EXHIBIT 4.1
AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT
Amendment No. 1 to the Rights Agreement, dated as of June 15, 2002, by and
between Xxxxxx Holdings, Inc. (the "Company") and Mellon Investor Services LLC
(the "Rights Agent").
WHEREAS, the Company and the Rights Agent have entered into that certain
Rights Agreement, dated as of July 30, 2001 (the "Rights Agreement"); and
WHEREAS, on June 15, 2002, the Company, by resolution adopted by its Board
of Directors, determined to amend the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
set forth herein, the parties hereto do hereby agree as follows:
1. The Rights Agreement is hereby amended as follows:
(a) The definition of "Acquiring Person" in Section 1 of the Rights
Agreement is hereby amended and restated in its entirety as follows:
"'ACQUIRING PERSON' shall mean any Person who or which, alone or
together with all Affiliates and Associates of such Person, shall be
the Beneficial Owner of more than 20% of the Common Shares then
outstanding, but shall not include (a)(i) the Company, any Subsidiary
of the Company, any employee benefit or compensation plan of the
Company or of any of its Subsidiaries or any Person holding Common
Shares for or pursuant to the terms of any such employee benefit or
compensation plan or for the purpose of funding other employee
benefits for employees of the Company or of any Subsidiary of the
Company and (ii) until immediately after the distribution of the
Common Shares of the Company by the sole stockholder of the Company,
Xxxxxxx-Xxxxx Squibb Company ("XXXXXXX-XXXXX SQUIBB"), to the
stockholders of Xxxxxxx-Xxxxx Squibb, Xxxxxxx-Xxxxx Squibb or any
Affiliate or Associate thereof (each Person covered by clauses (a)(i)
and (a)(ii), an "EXEMPT PERSON"), or (b) any such Person that the
Board of Directors of the Company determines has become the Beneficial
Owner of more than 20% of the Common Shares at the time outstanding
solely as the result of (i) a change in the aggregate number of Common
Shares outstanding since the last date on which such Person acquired
Beneficial Ownership of any Common Shares (PROVIDED, HOWEVER, that if
a Person becomes the Beneficial Owner of more than 20% of the Common
Shares then outstanding by reason of such change in the aggregate
number of Common Shares outstanding and thereafter becomes the
Beneficial Owner of any additional Common Shares (other than pursuant
to a dividend or distribution paid or made
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by the Company on the outstanding Common Shares or pursuant to a split
or subdivision of the outstanding Common Shares), then such Person
shall be deemed to be an "Acquiring Person" unless upon becoming the
Beneficial Owner of such additional Common Shares such Person does not
beneficially own more than 20% of the shares of Common Shares then
outstanding), (ii) the acquisition by such Person or one or more of
its Affiliates or Associates of Beneficial Ownership of additional
Common Shares if such acquisition was made in the good faith belief
that such acquisition would not (A) cause the Beneficial Ownership by
such Person, together with its Affiliates and Associates, to exceed
20% of the Common Shares outstanding at the time of such acquisition
and such good faith belief was based on the good faith reliance on
information contained in publicly filed reports or documents of the
Company that are inaccurate or out-of-date or (B) otherwise cause a
Distribution Date or the adjustment provided for in Section 11(a) to
occur, or (iii) the acquisition by such Person or one or more of its
Affiliates or Associates of Beneficial Ownership of additional Common
Shares if the Board of Directors of the Company determines that such
acquisition was made in good faith without the knowledge by such
Person or one or more of its Affiliates or Associates that such Person
would thereby become an Acquiring Person and without the intention of
changing or influencing control of the Company (including, without
limitation, because (A) such Person was unaware that it beneficially
owned a percentage of Common Shares that would otherwise cause such
Person to be an Acquiring Person or (B) such Person was aware of the
extent of its Beneficial Ownership of Common Shares but had no actual
knowledge of the consequences of such Beneficial Ownership under this
Rights Agreement), which determination of the Board of Directors of
the Company shall be conclusive and binding on such Person, the Rights
Agent, the holders of the Rights and all other Persons.
Notwithstanding clause (b)(ii) or (b)(iii) of the prior sentence, if
any Person that is not an Acquiring Person due to such clause (b)(ii)
or (b)(iii) does not reduce its percentage of Beneficial Ownership of
Common Shares to 20% or less by the Close of Business on the tenth
calendar day, or such other calendar day as determined, in good faith,
by the Board of Directors of the Company, after notice from the
Company (the date of notice being the first day) that such Person's
Beneficial Ownership of Common Shares would make it an Acquiring
Person, such Person shall, at the end of the later of (x) such ten
calendar day period and (y) such other calendar day as determined by
the Board of Directors of the Company, become an Acquiring Person (and
such clause (b)(ii) or (b)(iii) shall no longer apply to such Person).
For purposes of this definition, the determination whether any Person
acted in "good faith" shall be conclusively determined by the Board of
Directors of the Company."
(b) All references to "15%" in Section 3(b) or any other section of the
Rights Agreement relating to the Beneficial Ownership of the Common Shares shall
be deemed to be references to "20%."
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.
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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;
provided, however, that all provisions regarding the rights, duties and
obligations of the Rights Agent shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be
performed entirely within such State.
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. All references to the Rights Agreement shall, from and after the execution
of this Amendment No. 1 to the Rights Agreement, be deemed to be references to
the Rights Agreement as amended hereby.
7. Exhibits B and C to the Rights Agreement shall be deemed amended in a
manner consistent with this Amendment No. 1 to the Rights Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to the
Rights Agreement as of the date written above.
XXXXXX HOLDINGS, INC.
By:
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MELLON INVESTOR SERVICES LLC
By:
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