EXHIBIT 2
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AMENDMENT NO. 1 TO RIGHTS AGREEMENT
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AMENDMENT No. 1 (the "Amendment"), dated April 27, 2000, to the Amended and
Restated Rights Agreement, dated as of November 28, 1995, and Amended and
Restated as of March 28, 2000 (the "Rights Agreement"), between Becton,
Xxxxxxxxx and Company, a New Jersey corporation (the "Company"), and First
Chicago Trust Company of New York, a New York corporation (the "Rights Agent"),
as Rights Agent.
Recitals
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A. The Company and the Rights Agent have heretofore executed and entered
into the Rights Agreement.
B. The Board of Directors of the Company has determined that it is in the
best interests of the Company and its stockholders to amend the Rights
Agreement.
C. Pursuant to Section 27 of the Rights Agreement, therefore, the Board of
Directors of the Company has resolved that an amendment to the Rights Agreement
as set forth herein is necessary and desirable, and the Company and the Rights
Agent desire to evidence such amendment in writing.
D. All acts and things necessary to make this Amendment a valid agreement,
enforceable according to its terms have been done and performed, and the
execution and delivery of this Amendment by the Company and the Rights Agent
have been in all respects duly authorized by the Company and the Rights Agent.
In consideration of the foregoing and the mutual agreements set forth
herein, the Company and the Rights Agent hereby amend the Rights Agreement as
follows:
1. Section 1(a) of the Rights Agreement is amended and restated in its
entirety as follows:
(a) "Acquiring Person" shall mean any Person who shall be
the Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding, but shall not include (i) the
Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of
the Company, (iv) any Person or entity organized, appointed
or established by the Company for or pursuant to the terms
of any such plan or (v) any Person who becomes the
Beneficial Owner of 15% or more of the shares of Common
Stock then outstanding as a result of a reduction in the
number of shares of Common Stock outstanding due to the
repurchase of shares of Common Stock by the Company
unless and until such Person after becoming aware that such
Person has become the Beneficial Owner of 15% or more of the
then outstanding shares of Common Stock acquires beneficial
ownership of additional shares of Common Stock representing
1% or more of the shares of Common Stock then outstanding.
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 paragraph (a), has become
such inadvertently, and such Person divests as promptly as
practicable a sufficient number of Common Shares so that
such Person would no longer be an "Acquiring Person," as
defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement.
2. Section 3 (a) of the Rights Agreement is amended and restated in its
entirety as follows:
Section 3. Issue of Rights Certificates.
(a). Until the earlier of (i) the close of business on
the tenth day after the Stock Acquisition Date (or, if the
tenth day after the Stock Acquisition Date occurs before the
Record Date, the close of business on the Record Date), or
(ii) the close of business on the tenth business day (or
such later date as the Board shall determine) after the date
that a tender or exchange offer by any Person (other than
the Company, any Subsidiary of the Company, any employee
benefit plan of the Company or of any Subsidiary of the
Company, any Person or entity organized, appointed or
established by the Company for or pursuant to the terms of
any such plan) is first published or sent or given within
the meaning of Rule 14d-2(a) of the General Rules and
Regulations under the Exchange Act, if upon consummation
thereof, such Person would be the Beneficial Owner of 15% or
more of the shares of Common Stock then outstanding (the
earlier of (i) and (ii) being herein referred to as the
"Distribution Date"), (x) the Rights will be evidenced
(subject to the provisions of paragraph (b) of this Section
3) by the certificates for the Common Stock registered in
the names of the holders of the Common Stock (which
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certificates for Common Stock shall be deemed also to
be certificates for Rights) and not by separate
certificates, and (y) the Rights will be transferable only
in connection with the transfer of the underlying shares of
Common Stock (including a transfer to the Company). As soon
as practicable after the Distribution Date, the Rights Agent
will send by first-class, insured, postage prepaid mail, to
each record holder of the Common Stock as of the close of
business on the Distribution Date, at the address of such
holder shown on the records of the Company, one or more
right certificates, in substantially the form of Exhibit A
hereto (the "Rights Certificates"), evidencing one Right for
each share of Common Stock so held, subject to adjustment as
provided herein. In the event that an adjustment in the
number of Rights per share of Common Stock has been made
pursuant to Section 11(p) hereof, at the time of
distribution of the Right Certificates, the Company shall
make the necessary and appropriate rounding adjustments (in
accordance with Section 14(a) hereof) so that Rights
Certificates representing only whole numbers of Rights are
distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights
will be evidenced solely by such Rights Certificates.
3. Section 27 of the Rights Agreement is amended and restated in its
entirety as follows:
Section 27. Supplements and Amendments. Until such time
as any Person becomes an Acquiring Person, the Company may
and the Rights Agent shall, if the Company so directs,
supplement or amend any provision of this Agreement without
the approval of any holders of certificates representing
shares of Common Stock. From and after such time as any
Person becomes an Acquiring Person, and subject to the
penultimate sentence of this Section 27, the Company may and
the Rights Agent shall, if the Company so directs,
supplement or amend this Agreement without the approval of
any holders of Rights Certificates in order (i) to cure any
ambiguity, (ii) to correct or supplement any provision
contained herein which may be defective or inconsistent with
any other provisions herein, (iii) to shorten or lengthen
any time period hereunder, or (iv) to change or supplement
the provisions hereunder in any manner which the Company
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may deem necessary or desirable and which shall not
adversely affect the interests of the holders of Rights
Certificates (other than an Acquiring Person or an Affiliate
or Associate of an Acquiring Person); provided this
Agreement may not be supplemented or amended to lengthen,
pursuant to clause (iii) of this sentence, (A) a time period
relating to when the Rights may be redeemed at such time as
the rights are not then redeemable, or (B) any other time
period unless such lengthening is for the purpose of
protecting, enhancing or clarifying the rights of, and/or
the benefits to, the holders of Rights. Without limiting the
foregoing, the Company may at any time prior to such time as
any Person becomes an Acquiring Person amend this Agreement
to lower the thresholds set forth in Section 1(a) and 3(a)
hereof to not less than 10% (the"Reduced Threshold");
provided, however, that no Person who beneficially owns a
number of shares of Common Stock equal to or greater than
the Reduced Threshold shall become an Acquiring Person
unless such Person shall, after the public announcement of
the Reduced Threshold, increase its beneficial ownership of
the then outstanding shares of Common Stock (other than as a
result of an acquisition of shares of Common Stock by the
Company) to an amount equal to or greater than the greater
of (x) the Reduced Threshold or (y) the sum of (i) the
lowest beneficial ownership of such Person as a percentage
of the outstanding shares of Common Stock as of any date on
or after the date of the public announcement of such Reduced
Threshold plus (ii) .001%. Upon the delivery of a
certificate from an appropriate officer of the Company which
states that the proposed supplement or amendment is in
compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment. Prior to
such time as any Person becomes an Acquiring Person, the
interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common
Stock.
4. Exhibit B of the Rights Agreement is amended and restated in its
entirety as follows:
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SUMMARY OF RIGHTS TO PURCHASE
PREFERRED STOCK
On November 28, 1995, the board of Directors of Becton,
Xxxxxxxxx and Company (the "Company") declared a dividend
distribution of one Right for each outstanding share of
Common Stock to stockholders of record at the close of
business on the expiration date of the prior Rights
Agreement (the "Record Date"). Each Right initially entitled
the registered holder to purchase from the Company one
two-hundredths of a share of Preferred Stock, Series A, par
value $1.00 per share (the "Preferred Stock") at a Purchase
Price of $270, subject to adjustment. As a result of two
two-for-one stock splits on July 23, 1996 and August 10,
1998, each Right then represented the right to purchase one
eight-hundredths of a share of Preferred Stock at a Purchase
Price of $67.50 per one eight-hundredths of a share, subject
to adjustment. The description and terms of the Rights are
set forth in a Rights Agreement (the "Rights Agreement")
between the Company and First Chicago Trust Company of New
York, as Rights Agent, originally entered into on November
28, 1995 and amended and restated as of March 28, 2000.
Initially, the Rights will be attached to all Common
Stock certificates representing shares then outstanding, and
no separate Rights Certificates will be distributed. The
Rights will separate from the Common Stock and a
Distribution Date will occur upon the earlier of (i) 10 days
following a public announcement that a person or group of
affiliate or associated persons (an "Acquiring Person") has
acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of Common
Stock (the "Stock Acquisition Date"), other than as a result
of repurchases of stock by the Company, or (ii) 10 business
days (or such later date as the Board shall determine)
following the commencement of a tender offer or exchange
offer that would result in a person or group beneficially
owning 15% or more of such outstanding shares of Common
Stock. Until the Distribution Date, (i) the Rights will be
evidenced by the Common Stock certificates and will be
transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued
after the Record Date will contain a notation incorporating
the Rights Agreement by reference and (iii) the surrender
for transfer of any certificates for Common Stock
outstanding will also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificate. Pursuant to the Rights Agreement, the Company
reserves the right to require prior
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to the occurrence of a Triggering Event (as defined below)
that, upon any exercise of Rights, a number of Rights be
exercised so that only whole shares of Preferred Stock will
be issued.
The Rights are not exercisable until the Distribution
Date and will expire at the close of business on April 25,
2006, unless earlier redeemed or exchanged by the Company as
described below.
As soon as practicable after the Distribution Date,
Rights Certificates will be mailed to holders of record of
the Common Stock as of the close of business on the
Distribution Date and, thereafter, the separate Rights
Certificates alone will represent the Rights. Except as
otherwise determined by the Board of Directors, only shares
of Common Stock issued prior to the Distribution Date will
be issued with Rights.
In the event that a Person becomes the beneficial owner
of more than 15% of the then outstanding shares of Common
Stock, each holder of a Right will thereafter have the right
to receive, upon exercise, Common Stock (or, in certain
circumstances, cash, property or other securities of the
Company) having a value equal to two times the exercise
price of the Right. Notwithstanding any of the foregoing,
following the occurrence of any of the events set forth in
this paragraph, all Rights that are, or (under certain
circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person will be null and
void. However, Rights are not exercisable following the
occurrence of either of the events set forth above until
such time as the Rights are no longer redeemable by the
Company as set forth below.
For example, at an exercise price of $67.50 per Right,
each Right not owned by an Acquiring Person (or by certain
related parties) following an event set forth in the
preceding paragraph would entitle its holder to purchase
$135 worth of Common Stock (or other consideration, as noted
above) for $67.50. Assuming that the Common Stock had a per
share value of $33.75 at such time, the holder of each valid
Right would be entitled to purchase four shares of Common
Stock for $67.50.
In the event that, at any time following the Stock
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction in which the Company
is not the surviving corporation (other than a merger
described in the second preceding paragraph), or (ii) 50% or
more of the Company's assets or earning power is sold or
transferred, each
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holder of a Right (except Rights which previously have been
voided as set forth above) shall thereafter have the right
to receive, upon exercise, common stock of the acquiring
company having a value equal to two times the exercise price
of the Right. The events set forth in this paragraph and in
the second preceding paragraph are referred to as the
"Triggering Events."
At any time after the acquisition by a person or group
of affiliated or associated persons of beneficial ownership
of 15% or more of the outstanding Common Shares and prior to
the acquisition by such person or group of 50% or more of
the outstanding Common Shares, the Board of Directors may
exchange the Rights (other than Rights owned by such person
or group which have become void), in whole or in part, at an
exchange ratio of one share of Common Stock, or one
eight-hundredths of a share of Preferred Stock (or of a
share of a class or series of the Company's preferred stock
having equivalent rights, preferences and privileges), per
Right (subject to adjustment).
At any time prior to the time any Person becomes an
Acquiring Person, the Company may redeem the Rights in
whole, but not in part, at a price of $.01 per Right
(payable in cash, Common Stock or other consideration deemed
appropriate by the Board of Directors). Immediately upon the
action of the Board of Directors ordering redemption of the
Rights, the Rights will terminate and the only right of the
holders of Rights will be to receive the $.01 redemption
price.
Until a Right is exercised, the holder thereof, as
such, will have no rights as a stockholder of the Company,
including, without limitation, the right to vote or to
receive dividends. While the distribution of the Rights will
not be taxable to stockholders or to the Company,
stockholders may, depending upon the circumstances,
recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the
Company or for common stock of the acquiring company as set
forth above.
Any of the provisions of the Rights Agreement may be
amended by the Board of Directors of the Company prior to
the acquisition by a person or group of affiliated or prior
to the time any Person becomes an Acquiring Person.
Thereafter, the provisions of the Rights Agreement may be
amended by the Board in order to cure any ambiguity, to make
changes which do not adversely affect the interests of
holders of Rights, or to shorten or lengthen any time period
under the Rights Agreement;
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provided, however, that no amendment to adjust the time
period governing redemption shall be made at such time as
the Rights are not redeemable.
A copy of the Rights Agreement has been filed with the
Securities and Exchange Commission as an Exhibit to a
Registration Statement on Form 8-A. A copy of the Rights
Agreement is available free of charge from the Company. This
summary description of the Rights does not purport to be
complete and is qualified in its entirety by reference to
the Rights Agreement, which is incorporated herein by
reference.
5. This Amendment to the Rights Agreement shall be governed by and
construed in accordance with the laws of the State of New York 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.
6. This Amendment to the Rights Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute one and the same instrument. Terms not defined herein shall,
unless the context otherwise requires, have the meanings assigned to such terms
in the Rights Agreement.
7. In all respects not inconsistent with the terms and provisions of this
Amendment to the Rights Agreement, the Rights Agreement is hereby ratified,
adopted, approved and confirmed. In executing and delivering this Amendment, the
Rights Agent shall be entitled to all the privileges and immunities afforded to
the Rights Agent under the terms and conditions of the Rights Agreement.
8. If any term, provision, covenant or restriction of this Amendment to the
Rights Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment to the Rights Agreement, and of the
Rights Agreement, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: BECTON, XXXXXXXXX AND COMPANY
By: /s/ XXXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXX
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Name: XXXXXXX X. XXXXX Name: XXXXXX X. XXXXXX
Title: Vice President Title: Chief Executive Officer
and President
Attest: FIRST CHICAGO TRUST COMPANY OF
NEW YORK
By: /s/ XXXXX X. XXXXXXXXXX By: /s/ XXXXXXX X. KERYE
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Name: XXXXX X. XXXXXXXXXX Name: XXXXXXX X. KERYE
Title: Senior Account Manager Title: Managing Director
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