EXHIBIT 4.1
XXXXX TELECOM INC.
00000 XXXXXXX XXXXXXXXX
XXXXXXXXX, XXXX 00000
February 17, 2003
The Fifth Third Bank
Corporate Trust Administration
Mail Drop 1090D2-3212
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Re: Amendment No. 1 to the Rights Agreement
---------------------------------------
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement (the "Rights Agreement"),
dated as of January 20, 1998, between Xxxxx Telecom Inc. (the "Company") and The
Fifth Third Bank, as rights agent, the Company, by resolution adopted by its
Directors, hereby amends the Rights Agreement as follows:
1. Section 1(j) of the Rights Agreement is hereby amended and restated
in its entirety as follows:
"(j) "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) immediately prior to the Effective Time (as defined in the Merger
Agreement)."
2. Section 1(n) of the Rights Agreement is hereby amended by adding
the following new Section 1(nn) immediately thereafter:
"(nn) "Merger Agreement" means the Agreement and Plan of Merger,
dated as of February 17, 2003, among Xxxxxx Corporation, a Delaware
corporation ("Parent"), Adirondacks, Inc., a Delaware corporation and
a wholly owned subsidiary of Parent ("Sub") and the Company."
3. Section 1 of the Rights Agreement is hereby amended by adding the
following new paragraph at the end of that Section:
The Fifth Third Bank
February 17, 2003
Page 2
"Notwithstanding anything in this Agreement to the contrary, none of
Parent, Sub, any of their Affiliates or Associates or any of their
permitted assignees or transferees shall be deemed an Acquiring Person
and none of a Distribution Date, a Share Acquisition Date, or a
Triggering Event shall be deemed to occur or to have occurred, and 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, the
consummation of the Merger (as defined in the Merger Agreement) or the
consummation of the other transactions contemplated by the Merger
Agreement."
4. The Rights Agreement shall not otherwise be supplemented or amended
by virtue of this Amendment No. 1 to the Rights Agreement, but shall remain
in full force and effect.
5. Capitalized terms used without other definition in this Amendment
No. 1 to the Rights Agreement shall be used as defined in the Rights
Agreement.
6. This Amendment No. 1 to the Rights Agreement shall be deemed to be
a contract made under the internal substantive laws of the State of
Delaware and for all purposes will be governed by and construed in
accordance with the internal substantive laws of such State applicable to
contracts to be made and performed entirely within such State.
7. This Amendment No. 1 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.
8. This Amendment No. 1 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.
9. Exhibits B and C to the Rights Agreement shall be deemed amended in
a manner consistent with this Amendment No. 1 to the Rights Agreement.
Very truly yours,
XXXXX TELECOM INC.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
The Fifth Third Bank
February 17, 2003
Page 3
Accepted and agreed to as of the
effective time specified above:
THE FIFTH THIRD BANK
By: /s/ Xxxxxxxx X. Xxxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
