AMENDMENT NO. 2 TO RIGHTS AGREEMENT
Exhibit
4.1
AMENDMENT
NO. 2
TO
This
Amendment No. 2 to Rights Agreement (this “Amendment”),
dated
as of January 24, 2006, by and between Xxxxx Corporation (“Xxxxx”)
and
Computershare Trust Company, N.A. (formerly EquiServe Trust Company, N.A.)
as
Rights Agent (the “Rights
Agent”),
amends the Rights Agreement dated as of July 18, 2000 by and between Xxxxx
and
Fleet National Bank, as amended by Amendment to Rights Agreement, dated as
of
April 30, 2002, by which EquiServe Trust Company, N.A. succeeded Fleet National
Bank as Rights Agent (the Rights Agreement, as amended, and all exhibits thereto
hereinafter referred to, are collectively referred to as the “Rights
Agreement”).
Capitalized terms not defined herein shall have the meanings given to them
in
the Rights Agreement.
WHEREAS,
under Section 27 of the Rights Agreement, Xxxxx has the sole and absolute
discretion to amend the Rights Agreement at any time that the Rights are
redeemable, and the Rights are currently redeemable; and
WHEREAS,
Xxxxx wishes to amend the Rights Agreement to (a) remove the provisions
requiring the approval of “Continuing Directors” for certain actions under the
Rights Agreement and (b) make certain other changes deemed desirable by
Xxxxx;
NOW,
THEREFORE, in consideration of the foregoing and the respective covenants and
agreements set forth in the Rights Agreement and this Amendment, the parties
hereto agree as follows:
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1.
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Amendments
to Remove “Continuing Directors” Requirement.
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(a)
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Section
1 of the Rights Agreement is hereby amended by deleting the definition
of
“Continuing Director.”
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(b)
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Section
1 of the Rights Agreement is hereby amended by deleting the phrase
“and
provided,
further,
that if there is at least one Continuing Director then in office
and the
Board of Directors, with the concurrence of a majority of the Continuing
Directors then in office, determines in good faith that a Person
that
would otherwise be an “Acquiring Person” has become such
inadvertently”
in the first paragraph of the definition of “Acquiring Person” and
replacing such deleted phrase with the phrase: “and
provided,
further,
that if the Board of Directors of the Company, with the concurrence
of a
majority of the members of the Board of Directors who are not, and
are not
representatives, nominees, Affiliates or Associates of, such Person
or an
Acquiring Person, determines in good faith that a Person that would
otherwise be an “Acquiring Person” has become such
inadvertently.”
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(c)
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Section
1 of the Rights Agreement is hereby amended by deleting the last
sentence
in the definition of “Distribution Date” and replacing such deleted
sentence with the sentence: “The
Board of Directors of the Company may, to the extent set forth in
the
preceding sentence, defer the date set forth in clause (i) or (ii)
of the
preceding sentence to a specified later date or to an unspecified
later
date to be determined by a subsequent action or event (but in no
event to
a date later than the close of business on the tenth day after the
first
occurrence of a Triggering Event).”
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(d)
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Section
1 of the Rights Agreement is hereby amended by deleting the words
“Continuing
Directors”
in the definition of “Permitted Offer” and replacing such deleted words
with the phrase: “members
of the Board of Directors of the Company.”
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(e)
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Section
7(e) of the Rights Agreement is hereby amended by deleting the first
instance of the words “a
majority of the Continuing
Directors”
and replacing such deleted words with the phrase: “the
Board of Directors of the Company.”
Section 7(e) of the Rights Agreement is hereby further amended by
deleting
the phrase “(or
a majority of the Continuing Directors determines).”
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(f)
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Section
23(a) of the Rights Agreement is hereby amended by deleting the proviso
in
the first sentence thereof and replacing such proviso with: “provided,
however,
if the Board of Directors of the Company authorizes redemption of
the
Rights after the time a Person becomes an Acquiring Person, the Rights
may
be redeemed only if the Board of Directors determines in good faith
that
such redemption is in the best interests of the Company and its
stockholders (other than the Acquiring Person).”
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(g)
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Section
24(a) of the Rights Agreement is hereby amended by deleting the phrase
“If
there is at least one Continuing Director then in office, the Board
of
Directors of the Company, with the concurrence of a majority of the
Continuing Directors then in office, may”
and replacing such deleted phrase with the phrase: “The
Board of Directors of the Company may”.
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(h)
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Section
27 of the Rights Agreement is hereby amended by deleting the last
sentence
thereof and replacing such deleted sentence with the following two
sentences: “Action
by the Company to approve any amendment or supplement to this Agreement
must be approved by a majority of the whole Board of Directors.
Notwithstanding anything contained in this Agreement to the contrary,
(1)
at any time after the time a Person becomes an Acquiring Person,
this
Agreement may be supplemented or amended only if the Board of Directors
determines that such supplement or amendment is, in their judgment,
in the
best interests of the Company and its stockholders, and (2) no supplement
or amendment shall be made that decreases the Redemption
Price.”
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(i)
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Section
29 of the Rights Agreement is hereby amended by deleting each instance
of
the following phrases:
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“and,
where specifically provided for herein, the concurrence of a majority of the
Continuing Directors”
2
“(with,
where specifically provided for herein, the concurrence of a majority of the
Continuing Directors)”
“(or
the Continuing Directors)”
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(j)
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Section
31 of the Rights Agreement is hereby amended by deleting the phrase
“(with
the concurrence of a majority of the Continuing
Directors)”.
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(k)
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Exhibit
B to the Rights Agreement, the form of Rights Certificate, is hereby
amended by deleting the last sentence of the sixth paragraph of the
form
of Rights Certificate, which is the sentence that reads “Under
certain circumstances set forth in the Rights Agreement, the decision
to
redeem the Rights shall require the concurrence of a majority of
the
Continuing Directors (as defined in the Rights
Agreement).”
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2.
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Further
Amendment to Definition of “Acquiring Person.”
Section 1 of the Rights Agreement is hereby amended by deleting the
second
paragraph of the definition of “Acquiring
Person.”
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3.
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Amendment
to Definition of “Associate.”
Section 1 of the Rights Agreement is hereby amended by inserting
the
following proviso at the end of clause (1) in the definition of
“Associate”:
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“,
provided, however, that a corporation, firm, partnership, association,
unincorporated organization or other entity shall not be an “Associate” of a
Person if and for so long as (A) such Person has reported Beneficial Ownership
of the common stock or other equity interests of such corporation, firm,
partnership, association, unincorporated organization or other entity on
Schedule 13G under the Exchange Act, (B) such Person satisfies the criteria
set
forth in both Rule 13d-1(b)(1)(i) and Rule 13d-1(b)(1)(ii) under the Exchange
Act, (C) such Person has not reported and is not required to report such
Beneficial Ownership on Schedule 13D under the Exchange Act and (D) such Person
has not reported and is not required to report Beneficial Ownership of Common
Stock on Schedule 13D under the Exchange Act”
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4.
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Amendments
Relating to Rights Agent.
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(a)
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Section
26 of the Rights Agreement is hereby amended to change the identification
of the Rights Agent from “Fleet
National Bank c/o EquiServe
Limited Partnership”
to “Computershare
Trust Company, N.A.”
and to change the address of the Rights Agent to 000 Xxxxxx Xxxxxx,
Xxxxxx, XX 00000.
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3
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(b)
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The
Rights Agreement is hereby amended by adding a new Section 35 that
reads
as follows:
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“Section
35. Force
Majeure.
Notwithstanding anything to the contrary contained herein, the Rights Agent
shall not be liable for any delays or failures in performance resulting from
acts beyond its reasonable control, including without limitation acts of God,
terrorist acts, interruptions or malfunction of computer facilities or loss
of
data due to power failures or mechanical difficulties with information storage
or retrieval systems, labor difficulties, war or civil
unrest.”
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5.
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Amendment
to Restate Exhibit C to the Rights Agreement.
The Rights Agreement is hereby amended by deleting Exhibit C to Rights
Agreement in its entirety and replacing it with the Summary of Rights
attached to this Amendment as Exhibit
A.
The Summary of Rights previously distributed to holders of Common
Stock
need not be replaced or exchanged, and may continue as the Summary
of
Rights contemplated by Section 3(b) of the Rights
Agreement.
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6.
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Effect
on Agreement.
Upon execution of this Amendment, each reference in the Rights Agreement
to “the Agreement,” “hereunder,” “hereof,” “herein” or words of similar
import, and each similar reference in any document related thereto,
or
executed in connection therewith, shall mean and be a reference to
the
Rights Agreement as amended by this Amendment, and the Rights Agreement
and this Amendment shall be read together and construed as one single
instrument. This Amendment is intended to amend the Rights Agreement.
Except as specifically set forth herein, all other terms and conditions
of
the Rights Agreement shall remain in full force and effect without
modification.
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7.
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Counterparts.
This Amendment may be executed in multiple counterparts, and by the
different parties hereto in separate counterparts, each of which
when
executed shall be deemed to be an original but all of which taken
together
shall constitute one and the same
agreement.
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4
Executed
as of the date first written above.
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XXXXX
CORPORATION:
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By
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/s/
Xxxxxx X. Xxxx
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Xxxxxx
X. Xxxx
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President
and Chief Executive Officer
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COMPUTERSHARE
TRUST COMPANY, N.A.
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(formerly
EquiServe Trust Company, N.A.):
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By
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/s/
Xxxxxx X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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Managing
Director
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5
EXHIBIT
A
to
Amendment
No. 2 to Rights Agreement
Exhibit
C
to
Rights
Agreement
Under
certain circumstances set forth in the Rights Agreement, Rights beneficially
owned by or transferred to any Person who is, was or becomes an Acquiring Person
or an Affiliate or Associate thereof (as such terms are defined in the Rights
Agreement), and certain transferees thereof, will become null and void and
will
no longer be transferable.
SUMMARY
OF RIGHTS
On
July
18, 2000, the Board of Directors of Xxxxx Corporation (the “Company”) declared a
dividend of one right (“Right”) for each outstanding share of the Company’s
Common Stock, par value $.10 per share (“Common Stock”), to stockholders of
record at the close of business on August 15, 2000. Each Right entitles the
registered holder to purchase from the Company a unit consisting of one
one-hundredth of a share (a “Fractional Share”) of Series A Junior Participating
Preferred Stock, par value $1.00 per share (the “Preferred Stock”), at a
purchase price of $92 per Fractional Share, subject to adjustment (the “Purchase
Price”). The description and terms of the Rights are set forth in a Rights
Agreement dated as of July 18, 2000 as it may from time to time be supplemented
or amended (the “Rights Agreement”) between the Company and Computershare Trust
Company, N.A., as successor Rights Agent.
Initially,
the Rights will be evidenced by the certificates representing outstanding shares
of Common Stock, and no separate certificates for the Rights (“Rights
Certificates”) will be distributed. The Rights will separate from the Common
Stock and a “Distribution Date” will occur, with certain exceptions, upon the
earlier of (i) ten days following a public announcement that a person or
group of affiliated or associated persons (an “Acquiring Person”) has acquired,
or obtained the right to acquire, beneficial ownership of 15% or more of the
outstanding shares of Common Stock (the date of the announcement being the
“Stock Acquisition Date”), or (ii) ten business days following the
commencement of a tender offer or exchange offer that would result in a person’s
becoming an Acquiring Person. In certain circumstances, the Distribution Date
may be deferred by the Board of Directors. Certain inadvertent acquisitions
will
not result in a person’s becoming an Acquiring Person if the person promptly
divests itself of sufficient Common Stock. Until the Distribution Date,
(a) the Rights will be evidenced by the Common Stock certificates (together
with a copy of this Summary of Rights or bearing the notation referred to below)
and will be transferred with and only with such Common Stock certificates,
(b) new Common Stock certificates issued after July 18, 2000 will contain a
notation incorporating the Rights Agreement by reference and (c) the
surrender for transfer of any certificate for Common Stock (with or without
a
copy of this Summary of Rights) will also constitute the transfer of the Rights
associated with the Common Stock represented by such
certificate.
1
The
Rights are not exercisable until the Distribution Date and will expire at the
close of business on July 18, 2010, unless earlier redeemed or exchanged by
the
Company as described below.
As
soon
as practicable after the Distribution Date, Rights Certificates will be mailed
to holders of record of Common Stock as of the close of business on the
Distribution Date and, from and after the Distribution Date, the separate Rights
Certificates alone will represent the Rights. All shares of Common Stock issued
prior to the Distribution Date will be issued with Rights. Shares of Common
Stock issued after the Distribution Date in connection with certain employee
benefit plans or upon conversion of certain securities will be issued with
Rights. Except as otherwise determined by the Board of Directors, no other
shares of Common Stock issued after the Distribution Date will be issued with
Rights.
In
the
event (a “Flip-In Event”) that a person becomes an Acquiring Person except
pursuant to a tender or exchange offer for all outstanding shares of Common
Stock at a price and on terms that a majority of the independent members of
the
Board of Directors of the Company determines to be fair to and otherwise in
the
best interests of the Company and its stockholders (a “Permitted Offer”)), each
holder of a Right will thereafter have the right to receive, upon exercise
of
such Right, a number of shares of Common Stock (or, in certain circumstances,
cash, property or other securities of the Company) having a Current Market
Price
(as defined in the Rights Agreement) equal to two times the exercise price
of
the Right. Notwithstanding the foregoing, following the occurrence of any
Triggering Event, all Rights that are, or (under certain circumstances specified
in the Rights Agreement) were, beneficially owned by or transferred to an
Acquiring Person (or by certain related parties) will be null and void in the
circumstances set forth in the Rights Agreement. However, Rights are not
exercisable following the occurrence of any Flip-In Event until such time as
the
Rights are no longer redeemable by the Company as set forth below.
For
example, at an exercise price of $92 per Right, each Right not owned by an
Acquiring Person (or by certain related parties) following an event set forth
in
the preceding paragraph would entitle its holder to purchase $184 worth of
Common Stock (or other consideration, as noted above), based upon its then
Current Market Price, for $92. Assuming that the Common Stock had a Current
Market Price of $50 per share at such time, the holder of each valid Right
would
be entitled to purchase approximately 3.7 shares of Common Stock for $92, or
$25
per share.
In
the
event (a “Flip-Over Event”) that, at any time from and after the time an
Acquiring Person becomes such, (i) the Company is acquired in a merger or
other business combination transaction (other than certain mergers that follow
a
Permitted Offer), or (ii) 50% or more of the Company’s assets or earning
power is sold or transferred, each holder of a Right (except Rights that are
voided as set forth above) shall thereafter have the right to receive, upon
exercise, a number of shares of common stock of the acquiring company having
a
Current Market Price equal to two times the exercise price of the Right. Flip-In
Events and Flip-Over Events are collectively referred to as “Triggering
Events.”
2
The
number of outstanding Rights associated with a share of Common Stock, or the
number of Fractional Shares of Preferred Stock issuable upon exercise of a
Right
and the Purchase Price, are subject to adjustment in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock occurring prior to the Distribution Date. The Purchase Price payable,
and
the number of Fractional Shares of Preferred Stock or other securities or
property issuable, upon exercise of the Rights are subject to adjustment from
time to time to prevent dilution in the event of certain transactions affecting
the Preferred Stock.
With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments amount to at least 1% of the Purchase Price. No
fractional shares of Preferred Stock that are not integral multiples of a
Fractional Share are required to be issued upon exercise of Rights and, in
lieu
thereof, an adjustment in cash may be made based on the market price of the
Preferred Stock on the last trading date prior to the date of exercise. Pursuant
to the Rights Agreement, the Company reserves the right to require prior to
the
occurrence of a Triggering Event that, upon any exercise of Rights, a number
of
Rights be exercised so that only whole shares of Preferred Stock will be
issued.
At
any
time until ten days following the first date of public announcement of the
occurrence of a Flip-In Event, the Company may redeem the Rights in whole,
but
not in part, at a price of $0.01 per Right, payable, at the option of the
Company, in cash, shares of Common Stock or such other consideration as the
Board of Directors may determine. Immediately upon the effectiveness of the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and the only right of the holders of Rights will be to receive
the $0.01 redemption price.
At
any
time after the occurrence of a Flip-In Event and prior to a person’s becoming
the beneficial owner of 50% or more of the shares of Common Stock then
outstanding or the occurrence of a Flip-Over Event, the Company may exchange
the
Rights (other than Rights owned by an Acquiring Person or an affiliate or an
associate of an Acquiring Person, which will have become void), in whole or
in
part, at an exchange ratio of one share of Common Stock, and/or other equity
securities deemed to have the same value as one share of Common Stock, per
Right, subject to adjustment.
Until
a
Right is exercised, the holder thereof, as such, will have no rights as a
stockholder of the Company, including, without limitation, the right to vote
or
to receive dividends. While the distribution of the Rights should not be taxable
to stockholders or to the Company, stockholders may, depending upon the
circumstances, recognize taxable income in the event that the Rights become
exercisable for Common Stock (or other consideration) of the Company or for
the
common stock of the acquiring company as set forth above or are exchanged as
provided in the preceding paragraph.
Other
than the redemption price, any of the provisions of the Rights Agreement may
be
amended by the Board of Directors of the Company as long as the Rights are
redeemable. Thereafter, the provisions of the Rights Agreement other than the
redemption price may be amended by the Board of Directors in order to cure
any
ambiguity, defect or inconsistency, to make changes that do not materially
adversely affect the interests of holders of Rights (excluding the interests
of
any Acquiring Person), or to shorten or lengthen any time period under the
Rights Agreement; provided,
however,
that no
amendment to lengthen the time period governing redemption shall be made at
such
time as the Rights are not redeemable.
3
A
copy of
the Rights Agreement has been filed with the Securities and Exchange Commission
as an exhibit to a Current Report on Form 8-K. A copy of the Rights Agreement
is
available free of charge from the Company and the Rights Agent. This summary
description of the Rights does not purport to be complete and is qualified
in
its entirety by reference to the Rights Agreement, which is incorporated herein
by reference.
4
