Exhibit 4.1
August 9, 0000
Xxx Xxxx xx Xxx Xxxx
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
Attention: Stock Transfer Administration
Re: Amendment No. 1 to Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 27 of the Rights Agreement, dated as of May 17,
1999 (the "Rights Agreement"), between X.X. Xxxxxxxx Tobacco Holdings, Inc., a
Delaware corporation (the "Company"), and The Bank of New York, a New York
banking corporation, as rights agent, the Company, by resolution adopted by its
Directors by an action taken by written consent, hereby amends the Rights
Agreement as follows:
1. The definition of the term "Acquiring Person" in Section 1 of the
Rights Agreement is hereby amended and restated in its entirety as follows:
"`ACQUIRING PERSON' means any Person who, together with all Affiliates
and Associates of such Person, shall at any time after June 14, 1999 be
the Beneficial Owner of 15% or more of the shares of Common Stock then
outstanding, but shall not include an Exempt Person; provided, however,
that (a) if the Board determines in good faith that a Person who would
otherwise be an "Acquiring Person" became the Beneficial Owner of a
number of shares of Common Stock such that the Person would otherwise
qualify as an "Acquiring Person" inadvertently (including, without
limitation, because (i) such Person was unaware that it beneficially
owned a percentage of Common Stock that would otherwise cause such
Person to be an "Acquiring Person" or (ii) such Person was aware of the
extent of its Beneficial Ownership of Common Stock but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Agreement) and without any intention of changing or influencing control
of the Company, and, if required by the Board of Directors of the
Company, such Person shall have divested itself, as soon as practicable
(as determined by the Board of Directors of the Company), of Beneficial
Ownership of a sufficient number of shares of Common Stock so that such
Person would no longer otherwise qualify as an "Acquiring Person," then
such Person shall not be deemed to be or have become an "Acquiring
Person," for any purposes of this Agreement because of such Person's
and its Affiliates' and Associates' Beneficial Ownership of shares of
Common Stock as of such date; and (b) no Person shall become an
"Acquiring Person" as the result of any acquisition of shares of Common
Stock by the Company which, by reducing the number of shares of Common
Stock outstanding, increases the proportionate number of shares of
Common Stock beneficially owned by such Person to 15% or more of the
shares of Common Stock then outstanding; provided, however, that if a
Person shall become the Beneficial Owner of 15% or more of the shares
of Common Stock then outstanding by reason of such share acquisition by
the Company and shall thereafter become the Beneficial Owner of any
additional shares of Common Stock (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common
Stock or pursuant to a split or subdivision of the outstanding Common
Stock), then such Person shall be deemed to be an "Acquiring Person"
unless upon becoming the Beneficial
Owner of such additional shares of Common Stock such Person does not
beneficially own 15% or more of the shares of Common Stock then
outstanding."
2. 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.
3. Capitalized terms used without other definition in this Amendment
No. 1 to the Rights Agreement shall be used as defined in the Rights Agreement.
4. This Amendment No. 1 to the Rights Agreement 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,
except that the rights and obligations of the Rights Agent shall be governed by
the laws of the State of New York.
5. 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.
6. This Amendment No. 1 to the Rights Agreement shall be effective as
of the execution and delivery hereof, 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.
7. Exhibit B to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment No. 1 to the Rights Agreement.
Very truly yours,
X.X. XXXXXXXX TOBACCO HOLDINGS, INC.
By: /s/ XxXxxx X. Xxxxx, III
-----------------------------------------
Name: XxXxxx X. Xxxxx, III
Title: Vice President, Deputy General Counsel
and Secretary
Accepted and agreed to as of the
effective time specified above:
THE BANK OF NEW YORK
By: /s/ Eon X. Xxxxxxx
-----------------------------
Name: Eon X. Xxxxxxx
Title: Vice President
