AMENDMENT NO. 1 TO RIGHTS AGREEMENT
EXHIBIT
4.1
AMENDMENT
NO. 1 TO RIGHTS AGREEMENT
THIS
AMENDMENT NO. 1 TO RIGHTS AGREEMENT (this “Amendment”), dated as of
November 1, 2006, is between Xxxxx, Inc. (formerly Xxxxx/Xxxxxx Holdings,
Inc.), a Delaware corporation (the “Company”), and The Bank of New York as
rights agent (the “Rights Agent”).
WHEREAS,
the Company and the Rights Agent are parties to a Rights Agreement, dated as
of
July 10, 1998, between the Company and the Rights Agent (the “Rights
Agreement”); and
WHEREAS,
pursuant to Section 27 of the Rights Agreement, the Company and the Rights
Agent desire to amend the Rights Agreement as set forth below;
NOW,
THEREFORE, the Rights Agreement is hereby amended as follows:
1. Amendment
of Section 1.
Section 1
of the
Rights Agreement is amended by adding thereto subsections (q) through
(t) which shall read as follows:
“(q) “Agreement
and Plan of Merger” shall mean the Agreement and Plan of Merger, dated as of
November 1, 2006, by and among Parent, Sub and the Company, as the same may
be amended from time to time.”
“(r) “Parent”
shall mean AUSA Holding Company, a Delaware corporation.
“(s) “Tender
Agreements” shall mean the Tender and Voting Agreements among the Parent and
certain stockholders of the Company (the “Specified Stockholders”), pursuant to
the terms of which the Specified Stockholders agree to take certain actions
in
furtherance of the Offer and the Merger (as such terms are defined in the
Agreement and Plan of Merger).”
“(t) Sub”
shall mean AUSA Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Parent.”
2. Amendment
of Section 7.
Paragraph
(a) of Section 7 of the Rights Agreement is amended by deleting the
words “(the “Final Expiration Date”)” in subclause (i) thereof; deleting the
word “or” immediately preceding subclause (iii) thereof; and by adding the
following new phrase immediately following subclause (iii) thereof: “or
(iv) immediately prior to the time at which the Sub accepts shares of
Company Common Stock (as such term is defined in the Agreement and Plan of
Merger) for payment and pays for such shares pursuant to and subject to the
conditions of the Offer (as such term is defined in the Agreement and Plan
of
Merger) (the earlier to occur of the close of business on July 10, 2008 and
the happening of the event described in this subclause (iv) being referred
to in this Agreement as the “Final Expiration Date”).”
3. Addition
of New Section 35.
The
Rights Agreement is amended by adding a Section 35 thereof which shall read
as follows:
“Section 35.
Exception For Agreement and Plan of Merger. Notwithstanding any provision of
this Agreement to the contrary, (i) neither a Distribution Date, a
Section 11(a)(ii) Event, a Section 13 Event nor a Shares
Acquisition Date shall be deemed to have occurred; (ii) no Person shall be
or be deemed to have become an Acquiring Person; and (iii) no holder of any
Rights shall be entitled to exercise such Rights under, or be entitled to any
rights pursuant to, this Agreement, in any such case by reason of (a) the
approval, execution or delivery of the Agreement and Plan of Merger or any
amendments thereof approved in advance by the Board of Directors of the Company;
(b) the approval, execution or delivery of the Tender Agreements or any
amendments thereof approved in advance by the Board of Directors of the Company;
(c) the commencement or, prior to termination of the Agreement and Plan of
Merger, the consummation of any of the transactions contemplated by the
Agreement and Plan of Merger or the Tender Agreements in accordance with their
respective provisions, including, without limitation, the making of the Offer
(as such term is defined in the Agreement and Plan of Merger), the acceptance
of
payment for shares of Company Common Stock by Sub pursuant to the Offer and
the
Merger (as such term is defined in the Agreement and Plan of Merger); or (d)
any
public announcement by the Company, Parent, Sub or any of their Affiliates
or
Associates of an intention to make the Offer or of any of the transactions
contemplated by the Agreement and Plan of Merger or the Tender
Agreements.”
4. Effectiveness.
This
Amendment shall be deemed effective as of the date set forth above 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.
5. Miscellaneous.
This
Amendment shall be deemed to be a contract made under the laws of the State
of
New York 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
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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.
[signature
page follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the date set forth above.
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XXXXX,
INC.
By:
/s/Xxx
Xxxxxxx
Name:
Xxx Xxxxxxx
Title:
CEO
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THE
BANK OF NEW YORK
By:
/s/Xxxxx X.
Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Vice President
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