Exhibit 99.4
XXXXXXXXXX.XXX, INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY
as Rights Agent
----------
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment No. 1"), dated as of February 11,
2002, is made by and between Xxxxxxxxx.Xxx, Inc., a Delaware corporation (the
"Company"), and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent"). Reference is made to the Rights Agreement dated as of June 28,
2001 (the "Rights Agreement") between the parties. Capitalized terms not defined
herein shall have the respective meaning ascribed to them in the Rights
Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company and
the Rights Agent may from time to time supplement or amend the Rights Agreement
in accordance with the provisions of Section 27 thereof;
WHEREAS, the Company is a party to an Agreement and Plan of Merger (as it
may be amended or supplemented from time to time, the "iVillage Merger
Agreement"), dated February 11, 2002, among iVillage Inc., a Delaware
corporation ("iVillage"), Xxxxxx Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of iVillage ("iVillage Merger Sub"), and the Company,
which provides for, among other things, an exchange offer (the "Offer") by
iVillage Merger Sub for all outstanding shares of common stock of the Company
(the "Company Common Stock"), the merger of iVillage Merger Sub with and into
the Company (the "iVillage Merger"), subject to shareholder and regulatory
approval and other terms and conditions;
WHEREAS, concurrently with the execution and delivery of the iVillage
Merger Agreement, iVillage and certain stockholders of the Company (the
"Stockholders") entered into a Stockholders Agreement, dated as of February 11,
2002 (the "Stockholders Agreement"), which, among other things, (i) obligates
the Stockholders to tender all shares of Company Common Stock held by the
Stockholders into the Offer, (ii) obligates the Stockholders to vote on all
matters affecting the iVillage Merger in support of the iVillage Merger, (iii)
restricts the ability of the Stockholders to transfer the shares of Company
Common Stock held by them and (iv) grants iVillage an irrevocable proxy to vote
Stockholders' shares of Company Common Stock;
WHEREAS, the iVillage Merger Agreement contemplates amendments to the
Rights Agreement so that the Rights Agreement will not be applicable to the
iVillage Merger Agreement, the Stockholders Agreement, and the transactions
contemplated thereby.
WHEREAS, the Board of Directors previously determined that it is in the
best interests of the Company and its Stockholders to amend the Rights Agreement
as contemplated by the iVillage Merger Agreement;
NOW, THEREFORE, in accordance with Section 27 of the Rights Agreement, the
Company and the Rights Agent hereby amend the Rights Agreement as follows:
1. The definition of "Acquiring Person" in Section 1(a) of the Rights
Agreement is hereby modified and amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, none of
iVillage Inc., a Delaware corporation ("iVillage"), iVillage Merger
Sub (as defined in the iVillage Merger Agreement (defined below)),
or any of their Affiliates or Associates, shall be deemed to be an
Acquiring Person by virtue of the execution of the Agreement and
Plan of Merger, dated as of February __, 2002 (as the same may be
amended from time to time, the "iVillage Merger Agreement"), by and
among iVillage, iVillage Merger Sub and the Company, the
Stockholders Agreement, dated as of February 11, 2002 (the
"Stockholders Agreement") or the consummation of the transactions
contemplated by the iVillage Merger Agreement, including, without
limitation, the exchange offer by iVillage Merger Sub for all
outstanding shares of the Company's outstanding common stock (the
"Offer"), the merger of iVillage Merger Sub with and into the
Company (the "iVillage Merger"), or the acquisition of beneficial
ownership of Common Shares pursuant to the Stockholders Agreement or
the announcement of any of the foregoing transactions."
2. The definition of "Shares Acquisition Date" in Section 1(r) of the
Rights Agreement is hereby modified and amended by adding the
following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Shares Acquisition Date shall not be deemed to have occurred as a
result of the execution of the iVillage Merger Agreement or the
Stockholders Agreement or the consummation of the transactions
contemplated by the iVillage Merger Agreement, including without
limitation, the Offer, the iVillage Merger, the acquisition of
beneficial ownership of Common Shares pursuant to the Stockholders
Agreement, or the announcement of any of the foregoing
transactions."
2
3. Section 3(a) of the Rights Agreement is amended by adding the following
sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as a result of the
execution of the iVillage Merger Agreement or the Stockholders Agreement
or the consummation of the transactions contemplated by the iVillage
Merger Agreement, including without limitation, the Offer, the iVillage
Merger, the acquisition of beneficial ownership of Common Shares pursuant
to the Stockholders Agreement, or the announcement of any of the foregoing
transactions."
4. The definition of "Section 11(a)(ii) Event" in Section 11(a)(ii) of the
Rights Agreement is hereby modified and amended by adding the following sentence
at the end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Section
11(a)(ii) Event shall not be deemed to have occurred as a result of the
execution of the iVillage Merger Agreement or the Stockholders Agreement
or the consummation of the transactions contemplated by the iVillage
Merger Agreement, including without limitation, the Offer, the iVillage
Merger, the acquisition of beneficial ownership of Common Shares pursuant
to the Stockholders Agreement, or the announcement of any of the foregoing
transactions."
5. The definition of "Section 13 Event" in Section 13(a)of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Section 13
Event shall not be deemed to have occurred as the result of the execution
of the iVillage Merger Agreement or the Stockholders Agreement or the
consummation of the transactions contemplated by the iVillage Merger
Agreement, including without limitation, the Offer, the iVillage Merger,
the acquisition of beneficial ownership of Common Shares pursuant to the
Stockholders Agreement, or the announcement of any of the foregoing
transactions."
6. The introductory phrase of Section 13(c) of the Rights Agreement is
hereby modified and amended to read as follows:
"The Corporation shall not consummate any such consolidation, merger, sale
or transfer (other than the iVillage Merger) unless the Principal Party
shall have a sufficient number of its authorized shares of common stock
which have not been issued or reserved for issuance to permit the exercise
in full of the Rights in accordance with this Section 13 and unless prior
thereto the Corporation and such Principal party shall have executed and
delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date
3
of any consolidation, merger, sale or transfer mentioned in paragraph (a)
of this Section 13 (other than the iVillage Merger), the Principal Party
at its own expense shall:"
7. The definition of "Triggering Event" in Section 1(t) of the Rights
Agreement is hereby modified and amended by adding the following sentence at the
end thereof:
"Notwithstanding anything in this Agreement to the contrary, a Triggering
Event shall not be deemed to have occurred as the result of the execution
of the iVillage Merger Agreement or the Stockholders Agreement or the
consummation of the transactions contemplated by the iVillage Merger
Agreement, including without limitation, the Offer, the iVillage Merger,
the acquisition of beneficial ownership of Common Shares pursuant to the
Stockholders Agreement, or the announcement of any of the foregoing
transactions."
8. Section 7(a) of the Rights Agreement is hereby modified and amended to
change the reference to "July 8, 2011" to "July 8, 2011 or, if earlier,
immediately prior to the consummation of the iVillage Merger as contemplated by
the iVillage Merger Agreement."
9. Clause (iv) of Section 25(a) of the Rights Agreement is hereby amended
to read as follows:
"to effect any consolidation or merger into or with any other Person
(other than the iVillage Merger and other than a Subsidiary of the
corporation in a transaction which does not violate Section 11(n) hereof),
or to effect any sale or other transfer (or to permit one or more of its
Subsidiaries to effect any sale or other transfer) in one or more
transactions, of 50% or more of the assets or earning power of the
Corporation and its Subsidiaries (taken as a whole) to any other Person or
Persons (other than the Corporation and/or any of its Subsidiaries in one
or more transactions each of which does not violate Section 11(n)
hereof),"
10. Section 30 of the Rights Agreement is amended to add the following
sentence at the end thereof:
"Nothing in this Agreement shall be construed to give any holder of Rights
(and, prior to the Distribution Date, registered holders of the Common
Shares) or any other Person any legal or equitable rights, remedies, or
claims under this Agreement by virtue of the execution of the iVillage
Merger Agreement or the Stockholders Agreement or the consummation of the
transactions contemplated by the iVillage Merger Agreement, including
without limitation, the Offer, the iVillage Merger, the acquisition of
beneficial ownership or the transfer of Common Shares pursuant to the
Stockholders Agreement, or the announcement of any of the foregoing
transactions."
4
11. This Amendment No. 1 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.
12. This Amendment No. 1 may be executed in any number of counterparts,
each of such counterparts shall for all purposes be deemed to be an original,
and all of such counterparts shall together constitute but one and the same
instrument.
13. In all respects not inconsistent with the terms and provisions of this
Amendment No. 1, the Rights Agreement is hereby ratified, adopted, approved, and
confirmed. In executing and delivering this Amendment No. 1, the Rights Agent
shall be entitled to all of the privileges and immunities afforded to the Rights
Agent under the terms and conditions of the Rights Agreement.
14. If any term, provision, covenant, or restriction of this Agreement No.
1 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. 1, and of the Rights Agreement, shall remain
in full force and effect and shall in no way be affected, impaired, or
invalidated.
[Signature page follows]
5
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed, all as of the date and year first above written.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: Chief Executive Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
6
