EXHIBIT 4.5
AMENDMENT NO. 2
TO
RIGHTS AGREEMENT
This Amendment No. 2 to the Rights Agreement (this "Amendment"),
effective as of February 5, 2004 is between Delphax Technologies, Inc., a
Minnesota corporation (the "Company"), and Xxxxx Fargo Bank Minnesota, N.A., as
rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a Rights
Agreement, dated as of March 22, 2002 (the "Rights Agreement"); and
WHEREAS, Section 27 of the Rights Agreement permits the amendment of the
Rights Agreement by the Company;
WHEREAS, pursuant to a resolutions duly adopted on January 12, 2004, the
Board of Directors of the company has authorized the amendment of the Rights
Agreement as set forth below; and
WHEREAS, the Board of Directors of the Company has determined that such
amendment is desirable and is consistent with the objectives of the Board of
Directors in connection with the original adoption of the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
set forth herein, the parties hereby agree as follows:
1. Amendment of Section 1(a). Section 1(a) of the Agreement is hereby
amended in full and replaced in its entirety by the following:
"(a) "Acquiring Person" shall mean any Person, other than an
Exempted Person, as defined below, (as such term is hereinafter defined)
who or which, together with all Affiliates and Associates (as such terms
are hereinafter defined) of such Person, shall be the Beneficial Owner
(as such term is hereinafter defined) of 15% or more of the Common
Shares of the Company then outstanding, but shall not include (i) the
Company, (ii) any wholly owned Subsidiary (as such term is hereinafter
defined) of the Company, (iii) any employee benefit plan of the Company
or of any Subsidiary of the Company, or (iv) any entity holding Common
Shares for or pursuant to the terms of any such plan described in clause
(iii) of this sentence. Notwithstanding the foregoing, no Person shall
become an "Acquiring Person" as the result of an acquisition of the
Common Shares by the Company which, by reducing the number of Common
Shares outstanding, increases the proportionate number of shares
beneficially owned by such Person to 15% or more of the Common Shares of
the Company then outstanding; provided, however, that if a Person,
together with all Affiliates or Associates of such Person, shall become
the Beneficial Owner of 15% or more of the Common Shares of the Company
then outstanding by reason of share acquisitions by the Company, and if
such Person or such Person's Affiliates or Associates, after such share
acquisitions by the Company, shall
become the Beneficial Owner of any additional Common Shares of the
Company, and, immediately after becoming the Beneficial Owner of such
additional Common Shares, such Person, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more
of the Common Shares of the Company then outstanding, then such Person
(unless such Person shall be (1) the Company, (2) any wholly owned
Subsidiary of the Company, (3) any employee benefit plan of the Company
or of any Subsidiary of the Company, or (4) any entity holding Common
Shares for or pursuant to the terms of any such plan described in clause
(3) of this sentence) shall be deemed an "Acquiring Person." An entity
other than the Company or any wholly owned Subsidiary of the Company
holding Common Shares for or pursuant to the terms of an employee
benefit plan of the Company or of any Subsidiary of the Company and in
addition being the Beneficial Owner of Common Shares that are not held
for or pursuant to the terms of any such plan shall be deemed to
constitute an Acquiring Person, notwithstanding anything herein stated,
if, but only if, it, together with its Affiliates and Associates, shall
be the Beneficial Owner of 15% or more, exclusive of those Common Shares
held by it for or pursuant to the terms of any such plan, of the Common
Shares then outstanding. Notwithstanding the foregoing, if the Board of
Directors of the Company determines 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 (including, without limitation, because (A) such Person
was unaware that it beneficially owned a percentage of the 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 but
had no actual knowledge of the consequences of such Beneficial Ownership
under this Agreement), and without any intention of changing or
influencing control of the Company, 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."
2. Addition of Section 1(p). Section 1(p) of the Agreement is hereby
amended to read as follows:
"(p) "Exempted Person" shall mean:
(i) the persons known as of the date hereof as
(Xxxxxxx X. Xxxxxxx and Xxxx X. Xxxxxxx (collectively and
individually, the "Brenners"), unless and until such time as
(1) the Brenners, together directly or indirectly, becomes the
Beneficial Owner of more than the lesser of (X) 19.9% of the
Common Shares then outstanding, or (2) the Brenners breach, and
the board of directors of the Company determines that the
Brenners have breached, any terms and conditions of that
certain Agreement dated as of the date hereof among the Company
and the Brenners, in which case the Brenners shall cease to be
an "Exempted Person"; and
(ii) Xxxx Capital Partners Fund, LLC, ("Xxxx
Capital"), and its affiliates who are its assignees
(collectively and individually the "Investors") that are
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parties to that certain Securities Purchase Agreement dated as
of February 4, 2004 with the Company (the "Securities Purchase
Agreement") unless and until such time as Xxxx or the Investors
directly or indirectly become the Beneficial Owners of more
than 25.0% of the Common Shares, or Xxxx or the Investors
breach, and the Board of Directors of the Company determines
that Xxxx or the Investors have breached any term or condition
of the Securities Purchase Agreement, in which case Xxxx and
the Investors shall cease to be an "Exempted Person".
3. Effectiveness. This Amendment shall be deemed effective as of
February 5, 2004 as if executed by both parties hereto on such date. Except as
amended hereby, the Rights Agreement shall remain in full force and effect and
shall be otherwise unaffected hereby.
4. Miscellaneous. This Amendment shall be deemed to be contract made
under the laws of the State of Minnesota 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 term, 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 affected, impaired
or invalidated. Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Rights Agreement.
5. Certification. The undersigned officer of the Company certifies by
execution hereof that this Amendment is in compliance with the terms of Section
27 of the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date set forth above.
DELPHAX TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
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Title: Vice President, Chief Financial Officer
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and Secretary
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XXXXX FARGO BANK MINNESOTA, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
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Name: Xxxxxxxx Xxxxxxxx
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Title: Account Manager
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