Exhibit 4.1
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CONFIDENTIAL
AMENDMENT XX. 0
XXXXXXXX XX. 0, dated as of February 3, 2003 ("Amendment"), to the
Rights Agreement, dated as of May 17, 2002, between Xxxxxx Corporation, a
Delaware corporation (the "Corporation"), and Mellon Investor Services LLC, a
New Jersey limited liability company (the "Rights Agent") (as amended, the
"Rights Agreement").
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Corporation and the Rights Agent may from time to time supplement or amend the
Rights Agreement in accordance with Section 27 thereof; and
WHEREAS, the Corporation, Xxxxx Xxxxx International, Inc., a Florida
corporation ("Parent"), and Connor Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of Parent ("Merger Sub"), contemplate entering into an
Agreement and Plan of Merger (the "Merger Agreement"); and
WHEREAS, the Board of Directors of the Corporation has determined that
an amendment to the Rights Agreement as set forth herein is necessary and
desirable in connection with the execution and delivery of the Merger Agreement
and is consistent with the objectives of the Board of Directors of the
Corporation in adopting the Rights Agreement, and the Corporation and Rights
Agent desire to evidence such amendment in writing; and
WHEREAS, all actions necessary to make this Amendment valid and
enforceable have been performed and done, and the execution and delivery of this
Amendment by the Corporation and the Rights Agent have been in all respects duly
authorized by the Corporation and the Rights Agent.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein set forth, the parties thereto agree as follows:
1. The Rights Agreement is hereby amended as follows:
(i) Amendment of Section 1. Section 1 of the Rights Agreement
is supplemented to add the following definitions in the appropriate locations:
"Merger Sub" shall have the meaning set forth in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger,
dated as of February 3, 2003, by and among Parent, Merger Sub and
the Corporation, as it may be amended from time to time.
"Merger" shall have the meaning set forth in the Merger Agreement.
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"Parent" shall have the meaning set forth in the Merger Agreement.
(ii) Amendment of the definition of "Acquiring Person". The
second sentence of the definition of "Acquiring Person" in subsection 1(a) of
the Rights Agreement is amended and restated in its entirety as follows:
Notwithstanding the foregoing, (A) the term "Acquiring Person"
shall not include (i) the Corporation, (ii) any Subsidiary of the
Corporation, (iii) any employee benefit plan of the Corporation or
of any Subsidiary of the Corporation, (iv) any Person or entity
organized, appointed or established by the Corporation for or
pursuant to the terms of any such plan, (v) the Parent, Merger Sub
or any of their respective Affiliates or subsidiaries in each case
solely as a result of the Merger Agreement, the Merger and the
transactions contemplated thereby (including the public
announcement or disclosure thereof), (vi) any Person, who or which
together with all Affiliates and Associates of such Person becomes
the Beneficial Owner of 15% or more of the then outstanding Common
Shares as a result of the acquisition of Common Shares directly
from the Corporation, or (vii) any Grandfathered Stockholder and
(B) no Person shall be deemed to be an "Acquiring Person" either
(X) as a result of the acquisition of Common Shares by the
Corporation which, by reducing the number of Common Shares
outstanding, increases the proportional number of shares
beneficially owned by such Person together with all Affiliates and
Associates of such Person; except that if (i) a Person would
become an Acquiring Person (but for the operation of this
subclause X) as a result of the acquisition of Common Shares by
the Corporation, and (ii) after such share acquisition by the
Corporation, such Person, or an Affiliate or Associate of such
Person, becomes the Beneficial Owner of any additional Common
Shares, then such Person shall be deemed an Acquiring Person, or
(Y) if a Person did so inadvertently, (i) promptly after such
Person discovers that such Person would otherwise have become an
Acquiring Person (but for the operation of this subclause Y), such
Person notifies the Board of Directors that such Person did so
inadvertently and (ii) within 2 days after such notification, such
Person is the Beneficial Owner of less than 15% of the outstanding
Common Shares.
(iii) Amendment of the definition of "Interested Stockholder".
Subsection 1(k) is amended by adding the following sentence at the
end thereof:
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Notwithstanding the foregoing, the term "Interested Stockholder"
shall not include the Parent, Merger Sub or any of their
respective Affiliates or subsidiaries in each case solely as a
result of the Merger Agreement, the Merger and the transactions
contemplated thereby (including the public announcement or
disclosure thereof).
(iv) Amendment of the definition of "Distribution Date".
Subsection 3(a) is amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred as the
result of (i) the execution, delivery or performance of the Merger
Agreement or the consummation of the Merger or any of the other
transactions contemplated by the Merger Agreement, or (ii) the
public announcement or disclosure of the Merger Agreement or any
of the other transactions contemplated by the Merger Agreement.
(v) Amendment of the definition of "Shares Acquisition Date".
The definition of "Shares Acquisition Date" in Section 1(r) of the Rights
Agreement is amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Shares Acquisition Date shall not be deemed to have occurred
as the result of (i) the execution, delivery or performance of
the Merger Agreement or the consummation of the Merger or any
of the other transactions contemplated by the Merger
Agreement, or (ii) the public announcement or disclosure of
the Merger Agreement or any of the other transactions
contemplated by the Merger Agreement.
(vi) Amendment of the definition of "Triggering Event". The
definition of "Triggering Event" in Section 1(t) of the Rights Agreement is
amended by adding the following sentence at the end thereof:
Notwithstanding anything in this Agreement to the contrary, a
Triggering Event shall not be deemed to have occurred as the
result of and the provisions of Sections 11(a)(ii) and 13 of this
Agreement shall not apply to (i) the execution, delivery or
performance of the Merger Agreement or the consummation of the
Merger or any of the other transactions contemplated by the Merger
Agreement, or (ii) the public announcement or disclosure of the
Merger Agreement or any of the other transactions contemplated by
the Merger Agreement.
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(vii) All references in the Rights Agreement (including the
Exhibits thereto) shall, from and after the date hereof, refer to the Rights
Agreement as amended by this Amendment.
2. Effectiveness. Each party hereto represents and warrants that (i)
it is duly authorized to execute and deliver this Amendment and to perform
hereunder and (ii) this Amendment constitutes a valid and binding agreement of
such party. This Amendment shall become effective as of the date first above
written. The Rights Agreement shall not otherwise be supplemented or amended by
virtue of this Amendment, but shall remain in full force and effect.
3. Counterparts. This Amendment 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.
4. Full Force and Effect. Except as expressly amended hereby, the
Rights Agreement shall continue in full force and effect in accordance with the
provisions thereof on the date hereof.
5. Governing Law. 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 made and to be performed entirely within such State; except that
all provisions regarding the rights, duties, obligations and immunities 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
Attest: XXXXXX CORPORATION
By:___________________________ By:___________________________
Name: Name:
Title: Title:
Attest: MELLON INVESTOR SERVICES LLC
By:____________________________ By:___________________________
Name: Name:
Title: Title:
[Signature Page to Amendment No. 1 to the Rights Agreement]
