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Exhibit 4.1
PURINA XXXXX, INC.
0000 XXXXX XXXXXX XXXX
XX. XXXXX, XX 00000
June 17, 2001
Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
Sixth and Marquette, X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx
Re: AMENDMENT NO. 3 TO RIGHTS AGREEMENT
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of
June 29, 2000, between Purina Xxxxx, Inc. (the "Company"), and Xxxxx Fargo Bank
Minnesota, N.A. (f/k/a Norwest Bank Minnesota, N.A.), as rights agent, as
amended on December 1, 2000 and May 29, 2001 (as amended, the "Rights
Agreement"), the Company, by resolution adopted by its Board of Directors,
hereby amends the Rights Agreement as follows:
1. Section 1(a) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(a) "ACQUIRING PERSON" means any Person (other than
the Company, any Related Person or GSCP (unless and until GSCP
shall have become the Beneficial Owner of a percentage of
Common Shares then outstanding that exceeds the GSCP
Percentage, at which time GSCP shall be an Acquiring Person))
who or which, together with all Affiliates and Associates of
such Person, is the Beneficial Owner of 10% or more of the
then-outstanding Common Shares; PROVIDED, HOWEVER, that a
Person (other than the Company, any Related Person or GSCP)
who or which, together with all Affiliates and Associates of
such Person, is the Beneficial Owner of 10% or more of the
then-outstanding Common Shares as of, and immediately prior
to, the first date of public announcement of the execution of
the Merger Agreement, will not be deemed to have become an
Acquiring Person unless and until such time as (i) such Person
or any Affiliate or Associate of such Person thereafter
becomes the Beneficial Owner of additional Common Shares,
other than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all
holders of Common Shares are treated equally, or (ii) any
other Person who is the Beneficial Owner of Common Shares
thereafter becomes an Affiliate or Associate of such Person;
PROVIDED
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FURTHER, HOWEVER, that a Person will not be deemed to have
become an Acquiring Person solely as a result of a reduction
in the number of Common Shares outstanding unless and until
such time as (i) such Person or any Affiliate or Associate of
such Person thereafter becomes the Beneficial Owner of
additional Common Shares representing 1% or more of the
then-outstanding Common Shares, other than as a result of a
stock dividend, stock split or similar transaction effected by
the Company in which all holders of Common Shares are treated
equally, or (ii) any other Person who is the Beneficial Owner
of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate
or Associate of such Person. 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 1(b) of the Rights Agreement is hereby amended and
restated in its entirely as follows:
"(b) "AFFILIATE" and "ASSOCIATE" will have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as
in effect on the date of this Agreement; PROVIDED, HOWEVER,
that a Person will not be deemed to be the Affiliate or
Associate or another Person solely because either or both
Persons (i) are or were Directors of the Company, or (ii) are,
as of the execution date of the Merger Agreement, parties to
the Voting Agreement, as in effect on the execution date of
the Merger Agreement, without giving effect to any amendment,
modification or supplement to such Voting Agreement that takes
effect after the execution date of the Merger Agreement."
3. Section 1(c)(iii) of the Rights Agreement is hereby amended
and restated in its entirety as follows:
"(iii) of which any other Person is the Beneficial
Owner, if such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding
(whether or not in writing) with such other Person (or any of
such other Person's Affiliates or Associates) with respect to
acquiring, holding, voting or disposing of any securities of
the Company; PROVIDED, HOWEVER, that a Person will not be
deemed to be the Beneficial Owner of, or to Beneficially Own
any securities Beneficially Owned by another Person solely
because both Persons are, as of the execution date of the
Merger Agreement, parties to the Voting Agreement, as in
effect on the execution date of the Merger Agreement, without
giving effect to any amendment, modification or supplement to
such Voting Agreement that takes effect after the execution
date of the Merger Agreement; PROVIDED FURTHER, HOWEVER, that
a Person will not be deemed the Beneficial Owner
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of, or to Beneficially Own, any security (A) if such Person
has the right to vote such security pursuant to an agreement,
arrangement or understanding (whether or not in writing),
which (1) arises solely from a revocable proxy given to such
Person in response to a public proxy or consent solicitation
made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then
reportable on Schedule 13D under the Exchange Act (or any
comparable or successor report), or (B) if such beneficial
ownership arises solely as a result of such Person's status as
a "clearing agency," as defined in Section 3(a)(23) of the
Exchange Act; PROVIDED FURTHER, HOWEVER, that nothing in this
paragraph (c) will cause a Person engaged in business as an
underwriter of securities to be the Beneficial Owner of, or to
Beneficially Own, any securities acquired through such
Person's participation in good faith in an underwriting
syndicate until the expiration of 40 calendar days after the
date of such acquisition, or such later date as the Directors
of the Company may determine in any specific case."
4. Section 1(k) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
(k) "EXPIRATION DATE" means the earliest of (i) the
Close of Business on the Final Expiration Date, (ii) the time
at which the Rights are redeemed as provided in Section 23,
(iii) the time at which all exercisable Rights are exchanged
as provided in Section 24, and (iv) the Effective Time of the
Merger (each as defined in the Merger Agreement).
5. Section 1 of the Rights Agreement is hereby amended by
adding the following new Section 1(ff) immediately after Section 1(ee):
"(ff) "MERGER AGREEMENT" means the Agreement and Plan
of Merger, dated as of June 17, 2001, by and among Purina
Xxxxx, Inc., a Delaware corporation, Land O'Lakes, Inc., a
Minnesota cooperative corporation, LOL Holdings II, Inc., a
Delaware corporation and a wholly owned subsidiary of Land
O'Lakes, Inc., and LOL Holdings III, Inc., a Delaware
corporation and a wholly owned subsidiary of LOL Holdings II,
Inc."
6. Section 1 of the Rights Agreement is hereby amended by
adding the following new Section 1(gg) immediately after Section 1(ff):
"(gg) "VOTING AGREEMENT" means the Voting Agreement,
dated as of June 17, 2001, by and between GSCP and Land
O'Lakes, Inc., a Minnesota cooperative corporation, as in
effect on the execution date of the Merger Agreement, without
giving effect to any amendment, modification or supplement to
such agreement that takes effect after the execution date of
the Merger Agreement."
7. Section 1 of the Rights Agreement is hereby amended by
adding the following new paragraph at the end of that Section:
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"Notwithstanding anything in this Agreement to the
contrary, none of Land O'Lakes, Inc., a Minnesota cooperative
corporation, LOL Holdings II, Inc., a Delaware corporation and
wholly owned subsidiary of Land O'Lakes, Inc. and LOL Holdings
III, Inc., a Delaware corporation and wholly-owned subsidiary
of LOL Holdings II, Inc., any of their Affiliates or
Associates or any of their permitted assignees or successors
(as contemplated in Section 8.07 of the Merger Agreement)
shall be deemed an Acquiring Person and none of a Distribution
Date, a Share Acquisition Date, or a Triggering Event
(including a Flip-in Event or Flip-over Event) shall be deemed
to occur or to have occurred, and that the Rights will not
become separable, distributable, unredeemable or exercisable,
in each such case, by reason or as a result of the approval,
execution or delivery of the Merger Agreement, execution or
delivery of the Voting Agreement, the grant of the irrevocable
proxy under the Voting Agreement, the consummation of the
Merger (as defined in the Merger Agreement) or the
consummation of the other transactions contemplated by the
Merger Agreement."
8. Section 26(b) of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"(b) Subject to the provisions of Section 21 hereof,
any notice or demand authorized by this Agreement to be given
or made by the Company or by the holder of any Right
Certificate to or on the Rights Agent will be sufficiently
given or made if sent by first-class mail, postage prepaid,
addressed (until another address is filed in writing with the
Company) as follows:
Xxxxx Fargo Bank Minnesota, N.A.
Corporate Trust Services
Sixth and Marquette, X0000-000
Xxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx"
9. The Rights Agreement shall not otherwise be supplemented or
amended by virtue of this Amendment No. 3 to the Rights Agreement, but shall
remain in full force and effect.
10. Capitalized terms used without other definition in this
Amendment No. 3 to the Rights Agreement shall be used as defined in the Rights
Agreement.
11. This Amendment No. 3 to the Rights Agreement shall be
deemed to be a contract made under the laws of the State of Delaware and for all
purposes will 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.
12. This Amendment No. 3 to the Rights Agreement 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.
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13. This Amendment No. 3 to the Rights Agreement shall be
effective as of, and immediately prior to, the execution and delivery of the
Merger Agreement, and all references to the Rights Agreement shall, from and
after such time, be deemed to be references to the Rights Agreement as amended
hereby.
14. Exhibits B and C to the Rights Agreement shall be deemed
amended in a manner consistent with this Amendment No. 3 to the Rights
Agreement.
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Very truly yours,
PURINA XXXXX, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President,
Chief Financial Officer
and Secretary
Accepted and agreed to as of the effective time specified above:
XXXXX FARGO BANK MINNESOTA, N.A.
By: ----------------------------
Name:
Title:
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