EXHIBIT 99.2
AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This Amendment No. 1 to Rights Agreement (this "Amendment"), effective
as of September 23, 2002 is between Delphax Technologies, Inc., a Minnesota
corporation (the "Company"), and Xxxxx Fargo Bank Minnesota, N.A., as rights
agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of March 22, 2002 (the "Rights Agreement"); and
WHEREAS, Section 27 of the Rights Agreement permits the amendment of
the Rights Agreement by the Company;
WHEREAS, pursuant to a resolutions duly adopted on September 19, 2002,
the Board of Directors of the company has authorized the amendment of the Rights
Agreement as set forth below; and
WHEREAS, the Board of Directors of the Company has determined that such
amendment is desirable and is consistent with the objectives of the Board of
Directors in connection with the original adoption of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereby agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Agreement is hereby
amended in full and replaced in its entirety by the following:
"(a) "Acquiring Person" shall mean any Person, other than an
Exempted Person, as defined below, (as such term is hereinafter
defined) who or which, together with all Affiliates and Associates (as
such terms are hereinafter defined) of such Person, shall be the
Beneficial Owner (as such term is hereinafter defined) of 15% or more
of the Common Shares of the Company then outstanding, but shall not
include (i) the Company, (ii) any wholly owned Subsidiary (as such term
is hereinafter defined) of the Company, (iii) any employee benefit plan
of the Company or of any Subsidiary of the Company, or (iv) any entity
holding Common Shares for or pursuant to the terms of any such plan
described in clause (iii) of this sentence. Notwithstanding the
foregoing, no Person shall become an "Acquiring Person" as the result
of an acquisition of the Common Shares by the Company which, by
reducing the number of Common Shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15%
or more of the Common Shares of the Company then outstanding; provided,
however, that if a Person, together with all Affiliates or Associates
of such Person, shall become the Beneficial Owner of 15% or more of the
Common Shares of the Company then outstanding by reason of share
acquisitions by the Company, and if such Person or such
Person's Affiliates or Associates, after such share acquisitions by the
Company, shall become the Beneficial Owner of any additional Common
Shares of the Company, and, immediately after becoming the Beneficial
Owner of such additional Common Shares, such Person, together with all
Affiliates and Associates of such Person, shall be the Beneficial Owner
of 15% or more of the Common Shares of the Company then outstanding,
then such Person (unless such Person shall be (1) the Company, (2) any
wholly owned Subsidiary of the Company, (3) any employee benefit plan
of the Company or of any Subsidiary of the Company, or (4) any entity
holding Common Shares for or pursuant to the terms of any such plan
described in clause (3) of this sentence) shall be deemed an "Acquiring
Person." An entity other than the Company or any wholly owned
Subsidiary of the Company holding Common Shares for or pursuant to the
terms of an employee benefit plan of the Company or of any Subsidiary
of the Company and in addition being the Beneficial Owner of Common
Shares that are not held for or pursuant to the terms of any such plan
shall be deemed to constitute an Acquiring Person, notwithstanding
anything herein stated, if, but only if, it, together with its
Affiliates and Associates, shall be the Beneficial Owner of 15% or
more, exclusive of those Common Shares held by it for or pursuant to
the terms of any such plan, of the Common Shares 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 (including, without
limitation, because (A) such Person was unaware that it beneficially
owned a percentage of the Common Shares that would otherwise cause such
Person to be an "Acquiring Person" or (B) such Person was aware of the
extent of its Beneficial Ownership but had no actual knowledge of the
consequences of such Beneficial Ownership under this Agreement), and
without any intention of changing or influencing control of the
Company, 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. Addition of Section 1(p). Section 1(p) of the Agreement is hereby
added:
"(p) "Exempted Person" shall mean:
(i) the persons known as of the date hereof as
(Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx (collectively and
individually, the "Brenners"), unless and until such time as
(1) the Brenners, together directly or indirectly, becomes the
Beneficial Owner of more than the lesser of (X) 19.9% of the
Common Stock then outstanding, or (2) the Brenners breach, and
the board of directors of the Company determines that the
Brenners have breached, any terms and conditions of that
certain Agreement dated as of the date hereof among the
Company and the Brenners, in which case the Brenners shall
cease to be an Exempted Person."
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3. Effectiveness. This Amendment shall be deemed effective as of
September 23, 2002 as if executed by both parties hereto on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
4. Miscellaneous. This Amendment shall be deemed to be contract made
under the laws of the State of Minnesota and for all purposes shall be governed
by and construed in accordance with the laws of such state applicable to
contracts to be made and performed entirely within such state. This Amendment
may be executed in any number of counterparts, each of such counterparts shall
for all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any term, provision,
covenant or restriction of this Amendment is held by a court of competent
jurisdiction or other authority to be invalid, illegal, or unenforceable, the
remainder of the terms, provisions, covenants and restrictions of this Amendment
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated. Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Rights Agreement.
5. Certification. The undersigned officer of the Company certifies by
execution hereof that this Amendment is in compliance with the terms of Section
27 of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
DELPHAX TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxxxx
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Name: Xxx Xxxxxxxxx
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Title: Chief Financial Officer
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XXXXX FARGO BANK MINNESOTA, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Officer
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