management or policies of the Company or engage in any of the actions specified
in Item 4 of such Schedule (other than the disposition of the Common Stock) and,
within 10 Business Days of being requested by the Company to advise it regarding
the same, certifies to the Company that such Person acquired shares of Common
Stock representing in excess of 14.9% of the outstanding Common Stock
inadvertently or without knowledge of the terms of the Rights and who, together
with all Affiliates and Associates, thereafter does not acquire additional
shares of Common Stock while the Beneficial Owner of 15% or more of the shares
of Common Stock then outstanding, provided, however, that if the Person
described in this clause (iv) is required to so certify and fails to do so
within 10 Business Days, then such Person shall become an Acquiring Person
immediately after such 10 Business Day period. Notwithstanding the foregoing, if
the Board of Directors of the Company determines in good faith that a Person who
would otherwise be an "Acquiring Person," as defined pursuant to the foregoing
provisions of this Agreement, has become such inadvertently, and such Person
divests as promptly as practicable a sufficient number of shares of Common Stock
so that such Person would no longer be an "Acquiring Person," as defined
pursuant to the foregoing provisions of this Agreement, then such Person shall
not be deemed an "Acquiring Person" for any purposes of this Agreement. The
determination of whether such a Person has become an Acquiring Person in an
inadvertent manner, and the determination of whether the divestment of
sufficient shares shall have been made as promptly as practicable after becoming
an inadvertent Acquiring Person, shall be made by a majority vote of the Board
of Directors of the Company.
"Affiliate" and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 under the Securities Exchange Act of 1934, as such Rule
is in effect on the date of this Agreement.
A Person shall be deemed the "Beneficial Owner," and to have "Beneficial
Ownership," of, and to "Beneficially Own," any securities as to which such
Person or any of such Person's Affiliates or Associates is or may be deemed to
be the beneficial owner pursuant to Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as such Rules are in effect on the date of this Agreement,
as well as any securities as to which such Person or any of such Person's
Affiliates or Associates has the right to become Beneficial Owner (whether such
right is exercisable immediately or only after the passage of time) pursuant to
any agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, rights (other than the Rights), warrants or options, or
otherwise; provided, however, that a Person shall not be deemed the "Beneficial
Owner," or to have "Beneficial Ownership," of, or to "Beneficially Own," any
security (i) solely because such security has been tendered pursuant to a tender
or exchange offer made by such Person or any of such Person's Affiliates or
Associates until such tendered security is accepted for payment or exchange,
(ii) solely because such Person or any of such Person's Affiliates or Associates
has or shares the power to vote or direct the voting of such security pursuant
to a revocable proxy given in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable rules and regulations
under the Securities Exchange Act of 1934, except if such power (or the
arrangements relating thereto) is then reportable under Item 6 of Schedule 13D
under the Securities Exchange Act of 1934 (or any similar provision of a
comparable or successor report), (iii) solely because of the grant by the
2
Company to such Person, in connection with the execution of an agreement to
acquire the Company, of options to acquire such security, or (iv) held for or
pursuant to the terms of any employee stock ownership or other employee benefit
plan of the Company or a majority-owned Subsidiary of the Company. For purposes
of this Agreement, in determining the percentage of the outstanding shares of
Common Stock with respect to which a Person is the Beneficial Owner, all shares
as to which such Person is deemed the Beneficial Owner shall be deemed
outstanding.
"Business Day" shall mean any day other than a Saturday, Sunday or a day on
which banking institutions in New York, New York, or Zeeland, Michigan, are
generally authorized or obligated by law or executive order to close.
"Close of Business" on any given date shall mean the time on such date (or,
if such date is not a Business Day, the time on the next succeeding Business
Day) at which the offices of the transfer agent for the Common Stock (or, after
the Separation Date, the offices of the Rights Agent) are closed to the public.
"Common Stock" shall mean the shares of Common Stock, $.06 par value, of
the Company.
"Exercise Price" shall mean, as of any date, the price at which a holder
may purchase the securities issuable upon exercise of one whole Right. Until
adjustment thereof in accordance with the terms hereof, the Exercise Price shall
equal $110.00.
"Expiration Date" shall mean the earlier of (i) the Redemption Time or (ii)
the close of business on March 29, 2011.
"Flip-in Date" shall mean any Stock Acquisition Date which is not the
result of a Flip-over Transaction or Event or such later date (not beyond the
thirtieth day after such Stock Acquisition Date) as the Board of Directors of
the Company may from time to time fix by resolution adopted prior to the Flip-in
Date.
"Flip-over Stock" of any Person shall mean the capital stock (or similar
equity interest) with the greatest voting power in respect of the election of
directors (or other Persons similarly responsible for the direction of the
business and affairs) of such Person or, if such Person is a Subsidiary of
another Person, the Person or Persons which ultimately controls such
first-mentioned Person.
"Flip-over Transaction or Event" shall mean a transaction or series of
transactions after the time when an Acquiring Person has become such in which,
directly or indirectly, (i) the Company shall consolidate with or merge with or
into the Acquiring Person or any other Person acting together in any respect
with the Acquiring Person, or the Acquiring Person or any other Person acting
together in any respect with the Acquiring Person shall merge with or into the
Company, (ii) the Company shall sell or otherwise transfer (or one or more of
its Subsidiaries shall sell or otherwise transfer) assets (A) aggregating more
than 50% of the assets (measured by either book value or fair market value) or
(B) generating more than 50% of the operating income or cash flow, of the
Company and its Subsidiaries (taken as a whole) to the Acquiring Person or any
other Person acting together in any respect with the Acquiring Person (provided
that for purposes of clauses (i) and (ii), but without limitation, a Person
shall be deemed to be acting
3
together in any respect with an Acquiring Person if such Person enters into any
transaction of the type described in clause (i) or (ii) within one year after
the time the Acquiring Person has become such, unless (x) such transaction was
initiated by the Company and (y) the Acquiring Person or any Person acting
together in any respect with the Acquiring Person has not acquired control of
the Board of Directors of the Company), (iii) any Acquiring Person shall (A)
sell, purchase, lease, exchange, mortgage, pledge, transfer or otherwise acquire
or dispose of, to, from, or with, as the case may be, the Company or any of its
Subsidiaries, over any period of 12 consecutive calendar months, assets or
liabilities (x) having an aggregate fair market value of more than $50,000,000,
or (y) on terms and conditions less favorable to the Company than the Company
would be able to obtain through arms-length negotiations with an unaffiliated
third party, (B) receive any compensation for services from the Company or any
of its Subsidiaries, other than compensation for full-time employment as a
regular employee at rates in accordance with the Company's (or its
Subsidiaries') past practices, or (C) receive the benefit, directly or
indirectly (except proportionately as a shareholder), over any period of 12
consecutive calendar months, of any loans, advances, guarantees, pledges,
insurance, reinsurance or other financial assistance or any tax credits or other
tax advantage provided by the Company or any of its Subsidiaries involving an
aggregate principal amount in excess of $50,000,000, or an aggregate cost or
transfer of benefits from the Company or any of its Subsidiaries in excess of
$50,000,000 or, in any case, on terms and conditions less favorable to the
Company than the Company would be able to obtain through arms-length
negotiations with a third party, or (iv) as a result of any reclassification of
securities (including any reverse stock split), or recapitalization, of the
Company, or any merger or consolidation of the Company with any of its
Subsidiaries or any other transaction or series of transactions (whether or not
with or into or otherwise involving an Acquiring Person), the proportionate
share of the outstanding shares of any class of equity or convertible securities
of the Company or any of its Subsidiaries which is directly or indirectly owned
by any Acquiring Person is increased by more than 1%. For purposes of the
foregoing description, the term "Acquiring Person" shall include any Acquiring
Person and its Affiliates and Associates (other than the Company, a wholly owned
Subsidiary of the Company or an employee stock ownership or other employee
benefit plan of the Company or a wholly owned Subsidiary of the Company),
counted together as a single Person.
"Junior Preferred Stock" shall mean the series of Junior Participating
Preferred Stock, without par value, of the Company created by a Certificate of
Adoption of Resolution establishing a series of shares of preferred stock of the
Company in substantially the form set forth in Exhibit B hereto appropriately
completed.
"Market Price" per share of any security on any date (the "Determination
Date") shall mean the arithmetic average of the daily closing prices per share
of such security (determined as described below) on each of the 20 consecutive
Trading Days through and including the Trading Day immediately preceding the
Determination Date; provided, however, that if an event of a type analogous to
any of the events described in Section 2.4 hereof shall have caused the closing
price on one or more Trading Days during such period of 20 Trading Days not to
be fully comparable with the closing price on the Determination Date, each such
closing price so used shall be appropriately adjusted in order to make it fully
comparable with the closing price on the Determination Date. The closing price
per share of any security on any date shall be the last reported sale price,
regular way, or, in case no such sale takes place or is reported on such date,
the average of the closing bid and asked prices, regular way, for such security,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities
4
listed or admitted to trading on the New York Stock Exchange, Inc. or, if such
security is not listed or admitted to trading on the New York Stock Exchange,
Inc., as reported in the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which such security is listed or admitted to trading or, if such security is
not listed or admitted to trading on any national securities exchange, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System ("NASDAQ") or such other self-regulatory organization or
registered securities information processor (as such terms are used under the
Securities Exchange Act of 1934) as then reports trading information concerning
such security, or, if on any such date such security is not listed or admitted
to trading on any national securities exchange or quoted by any such
organization, the average of the closing bid and asked prices as furnished by
any registered securities dealer that is a market maker (as such term is used
under the Securities Exchange Act of 1934) in such security and which is
selected by the Board of Directors of the Company; provided, however, that if on
any such date such security is not listed or admitted to trading on a national
securities exchange or traded in the over-the-counter market, the closing price
of such security on such date shall mean the fair value of such security on such
date as determined in good faith by the Board of Directors of the Company, after
consultation with a nationally recognized investment banking firm, and set forth
in a certificate delivered to the Rights Agent.
"Person" shall mean any individual, firm, partnership, association, group
(as such term is used in Rule 13d-5 under the Securities Exchange Act of 1934,
as such Rule is in effect on the date of this Agreement), corporation, or other
entity.
"Record Date" shall mean August 30, 1991.
"Redemption Price" shall mean an amount equal to $0.005.
"Redemption Time" shall mean the time at which the right to exercise the
Rights shall terminate pursuant to Section 5.1 hereof.
"Separation Date" shall mean the close of business on the earlier of (i)
the later of (A) the tenth day after the date on which any Person (other than
the Company, a majority-owned Subsidiary of the Company or an employee stock
ownership or other employee benefit plan of the Company or of a majority-owned
Subsidiary of the Company) commences a tender or exchange offer which, if
consummated, would result in such Person's becoming an Acquiring Person, or (B)
such later date as the Board of Directors of the Company may from time to time
fix by resolution adopted prior to the Separation Date, or (ii) the Flip-in
Date; provided that, if the foregoing results in the Separation Date being prior
to the Record Date, the Separation Date shall be the Record Date and provided
further that, if any tender or exchange offer referred to in clause (i) of this
definition is cancelled, terminated or otherwise withdrawn prior to the
Separation Date, such offer shall be deemed, for purposes of this definition,
never to have been made. Notwithstanding the foregoing, any tender or exchange
offer referred to in clause (i) of this definition that has been approved by the
Board of Directors of the Company prior to such offer being made to the
Company's shareholders, shall not cause the occurrence of a Separation Date.
"Stock Acquisition Date" shall mean the first date of public announcement
by the Company (by any means) or by an Acquiring Person (by means of filing a
Schedule l3D under
5
the Securities Act of 1934 [or any comparable or successor report or schedule]
or an amendment thereto) that an Acquiring Person has become such.
"Subsidiary" of any specified Person shall mean any corporation or other
entity of which a majority of the voting power of the equity securities
ordinarily having voting power in respect of the election of directors (or other
Persons similarly responsible for the direction of the business and affairs) of
such corporation or other entity, or a majority of the equity interest is
Beneficially Owned, directly or indirectly, by such Person.
"Trading Day," when used with respect to any security, shall mean a day on
which the New York Stock Exchange, Inc. is open for the transaction of business
or, if such security is not listed or admitted to trading on the New York Stock
Exchange, Inc., a day on which the principal national securities exchange on
which such security is listed or admitted to trading is open for the transaction
of business or, if such security is not listed or admitted to trading on any
national securities exchange, a Business Day.
ARTICLE II - THE RIGHTS
2.1 Continuation of Rights Agent. The Company hereby approves the Rights
Agent continuing to act as agent for the Company and the Rights Agent hereby
agrees to continue as an agent for the Company and the holders of Rights.
2.2 Legend on Common Stock Certificates. Certificates for the Common Stock
issued after the Record Date but prior to the Separation Date shall evidence one
Right for each share of Common Stock represented thereby and shall have
impressed on, printed on, written on or otherwise affixed to them the following
legend (or any other legend as shall be approved from time to time by the Board
of Directors of the Company):
Until the Separation Date (as defined in the Rights Agreement
referred to below), this certificate also evidences and entitles
the holder hereof to certain Rights as set forth in a Rights
Agreement, dated as of August 26, 1991, as amended and restated
effective March 29, 2001 (as such may be amended from time to
time, the "Rights Agreement"), between Gentex Corporation (the
"Company") and American Stock Transfer & Trust Company, as Rights
Agent, the terms of which are hereby incorporated herein by
reference and a copy of which is on file at the principal
executive offices of the Company. Under certain circumstances, as
set forth in the Rights Agreement, such Rights may be redeemed,
may be exchanged for shares of Common Stock or other securities
or assets of the Company, may expire, may become void (if they
are "Beneficially Owned" by an "Acquiring Person" or an Affiliate
or Associate thereof, as such terms are defined in the Rights
Agreement, or by any transferee of any of the foregoing) or may
be evidenced by separate certificates and may no longer be
evidenced by this certificate. The Company will mail or arrange
for the mailing of a copy of the Rights Agreement to the holder
of this certificate without charge within five days after the
receipt of a written request therefor.
Certificates representing shares of Common Stock that are issued and outstanding
at the Record Date shall evidence one Right for each share of Common Stock
evidenced thereby
6
notwithstanding the absence of the foregoing legend, and notwithstanding other
legends than the above legend.
2.3 Exercise of Rights; Separation of Rights.
(a) Subject to adjustment as herein set forth, each Right will entitle
the holder thereof, after the Separation Date, to purchase, for the
Exercise Price, one one-hundredth of a share of Junior Preferred Stock.
(b) Until the Separation Date, (i) no Right may be exercised and (ii)
each Right will be evidenced by the certificate for the associated share of
Common Stock and will be transferable only together with, and will be
transferred by a transfer of, such associated share. Notwithstanding any
other provision of this Agreement, any Rights held by the Company or any of
its Subsidiaries other than in a fiduciary capacity shall not be
exercisable. Nothing in the preceding sentence shall be construed as
limiting the right of the Company and it Subsidiaries to acquire or
transfer Rights.
(c) Subject to the terms and conditions herein set forth, after the
Separation Date and prior to the Expiration Date, the Rights (i) may be
exercised and (ii) may be transferred independently of the shares of Common
Stock in respect of which they were originally issued. Promptly following
the Separation Date, the Rights Agent will mail to each holder of record of
Common Stock as of the Separation Date, at such holder's address as shown
by the records of the Company (the Company hereby agreeing to furnish
copies of such records to the Rights Agent for this purpose), (x) a
certificate (a "Rights Certificate") in substantially the form of Exhibit A
hereto appropriately completed, representing the number of Rights held by
such holder at the Separation Date and having such marks of identification
or designation and such legends, summaries or endorsements printed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Agreement, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or
regulation of any national securities exchange or other self-regulatory
organization (as such terms are used under the Securities Exchange Act of
1934) on which the Rights may from time to time be listed or through which
the Rights may from time to time be traded, or to conform to usage, and (y)
a disclosure statement describing the Rights.
(d) Subject to Sections 2.3(b) and 5.10, Rights may be exercised on
any Business Day after the Separation Date and prior to the Expiration Date
by submitting to the Rights Agent the Rights Certificate evidencing such
Rights with an Election to Exercise (an "Election to Exercise")
substantially in the form attached to the Rights Certificate duly
completed, accompanied by payment in cash, or by certified or official bank
check or money order payable to the order of the Company, of a sum equal to
the Exercise Price multiplied by the number of Rights being exercised
together with a sum sufficient to cover any transfer tax or charge which
may be payable in respect of any transfer involved in the transfer or
delivery of Rights Certificates or the issuance or delivery of certificates
for shares or depositary receipts (or both) in a name other than that of
the holder of the Rights being exercised.
7
(e) Upon receipt of a Rights Certificate, with an Election to Exercise
accompanied by payment as set forth in Section 2.3(d) above, and subject to
the conditions set forth in this Agreement, the Rights Agent will thereupon
promptly (i) (A) requisition from a transfer agent for the stock or other
securities purchasable upon exercise of the Rights certificates evidencing
such number of shares or other securities to be purchased (the Company
hereby irrevocably authorizing its transfer agents to comply with all such
requisitions) and (B) if the Company elects pursuant to Section 5.5 hereof
not to issue certificates representing fractional shares, requisition from
the depositary selected by the Company depositary receipts representing the
fractional shares to be purchased or requisition from the Company the
amount of cash to be paid in lieu of fractional shares in accordance with
Section 5.5 hereof and (ii) after receipt of such certificates, depositary
receipts and/or cash, deliver the same to or upon the order of the
registered holder of such Rights Certificate, registered (in the case of
certificates or depositary receipts) in such name or names as may be
designated by such holder.
(f) In case the holder of any Rights shall exercise less than all the
Rights evidenced by such holder's Rights Certificate, a new Rights
Certificate evidencing the Rights remaining unexercised will be issued by
the Rights Agent to such holder or to such holder's duly authorized
assigns.
(g) The Company covenants and agrees that it will (i) cause to be kept
available until the Expiration Date out of its authorized and unissued
shares of capital stock a number of shares of preferred stock that will be
sufficient to permit the creation and establishment of the Junior Preferred
Stock and the exercise in full of all outstanding Rights; (ii) immediately
upon the occurrence of the Separation Date, file with the Michigan
Department of Consumer & Industry Services a Certificate of Adoption of
Resolution establishing a series of shares in substantially the form set
forth in Exhibit B hereto and take all such further action as may be
necessary to create and establish the Junior Preferred Stock; (iii) take
all such action as may be necessary to ensure that all shares delivered
upon exercise of Rights shall, at the time of delivery thereof (subject to
payment of the Exercise Price), be duly and validly authorized, executed,
issued and delivered and fully paid and nonassessable; (iv) take all such
action as may be necessary to ensure that all securities other than shares
delivered upon exercise of Rights shall, at the time of delivery thereof
(subject to payment of the Exercise Price), be duly and validly authorized,
executed, issued and delivered and valid and binding obligations of the
issuer thereof; (v) take all such action as may be necessary to comply with
any applicable requirements of the Securities Act of 1933 or the Securities
Exchange Act of 1934, and the rules and regulations thereunder, and any
other applicable law, rule or regulation, in connection with the issuance
of any shares upon exercise of Rights; (vi) use its best efforts to cause
all shares and other securities issued upon exercise of Rights to be listed
on a national securities exchange or traded in the over-the-counter market,
as reported by NASDAQ or another self-regulatory organization or registered
securities information processor (as such terms are used under the
Securities Exchange Act of 1934), upon issuance; and (vii) pay when due and
payable any and all federal and state transfer taxes and charges which may
be payable in respect of the original issuance or delivery of the Rights
Certificates or of any shares issued upon the exercise of Rights, provided
that the Company shall not be required to pay any transfer tax or charge
which may be payable in respect of any transfer involved in the transfer or
delivery of Rights
8
Certificates or the issuance or delivery of certificates for shares in a
name other than that of the holder of the Rights being transferred or
exercised.
2.4 Adjustments to Exercise Price; Number of Rights.
(a) In the event the Company shall at any time after the Record Date
and prior to the Separation Date (i) declare or pay a dividend on Common
Stock payable in Common Stock, (ii) subdivide the outstanding Common Stock
or (iii) combine the outstanding Common Stock into a smaller number of
shares of Common Stock, (x) the Exercise Price in effect after such
adjustment will be equal to the Exercise Price in effect immediately prior
to such adjustment divided by the number of shares of Common Stock (the
"Expansion Factor") that a holder of one share of Common Stock immediately
prior to such dividend, subdivision or combination would hold thereafter as
a result thereof and (y) each Right held prior to such adjustment will
become that number of Rights equal to the Expansion Factor, and the
adjusted number of Rights will be deemed to be distributed among the shares
of Common Stock with respect to which the original Rights were associated
(if they remain outstanding) and the shares issued in respect of such
dividend, subdivision or combination, so that each such share of Common
Stock will have exactly one Right associated with it. Each adjustment made
pursuant to this paragraph shall be made as of the payment or effective
date for the applicable dividend, subdivision or combination.
In the event the Company shall at any time after the Record Date and
prior to the Separation Date issue any shares of Common Stock otherwise
than in a transaction referred to in the preceding paragraph, each such
share of Common Stock so issued shall automatically have one new Right
associated with it, which Right shall be evidenced by the certificate
representing such share.
(b) In the event the Company shall at any time after the Record Date
and prior to the Separation Date issue or distribute any securities or
assets in respect of, in lieu of or in exchange for Common Stock (other
than pursuant to a regular periodic cash dividend or a dividend paid solely
in Common Stock) whether by dividend, in a reclassification or
recapitalization (including any such transaction involving a merger,
consolidation or binding share exchange), or otherwise, the Company shall
make such adjustments, if any, in the Exercise Price, number of Rights
and/or securities or other property purchasable upon exercise of Rights as
the Board of Directors of the Company, in its sole discretion, may deem to
be appropriate under the circumstances in order to adequately protect the
interests of the holders of Rights generally, and the Company and the
Rights Agent shall amend this Agreement as necessary to provide for such
adjustments.
(c) Each adjustment to the Exercise Price made pursuant to this
Section 2.4 shall be calculated to the nearest cent. Whenever an adjustment
to the Exercise Price is made pursuant to this Section 2.4, the Company
shall (i) promptly prepare a certificate setting forth such adjustment and
a brief statement of the facts accounting for such adjustment, (ii)
promptly file with the Rights Agent and with each transfer agent for the
Common Stock a copy of such certificate and (iii) mail a brief summary
thereof to each holder of Rights.
9
(d) Irrespective of any adjustment or change in the securities
purchasable upon exercise of the Rights, the Rights Certificates
theretofore and thereafter issued may continue to express the securities so
purchasable which were expressed in the initial Rights Certificates issued
hereunder.
2.5 Date on Which Exercise is Effective. Each person in whose name any
certificate for shares is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of the shares represented
thereby on, and such certificate shall be dated, the date upon which the Rights
Certificate evidencing such Rights was duly surrendered and payment of the
Exercise Price for such Rights (and any applicable taxes and other governmental
charges payable by the exercising holder hereunder) was made; provided, however,
that if the date of such surrender and payment is a date upon which the stock
transfer books of the Company are closed, such person shall be deemed to have
become the record holder of such shares on, and such certificate shall be dated,
the next succeeding Business Day on which the stock transfer books of the
Company are open.
2.6 Execution, Authentication, Delivery and Dating of Rights Certificates.
(a) The Rights Certificates shall be executed on behalf of the Company
by its Chairman of the Board, Chief Executive Officer, President, or one of
its Vice Presidents, and by its Secretary or Treasurer. The signature of
any of these officers on the Rights Certificates may be manual or
facsimile.
Rights Certificates bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the countersignature and delivery of
such Rights Certificates.
Promptly after the Company learns of the Separation Date, the Company
will notify the Rights Agent of such Separation Date and will deliver
Rights Certificates executed by the Company to the Rights Agent for
countersignature, and the Rights Agent shall manually countersign and
deliver such Rights Certificates to the holders of the Rights pursuant to
Section 2.3(c) hereof. No Rights Certificate shall be valid for any purpose
until manually countersigned by the Rights Agent.
(b) Each Rights Certificate shall be dated the date of
countersignature thereof.
2.7 Registration, Registration of Transfer and Exchange.
(a) After the Separation Date, the Company will cause to be kept a
register (the "Rights Register") in which, subject to such reasonable
regulations as it may prescribe, the Company will provide for the
registration and transfer of Rights. The Rights Agent is hereby appointed
"Rights Registrar" for the purpose of maintaining the Rights Register for
the Company and registering Rights and transfers of Rights after the
Separation Date as herein provided. In the event that the Rights Agent
shall cease to be the Rights Registrar, the Rights Agent will have the
right to examine the Rights Register at all reasonable times after the
Separation Date.
10
After the Separation Date and prior to the Expiration Date, upon
surrender for registration of transfer or exchange of any Rights
Certificate, and subject to the provisions of Section 2.7(c) below, the
Company will execute, and the Rights Agent will countersign and deliver, in
the name of the holder or the designated transferee or transferees, as
required pursuant to the holder's instructions, one or more new Rights
Certificates evidencing the same aggregate number of Rights as did the
Rights Certificate so surrendered.
(b) Except as otherwise provided in Section 3.1(b) hereof, all Rights
issued upon any registration, transfer, or exchange of Rights Certificates
shall be the valid obligations of the Company, and such Rights shall be
entitled to the same benefits under this Agreement as the Rights
surrendered upon such registration of transfer or exchange.
(c) Every Rights Certificate surrendered for registration of transfer
or exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the Rights
Agent, as the case may be, duly executed by the holder thereof or such
holder's attorney duly authorized in writing. As a condition to the
issuance of any new Rights Certificate under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto.
(d) The Company shall not be required to register the transfer or
exchange of any Rights after the Rights have been redeemed under Section
5.1 hereof or become void pursuant to Section 3.1(b) hereof.
2.8 Mutilated, Destroyed, Lost and Stolen Rights Certificates.
(a) If any mutilated Rights Certificate is surrendered to the Rights
Agent prior to the Expiration Date, the Company shall execute and the
Rights Agent shall countersign and deliver in exchange therefor a new
Rights Certificate evidencing the same number of Rights as did the Rights
Certificate so surrendered.
(b) If there shall be delivered to the Company and the Rights Agent
prior to the Expiration Date (i) evidence to their satisfaction of the
destruction, loss or theft of any Rights Certificate and (ii) such security
or indemnity as may be required by them to save each of them and any of
their agents harmless, then, in the absence of notice to the Company or the
Rights Agent that such Rights Certificate has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Rights Agent
shall countersign and deliver, in lieu of any such destroyed, lost or
stolen Rights Certificate, a new Rights Certificate evidencing the same
number of Rights as did the Rights Certificate so destroyed, lost or
stolen.
(c) As a condition to the issuance of any new Rights Certificate under
this Section 2.8, the Company may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of
the Rights Agent) connected therewith.
11
(d) Every new Rights Certificate issued pursuant to this Section 2.8
in lieu of any destroyed, lost or stolen Rights Certificate shall evidence
an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Rights Certificate shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement equally and proportionately with any and all other Rights duly
issued hereunder.
2.9 Persons Deemed Owners. Prior to due presentment of a Rights Certificate
(or, prior to the Separation Date, the associated Common Stock certificate) for
registration of transfer, the Company, the Rights Agent and any agent of the
Company or the Rights Agent may deem and treat the person in whose name such
Rights Certificate (or, prior to the Separation Date, such Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor the
Rights Agent shall be affected by any notice to the contrary. As used in this
Agreement, unless the context otherwise requires, the term "holder" of any
Rights shall mean the registered holder of such Rights (or, prior to the
Separation Date, the associated shares of Common Stock).
2.10 Delivery and Cancellation of Certificates. All Rights Certificates
surrendered upon exercise or for redemption, registration of transfer or
exchange shall, if surrendered to any person other than the Rights Agent, be
delivered to the Rights Agent and, in any case, shall be promptly cancelled by
the Rights Agent. The Company may at any time deliver to the Rights Agent for
cancellation any Rights Certificates previously countersigned and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Rights Certificates so delivered shall be promptly cancelled by the Rights
Agent. No Rights Certificates shall be countersigned in lieu of or in exchange
for any Rights Certificates cancelled as provided in this Section 2.10, except
as expressly permitted by this Agreement. The Rights Agent shall return all
cancelled Rights Certificates to the Company.
2.11 Agreement of Rights Holders. Every holder of Rights by accepting the
same consents and agrees with the Company and the Rights Agent and with every
other holder of Rights that:
(a) prior to the Separation Date, each Right will be transferable only
together with, and will be transferred by a transfer of, the associated
share of Common Stock;
(b) after the Separation Date, the Rights Certificates will be
transferable only on the Rights Register as provided herein;
(c) prior to due presentment of a Rights Certificate (or, prior to the
Separation Date, the associated Common Stock certificate) for registration
of transfer, the Company, the Rights Agent and any agent of the Company or
the Rights Agent may deem and treat the person in whose name the Rights
Certificate (or, prior to the Separation Date, the associated Common Stock
certificate) is registered as the absolute owner thereof and of the Rights
evidenced thereby for all purposes whatsoever, and neither the Company nor
the Rights Agent shall be affected by any notice to the contrary;
(d) Rights beneficially owned by certain Persons will, under the
circumstances set forth in Section 3.1(b), become void; and
12
(e) this Agreement may be supplemented or amended from time to time
pursuant to Section 2.4(b) or 5.4 hereof.
ARTICLE III - ADJUSTMENTS TO THE RIGHTS IN THE EVENT
OF CERTAIN TRANSACTIONS
3.1 Flip-in.
(a) In the event that prior to the Expiration Date a Flip-in Date
shall occur, then, if applicable law permits Rights owned by certain
Persons referred to in Section 3.1(b) hereof to become void pursuant to the
provisions thereof, the Company shall take such action as shall be
necessary to ensure and provide that, except as provided below, each Right
shall constitute the right to purchase from the Company, upon exercise
thereof in accordance with the terms hereof (but subject to Section 5.10
hereof), that number of shares of Common Stock having an aggregate Market
Price on the Stock Acquisition Date equal to twice the Exercise Price for
an amount in cash equal to the Exercise Price (such right to be
appropriately adjusted in order to protect the interests of the holders of
Rights generally in the event that on or after such Stock Acquisition Date
an event of a type analogous to any of the events described in Section
2.4(a) or (b) shall have occurred with respect to the Common Stock).
(b) Notwithstanding the foregoing, to the extent permitted by
applicable law, any Rights that are or were Beneficially Owned on or after
the Stock Acquisition Date by an Acquiring Person or an Affiliate or
Associate thereof or by any transferee, direct or indirect, of any of the
foregoing shall become void and any holder of such Rights (including
transferees) shall thereafter have no right to exercise or transfer such
Rights. If any Rights Certificate is presented for assignment or exercise
and the Person presenting the same does not complete the certification set
forth at the end of the form of assignment or notice of election to
exercise and provide such additional evidence of the identity of the
Beneficial Owner and its Affiliates and Associates (or former Beneficial
Owners and their Affiliates and Associates) as the Company shall reasonably
request, then the Company shall be entitled to conclusively deem the
Beneficial Owner thereof to be an Acquiring Person or an Affiliate or
Associate thereof or a transferee of any of the foregoing and accordingly
will, to the extent permitted by applicable law, deem the Rights evidenced
thereby to be void and not transferable or exercisable.
(c) The Board of Directors of the Company may, at its option, at any
time after a Flip-in Date and prior to the time that an Acquiring Person
becomes the Beneficial Owner of more than 50% of the outstanding shares of
Common Stock, but only if applicable law permits Rights owned by certain
Persons referred to in Section 3.1(b) hereof to become void pursuant to the
provisions thereof, elect to exchange all (but not less than all) the then
outstanding Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 3.1(b)) for shares of Common Stock at
an exchange ratio of one share of Common Stock per Right, appropriately
adjusted in order to protect the interests of holders of Rights generally
in the event that after the Separation Date an event of a type analogous to
any of the events described in Section
13
2.4(a) or (b) shall have occurred with respect to the Common Stock (such
exchange ratio, as adjusted from time to time, being hereinafter referred
to as the "Exchange Ratio").
Immediately upon the action of the Board of Directors of the Company
electing to exchange the Rights, without any further action and without any
notice, the right to exercise the Rights will terminate and each Right will
thereafter represent only the right to receive a number of shares of Common
Stock equal to the Exchange Ratio. Promptly after the action of the Board
of Directors electing to exchange the Rights, the Company shall give notice
thereof (specifying the steps to be taken to receive shares of Common Stock
in exchange for Rights) to the Rights Agent and the holders of the then
outstanding Rights by mailing such notice in accordance with Section 5.9.
(d) Whenever the Company shall become obligated under Section 3.1(a)
or (c) to issue shares of Common Stock upon exercise of or in exchange for
Rights, the Company, at its option, may substitute therefor shares of
Junior Preferred Stock, at a ratio of one one-hundredth of a share of
Junior Preferred Stock for each share of Common Stock so issuable.
(e) In the event that there shall not be sufficient treasury shares or
authorized but unissued shares of Common Stock or Junior Preferred Stock of
the Company to permit the exercise or exchange in full of the Rights in
accordance with Section 3.1(a) or (c), the Company shall either (i) cause
sufficient additional shares to be authorized (provided that if such
authorization is not obtained, the Company will take the action specified
in clause (ii) of this sentence) or (ii) take such action as shall be
necessary to ensure and provide, to the extent permitted by applicable law
and any agreements or instruments in effect on the Stock Acquisition Date
to which it is a party, that each Right shall thereafter constitute the
right to receive, (x) at the Company's option, either (A) in return for the
Exercise Price, debt or equity securities or other assets (or a combination
thereof) having a fair value equal to twice the Exercise Price, or (B)
without payment of consideration (except as otherwise required by
applicable law), debt or equity securities or other assets (or a
combination thereof) having a fair value equal to the Exercise Price, or
(y) if the Board of Directors of the Company elects to exchange the Rights
in accordance with Section 3.1(c), debt or equity securities or other
assets (or a combination thereof) having a fair value equal to the product
of the Market Price of a share of Common Stock on the Flip-in Date times
the Exchange Ratio in effect on the Flip-in Date, where in any case set
forth in (x) or (y) above the fair value of such debt or equity securities
or other assets shall be as determined in good faith by the Board of
Directors of the Company, after consultation with a nationally recognized
investment banking firm.
3.2 Flip-over.
(a) Prior to the Expiration Date the Company shall not enter into any
agreement with any Acquiring Person with respect to, or consummate or
permit to occur, any Flip-over Transaction or Event, unless and until it
shall have entered into a supplemental agreement with the Person engaging
in such Flip-over Transaction or Event (the "Flip-over Entity") for the
benefit of the holders of the Rights, providing that, upon consummation or
occurrence of the Flip-over Transaction or Event (i) each Right shall
thereafter constitute the right to purchase from the Flip-over Entity, upon
exercise thereof
14
in accordance with the terms hereof, that number of shares of Flip-over
Stock of the Flip-over Entity having an aggregate Market Price on the date
of consummation or occurrence of such Flip-over Transaction or Event equal
to twice the Exercise Price for an amount in cash equal to the Exercise
Price (such right to be appropriately adjusted in order to protect the
interests of the holders of Rights generally in the event that after such
date of consummation or occurrence an event of a type analogous to any of
the events described in Section 2.4(a) or (b) shall have occurred with
respect to the Flip-over Stock) and (ii) the Flip-over Entity shall
thereafter be liable for, and shall assume, by virtue of such Flip-over
Transaction or Event and such supplemental agreement, all the obligations
and duties of the Company pursuant to this Agreement. The provisions of
this Section 3.2 shall apply to successive Flip-over Transactions or
Events.
(b) Prior to the Expiration Date, unless the Rights will be redeemed
pursuant to Section 5.1 hereof in connection therewith, the Company shall
not enter into any agreement with respect to, or consummate or permit to
occur, any Flip-over Transaction or Event if at the time thereof there are
any rights, warrants or securities outstanding or any other arrangements,
agreements or instruments which would eliminate or otherwise diminish in
any respect the benefits intended to be afforded by this Rights Agreement
to the holders of Rights upon consummation or occurrence of such
transaction or event.
ARTICLE IV - THE RIGHTS AGENT
4.1 General.
(a) The Company hereby appoints the Rights Agent to act as agent for
the Company in accordance with the terms and conditions hereof, and the
Rights Agent hereby accepts such appointment. The Company agrees to pay to
the Rights Agent reasonable compensation as shall be agreed to in writing
from time to time for all services rendered by it hereunder and, from time
to time, on demand of the Rights Agent, its reasonable expenses (including
expenses incurred by the Rights Agent under Section 4.4) and counsel fees
and other disbursements incurred in the administration and execution of
this Agreement and the exercise and performance of its duties hereunder.
The Company also agrees to indemnify the Rights Agent for, and to hold it
harmless against, any loss, liability, or expense, incurred without
negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with
the acceptance and administration of this Agreement, including the costs
and expenses of defending against any claim of liability.
(b) The Rights Agent shall be protected and shall incur no liability
for or in respect of any action taken, suffered or omitted by it in
connection with its administration of this Agreement in reliance upon any
certificate for securities purchasable upon exercise of Rights, Rights
Certificate, certificate for other securities of the Company, instrument of
assignment or transfer, power of attorney, endorsement, affidavit, letter,
notice, direction, consent, certificate, statement, or other paper or
document believed by it to be genuine and to be signed, executed and, where
necessary, verified or acknowledged, by the proper person or persons.
15
4.2 Merger or Consolidation or Change of Name of Rights Agent.
(a) Any corporation into which the Rights Agent or any successor
Rights Agent may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which the Rights
Agent or any successor Rights Agent is a party, or any corporation
succeeding to the shareholder services business of the Rights Agent or any
successor Rights Agent, will be the successor to the Rights Agent under
this Agreement without the execution or filing of any paper or any further
act on the part of any of the parties hereto, provided that such
corporation would be eligible for appointment as a successor Rights Agent
under the provisions of Section 4.4 hereof. In case, at the time such
successor Rights Agent succeeds to the agency created by this Agreement,
any of the Rights Certificates have been countersigned but not delivered,
any such successor Rights Agent may adopt the countersignature of the
predecessor Rights Agent and deliver such Rights Certificates so
countersigned; and in case at that time any of the Rights Certificates have
not been countersigned, any successor Rights Agent may countersign such
Rights Certificates either in the name of the predecessor Rights Agent or
in the name of the successor Rights Agent; and in all such cases such
Rights Certificates will have the full force provided in the Rights
Certificates and in this Agreement.
(b) In case at any time the name of the Rights Agent is changed and at
such time any of the Rights Certificates shall have been countersigned but
not delivered, the Rights Agent may adopt the countersignature under its
prior name and deliver Rights Certificates so countersigned; and in case at
that time any of the Rights Certificates shall not have been countersigned,
the Rights Agent may countersign such Rights Certificates either in its
prior name or in its changed name; and in all such cases such Rights
Certificates shall have the full force provided in the Rights Certificates
and in this Agreement.
4.3 Duties of Rights Agent. The Rights Agent undertakes the duties and
obligations imposed by this Agreement upon the following terms and conditions,
by all of which the Company and the holders of Rights Certificates, by their
acceptance thereof, shall be bound:
(a) The Rights Agent may consult with legal counsel (who may be legal
counsel for the Company), and the opinion of such counsel will be full and
complete authorization and protection to the Rights Agent as to any action
taken or omitted by it in good faith and in accordance with such opinion.
(b) Whenever in the performance of its duties under this Agreement the
Rights Agent deems it necessary or desirable that any fact or matter be
proved or established by the Company prior to taking or suffering any
action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a certificate signed by a person believed by the
Rights Agent to be the Chairman of the Board, the Chief Executive Officer,
the President, or any Vice President and by the Secretary or the Treasurer
of the Company and delivered to the Rights Agent; and such certificate will
be full
16
authorization to the Rights Agent for any action taken or suffered in good
faith by it under the provisions of this Agreement in reliance upon such
certificate.
(c) The Rights Agent will be liable hereunder only for its own
negligence, bad faith or willful misconduct.
(d) The Rights Agent will not be liable for or by reason of any of the
statements of fact or recitals contained in this Agreement or in the
certificates for securities purchasable upon exercise of Rights or the
Rights Certificates (except its countersignature thereof) or be required to
verify the same, but all such statements and recitals are and will be
deemed to have been made by the Company only.
(e) The Rights Agent will not be under any responsibility in respect
of the validity of this Agreement or the execution and delivery thereof
(except the due authorization, execution and delivery hereof by the Rights
Agent) or in respect of the validity or execution of any certificate for
securities purchasable upon exercise of Rights or Rights Certificate
(except its countersignature thereof); nor will it be responsible for any
breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor will it be responsible for any
change in the exercisability of the Rights (including the Rights becoming
void pursuant to Section 3.1(b) hereof) or any adjustment required under
the provisions of Section 2.4, 3.1 or 3.2 hereof or responsible for the
manner, method or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment (except with
respect to the exercise of Rights after receipt of the certificate
contemplated by Section 2.4 describing any such adjustment); nor will it by
any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any securities purchasable upon
exercise of Rights or any Rights or as to whether any securities
purchasable upon exercise of Rights will, when issued, be duly and validly
authorized, executed, issued and delivered and fully paid and
nonassessable.
(f) The Company agrees that it will perform, execute, acknowledge and
deliver or cause to be performed, executed, acknowledged and delivered all
such further and other acts, instruments and assurances as may reasonably
be required by the Rights Agent for the carrying out or performing by the
Rights Agent of the provisions of this Agreement.
(g) The Rights Agent is hereby authorized and directed to accept
instructions with respect to the performance of its duties hereunder from
any person believed by the Rights Agent to be the Chairman of the Board,
the Chief Executive Officer, the President, or any Vice President and the
Secretary or the Treasurer of the Company, and to apply to such persons for
advice or instructions in connection with its duties, and it shall not be
liable for any action taken or suffered by it in good faith in accordance
with instructions of any such person.
(h) The Rights Agent and any shareholder, director, officer or
employee of the Rights Agent may buy, sell or deal in Common Stock, Rights
or other securities of the Company or become pecuniarily interested in any
transaction in which the Company may be interested, or contract with or
lend money to the Company or otherwise act as fully
17
and freely as though it were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent from acting in any other capacity
for the Company or for any other legal entity.
(i) The Rights Agent may execute and exercise any of the rights or
powers hereby vested in it or perform any duty hereunder either itself or
by or through its attorneys or agents, and the Rights Agent will not be
answerable or accountable for any act, default, neglect or misconduct of
any such attorneys or agents or for any loss to the Company resulting from
any such act, default, neglect or misconduct, provided reasonable care was
exercised in the selection and continued employment thereof.
4.4 Change of Rights Agent. The Rights Agent may resign and be discharged
from its duties under this Agreement upon 60 days' notice (or such lesser notice
as is acceptable to the Company) in writing mailed to the Company and to each
transfer agent of Common Stock by registered or certified mail, and to the
holders of the Rights in accordance with Section 5.9. The Company may remove the
Rights Agent upon 60 days' notice in writing, mailed to the Rights Agent and to
each transfer agent of the Common Stock by registered or certified mail, and to
the holders of the Rights in accordance with Section 5.9. If the Rights Agent
should resign or be removed or otherwise become incapable of acting, the Company
will appoint a successor to the Rights Agent. If the Company fails to make such
appointment within a period of 30 days after such removal or after it has been
notified in writing of such resignation or incapacity by the resigning or
incapacitated Rights Agent or by the holder of any Rights (which holder shall,
with such notice, submit such holder's Rights Certificate for inspection by the
Company), then the holder of any Rights or the Rights Agent may apply to any
court of competent jurisdiction for the appointment of a new Rights Agent. Any
successor Rights Agent, whether appointed by the Company or by such a court,
shall be a corporation organized and doing business under the laws of the United
States or of any state in the United States, which is authorized under such laws
to exercise the powers of the Rights Agent contemplated by this Agreement. After
appointment, the successor Rights Agent will be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time held
by it hereunder, and execute and deliver any further assurance, conveyance, act
or deed necessary for the purpose. Not later than the effective date of any such
appointment, the Company will file notice thereof in writing with the
predecessor Rights Agent and each transfer agent of the Common Stock, and mail a
notice thereof in writing to the holders of the Rights. Failure to give any
notice provided for in this Section 4.4, however, or any defect therein, shall
not affect the legality or validity of the resignation or removal of the Rights
Agent or the appointment of the successor Rights Agent, as the case may be.
ARTICLE V - MISCELLANEOUS
5.1 Redemption.
(a) The Board of Directors of the Company may, at its option, at any
time prior to the Flip-in Date, elect to redeem all (but not less than all)
the then outstanding Rights at the Redemption Price. The aggregate
Redemption Price paid to the holders of odd numbers of Rights shall be
rounded upward to the next largest whole cent.
18
(b) Immediately upon the action of the Board of Directors of the
Company electing to redeem the Rights, without any further action and
without any notice, the right to exercise the Rights will terminate and
each Right will thereafter represent only the right to receive the
Redemption Price in cash. Promptly after the action of the Board of
Directors electing to redeem, and thereby redeeming, the Rights, the
Company shall give notice of such redemption to the Rights Agent and the
holders of the then outstanding Rights by mailing such notice in accordance
with Section 5.9.
5.2 Expiration. No Person shall have any rights pursuant to this Agreement
or any Right after the Expiration Date, except, if the Rights are redeemed, as
provided in Section 5.1 hereof.
5.3 Issuance of New Rights Certificates. Notwithstanding any of the
provisions of this Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights in such form as
may be approved by its Board of Directors to reflect any adjustment or change in
the number or kind or class of shares of stock purchasable upon exercise of
Rights made in accordance with the provisions of this Agreement.
5.4 Supplements and Amendments. The Company and the Rights Agent may from
time to time supplement or amend this Agreement without the approval of any
holders of Rights (i) in any respect prior to the Flip-in Date (other than to
change the Redemption Price or the Expiration Date, except as contemplated
elsewhere herein) (ii) to make any changes following the close of business on
the Flip-in Date which the Company may deem necessary or desirable and which
shall not materially adversely affect the interests of the holders of Rights
generally or (iii) in order to cure any ambiguity or to correct or supplement
any provision contained herein which may be inconsistent with any other
provisions herein or otherwise defective. The Rights Agent will duly execute and
deliver any supplement or amendment hereto requested by the Company which
satisfies the terms of the preceding sentence.
5.5 Fractional Shares. If the Company elects not to issue certificates
representing fractional shares upon exercise of Rights, the Company shall, in
lieu thereof, (a) evidence such fractional shares by depositary receipts issued
pursuant to an appropriate agreement between the Company and a depositary
selected by it, provided that such agreement shall provide that each holder of a
depositary receipt shall have all of the rights, privileges and preferences to
which such holder would be entitled as a beneficial owner of such fractional
share, or (b) pay to the registered holder of such Rights the same fraction of
the Market Price (determined as of the date of exercise) of one share of the
stock issuable upon such exercise.
5.6 Rights of Action. Subject to the terms of this Agreement, rights of
action in respect of this Agreement, other than rights of action vested solely
in the Rights Agent, are vested in the respective holders of the Rights; and any
holder of any Rights, without the consent of the Rights Agent or of the holder
of any other Rights, may, on such holder's own behalf and for such holder's own
benefit and the benefit of other holders of Rights, enforce, and may institute
and maintain any suit, action or proceeding against the Company to enforce, or
otherwise act in respect of, such holder's right to exercise such holder's
Rights in the manner provided in such holder's Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available to the
holders of Rights, it is specifically acknowledged that the holders of Rights
would not have an adequate remedy at law for any breach of this
19
Agreement and will be entitled to specific performance of the obligations under,
and injunctive relief against actual or threatened violations of, the
obligations of any Person subject to this Agreement.
5.7 Holder of Rights Not Deemed a Shareholder. No holder, as such, of any
Rights shall be entitled to vote, receive dividends or be deemed for any purpose
the holder of shares or any other securities which may at any time be issuable
on the exercise of such Rights, nor shall anything contained herein or in any
Rights Certificate be construed to confer upon the holder of any Rights, as
such, any of the rights of a shareholder of the Company or any right to vote for
the election of directors or upon any matter submitted to shareholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting shareholders (except as
provided in Section 5.8 hereof), or to receive dividends or subscription rights,
or otherwise, until such Rights shall have been exercised in accordance with the
provisions hereof.
5.8 Notice of Proposed Actions. In case the Company shall propose after the
Separation Date and prior to the Expiration Date (i) to effect or permit (in
cases where the Company's permission is required) occurrence of any Flip-in Date
or Flip-over Transaction or Event or (ii) to effect the liquidation, dissolution
or winding up of the Company, then, in each such case, the Company shall give to
each holder of a Right, in accordance with Section 5.9 hereof, a notice of such
proposed action, which shall specify the Flip-in Date or the date on which such
Flip-over Transaction or Event, liquidation, dissolution, or winding up is to
take place, and such notice shall be so given at least 20 Business Days prior to
the date of the taking of such proposed action.
5.9 Notices. Notices or demands authorized or required by this Agreement to
be given or made by the Rights Agent or by the holder of any Rights to or on the
Company shall be sufficiently given or made if delivered or sent by first-class
mail, postage prepaid, addressed (until another address is filed in writing with
the Rights Agent) as follows:
Gentex Corporation
600 N. Centennial
Zeeland, MI 49464
Any notice or demand authorized or required by this Agreement to be given or
made by the Company or by the holder of any Rights to or on the Rights Agent
shall be sufficiently given or made if delivered or sent by first-class mail,
postage prepaid, addressed (until another address is filed in writing with the
Company) as follows:
American Stock Transfer & Trust Company
40 Wall Street
New York, NY 10005
Notices or demands authorized or required by this Agreement to be given or made
by the Company or the Rights Agent to or on the holder of any Rights shall be
sufficiently given or made if delivered or sent by first-class mail, postage
prepaid, addressed to such holder at the address of such holder as it appears
upon the registry books of the Rights Agent or, prior to the Separation Date, on
the registry books of the transfer agent for the Common Stock. Any notice
20
which is mailed in the manner herein provided shall be deemed given, whether or
not the holder receives the notice.
5.10 Suspension of Exercisability. To the extent that the Company
determines in good faith that some action need be taken pursuant to Section
3.1(e) or to comply with federal or state securities laws, the Company may
suspend the exercisability of the Rights for a period of up to ninety (90) days
following the date of the occurrence of the Separation Date or the Flip-in Date
in order to take such action or comply with such laws. In the event of any such
suspension, the Company shall issue as promptly as practicable a public
announcement stating that the exercisability of the Rights has been temporarily
suspended.
5.11 Costs of Enforcement. The Company agrees that if the Company or any
other Person the securities of which are purchasable upon exercise of Rights
fails to fulfill any of its obligations pursuant to this Agreement, then the
Company or such Person will reimburse the holder of any Rights for the costs and
expenses (including legal fees) incurred by such holder in actions to enforce
such holder's rights pursuant to any Rights or this Agreement.
5.12 Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Rights Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
5.13 Benefits of this Agreement. Nothing in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and the
holders of the Rights any legal or equitable right, remedy or claim under this
Agreement; but this Agreement shall be for the sole and exclusive benefit of the
Company, the Rights Agent and the holders of the Rights.
5.14 Descriptive Headings. Descriptive headings appear herein for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
5.15 Governing Law. This Agreement and each Right issued hereunder shall be
deemed to be a contract made under the laws of the State of Michigan 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.
5.16 Counterparts. This 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.
5.17 Severability. If any term or provision hereof or the application
thereof to any circumstance shall, in any jurisdiction and to any extent, be
invalid or unenforceable, such term or provision shall be ineffective as to such
jurisdiction to the extent of such invalidity or unenforceability without
invalidating or rendering unenforceable the remaining terms and provisions
hereof or the application of such term or provision to circumstances other than
those as to which it is held invalid or unenforceable.
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
GENTEX CORPORATION
By __________________________
Enoch Jen
Its Chief Financial Officer
AMERICAN STOCK TRANSFER &
TRUST COMPANY
By __________________________
Carolyn B. O'Neill
Its ______________________
538960v2
22
EXHIBIT A
[Form of Rights Certificate]
Certificate No. _______ _________ Rights
THE RIGHTS ARE SUBJECT TO REDEMPTION OR MANDATORY EXCHANGE, AT
THE OPTION OF THE COMPANY, ON THE TERMS SET FORTH IN THE
RIGHTS AGREEMENT. RIGHTS BENEFICIALLY OWNED BY ACQUIRING
PERSONS OR AFFILIATES OR ASSOCIATES THEREOF (AS SUCH TERMS ARE
DEFINED IN THE RIGHTS AGREEMENT) OR TRANSFEREES OF ANY OF THE
FOREGOING WILL BE VOID.
Rights Certificate
GENTEX CORPORATION
This certifies that ___________________, or registered assigns, is the
registered holder of the number of Rights set forth above, each of which
entitles the registered holder thereof, subject to the terms, provisions and
conditions of the Amended and Restated Shareholder Protection Rights Agreement,
effective August 26, 1991, and amended and restated effective March 29, 2001 (as
such may be amended from time to time, the "Rights Agreement"), between Gentex
Corporation, a Michigan corporation (the "Company"), and American Stock Transfer
& Trust Company, as Rights Agent (the "Rights Agent," which term shall include
any successor Rights Agent under the Rights Agreement), to purchase from the
Company at any time after the Separation Date (as such term is defined in the
Rights Agreement) and prior to the close of business on March 29, 2011, one
one-hundredth of a fully paid share of Junior Participating Preferred Stock,
without par value (the "Junior Preferred Stock"), of the Company (subject to
adjustment as provided in the Rights Agreement) at the Exercise Price referred
to below, upon presentation and surrender of this Rights Certificate with the
Form of Election to Exercise duly executed at the principal office of the Rights
Agent. The Exercise Price shall initially be $110.00 per Right and shall be
subject to adjustment in certain events as provided in the Rights Agreement.
In certain circumstances described in the Rights Agreement, the Rights
evidenced hereby may entitle the registered holder thereof to purchase capital
stock of an entity other than the Company or shares of capital stock of the
Company other than Junior Preferred Stock, all as provided in the Rights
Agreement.
This Rights Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates. Copies of
the Rights Agreement are on file at the principal office of the Company and are
available without cost upon written request.
A-1
This Rights Certificate, with or without other Rights Certificates, upon
surrender at the office of the Rights Agent designated for such purpose, may be
exchanged for another Rights Certificate or Rights Certificates of like tenor
and date evidencing an aggregate number of Rights equal to the aggregate number
of Rights evidenced by the Rights Certificate or Rights Certificates
surrendered. If this Rights Certificate shall be exercised in part, the
registered holder shall be entitled to receive, upon surrender hereof, another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate may be (a) redeemed by the Company under certain circumstances
at its option at a redemption price of $0.005 per Right, or (b) exchanged by the
Company under certain circumstances at its option for one share of Common Stock
or one one-hundredth of a share of Junior Preferred Stock per Right (or, in
certain cases, other securities or assets of the Company), subject in each case
to adjustment in certain events as provided in the Rights Agreement.
No holder of this Rights Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of any securities
which may at any time be issuable on the exercise hereof, nor shall anything
contained in the Rights Agreement or herein be construed to confer upon the
holder hereof, as such, any of the rights of a shareholder of the Company or any
right to vote for the election of directors or upon any matter submitted to
shareholders at any meeting thereof, or to give or withhold consent to any
corporate action, or to receive notice of meetings or other actions affecting
shareholders (except as provided in the Rights Agreement), or to receive
dividends or subscription rights, or otherwise, until the Rights evidenced by
this Rights Certificate shall have been exercised as provided in the Rights
Agreement.
This Rights Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Date: ______________________, 20____ GENTEX CORPORATION
ATTEST: By _______________________________
Its ___________________________
______________________________
Its Secretary
Countersigned:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent
By: __________________________
Authorized Signatory
A-2
[Form of Reverse Side of Rights Certificate]
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder
desires to transfer the Rights Certificates.)
FOR VALUE RECEIVED _______________________________________ hereby sells,
assigns and transfers unto _____________________________________________________
________________________________________________________________________________
(Please print name and address of transferee)
this Rights Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint ________________ Attorney, to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated: ________________, 20___.
Signature Guaranteed: ___________________________
Signature
(Signature must correspond to
name as written upon the face
of this Rights Certificate in
every particular, without
alteration or enlargement or
any change whatsoever)
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
A-3
----------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
_____________________________
Signature
---------------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported assignment, the Company will deem the Beneficial
Owner of the Rights evidenced by the enclosed Rights Certificate to be an
Acquiring Person or an Affiliate or Associate thereof (as defined in the Rights
Agreement) or a transferee of any of the foregoing and accordingly will deem the
Rights evidenced by such Rights Certificate to be void and not transferable or
exercisable.
A-4
[To be attached to each Rights Certificate]
FORM OF ELECTION TO EXERCISE
(To be executed if holder desires to
exercise the Rights Certificate.)
TO: GENTEX CORPORATION
The undersigned hereby irrevocably elects to exercise _______________ whole
Rights represented by the attached Rights Certificate to purchase the shares of
Preferred Stock issuable upon the exercise of such Rights and requests that
certificates for such shares be issued in the name of:
___________________________________
Address: __________________________
___________________________________
Social Security or Other Taxpayer
Identification Number: ____________
If such number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall be
registered in the name of and delivered to:
___________________________________
Address: __________________________
___________________________________
Social Security or Other Taxpayer
Identification Number: ____________
Dated: __________________, 20___
Signature Guaranteed: ___________________________
Signature
(Signature must correspond to
name as written upon the face
of this Rights Certificate in
every particular, without
alteration or enlargement or
any change whatsoever)
A-5
Signatures must be guaranteed by a member firm of a registered national
securities exchange, a member of the National Association of Securities Dealers,
Inc., or a commercial bank or trust company having an office or correspondent in
the United States.
---------------------------------------------------------
(To be completed if true)
The undersigned hereby represents, for the benefit of all holders of Rights and
shares of Common Stock, that the Rights evidenced by this Rights Certificate are
not, and, to the knowledge of the undersigned, have never been, Beneficially
Owned by an Acquiring Person or an Affiliate or Associate thereof (as defined in
the Rights Agreement).
________________________________
Signature
----------------------------------------------------
NOTICE
In the event the certification set forth above is not completed in
connection with a purported exercise of the Rights, the Company will deem the
Beneficial Owner of the Rights evidenced by the enclosed Rights Certificate to
be an Acquiring Person or an Affiliate or Associate thereof (as defined in the
Rights Agreement) or a transferee of any of the foregoing and accordingly will
deem the Rights evidenced by such Rights Certificate to be void and not
transferable or exercisable.
A-6
EXHIBIT B
CERTIFICATE OF ADOPTION OF RESOLUTION
DESIGNATING AND PRESCRIBING RIGHTS,
PREFERENCES AND LIMITATIONS OF
JUNIOR PARTICIPATING PREFERRED STOCK OF
GENTEX CORPORATION
The undersigned corporation executes the following certificate pursuant to
the provisions of Section 302, Act 284, Public Acts of 1972, as amended:
A. The name of the Corporation is Gentex Corporation (the "Company").
B. The Corporation Identification Number (CID) assigned by the Bureau is:
085-536.
C. The location of the registered office is 600 N. Centennial, Zeeland,
Michigan 49464.
D. The following is a true and correct copy of a resolution designating and
prescribing the relative rights, preferences and limitations of the Company's
Junior Participating Preferred Stock, which was duly adopted by the Board of
Directors on March 2, 2001:
RESOLVED, that there is hereby established a series of Preferred
Stock, without par value, of the Company, and the designation and certain
powers, preferences and other rights of the shares of such series, and
certain qualifications, limitations and restrictions thereon, are hereby
fixed as follows:
1. Designation and Amount. The distinctive serial designation of this
series shall be "Junior Participating Preferred Stock" (hereinafter called
"this Series"). Each share of this Series shall be identical in all
respects with the other shares of this Series except as to the dates from
and after which dividends thereon shall be cumulative. The number of shares
in this Series shall initially be One Million (1,000,000), which number may
from time to time be increased or decreased (but not below the number then
outstanding plus the number of shares issuable upon exercise of outstanding
options, rights, or warrants or upon conversion of any outstanding
securities issued by the Company convertible into shares of this series) by
the Board of Directors. Shares of this Series purchased by the Company
shall be cancelled and shall revert to authorized but unissued shares of
Preferred Stock undesignated as to series.
2. Dividends and Distributions.
(i) The holders of shares of this Series, in preference to the
holders of Common Stock and of any other stock ranking junior to this
Series, shall be entitled to receive, when, as, and if declared by the
Board of Directors out of funds legally available for the purpose,
quarterly dividends payable in cash on the 10th day of February, May,
August, and November in each year (each such
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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 of this Series, or fraction thereof, in an
amount per share (rounded to the nearest cent) equal to the greater of
(a) $1.00 or (b) subject to the provision for adjustment hereinafter
set forth, one hundred (100) times the aggregate per share amount of
all cash dividends, and one hundred (100) times the aggregate per
share amount (payable in kind) of all non-cash dividends or other
distributions, other than a dividend payable in Common Stock or a
subdivision of the outstanding Common Stock (by reclassification or
otherwise), declared on the Common Stock 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 of this Series, or fraction thereof. In the event the Company
shall at any time after March 29, 2001, declare or pay any dividend on
Common Stock payable in Common Stock, or effect a subdivision or
combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount to which
holders of shares of this Series were entitled immediately prior to
such event under clause (b) of the preceding sentence shall be
adjusted by multiplying such amount by a fraction, the numerator of
which is the number of shares of Common Stock outstanding immediately
after such event and the denominator of which is the number of shares
of Common Stock that were outstanding immediately prior to such event.
(ii) The Company shall declare a dividend or distribution on the
shares of this Series as provided in subparagraph (i) of this
paragraph 2 simultaneously with its declaration of a dividend or
distribution on the Common Stock (other than a dividend payable in
Common Stock or a subdivision of the outstanding Common Stock);
provided that, in the event no dividend or distribution 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 $1.00 per share on the shares of
this Series shall nevertheless be payable, out of funds legally
available for such purpose, on such subsequent Quarterly Dividend
Payment Date.
(iii) Dividends shall begin to accrue and be cumulative on
outstanding shares of this Series from the date of issue of such
shares, unless the date of issue of such shares is a date after the
record date for the determination of holders of shares of this Series
entitled to receive a quarterly dividend and before such Quarterly
Dividend Payment Date, in which event such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid
on the shares of this Series 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
outstanding at that time. The Board of Directors may fix a record date
for the determination of holders of shares of this Series entitled to
receive payment of a dividend or distribution declared thereon, which
record date shall be not more than sixty (60) days prior to the date
fixed for the payment thereof.
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3. Voting Rights. The holders of shares of this Series shall have the
following voting rights:
(i) Subject to the provision for adjustment hereinafter set
forth, each share of this Series shall entitle the holder thereof to
one hundred (100) votes on all matters submitted to a vote of the
shareholders of the Company. In the event the Company shall at any
time after March 29, 2001, declare or pay any dividend on Common Stock
payable in Common Stock, or effect a subdivision or combination or
consolidation of the outstanding Common Stock (by reclassification or
otherwise) into a greater or lesser number of shares of Common Stock,
then in each such case the number of votes per share to which holders
of shares of this Series were entitled immediately prior to such event
shall be adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately
prior to such event.
(ii) Except as otherwise provided herein, in any other
Certificate of Adoption of a Resolution creating a series of Preferred
Shares or by law, the holders of shares of this Series and the holders
of Common Stock and any other capital stock of the Company having
general voting rights shall vote together as one class on all matters
submitted to a vote of the shareholders of the Company.
(iii) Except as otherwise provided herein or by law, the holders
of shares of this Series 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 and any other capital stock of
the Company having general voting rights as set forth herein) for
taking any corporate action.
4. Certain Restrictions.
(i) Whenever quarterly dividends or other dividends or
distributions payable on the shares of this Series as provided in
paragraph 2 hereof are in arrears, thereafter and until all accrued
and unpaid dividends and distributions, whether or not declared, on
shares of this Series outstanding shall have been paid in full, the
Company shall not:
(a) declare or pay dividends, or make any other
distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation) to the shares of this Series;
(b) declare or pay dividends, or make any other
distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation) with the shares of this
Series, except dividends paid ratably on the shares of this
Series and all such parity stock on which dividends are payable
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or in arrears in proportion to the total amounts to which the
holders of all such shares are then entitled;
(c) redeem or purchase or otherwise acquire for
consideration shares of any stock ranking junior (either as to
dividends or upon liquidation) to the shares of this Series,
provided that the Company may at any time redeem, purchase, or
otherwise acquire shares of any such junior stock in exchange for
shares of stock of the Company ranking junior (both as to
dividends and upon liquidation) to the share of this Series; or
(d) redeem or purchase or otherwise acquire for
consideration any shares of this Series, or any shares of stock
ranking on a parity with the shares of this Series, 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.
(ii) 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 subparagraph (i) of
this paragraph 4, purchase or otherwise acquire such shares at such
time and in such manner.
5. Reacquired Shares. Any shares of this Series purchased or otherwise
acquired by the Company in any manner whatsoever shall constitute
authorized but unissued Preferred Stock and may be reissued as part of a
new series of Preferred Stock by resolution or resolutions of the Board of
Directors, subject to the conditions and restrictions on issuance set forth
herein, in the Articles of Incorporation, or in any other Certificate of
Resolution creating a series of Preferred Stock or as otherwise required by
law.
6. Liquidation, Dissolution, or Winding Up. Upon any liquidation,
dissolution, or winding up of the Company, no distribution shall be made
(a) to the holders of shares of stock, ranking junior (either as to
dividends or upon liquidation), to the shares of this Series unless, prior
thereto, the holders of shares of this Series shall have received the
greater of (i) $100.00 per share, plus an amount equal to accrued and
unpaid dividends and distributions thereon, whether or not declared, to the
date of such payment, or (ii) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to one hundred (100)
times the aggregate amount to be distributed per share to holders of Common
Stock, or (b) to the holders of shares of stock ranking on a parity (either
as to dividends or upon liquidation) with the shares of this Series, except
distributions made ratably on the shares of this Series 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.
In the event the Company shall at any time after March 29, 2001, declare or
pay any dividend on the Common Stock payable in Common Stock, or effect a
subdivision or
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combination or consolidation of the outstanding Common Stock (by
reclassification or otherwise) into a greater or lesser number of shares of
Common Stock, then in each such case the aggregate amount to which holders
of shares of this Series were entitled immediately prior to such event
under clause (a)(ii) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the number
of shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
7. Consolidation, Merger, Exchange, Etc. In the event the Company
shall enter into any consolidation, merger, combination, statutory share
exchange, or other transaction in which the shares of Common Stock are
exchanged for or changed into other stock or securities, money and/or any
other property, then in any such case the shares of this Series shall at
the same time be similarly exchanged or changed into an amount per share
(subject to the provision for adjustment hereinafter set forth) equal to
one hundred (100) times the aggregate amount of stock, securities, money,
and/or other property (payable in kind), as the case may be, into which or
for which each share of Common Stock is changed or exchanged. In the event
the Company shall at any time after March 29, 2001, declare or pay any
dividend on Common Stock payable in Common Stock, or effect a subdivision
or combination or consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise) into a greater or lesser number of
shares of Common Stock, then in each such case the amount set forth in the
preceding sentence with respect to the exchange or change of shares of this
Series shall be adjusted by multiplying such amount by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
8. No Redemption. The shares of this Series shall not be redeemable.
9. Rank. The shares of this Series shall rank junior in terms of a
dividend and liquidation rights to all other series of the Company's
Preferred Stock hereinafter issued that specifically provide that they
shall rank senior to the shares of this Series.
10. Fractional Shares. Shares of this Series may be issued in
fractions of a share which shall entitle the holder, in proportion to such
holder's fractional shares, to receive dividends, participate in
distributions and to have the benefit of all other rights of holders of the
shares of this Series.
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IN WITNESS WHEREOF, the undersigned have signed and attested this
certificate on the _____ day of ___________________, 2001.
GENTEX CORPORATION
By _______________________________
Its____________________________
Attest:
_______________________________
Its Secretary
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