AMENDMENT NO. 1 TO RIGHTS AGREEMENT
Exhibit 4.1
EXECUTION VERSION
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
THIS AMENDMENT No. 1 (this “Amendment”),
dated as of April 12, 2023, amends the Rights Agreement, dated as of January 13, 2023 (the “Rights Agreement”) between National Instruments Corporation, a Delaware
corporation (the “Company”), and Computershare Trust Company, N.A., a federally charted trust company, as rights agent (the “Rights Agent”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to such terms in the Rights Agreement.
RECITALS
WHEREAS, the Company and the Rights Agent have executed and entered into the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement, the Company may, and the Rights Agent shall, if directed by the Company,
supplement or amend the Rights Agreement without the approval of any holders of Right Certificates to make any other provisions with respect to the Rights which the Company may deem necessary or desirable;
WHEREAS, the Company, Xxxxxxx Electric Co., a Missouri corporation (“Parent”),
and Emersub CXIV, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), propose to enter into an Agreement and Plan of Merger, dated as of
April 12, 2023 (as amended, modified and supplemented from time to time, the “Merger Agreement”), pursuant to which, among other things, Merger Sub will merge with and
into the Company with the Company surviving as a wholly owned subsidiary of Parent (the “Merger”); and
WHEREAS, the Board of Directors of the Company has determined and resolved that it is in the best interest of the Company and its
stockholders to amend the Rights Agreement as set forth below to provide that the approval, execution, delivery and performance of the Merger Agreement and the transactions contemplated thereby (including the Merger) will not result in any Person
becoming an Acquiring Person or have any triggering effect on the Rights;
NOW, THEREFORE, the Rights Agreement is hereby amended as follows:
1. Section 1 of the Agreement is hereby amended and supplemented to add the following definitions in the appropriate
locations:
“Effective Time”
shall mean the “Effective Time” as such term is defined in the Merger Agreement.
“Merger” shall mean
the “Merger” as such term is defined in the Merger Agreement.
“Merger Agreement”
shall mean the Agreement and Plan of Merger, dated as of April 12, 2023, by and among the Company, Parent and Merger Sub, as it may be amended, modified and supplemented from time to time.
“Merger Sub” shall
mean Emersub CXIV, Inc., a Delaware corporation and a wholly owned subsidiary of Parent.
“Parent” shall mean
Xxxxxxx Electric Co., a Missouri corporation.
2. The definition of
“Acquiring Person” in Section 1 of the Rights Agreement is hereby amended and supplemented by adding the following sentence to the end thereof:
“Notwithstanding anything in this Agreement to the contrary, none of Parent or Merger
Sub is, nor is any of their Affiliates and Associates, nor shall any of Parent or Merger Sub or their respective Affiliates or Associates be deemed to be, an Acquiring Person to the extent each is a Beneficial Owner as result of (i) the approval,
execution or delivery of the Merger Agreement, (ii) prior to the termination of the Merger Agreement, the consummation of any of the transactions provided for or entry into any agreements contemplated by the Merger Agreement (including the Merger) in
accordance with their respective provisions or (iii) the public announcement of any of the foregoing.”
3. Section 3(a) of the
Rights Agreement is hereby amended and supplemented to add the following sentence at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, neither a Distribution Date nor a Shares Acquisition Date
shall occur or be deemed to have occurred solely as the result, directly or indirectly, of (i) the approval, execution or delivery of the Merger Agreement, (ii) prior to the termination of the Merger Agreement, the consummation of any of the
transactions provided for or entry into any agreements contemplated by the Merger Agreement (including the Merger) in accordance with their respective provisions or (iii) the public announcement of any of the foregoing.”
4. The first sentence of
Section 7(a) of the Rights Agreement is hereby modified and amended by adding thereto the following at the end thereof:
“; provided, however, that if the Expiration Date shall not have previously occurred, the Expiration Date shall occur
immediately prior to the Effective Time and the Rights shall expire and not be exercisable from and after such time.”
5. Section 11(a)(i) of the
Rights Agreement is hereby amended and supplemented to add the following at the end thereof:
“Notwithstanding anything in this Agreement to the contrary, no event requiring an adjustment under this Section 11
shall be deemed to have occurred by reason of (i) the approval, execution or delivery of the Merger Agreement, (ii) prior to the termination of the Merger Agreement, the consummation of any of the transactions provided for or entry into any
agreements contemplated by the Merger Agreement (including the Merger) in accordance with their respective provisions or (iii) the public announcement of any of the foregoing.”
6. Section 29 of the Rights Agreement is hereby amended by adding the following sentence to the end thereof:
“Nothing in this Agreement shall be construed to give any holder of Rights or any
other Person any legal or equitable rights, remedies or claims under this Agreement by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) prior to the termination of the Merger Agreement, the consummation of any of the
transactions provided for or entry into any agreements contemplated by the Merger Agreement (including the Merger) in accordance with their respective provisions or (iii) the public announcement of any of the foregoing.”
7. The Rights Agreement is
amended by adding a new Section 36 thereof which shall read in its entirety as follows:
“Section 36. Exception For Merger Agreement.
Notwithstanding any provision of this Agreement to the contrary, none of the Rights shall become exercisable and no holder of any Rights shall be entitled to exercise such Rights under by virtue of (i) the approval, execution or delivery of the
Merger Agreement, (ii) prior to the termination of the Merger Agreement, the consummation of any of the transactions provided for or entry into any agreements contemplated by the Merger Agreement (including the Merger) in accordance with their
respective provisions or (iii) the public announcement of any of the foregoing.”
8. This Amendment shall be deemed effective as of the date first written above, as if executed on such date. Except as specifically amended by this Amendment, all other terms and conditions of the Rights Agreement shall remain in full
force and effect and are hereby ratified and confirmed.
9. If for any reason the Merger Agreement (including the Merger) is terminated in accordance with its terms, then this Amendment shall become null and void and be of no further force and effect and the Rights Agreement shall remain the
same as it existed immediately prior to execution of this Amendment, and the Company shall promptly notify the Rights Agent of same.
10. This Amendment 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.
11. This Amendment may be
executed in any number of counterparts, each of which shall for all purposes be deemed to be an original, and all such counterparts shall together constitute one and the same instrument. A signature to this
Amendment transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
12. 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.
13. The
Rights Agent and the Company hereby waive any notice requirement under the Rights Agreement pertaining to the matters covered by this Amendment.
[Signature Page Follows]
IN WITNESS WHEREOF, this Amendment has been duly executed by the Company and the Rights Agent as of the day and year first written above.
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NATIONAL INSTRUMENTS CORPORATION
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By:
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/s/ X. Xxxxx Xxxxx, Xx.
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Name:
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X. Xxxxx Xxxxx, Xx.
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Title:
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Chief Legal Officer, Senior Vice
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President & Secretary | |||
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COMPUTERSHARE TRUST COMPANY, N.A.
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By:
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/s/ Xxxxxxx Xxxxx
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Name:
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Xxxxxxx Xxxxx
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Title:
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Manager, Client Management
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