EXHIBIT 4.1
AMENDMENT NO. 1 TO RIGHTS AGREEMENT
AMENDMENT NO. 1 TO RIGHTS AGREEMENT, dated as of July 1,
1997 (the "Amendment"), by and between Xxxx Group, Inc., a Delaware corporation
(the "Company"), and BankBoston, N.A. (formerly the First National Bank of
Boston), a national banking association (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent are parties to a
Rights Agreement dated as of July 25, 1995 (the "Rights Agreement");
WHEREAS, Fremont Acquisition Company LLC, a Delaware limited
liability company (the "Parent"), Xxxx Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent (the "Purchaser"), and the
Company have entered into an Agreement and Plan of Merger, dated as of July 1,
1997 (the "Agreement and Plan of Merger"), pursuant to which Purchaser will
commence a tender offer (the "Offer") for all outstanding shares of the
Company's common stock, and for all outstanding shares of the Company's Class B
Preferred Stock, Series D, and, following consummation of the Offer, Purchaser
will merge with and into the Company (the "Merger");
WHEREAS, the Board of Directors of the Company (including a
majority of the Continuing Directors (as defined in the Rights Agreement)) has
approved the Agreement and Plan of Merger, the Offer and the Merger; and
WHEREAS, pursuant to Section 26 of the Rights Agreement, the
Board of Directors of the Company has determined that an amendment to the Rights
Agreement as set forth herein is necessary and desirable to reflect the
foregoing and the Company and the Rights Agent desire to evidence such amendment
in writing.
Accordingly, the parties agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, neither Parent nor Purchaser shall be deemed to be an
"Acquiring Person" solely by virtue of (i) the announcement or making
of the Offer (as defined in the Agreement and Plan of Merger), (ii) the
acquisition of the Shares (as defined in the Agreement and Plan of
Merger) pursuant to the Offer or the Merger (as defined in the
Agreement and Plan of Merger), (iii) the execution of the Agreement and
Plan of Merger, or (iv) the consummation of
the other transactions contemplated by the Agreement and Plan of
Merger."
2. Amendment of Section 1(o). Section 1(o) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Distribution Date shall not be deemed to have occurred
solely as a result of: (i) the announcement or making of the Offer,
(ii) the acquisition of the Shares pursuant to the Offer or the Merger,
(iii) the execution of the Agreement and Plan of Merger, or (iv) the
consummation of the other transactions contemplated in the Agreement
and Plan of Merger."
3. Sections 1(qq). Section 1(qq) of the Rights Agreement is
hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, a Triggering Event shall not be deemed to have occurred as a
result of: (i) the announcement or making of the Offer, (ii) the
acquisition of the Shares pursuant to the Offer or the Merger, (iii)
the execution of the Agreement and Plan of Merger, or (iv) the
consummation of the other transactions contemplated in the Agreement
and Plan of Merger."
4. Sections 1(ss), (tt) and (uu). The following subsections
are hereby added after Section 1(rr) of the Rights Agreement:
"(ss) "Agreement and Plan of Merger" shall mean the Agreement
and Plan of Merger dated as of July 1, 1997 by and among Parent,
Purchaser and the Company, as it may be amended from time to time.
(tt) "Parent" shall mean Fremont Acquisition Company, LLC, a
Delaware limited liability company.
(uu) "Purchaser" shall mean Xxxx Acquisition Corporation, a
Delaware corporation and a wholly-owned subsidiary of Parent."
5. Amendment of Section 1(gg). Section 1(gg) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, (i) the announcement or making of the Offer, (ii) the
acquisition of the Shares by Parent or Purchaser pursuant to the Offer
or the Merger, (iii) the execution of the Agreement and Plan of Merger,
or (iv) the consummation of the other transactions contemplated in the
Agreement and Plan of Merger, shall not be deemed to be a Section
11(a)(ii) Event and shall not cause the Rights to be adjusted or
exercisable under this Agreement."
6. Amendment of Section 1(ii). Section 1(ii) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, (i) the announcement or making of the Offer, (ii) the
acquisition of the Shares by Parent or Purchaser pursuant to the Offer
or the Merger, (iii) the execution of the Agreement and Plan of Merger,
or (iv) the consummation of the other transactions contemplated in the
Agreement and Plan of Merger, shall not be deemed to be a Section 13
Event and shall not cause the Rights to be adjusted or exercisable
under this Agreement."
7. Amendment of Section 7(a). Section 7(a) of the Rights
Agreement is hereby amended by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the
contrary, the Rights shall automatically expire upon the acceptence of
Shares for payment pursuant to the Offer in accordance with the
Agreement and Plan of Merger and that the rights shall cease to be
exercisable upon the earlier of (i) the close of business on August 4,
2005 (the "Final Expiration Date"), (ii) the time at which the Rights
are redeemed as provided in Section 23 of this Rights Agreement, or
(iii) the acceptance of Shares for payment pursuant to the Offer in
accordance with the Agreement and Plan of Merger, if such acceptance
occurs (the earlier of (i), (ii) and (iii) being herein referred to as
the "Expiration Date")."
8. Effectiveness. This Amendment shall be deemed effective as
of the date hereof. Except as amended hereby, the Rights Agreement shall remain
in full force and effect and shall be otherwise unaffected by this Amendment.
9. Miscellaneous. 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. This Amendment may be executed in any
number of counterparts, 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. If any provision, covenant or restriction of
this Amendment is held by a court of competent jurisdiction or other authority
to be invalid, illegal or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Amendment shall remain in full force and
effect and shall in no way be effected, impaired or invalidated.
EXECUTED as of the date set forth above.
XXXX GROUP, INC.
/s/ D. Xxxxxx Xxxxxxxxxx
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Name: D. Xxxxxx Xxxxxxxxxx
Title: President and CEO
BANKBOSTON, N.A.
/s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Administration Manager
