EXHIBIT 4.2
FIRST AMENDMENT TO RIGHTS AGREEMENT
First Amendment, dated as of July 2, 2003 (this "Amendment"), to Rights
Agreement, dated as of March 23, 2001 (the "Rights Agreement"), between Stratos
Lightwave, Inc., a Delaware corporation (the "Company"), and Mellon Investor
Services LLC, as Rights Agent (the "Rights Agent").
W I T N E S S E T H:
WHEREAS, the Company, Sleeping Bear Merger Corp., a Delaware corporation
and a wholly-owned subsidiary of the Company ("Sub"), and Sterling Holding
Company, a Delaware corporation ("Sterling"), have proposed to enter into an
Agreement and Plan of Merger (the "Merger Agreement"), pursuant to which, among
other things, each issued and outstanding share of common stock of Sterling, and
each issued and outstanding share of preferred stock of Sterling, in each case
not owned directly or indirectly by the Company or Sterling, will be converted
into the right to receive (i) shares of Common Stock, $0.01 par value of the
Company together with the associated Rights of the Company and (ii) shares of a
new series of Preferred Stock, $0.01 per share, of the Company to be designated
as the Series B Preferred Stock;
WHEREAS, the Company and the Rights Agent desire to amend the Rights
Agreement, pursuant to and in compliance with Section 27 thereof, to provide
that neither Citicorp Venture Capital Ltd. nor any of its respective Affiliates
(as defined in the Rights Agreement) or Associates (as defined in the Rights
Agreement) shall become an Acquiring Person as a result of the Merger and no
Distribution Date (as such terms are defined in the Rights Agreement) shall
occur as a result of the execution and delivery of the Merger Agreement, the
public announcement thereof, or the consummation of any of the transactions
contemplated by the Merger Agreement in accordance with its terms; and
WHEREAS, the Company and the Rights Agent have each executed and
delivered this Amendment immediately prior to the execution and delivery of the
Merger Agreement.
NOW, THEREFORE, in consideration of the Rights Agreement and the premises
and mutual agreements herein set forth, the parties hereby agree as follows:
1. There is hereby added to the Rights Agreement the following
definitions:
"Sterling" shall mean Sterling Holding Company, a Delaware corporation.
"Sub" shall mean Sleeping Bear Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of the Company.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as
of July 2, 2003, as the same may be amended from time to time, among the
Company, Sub and Sterling Holding Company.
2. Section 1 of the Rights Agreement is hereby amended by amending and
restating the definition of "Acquiring Person" in its entirety as follows:
"Acquiring Person" shall mean any Person who or which, 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 but
shall not include (i) the Company, (ii) any Subsidiary of the Company,
(iii) any employee benefit plan of the Company or any Subsidiary of the
Company, (iv) any entity holding Common Shares for or pursuant to the
terms of any such employee benefit plan, or (v) Citicorp Venture Capital
Ltd. ("CVC") or any Affiliate or Associate of CVC; provided, however,
that if CVC or any Affiliate or Associate of CVC becomes the Beneficial
Owner of an aggregate of 15% or more of the Common Shares of the Company
then outstanding other than Common Shares of the Company acquired
pursuant to the terms of the Merger Agreement, then CVC or such Affiliate
or Associate will become an "Acquiring Person". Notwithstanding the
foregoing, (1) no Person shall become an "Acquiring Person" as the result
of an acquisition of Common Shares by the Company which, by reducing the
number of Common Shares outstanding, increases the proportionate number
of Common 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 shall so become the Beneficial Owner of 15% or more
of the Common Shares of the Company then outstanding by reason of an
acquisition of Common Shares by the Company and shall, after such share
purchases by the Company, become the Beneficial Owner of an additional 1%
of the outstanding Common Shares of the Company, then such Person shall
be deemed to be an "Acquiring Person"; and (2) 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, 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, then such Person shall not
be deemed to have become an "Acquiring Person" for any purposes of this
Agreement. Notwithstanding the foregoing provisions of this paragraph, no
Person shall become an "Acquiring Person" as a result of the execution
and delivery of the Merger Agreement, the public announcement thereof,
the consummation of any of the transactions contemplated by the Merger
Agreement in accordance with its terms nor the execution, delivery or
performance of any document contemplated by the Merger Agreement,
including without limitation the Voting Agreements (as defined in the
Merger Agreement).
3. Section 3(a) of the Rights Agreement is hereby amended by adding the
following sentence immediately following the first sentence thereof:
Notwithstanding the foregoing, a Distribution Date shall not occur as a
result of the execution and delivery of the Merger Agreement, the public
announcement thereof, the consummation of any of the transactions
contemplated by the Merger Agreement in accordance with its terms nor the
execution, delivery or performance of any document contemplated by the
Merger Agreement, including without limitation the Voting Agreements.
4. This Amendment shall be deemed to be a contract made under the laws of
the State of Delaware and for all purposes shall be governed by and construed in
accordance with the laws of such State applicable to contracts to be made and
performed entirely within such State; provided, however, that all provisions
regarding the rights or obligations of the Rights Agent or the duties of the
Rights Agent as they relate to the administration of this Amendment, shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed entirely within such State.
5. This Amendment may be executed in two or more counterparts, each of
which shall for all purposes be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
6. Any capitalized term used herein without definition shall have the
meaning specified in the Rights Agreement.
7. Except as otherwise expressly set forth herein, this Amendment shall
not by implication or otherwise alter, modify, amend or in any other manner
affect any of the terms, conditions, obligations, covenants or agreements
contained in the Rights Agreement, all of which are hereby ratified and
confirmed in all respects and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the day and year first above written.
Attest: STRATOS LIGHTWAVE, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxx X. XxXxxxxx
-----------------------------------------------------
----------------------------------------------------- Name: Xxxxx X. XxXxxxxx
Name: Xxxxxx X. Xxxx Title: President and Chief Executive Officer
Title: Vice President Corporate Development
Attest: MELLON INVESTOR SERVICES LLC,
AS RIGHTS AGENT
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx Name: Xxxxx Xxxxx
Title: Vice President Title: Assistant Vice President
