Exhibit 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
This Amendment (the "Amendment"), dated as of May 5, 2005, is by and
between The Xxxxxx & Sessions Co., an Ohio corporation (the "Company"), and
National City Bank (the "Rights Agent").
RECITALS
A. The Company and the Rights Agent are currently parties to the Rights
Agreement, dated as of September 8, 1998 (the "Rights Agreement").
B. The Company desires to amend the Rights Agreement in accordance with
Section 27 thereof.
NOW, THEREFORE, the Company and the Rights Agent agree as follows:
1. AMENDMENT TO RIGHTS AGREEMENT.
The parties hereto agree that the Rights Agreement shall be amended as
provided below, effective as of the date of this Amendment:
(a) Subsection (a) of Section 1 of the Rights Agreement shall be
deleted in its entirety and replaced with the following:
"(a) "Acquiring Person" means any Person (other than the
Company or any Related Person) who or which, together with all
Affiliates and Associates of such Person, is the Beneficial
Owner of 20% or more of the then-outstanding Common Shares;
PROVIDED, HOWEVER, that a Person will not be deemed to have
become an Acquiring Person solely as a result of a reduction
in the number of Common Shares outstanding unless and until
such time as (i) such Person or any Affiliate or Associate of
such Person thereafter becomes the Beneficial Owner of
additional Common Shares representing 1% or more of the
then-outstanding Common Shares, other than as a result of a
stock dividend, stock split or similar transaction effected by
the Company in which all holders of Common Shares are treated
equally, or (ii) any other Person who is the Beneficial Owner
of Common Shares representing 1% or more of the
then-outstanding Common Shares thereafter becomes an Affiliate
or Associate of such Person. Notwithstanding the foregoing, if
the Directors of the Company determine in good faith that a
Person who would otherwise be an "Acquiring Person" as defined
pursuant to the foregoing provisions of this paragraph (a),
has become such inadvertently, and such Person divests as
promptly as practicable a sufficient number of Common Shares
so that such Person would no longer be an "Acquiring Person"
as defined pursuant to the foregoing provisions of this
paragraph (a), then such Person shall not be deemed to be an
"Acquiring Person" for any purposes of this Agreement."
(b) Subsection (h) of Section 1 of the Rights Agreement shall be
deleted in its entirety and replaced with the following:
"(h) "Distribution Date" means the earlier of: (i) the Close
of Business on the tenth calendar day following the Share
Acquisition Date, or (ii) the Close of Business on the tenth
Business Day (or, unless the Distribution Date shall have
previously occurred, such later date as may be specified by
the Directors of the Company) after the commencement of a
tender or exchange offer by any Person (other than the Company
or any Related Person), if upon the consummation thereof such
Person would be the Beneficial Owner of 20% or more of the
then-outstanding Common Shares."
2. MISCELLANEOUS.
(a) Except as otherwise expressly provided, or unless the context
otherwise requires, all capitalized terms used herein have the
meanings assigned to them in the Rights Agreement.
(b) The term "Agreement" as used in the Rights Agreement shall be
deemed to refer to the Rights Agreement as amended by this
Amendment. The Rights Agreement will not otherwise be
supplemented or amended by virtue of this Amendment, but shall
remain in full force and effect.
(c) Each party hereto waives any requirement under the Rights
Agreement that any additional notice be provided to it
pertaining to the matters covered by this Amendment.
(d) Exhibits B and C to the Rights Agreement shall be deemed
amended in a manner consistent with this Amendment.
(e) This Amendment will be deemed to be a contract made under the
internal substantive laws of the State of Ohio and for all
purposes will be governed by and construed in accordance with
the internal substantive laws of such State applicable to
contracts to be made and performed entirely within such State.
(f) This Amendment may be executed in any number of counterparts
and each of such counterparts will for all purposes be deemed
to be an original, and all such counterparts will together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this amendment to be duly
executed and attested, all as of the day and year first written above.
ATTEST: THE XXXXXX & SESSIONS CO.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx X. Xxxx
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Name: Xxxxxx Xxxxxxxx Name: Xxxxx X. Xxxx
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Title: Manager, Investor Relations and Title: Executive Vice President, Secretary,
Shareholder Communications Treasurer and Chief Financial Officer
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ATTEST: NATIONAL CITY BANK
AS RIGHTS AGENT
By: /s/ Xxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxxx
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Title: Administrative Assistant Title: Assistant Vice President
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