Exhibit 99.1
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AMENDMENT NO. 1
TO
RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO RIGHTS AGREEMENT (the "Amendment") is entered into
as of the 10th day of March, 2002 between Be Free, Inc., a Delaware corporation
(the "Company"), and Continental Stock Transfer & Trust Company, a New Jersey
corporation (the "Rights Agent"). Capitalized terms not otherwise defined
herein shall have the meanings given them in the Rights Agreement dated July
24, 2001 by and between the parties hereto.
RECITALS
WHEREAS, the Board of Directors of the Company has determined that it is
in the best interests of the Company to amend the Rights Agreement as set forth
herein immediately prior to and in connection with the execution of that
certain Agreement and Plan of Merger dated as of March 10, 2002, as the same
may be amended from time to time (the "Merger Agreement"), between Xxxxxx,
Inc., a Delaware corporation ("Parent"), Bravo Acquisition, Corp., a Delaware
corporation and wholly-owned subsidiary of Parent (the "Merger Sub") and the
Company (pursuant to which Merger Agreement, among other things, the Merger Sub
shall merge with and into the Company and the Company shall become a
wholly-owned subsidiary of Parent).
WHEREAS, the Company has determined that the Rights Agreement be amended
in accordance with Section 27 of the Rights Agreement, as set forth herein, and
the Rights Agent is hereby directed to join in the amendment to the Rights
Agreement as set forth herein.
AGREEMENT
NOW THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Section 1(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"(a) "Acquiring Person" shall mean any Person who or which, together
with all Affiliates and Associates of such Person, shall be the Beneficial
Owner of 15% or more of the shares of Common Stock then outstanding, but shall
not include (i) the Company, (ii) any Subsidiary of the Company, (iii) any
employee benefit plan of the Company or of any Subsidiary of the Company, (iv)
any Person organized, appointed or established by the Company for or pursuant
to the terms of any such plan or (v) Parent or the Merger Sub (as those terms
are defined in Section 7(a) hereof), or any Affiliate or Associate of Parent or
the Merger Sub which acquires shares of Common Stock pursuant to the Merger
Agreement (as that term is defined in Section 7(a) hereof) or votes, has the
power to vote or the power to direct the voting of, shares of Common Stock
pursuant to the Voting Agreements (as that term is
defined in Section 35 hereof). Notwithstanding the foregoing, (x) no Person
shall become an "Acquiring Person" as the result of an acquisition of Common
Stock by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares beneficially owned by such Person
to 15% or more of the shares of Common Stock of the Company then outstanding;
provided, however that if a Person shall become the Beneficial Owner of 15% or
more of the shares of Common Stock of the Company then outstanding as the
result of an acquisition of Common Stock by the Company and shall, following
written notice from, or public disclosure by the Company of such share
purchases by the Company become the Beneficial Owner of any additional Common
Stock of the Company and shall then beneficially own 15% or more of the shares
of Common Stock then outstanding, then such Person shall be deemed to be an
"Acquiring Person" and (y) if the Board 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, and
such Person divests as promptly as practicable (as determined in good faith by
the Board of Directors), but in any event within 15 Business Days, following
receipt of written notice from the Company of such event, of Beneficial
Ownership of a sufficient number of shares of Common Stock 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 unless and until such
Person shall again become an "Acquiring Person."
2. Section 7(a) of the Rights Agreement is hereby amended to read in its
entirety as follows:
"(a) Subject to Section 7(e) hereof, the registered holder of any
Rights Certificate may exercise the Rights evidenced thereby (except as
otherwise provided herein including, without limitation, the restrictions on
exercisability set forth in Section 9(c), Section 11(a)(iii) and Section 23
hereof) in whole or in part at any time after the Distribution Date upon
surrender of the Rights Certificate, with the form of election to purchase and
the certificate on the reverse side thereof duly executed, to the Rights Agent
at the office of the Rights Agent designated for such purpose, together with
payment of the aggregate Purchase Price with respect to the total number of one
one-thousandths of a share of Preferred Stock (or other shares, securities,
cash or other assets, as the case may be) as to which such surrendered Rights
are then exercisable, at or prior to the earliest of (i) the Final Expiration
Date, (ii) the time at which the Rights expire as provided in Section 13(d)
hereof, (iii) the time at which the Rights are redeemed as provided in Section
23 hereof (the "Redemption Date"), (iv) the time at which such Rights are
exchanged as provided in Section 24 hereof and (v) in accordance with the terms
of the Agreement and Plan of Merger dated as of March 10, 2002, as the same may
be amended from time to time, between Xxxxxx, Inc., a Delaware corporation
("Parent"), Bravo Acquisition, Corp., a Delaware corporation and wholly-owned
subsidiary of Parent (the "Merger Sub") and the Company (the "Merger
Agreement"), pursuant to which Merger Agreement, among other things, the Merger
Sub shall merge with and into the Company and the Company shall become a
wholly-owned subsidiary of Parent (the "Merger"), immediately prior to the
filing of a certificate of merger relating to the Merger with the Secretary of
State of the State of Delaware (the "Effective Time") (the earliest of (i),
(ii), (iii), (iv) and (v) being herein referred to as the "Expiration Date")."
3. Section 35 of the Rights Agreement is hereby added as follows:
"Section 35. Xxxxxx, Inc. Transaction. Notwithstanding any provision of
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this Rights Agreement to the contrary, no Distribution Date, Stock Acquisition
Date or Triggering Event shall be deemed to have occurred, none of Parent, the
Merger Sub or any Affiliate or Associate of Parent or the Merger Sub shall be
deemed to have become an Acquiring Person and no holder of Rights shall be
entitled to exercise such Rights under or be entitled to any rights pursuant to
Section 7(a), 11(a)(ii) or 13(a) of this Rights Agreement by reason of (x) the
approval, execution, delivery or effectiveness of the Merger Agreement or
Voting Agreements of even date therewith between the Parent and executive
officers, directors and certain Affiliates of the Company (the "Voting
Agreements") or (y) the consummation of the transactions contemplated under the
Merger Agreement or the Voting Agreements in accordance with the terms thereof
(including, without limitation the Merger or the voting of shares of Common
Stock pursuant to the terms of the Voting Agreements)."
4. Except as amended hereby, the Rights Agreement shall remain unchanged
and shall remain in full force and effect.
5. This Amendment may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one
instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
by their respective duly authorized representatives as of the date first above
written.
BE FREE, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Executive Officer
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: Vice President
