Exhibit 4.1
EXECUTION VERSION
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AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This Amendment No. 2, dated as of September 21, 2002 (this
"AMENDMENT"), to the Rights Agreement, dated as of October 27, 1998, as amended
(the "RIGHTS AGREEMENT"), by and between X.X. Xxxxxxxxx Corporation, a Delaware
corporation ("RHD"), and The Bank of New York, as successor Rights Agent (the
"RIGHTS AGENT").
RECITALS:
A. RHD and the Rights Agent are parties to the Rights Agreement; and
B. RHD and the Rights Agent wish to further amend the Rights Agreement
as set forth herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Amendments to Section 1.
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(a) SECTION 1 of the Rights Agreement is hereby amended by
adding the following paragraphs immediately after the last sentence in the
definition of "Acquiring Person":
"Notwithstanding anything in this Agreement to the contrary, no
Purchaser shall be deemed to be an Acquiring Person solely by reason of
or as a result of the (i) approval, execution or delivery of the
Purchase Agreement or the Ancillary Documents or the consummation of
the transactions contemplated by any of them, including without
limitation (A) the issuance of the Preferred Shares (including without
limitation as a result of the share adjustment described in Section
2.04 of the Purchase Agreement) or the Warrants, (B) the conversion or
redemption of the Preferred Shares, (C) the exercise of the Warrants,
or (D) the exercise of the preemptive rights described in Section 11 of
the Certificate of Designations, in each case in accordance with the
respective terms thereof, (ii) the Beneficial Ownership of Ordinary
Course Shares, (iii) the Beneficial Ownership of shares of Common Stock
held by such Purchaser as of the date hereof, or (iv) the Purchasers
becoming the Beneficial Owners of additional shares of Common Stock
representing not more than 2% of the then-outstanding shares of Common
Stock (other than (1) 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 or (2) pursuant to
any transaction described in clauses (i) - (iii) of this paragraph).
Notwithstanding anything in this Agreement to the contrary, a Person
that acquires Beneficial Ownership of shares of Common Stock from a
Purchaser as a result of a transfer of Preferred Shares and/or Warrants
pursuant to and in accordance with Section 4.10 of the Purchase
Agreement shall not be deemed to be an Acquiring Person solely by
reason of or as a result of any of the transactions described in clause
(i) of the preceding paragraph in accordance with the terms thereof."
(b) SECTION 1 of the Rights Agreement is hereby further
amended by adding the following additional definitions:
"Ancillary Documents" has the meaning set forth in the
Purchase Agreement.
"Certificate of Designations" has the meaning set forth in the
Purchase Agreement.
"Ordinary Course Shares" shall mean shares of Common Stock,
the beneficial ownership of which is acquired in connection with (i)
the activities of a broker or dealer registered under Section 15 of the
Exchange Act, including, but not limited to, the acquisitions of
beneficial ownership of such shares as a result of any market-making or
underwriting activities (including any shares acquired for the
investment account of a broker or dealer in connection with such
underwriting activities), (ii) the acquisition of beneficial ownership
of shares of Common Stock as a result of the exercise of investment or
voting discretion authority with respect to any of its customer
accounts, (iii) the acquisition in good faith of such shares in
connection with a debt previously contracted or (iv) the acquisition of
beneficial ownership of shares of Common Stock as a result of asset
management activities.
"Preferred Shares" has the meaning set forth in the Purchase
Agreement.
"Purchase Agreement" means the Preferred Stock and Warrant
Purchase Agreement, dated as of September 21, 2002, by and among the
Company and the Purchasers, as it may be amended from time to time.
"Purchasers" means each of GS Capital Partners 2000, L.P., GS
Capital Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH &
Co. Beteiligungs KG, GS Capital Partners 2000 Employee Fund 2000, L.P.
and their respective Affiliates, Associates, successors and assigns to
all or a substantial part of the respective businesses of each of the
foregoing and each of their respective partners, stockholders, members,
officers and directors.
"Warrants" has the meaning set forth in the Purchase
Agreement.
2. NO OTHER AMENDMENTS. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
3. GOVERNING LAW. 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, except that the
rights and obligations of the Rights Agent shall be governed by the State of New
York.
4. JURISDICTION. The parties agree that all actions and proceedings
arising out of this Amendment or any of the transactions contemplated hereby,
shall be brought in the United States District Court of the Southern District of
New York or in a New York State Court in the County of New York and that, in
connection with any such action or proceeding, submit to the
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jurisdiction of, and venue in, such court. Each of the parties hereto also
irrevocably waive all right to trial by jury in any action proceeding or
counterclaim arising out of this Amendment or the transactions contemplated
hereby.
5. COUNTERPARTS. This Amendment 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 one and the
same instrument.
6. DESCRIPTIVE HEADINGS. The captions herein are included for
convenience of reference only, do not constitute a part of this Agreement and
shall be ignored in the construction and interpretation hereof.
7. OTHER DEFINED TERMS. Capitalized terms used without other definition
in this Amendment are used as defined in the Rights Agreement.
8. EFFECTIVENESS. This Amendment shall be effective as of, and
immediately prior to, the execution and delivery of the Purchase 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 TO THE RIGHTS AGREEMENT. Exhibits B and C to the Rights
Agreement shall be deemed amended in a manner consistent with this Amendment.
[Signatures on following page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Vice President and General Counsel
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx Xxxxx
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Name: Xxxxxxxxx Xxxxx
Title: Assistant Vice President
