AMENDMENT NO. 3 TO RIGHTS AGREEMENT
Exhibit 4.2
AMENDMENT NO. 3 TO
RIGHTS AGREEMENT
RIGHTS AGREEMENT
THIS AMENDMENT NO. 3 TO RIGHTS AGREEMENT (this “Amendment No. 3”) is entered into as
of August 2, 2010 between ARBITRON INC., a Delaware corporation (the “Company”), and THE
BANK OF NEW YORK MELLON (f/k/a THE BANK OF NEW YORK), a New York banking corporation (the
“Rights Agent”).
WHEREAS, the Company and the Rights Agent previously entered into the Rights Agreement, dated
as of November 21, 2002 (the “Rights Agreement”), Amendment No. 1 to Rights Agreement as of
January 31, 2007 (“Amendment No. 1”), and Amendment No. 2 of the Rights Agreement as of May
13, 2010 (“Amendment No. 2”);
WHEREAS, in accordance with Section 27 of the Rights Agreement, the Company desires to amend
the Rights Agreement on the terms and conditions hereinafter set forth;
WHEREAS, this Amendment No. 3 is in compliance with the terms of Section 27 of the Rights
Agreement; and
WHEREAS, for purposes of this Amendment No. 3, initially capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Rights Agreement, as amended by
this Amendment No. 3.
NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
1. Certain Definitions. Section 1(a) of the Rights Agreement, as amended by Amendment
No. 1 and Amendment No. 2, is amended by deleting the text and replacing it in its entirety with
the following:
(a) “Acquiring Person” shall mean any Person (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 shares of Common Stock then outstanding,
but shall not include (i) the Company, (ii) any Subsidiary of the Company, or (iii)
any employee benefit plan of the Company or any Subsidiary of the Company, or any
Person holding shares of Common Stock for or pursuant to the terms of any such plan to
the extent, and only to the extent, of such shares so held, provided,
however, that the term “Acquiring Person” shall not include Pamet Capital
Management, L.P. or any Affiliate or Associate of such Person or BlackRock Inc. or any
Affiliate or Associate of Such Person (each, an “Exempted Person”), but only
so long as (x) the Exempted Person is the Beneficial Owner of less than 20.00% of the
shares of Common Stock then outstanding, and (y) the Exempted Person reports, or is
permitted to report, such Beneficial Ownership on Schedule 13G under the Exchange Act
(or any comparable or successor report) (and the Exempted Person certifies in each
such Schedule 13G that such Beneficial Ownership is not with a purpose or effect of
changing or influencing control of the Company, nor in connection with or as a
participant in any transaction having such purpose or effect) or on Schedule 13D under
the Exchange Act (or any comparable or successor report), which Schedule 13D does not
state any present intention to (or reserve the right to) hold such shares of Common
Stock with the purpose or effect of changing or influencing the control of the
Company, nor in connection with or as a participant in any transaction having such
purpose or effect. Notwithstanding the foregoing, no Person shall become an
“Acquiring Person” as the result of an acquisition by the Company of Common Stock of
the Company which, by reducing the number of shares outstanding, increases the
proportionate number of shares beneficially owned by such Person to 15% or more (or in
the case of the Exempted Person, 20.00% or more) of the shares of Common Stock of the
Company then outstanding; provided,however, that if a Person shall
become the Beneficial Owner of 15% or more (or in the case of the Exempted
Person, 20.00% or more) of the shares of Common Stock of the Company then outstanding
by reason of share purchases by the Company and shall, after such share purchases by
the Company, become the Beneficial Owner of any additional shares (other than pursuant
to a stock split, stock dividend or similar transaction) of Common Stock of the
Company and immediately thereafter be the Beneficial Owner of 15% or more (or in the
case of the Exempted Person, 20.00% or more) of the shares of Common Stock of the
Company then outstanding, then such Person shall be deemed to be an “Acquiring
Person.”
In addition, 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 shares of Common Stock so that such Person would no longer be an “Acquiring
Person”, then such Person shall not be deemed an “Acquiring Person” for any purposes
of this Agreement unless and until such Person shall again become an “Acquiring
Person”.
2. Benefits. Nothing in the Rights Agreement, as amended by this Amendment No. 3,
shall be construed to give any Person other than the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date, the registered holders of
the Common Stock) any legal or equitable right, remedy or claim under the Rights Agreement, as
amended by this Amendment No. 3; but the Rights Agreement, as amended by this Amendment No. 3,
shall be for the sole and exclusive benefit of the Company, the Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date, registered holders of
Common Stock).
3. Severability. If any term, provision, covenant or restriction of this Amendment
No. 3 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
No. 3 shall remain in full force and effect and shall in no way be affected, impaired or
invalidated.
4. Descriptive Headings. Descriptive headings of the several Sections of this
Amendment No. 3 are inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
5. Governing Law. This Amendment No. 3 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; provided, however, that the rights and obligations of the
Rights Agent shall be governed in accordance with the laws of the State of New York.
6. Counterparts. This Amendment No. 3 may be executed in any number of counterparts.
It shall not be necessary that the signature of or on behalf of each party appears on each
counterpart, but it shall be sufficient that the signature of or on behalf of each party appears on
one or more of the counterparts. All counterparts shall collectively constitute a single a single
agreement.
7. Effect of Amendment. Except as expressly modified by this Amendment No. 3, the
Amended Rights Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to be duly executed
and attested, as of the day and year first above written.
| Attest: | ARBITRON INC. | |||||||||
By:
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/s/ Xxxx X. Xxxxxxx
|
By: | /s/ Xxxxxxx X. Xxxxx
|
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| Xxxx X. Xxxxxxx | Xxxxxxx X. Xxxxx | |||||||||
| Deputy General Counsel and | Executive Vice President, Business | |||||||||
| Assistant Secretary | Development and Strategy, Chief | |||||||||
| Legal Officer, and Secretary | ||||||||||
| Attest: | THE BANK OF NEW YORK MELLON, as Rights Agent | |||||||||
By:
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/s/ Xxxx Xxxxxxxx
|
By: | /s/ Xxxxxxxx X. Xxxxx
|
|||||||
| Name: Xxxx Xxxxxxxx | Name: Xxxxxxxx X. Xxxxx | |||||||||
| Title: Relationship Manager | Title: Vice President | |||||||||
