AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit 4.01
Execution Copy
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This First Amendment (“Amendment”) effective as of April 5, 2011 is to the Rights Agreement,
dated as of April 29, 2005 (the “Rights Agreement”), by and between Diamond Foods, Inc., a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A., a federally chartered trust
company (f/k/a EquiServe Trust Company, N.A.), as Rights Agent (the “Rights Agent”)
WHEREAS, the Company, by resolution adopted by its Board of Directors, hereby directs the
Rights Agent to amend the Rights Agreement as set forth herein; and
NOW THEREFORE, in consideration of the premises and mutual agreements set forth herein, the
Company and the Rights Agent agree as follows:
1. Amendment of Section 1. Section 1 of the Rights Agreement is hereby supplemented
and amended to add the following definitions in the appropriate alphabetical locations:
“MERGER SUB” shall mean Wimbledon Acquisition LLC, a Delaware limited liability
company.
“P&G” shall mean The Procter & Xxxxxx Company, an Ohio corporation.
“TRANSACTION AGREEMENT” shall mean that certain Transaction Agreement, dated as of
April 5, 2011, by and among the Company, P&G, Wimbledon, and Merger Sub, as amended
or supplemented from time to time.
“TRANSACTIONS” shall mean the “Transactions” as such term is defined in the
Transaction Agreement.
“WIMBLEDON” shall mean The Xxxxxx Company, a Delaware corporation.
2. Amendment of Definition of “Acquiring Person.” The definition of “Acquiring
Person” in Section 1(a) of the Rights Agreement is hereby supplemented and amended by adding the
following as Section 1(a)(iii):
“(iii) Neither P&G, Wimbledon, Merger Sub nor any of their respective Affiliates,
Associates, permitted assignees or permitted transferees shall be deemed to be an
Acquiring Person as a result of the approval, execution, delivery or performance of
the Transaction Agreement, the consummation of any of the Transactions or the
announcement of any of the foregoing.”
3. Amendment of Definition of “Shares Acquisition Date.” The definition of “Shares
Acquisition Date” in Section 1(p) of the Rights Agreement is supplemented and amended by inserting
the following sentence at the end of such definition:
“Notwithstanding anything in this Agreement to the contrary, a Shares Acquisition
Date shall not be deemed to have occurred as the result of the public announcement,
approval, execution, delivery or performance of the Transaction Agreement, the
consummation of any of the Transactions or the announcement of any of the
foregoing.”
4. Amendment to Section 3(a). Section 3(a) of the Rights Agreement is hereby
supplemented and amended by inserting the following sentence immediately after the last sentence
thereof:
“Notwithstanding anything in this Agreement to the contrary, a Distribution Date
shall not be deemed to have occurred, and the Rights will not become separable,
distributable, unredeemable, triggered or exercisable, in each case as the result
of the public announcement, approval, execution, delivery or performance of the
Transaction Agreement, the consummation of any of the Transactions or the
announcement of any of the foregoing.”
5. Amendment to Section 25(a). Section 25(a) of the Rights Agreement is hereby
supplemented and amended by inserting the following sentence immediately after the last sentence
thereof:
“Notwithstanding anything in this Agreement to the contrary, in no event shall the
provisions of this Section 25 apply to the public announcement, approval,
execution, delivery or performance of the Transaction Agreement or the
consummation of the Transactions.”
6. Waiver of Notice(s). The Rights Agent and the Company hereby waive any notice
requirement(s) under the Rights Agreement pertaining to the matters covered by this Amendment.
7. Exhibits. Exhibit B to the Rights Agreement shall be deemed amended in a manner
consistent with this Amendment.
8. Other Provisions Unaffected. This Amendment shall be deemed to be in full force
and effect immediately prior to the execution and delivery of the Transaction Agreement, and the
Company or its agent shall notify the Rights Agent promptly after such execution and delivery.
Except as expressly modified hereby, all arrangements, agreements, terms, conditions and provisions
of the Rights Agreement remain in full force and effect, and this Amendment and the Rights
Agreement, as hereby modified, shall constitute one and the same instrument.
9. Miscellaneous.
(a) Severability. If any term, provision, covenant or restriction of this Amendment
is held by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable, then such term, provision, covenant or restriction shall be enforced to the maximum
extent permissible, and 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.
(b) Governing Law. This Amendment, the Rights Agreement and each Right Certificate
issued hereunder or thereunder 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.
(c) Counterparts. This Amendment 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. A signature to this
Amendment transmitted electronically shall have the same authority, effect, and enforceability as an
original signature.
(d) Descriptive Headings. Descriptive headings of the several sections of this
Amendment and the Rights Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof or thereof.
(e) Entire Agreement. This Amendment and the Rights Agreement, and all of the
provisions hereof and thereof, shall be binding upon and inure to the benefit of the Company and
the Rights Agent and their respective successors and permitted assigns and executors,
administrators and heirs. This Amendment, together with the Rights Agreement, sets forth the entire
agreement and understanding between the parties hereto as to the subject matter hereof and thereof
and merges with and supercedes all prior discussions and understandings of any and every nature
among them. Without limiting the foregoing, the Rights Agent shall not be subject to, nor required
to interpret or comply with, or determine if any person has complied with, the Transaction
Agreement even though reference thereto may be made in this Amendment and the Rights Agreement.
(f) Further Assurances. The Company and the Rights Agent shall cooperate and take
such action as may be reasonably requested by the other party in order to carry out the
transactions and purposes of this Amendment, the Rights Agreement, and the transactions
contemplated hereunder and/or thereunder.
(g) Effective Time. This Amendment shall be effective as of, and immediately prior
to, the execution and delivery of the Transaction Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed, all as of
the effective time specified above.
| DIAMOND FOODS, INC. |
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| By: | /s/ Xxxxxx X. Xxxx | |||
| Name: | Xxxxxx X. Xxxx, | |||
| Title: | Executive Vice President and Chief Financial and Administrative Officer |
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| COMPUTERSHARE TRUST COMPANY, N.A. |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Manager, Contract Administration | |||
[Signature Page to Amendment No. 1 to the Rights Agreement]
