AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit
4.02
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
THIS
AMENDMENT NO. 1 (this “Amendment”) is entered into and dated as of
October 16, 2006, by and between Cree, Inc., a North Carolina corporation
(the “Company”), and American Stock Transfer & Trust Company, as Rights
Agent (the “Rights Agent”).
WHEREAS,
the Company and the Rights Agent are parties to a Rights Agreement dated as
of
May 30, 2002 (the “Rights Agreement”), specifying the terms of certain Rights
(as defined therein);
WHEREAS,
Section 27 of the Rights Agreement authorizes the Company and the Rights Agent
to amend the Rights Agreement as contemplated by this Amendment;
and
WHEREAS,
the Board of Directors of the Company has approved the amendment of the Rights
Agreement and the execution and delivery of this Amendment;
NOW,
THEREFORE, for good and valuable consideration, the parties hereby agree as
follows:
1. The
Rights Agreement is hereby amended by adding the following new Section 35 at
the
end of the Rights Agreement.
Section
35. Review
by Independent Directors.
All
members of the Board of Directors who are deemed “independent” under the Nasdaq
listing standards (the “Independent Directors”) shall review and evaluate this
Agreement in order to consider whether the maintenance of this Agreement
continues to be in the best interests of the Company and its shareholders,
at
least every three (3) years and prior to any Distribution Date. Following each
such review and evaluation, the Independent Directors shall communicate their
conclusion to the full Board of Directors, including any recommendation in
light
thereof, including as to whether this Agreement should be modified or the Rights
should be redeemed. In connection with such review and evaluation, the
Independent Directors shall have the power and authority to (i) set their own
agenda and to retain at the expense of the Company their choice of legal
counsel, investment bankers and other advisors and (ii) to review all
information of the Company and to consider any and all factors they deem
relevant.
2. From
and
after the date hereof, all reference in the Rights Agreement to “Agreement”
shall mean and refer to the Rights Agreement, as modified by this Amendment,
and, except as set forth herein, the Rights Agreement shall remain in full
force
and effect and shall be otherwise unaffected by this Amendment. This Amendment
shall be deemed to be a contract made under the laws of the State of North
Carolina and for all purposes shall be governed by and construed in accordance
with the laws of such State applicable to contracts made and to be performed
entirely within such State and without regard to conflicts of laws principles.
This Amendment may be executed in any number of counterparts, 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. 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,
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.
(signature
on following page)
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(Signature
Page to the Amendment No. 1 to Rights Agreement)
IN
WITNESS WHEREOF,
the
parties hereto have caused this Amendment to be duly executed and attested,
all
as of the day and year first above written.
CREE,
INC.
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By:
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/s/ Xxxxxxx X. Xxxxxxx | ||
Name:
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Xxxxxxx
X. Xxxxxxx
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Title:
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Chairman,
CEO and President
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AMERICAN
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/ Xxxxxxx X. Xxxxxx | ||
Name:
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Xxxxxxx
X. Xxxxxx
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Title:
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Vice
President
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